“A growing number of cities and States are passing laws that prohibit employers from asking job applicants about their wage histories. These speech restrictions violate the First Amendment. They are particularly pernicious because they ban speech based on its content; content-based speech restrictions can survive First Amendment scrutiny only in the most compelling of circumstances.”
—Richard Samp, WLF Chief Counsel
WASHINGTON, DC—Washington Legal Foundation (WLF) last evening urged the U.S. Court of Appeals for the Third Circuit to affirm a lower court order enjoining enforcement of a Philadelphia ordinance that prohibits employers from asking job applicants about their past salaries. In a brief filed in Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, WLF argues that the First Amendment prohibits the speech restriction in the absence of substantial evidence from Philadelphia that wage-history inquiries perpetuate salary discrimination against women and racial minorities, and that a ban on such inquiries would reduce discrimination.
Employers often base the salary offers they make to successful job applicants on the applicants’ prior salaries. Philadelphia concluded that that practice perpetuates the effects of past discrimination against female employees. In an effort to eliminate those effects, Philadelphia’s ordinance prohibits employers from: (1) relying on wage history when determining salary offers; and (2) even inquiring about a job applicant’s salary history. Last April, a district judge upheld the reliance provision (based on a finding that the provision regulates conduct, not speech, and thus is not subject to First Amendment constraints) and struck down the inquiry provision (because Philadelphia failed to demonstrate that the inquiry ban would accomplish its goal of reducing wage discrimination). Both sides appealed from that ruling.
WLF’s brief focuses on the inquiry provision. The brief notes that the speech restriction is both content-based (it applies to only one subject) and speaker-based (it applies only to employers and no other category of speakers). WLF argues that content-based speech restrictions are presumptively unconstitutional and are upheld only under the most compelling of circumstances. The brief further argues that “strict scrutiny” applies to all content-based restrictions, without regard to whether the speech being restricted arises in a commercial context.
When Philadelphia adopted its ban on wage-history inquiries, it was the first city or State in the country to do so. Since then, similar laws have been adopted by four States (California, Delaware, Massachusetts, and Oregon) and several other major cities (including New York City and San Francisco). Other jurisdictions are watching the Philadelphia litigation closely before deciding whether to enact their own statutes.
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