Asking job applicants how much they make with their current employer, or what they've been paid in prior positions, are common questions in job interviews for many hiring employers. While questions on salary history generally are not per se unlawful - yet - they can land an employer in hot water. The legal theory against salary questions in onboarding is based on the Equal Pay Act of 1963 and its state law counterparts. These laws make it unlawful for an employer to pay women less than men for doing the same work. However, despite more than 50 years since the Equal Pay Act became law, there are growing concerns that women continue to be paid less than men. If true, basing job offers on a woman's salary history could serve to perpetuate gender-based disparities in pay. This was the rationale in a recent decision issued by the U.S. Court of Appeals for the Ninth Circuit, in California, which held that setting initial pay of new hires based on their salary history cannot serve as a defense to an Equal Pay claim. This decision conflicts with a 1995 opinion of the U.S. Court of Appeals of the Seventh Circuit, in Chicago, which held that salary history is a "factor other than sex" that may provide a defense to claims challenging pay differences based on gender. A showdown before the U.S. Supreme Court now seems likely. Additionally, emerging laws and administrative requirements aimed at "closing the pay gap" and/or "breaking the glass ceiling" are ushering in significant change. Employers who fail to stay ahead of this trend risk trouble down the road.
