Bloomberg Law
Feb. 6, 2020, 2:29 PMUpdated: Feb. 6, 2020, 6:21 PM

Philadelphia Can Bar Salary History Queries for Now: 3d Cir. (1)

Patrick Dorrian
Patrick Dorrian
Erin Mulvaney
Erin Mulvaney

Philadelphia’s law that bans employers from asking job applicants about their salary history cleared a steep hurdle with a Third Circuit decision, bolstering similar measures around the country aimed at targeting persistent pay gaps in the workforce.

The decision, for now, gives the city the green light to implement a 2017 ordinance that city officials argued will help end a cycle in which women and minorities earn 80% or less of what white men make. A federal judge didn’t correctly apply a legal standard known as “intermediate scrutiny” in blocking enforcement of the Philadelphia Wage Equity Ordinance’s bar on salary inquiries, Judge Theodore A. McKee wrote on behalf of the U.S. Court of Appeals for the Third Circuit.

The city met that standard with evidence that the law advances a substantial interest in closing wage gaps without being “more extensive than necessary,” the appeals court said.

It declined to analyze the law via “strict scrutiny"—the highest level of review courts use to determine if a law is constitutional. In its free speech challenge to the ordinance, the Greater Philadelphia Chamber of Commerce had argued that the higher standard should apply.

Striking down the ordinance under strict scrutiny would have been a blow for similar bans on the books in other states and cities, First Amendment professors previously told Bloomberg Law.

Philadelphia’s salary history ban was among the first in the nation and the first to go into effect, according to the city. A wave of similar laws followed at the state and local levels. Massachusetts passed the first state-level salary history ban in 2016. California, Connecticut, Oregon, Vermont, and Hawaii have adopted similar measures, while states such as New York and Illinois have such laws affecting the public sector. But federal legislation on the issue has stalled.

“This is a significant victory not just for Philadelphia, but also for the national equal pay movement,” said City Solicitor Marcel Pratt in a statement. Pratt argued on behalf of Philadelphia. “Jurisdictions across the country subsequently passed similar legislation and have been closely watching and supporting Philadelphia’s case. There is overwhelming evidence showing that the wage gap for women and people of color cannot be completely explained by legitimate factors.”

Opponents of such laws, however, say it’s unknown how much of the gap is traceable to discrimination, as opposed to other factors such as occupation and hours worked. Business groups argue that information about job candidates’ past pay is critical to offering appropriate salaries. Little evidence supports the assumption that workers will get higher wages if employers don’t have that data, they say.

Lawsuit Still Pending

The chamber’s lawsuit challenging the ordinance remains pending. The business group argued that the parts of the law that banned the salary history inquiries and employers’ reliance on them to set initial pay both violated the U.S. Constitution’s free speech protections.

The district court judge granted a preliminary injunction against the law’s inquiry provision, but found that the reliance provision didn’t implicate speech and didn’t need to be blocked prior to a merits ruling in the case. The Third Circuit upheld that latter point in the judge’s decision.

In lifting the injunction—and saying employers can immediately be forced to stop asking about salary history while the chamber’s suit plays out—the Third Circuit credited the city’s argument that it relied on expert and other evidence showing a persistent wage gap for women and minorities.

The chamber argued that there wasn’t enough evidence that asking applicants how much they earned in previous jobs perpetuates discrimination and that there are legitimate uses for gathering salary history data.

The city didn’t need to show with “certainty or empirical proof” that the provision will achieve the legislative goal of closing the wage gap, the Third Circuit said. Under the proper “intermediary” standard of constitutional scrutiny, it’s enough that it reasonably concluded barring prospective employers from asking about salary history would help based on substantial evidence, the court said.

The city met that burden by hearing testimony from various expert witnesses, including the executive director of its human relations commission, the public policy chair of the American Association of University Women, and the managing attorney for the Women’s Law Project, McKee said. The Greater Philadelphia Chamber of Commerce only presented the written testimony of its president and CEO, and didn’t refute the existence of the wage gap, the role discrimination plays in it, or the City Council’s conclusion that the inquiry ban could help mitigate it, the judge said.

Judges Jane R. Roth and Julio M. Fuentes joined the opinion.

Morgan, Lewis & Bockius and Gibson, Dunn & Crutcher represent the chamber. The Philadelphia Law Department represents the city and its human relations commission. The chamber’s attorneys didn’t immediately respond to requests for comment.

The case is Greater Phila. Chamber of Commerce v. City of Phila., 3d Cir., No. 18-02176, 2/6/20.

(Updated with additional reporting throughout.)

To contact the reporters on this story: Patrick Dorrian in Washington at; Erin Mulvaney in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at; Patrick L. Gregory at; Jay-Anne B. Casuga at; Karl Hardy at