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Federal District Court Finds Salary Inquiry Ban Violates First Amendment

The City of Philadelphia has a local ordinance that prohibited asking about a job candidate’s pay history and then banned relying on salary history in determining a worker’s pay. This ordinance was intended to decrease salary disparities that disproportionately impact women and minorities and are perpetuated by relying on salary history.
Philadelphia’s Chamber of Commerce brought a civil action against the ordinance on the grounds that it violated the First Amendment of the U.S. Constitution. Specifically, the Chamber asserted that employers’ free speech rights were violated by not being permitted to ask about salary history.
A federal district judge agreed with the Chamber. He stated:

“I conclude that the city’s inquiry provision violates the First Amendment. Although the ordinance represents a significant positive attempt to address the wage gap, the First Amendment compels me to enjoin implementation of the inquiry provision.”

The judge asserted that there were legitimate uses for such information. Furthermore, the court noted that it was impossible to know whether a proscription on salary inquiry would in fact work to reduce discriminatory wage disparity. The part of the ordinance that prohibited employers from relying on salary history was not ruled unconstitutional as it did not regulate speech.