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By Jennifer Vorih, Esq., Ty Hyderally, Esq.

Rewriting history can be a very difficult task, and can have unintended consequences. Sometimes, though, un-writing history can be effective and desirable. That is the case with discriminatory salary histories.

There are many well-paying professions, in which women were not traditionally allowed. Further, women are still underrepresented in many of those well-paying fields. Even when women have been able to get jobs doing the same work as men, women have historically been underpaid in comparison to their male counterparts. The United States Census Bureau noted that as of March 21, 2020, the salaries that women were getting paid were the same that men earned in 2019. See https://www.census.gov/newsroom/stories/2020/equal-pay.html.

The federal Equal Pay Act of 1963 was a big step toward correcting this inequity. The EPA prohibits sex-based discrimination in wages between women and men who work for the same employer, under similar working conditions, while performing jobs requiring substantially equal skill, effort, and responsibility. And although the EPA was a step in the right direction, it has been on the books for almost six (6) decades. Despite this fact, the pay gap between men and women is still very much a reality … despite what some of our political leaders may say.

As any underpaid worker in Montclair or elsewhere in New Jersey can tell you, once an employee is underpaid, it is very hard to be paid at the proper rate. There has been heightened awareness in recent years that a history of being underpaid allowed and encouraged employers to continue to underpay women who had started their careers at a lower pay than male workers. The obvious has occurred. Women are asked for their salary history and have provided it. Employers then make decisions of that salary history. Since the salaries of females have been traditionally lower, the salary inequity is perpetuated when the employer then makes decisions on what that female employee’s salary should be going forward. Thus, whether or not employers intended to discriminate against women, many employers simply repeated history by paying women less because they had always been paid less than men. Effective January 1, 2020, it is illegal for New Jersey employers to ask potential employees about their salary history. This is another huge step forward in correcting the pay gap between women and men. It will help very much to eradicate the systemic process of the past affecting the present when it came to depressing women’s pay.

Several other states have enacted similar laws, and the United States Supreme Court recently declined to hear a case in which the Ninth Circuit Court of Appeals held that the EPA itself does not allow past salary history to be used as a justification for paying women less than men who are doing the same work. Aileen Rizo, a math consultant for the Fresno County public schools, sued her employer after learning that she earned less than her male counterparts. The school district’s justification for paying Rizo less than men doing the same job, was that the salaries of new employees were based on the salary histories of those employees. The Ninth Circuit Court of Appeals held that this violated the EPA. California, along with New Jersey and approximately sixteen other states, subsequently banned the use of salary history. The Supreme Court of the United States seems to agree with the Ninth Circuit, as it declined to hear the potential challenge to the Ninth Circuit’s decision on July 2, 2020.

We can hope that with the states banning employers from inquiring into salary history and the interpretation that the EPA does not allow salary history to justify disparate pay, it will not be another sixty years before we approach the reality of equal pay for women and men doing the same jobs.

This blog is for informational purposes only. It does not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.

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