Appeals court upholds Philly’s ban on salary history questions

A federal appellate court has ended a three-year-long legal battle over Philadelphia’s Wage Equity Ordinance, which hoped to fill the city’s gender pay gap. 

On Thursday, the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled that the city could reinstate its ban on employers asking job applicants about their salary history. 

Philadelphia City Council voted unanimously in December 2016 to adopt the ordinance, which was intended to protect against salary discrimination. 

The ordinance was originally slated to go into effect in May 2017, but was met with fast and furious pushback from the Chamber of Commerce for Greater Philadelphia and other large companies operating in the city. 

They sued in U.S. District Court in Philadelphia, in an attempt to block the legislation, arguing that it infringed on their First Amendment rights, specifically an interpretation of law regarding commercial speech. 

In a split decision in May 2018, the U.S. District Court for the Eastern District of Pennsylvania granted a request for a preliminary injunction on a portion of the ordinance that prohibited employers asking job applicants about their prior wages. But the court rejected the Chamber’s request for a preliminary injunction on the part of the ordinance that prohibits relying on it, according to court documents.

The city and the business community both appealed the ruling. 

In a 67-page opinion, the appellate court sided with Philadelphia, reversing the the preliminary injunction granted by the lower court in 2018.

Terry L. Fromson, managing attorney at the Women’s Law Project, and the Pennsylvania representative for the nationwide Equal Pay Today! Campaign, said the ruling was a “victory for workers who have been or are at risk of being denied equal pay based on bias and unable to escape it due to employers basing wages on discriminatory prior pay rather than a job’s responsibilities and the applicant’s experience.”

Fromson, who testified before  Philadelphia City Council in support of the bill, and filed an amicus brief to the Third Circuit court for consideration, said the victory also was a “tribute to Philadelphia’s leaders, including former City Council member William Greenlee and Philadelphia Mayor Jim Kenney, for their consistent dedication to eradicating pay discrimination.”