Tracey E. Diamond, of counsel with Pepper Hamilton, was quoted in the May 3, 2018 Society for Human Resource Management (SHRM) article, "Philadelphia Salary History Ban Violates Free Speech."
The opinion could set the stage for further challenges to salary history bans across the nation. "It is likely that one or both of the parties will appeal Judge Goldberg's ruling to the Third Circuit Court of Appeals, and it is even possible that this case eventually will make its way to the U.S. Supreme Court," said Tracey Diamond, counsel with Pepper Hamilton LLP, in the Philadelphia office.
"While the court found that the city has a substantial interest in promoting wage equity and reducing discriminatory wage disparities, and that a gender pay disparity does exist, the court noted that there is scant evidence that prohibiting employers from asking applicants about their wage history would actually do anything to reduce the wage disparity," Diamond said.
In the meantime, Diamond advises Philadelphia employers to strongly consider eliminating questions about salary history from their hiring process. "Since the part of the ordinance prohibiting employers from considering salary history at any point in the employment process still stands, employers that have obtained salary history will have a difficult time unringing the bell and defending a claim that, although they asked an applicant about his or her salary history, they did not consider that history during the job application process."
Regardless of whether employers obtain salary history information, they will have to prove that any wage disparities between employees in different protected categories are the result of a permissible reason and not the result of past salary information, she said.