“And What Was Your Previous Salary?”: How One Question Can Perpetuate the Wage Gap

By: Yasmin Pajouhesh

When interviewing prospective employees, employers commonly ask applicants about their prior salary.  While this practice may seem harmless and common, it actually allows for the wage gap between men and women to persist.[1]  The question about prior salary allows for anchoring to take place.  Anchoring is when women are perpetually paid lower salaries because they start out with lower salaries and using their prior salary to determine future wages continues the practice of paying women less.[2]  Employers can ask prospective employees what their prior salary was and use that as a baseline to determine the current salary, which means that women who have lower starting salaries will be continued to be paid less than men.

In 1963, the Equal Pay Act came in to effect and was passed in an effort to tackle the wage gap among men and women.[3]  However, certain provisions of this law allow for gender wage discrimination to continue.  Specifically, the provision that allows for disparity in pay based on any factor other than sex and the equal work standard go against the purpose of the Equal Pay Act.[4]  States such as Massachusetts, California, and New York have taken initiative and passed legislation banning the use of prior salary as a factor other than sex.[5]  Specifically, Massachusetts[6] and California[7] have adopted the “substantially similar ” where women who have a similar job to men should be paid equally, whereas the Equal Pay Act uses an “equal work standard” where the jobs must be the same in order to warrant equal

The Equal Pay Act in its Declaration of Purpose states that the law was enacted to stop wage discrimination based on sex, yet the law itself allows for gender wage discrimination to persist.  The “factors other than sex” provision of the Equal Pay Act affords employers an affirmative defense to wage discrimination lawsuits because they can claim the disparity in pay is due to some factor other than sex and it should be eliminated.[10]  This provision should be eliminated entirely or at least should prohibit the use of prior salary similar to Massachusetts, California, and New York.

Under the Equal Pay Act, there is uncertainty among the courts as to what the standard is for proving whether the jobs of men and women are equal and warrant equal pay.  Some circuits interpret the law under the equal work standard where the jobs must be exactly the same to warrant equal wages.[11]  Other circuits have stated that similar jobs among men and women can warrant equal pay if the jobs have similarities between them.[12]  California and Massachusetts both define the substantially similar work standard to encompass jobs that require comparable skill, effort, responsibility, and similar environs.[13]  The Equal Pay Act should adopt and explicitly state the substantially similar standard to eliminate any confusion among the courts.  This standard does not allow employers to change one responsibility or the job title for women to warrant lower wages.

By eliminating the “factors other than sex” provision and adopting the substantially similar standard, the Equal Pay Act will fulfill its purpose of stopping wage discrimination based on sex.

 


[1] See Gender Wage Gap Again Narrows Slightly, Remains Statistically Unchanged, National Committee on Pay Equity, www.pay-equity.org/ (last visited June 17, 2017) [hereinafter National Committee on Pay Equity] (stating that women make 79.6 cents to the man’s dollar).

[2] See Maureen Minehan, Will Salary History Questions be Outlawed?, HR Compliance Law Bulletin Vol. 22, 7 (Westlaw Apr. 10, 2016).

[3] See Equal Pay Act of 1963, 29 U.S.C.A. § 206(d) (1963); see also Equal Employment Opportunity Commission, Equal Pay Act Declaration of Purpose, [hereinafter EEOC] (last visited July 31, 2017), www.eeoc.gov/laws/statutes/epa.cfm.

[4] See 29 U.S.C.A. § 206(d).

[5] See Cal. Labor Code § 1197.5 (West 2017); Mass. Gen. Laws. Ann. Ch. 149, § 105A (West effective June 30, 2018; N.Y. Labor Law § 194 (McKinney 2016).

[6] See § 105A.

[7] See §1197.5.

[8] See Jancey v. Sch. Comm. of Everett, 658 N.E.2d 162, 166 (Mass. 1995) (adopting the substantially similar standard in Massachusetts wage discrimination cases).

[9] See EEOC, supra note 3.

[10] See 29 U.S.C.A. § 206(d).

[11] See Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981) (noting that “equal” means equal and that is how the Equal Pay Act ought to be interpreted); Sprague v. Thorn Am. Inc., 129 F.3d 1355, 1364 (10th Cir. 1997) (interpreting the word “equal” to mean exactly equal not “similar”).

[12] See Riser v. QEP Energy, 776 F.3d 1191, 1198 (10th Cir. 2015) (stating that small differences in job descriptions will not warrant a disparity in pay); Schultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3rd Cir. 1970) (holding that male and female packers had similar jobs and were similar enough to be considered equal).

[13] See Cal. Labor Code § 1197.5 (West 2017) (explaining that the substantially similar standard uses a “composite of skill, effort, responsibility, and working conditions” to determine when equal pay is warranted); Mass. Gen. Laws. Ann. Ch. 149, § 105A (West effective June 30, 2018; N.Y. Labor Law § 194 (McKinney 2016) (defining “comparable work” as work that “requires substantially similar skill, effort, responsibility, and in similar working conditions”).