Employment discrimination is not always obvious. Few employers would openly refuse to hire a woman, for example, but they might pay a female employee less than a male employee in the same position.
Closing the Gender Wage Gap
According to many studies and government statistics, women earn about 80% as much as men in the workforce. This “gender wage gap” is due to a number of factors, including the fact that many employers base compensation on an employee's prior salary history. In other words, if a woman started out in a job that paid her less than a male counterpart, that “history” can follow her throughout her career. In many cases, a female employee may be earning less than a male co-worker and not even realize it.
This past April, an appeals court in San Francisco actually held that pay differences based on salary history was not illegal, at least under federal law. According to the Chicago Tribune, the court said “employers could use previous salary information as long as they applied it reasonably and had a business policy that justified it.” The employer in that particular case had a policy of basing new employees' pay on their prior salaries.
Despite the San Francisco court's ruling, such policies will soon no longer be permitted in the five boroughs of New York City. In early May, New York City Mayor Bill de Blasio signed a new local law that will prohibit private employers “from inquiring about a prospective employee’s salary history during all stages of the employment process.” This means that an employer may not ask about a prospective employee's salary history during an interview, nor can the employer seek out such information from a former employer or even by searching public records. Any such inquiry will be considered an “unlawful discriminatory practice.”
Even if an employee “voluntarily and without prompting” discloses his or her salary history, the employer still cannot use that information when determining or negotiating compensation.
Although the salary history ban will protect all employees, Mayor de Blasio made it clear in his signing statement that this legislation is targeting sex and race discrimination, and specifically the gender pay gap. “The simple fact is that women and people of color are frequently paid less for the same work as their white, male counterparts,” de Blasio said.
Employees Need to Stand Up for Their Rights
The New York City salary history ban takes effect this November. After that time, employees and prospective employees may file a complaint with the New York City Commission on Human Rights against employers who illegally ask about salary history. The Commission may fine an employer up to $250,000 for any “willful or malicious” violation of the law.
This is just one of many federal, state, and local laws designed to protect employees against job discrimination. It is important to seek out legal advice if you have any reason to believe that an employer or prospective employer has treated you unfairly. If you need to speak with a qualified New York employment law attorney right away, contact the Law Offices of Mahir S. Nisar.