Note: The Ghost of Salary Past: Why Salary History Inquiries Perpetuate the Gender Pay Gap and Should be Ousted as a Factor Other Than Sex

By Torie Abbott Watkins. Full text here.

Abstract: “When filling out job applications, employers routinely ask, “how much money did you make at your last job?” This discrete question has come under judicial scrutiny as women begin to find out one thing: they are making less money than their male counterparts based on their salary history inquiry response. Salary history inquiries adopt and reinforce past discrimination, continuing a cycle where women make less money than men. To make change, this perpetual cycle must be broken, allowing new, well-intentioned actors the ability to make choices that are fair and equal. A ban on salary history inquiries breaks the link in the chain between past systemic gender pay issues and allows employers to base decisions on bona fide occupational qualifications.

Compensation discrimination based on sex was banned by the Equal Pay Act of 1963, the first real victory for the equal pay movement. However, the more than half-century old Act has failed to adequately adapt to changes and trends in employment law and address the needs of female employees. This Note exposes the dangers of one of these trends, salary history inquiries, and the perpetual pay gap women suffer from, due—in part—to such inquiries. It first outlines the Equal Pay Act and modern “equal pay for equal work” doctrine, and the use of salary history inquiries under the Act’s “any other factor other than sex” exception. It then discusses current statistics and myths about the gender pay gap, outlines the salary history inquiry circuit split caused by the Act’s grey area, and addresses past federal and state proposals to address that grey area. Finally, this Note concludes by proposing a legislative solution to ban salary history inquiries and reduce the overall gender pay gap.”