Congress considers nationwide bill banning employers from asking salary history questions

February 21, 2019

The Paycheck Fairness Act is again being introduced in Congress, seeking the prohibition of employers nationwide from asking job applicants about their salary history and requiring employers to prove that pay disparities between men and women are job-related.

Rep. Rosa DeLauro, D-Conn., introduced the bill in January.

“Despite the enactment of the Equal Pay Act of 1963 [EPA], many women continue to earn significantly lower pay than men for equal work,” according to the bill. “In many instances, the pay disparities can only be due to continued intentional discrimination or the lingering effects of past discrimination.”

Currently, under the EPA, employers can justify pay discrepancies by showing that they are based on “factors other than sex.” The new bill would narrow this defense by requiring employers to prove that the factor:

  • Is not because of a sex-based differential in compensation
  • Is job-related and consistent with business necessity
  • Accounts for the entire differential in compensation

Camille Olson, an employment attorney, said she regularly works with employers to ensure that any pay discrepancies are job-related and has several concerns about the effect of the proposed legislation on employers.

Many employers rely on information about job applicants’ current pay because it provides valuable information about applicants’ experience and performance. She also noted that employees rarely leave their jobs for less compensation.

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