Philadelphia Answer to Wage Gap Picked Apart in 3rd Circuit

PHILADELPHIA (CN) – A lawyer for Philadelphia urged the Third Circuit on Friday to toss free-speech claims against a law meant to narrow the wage gap. 

The ordinance in question says that an employer cannot ask workers about their wage history, nor can they rely on wage history to determine salaries. 

Alleging that such rules trampled the free-speech rights of employers, the Philadelphia Chamber of Commerce filed suit in April 2017. They succeeded in part, persuading U.S. District Judge Mitchell Goldberg that the inquiry itself violates the First Amendment.

On appeal, the chamber hopes to persuade the Third Circuit to also strike down the second provision, regarding whether employers can rely on wage history in determining salary.

At oral arguments in Philadelphia Friday, City Solicitor Marcel Pratt defended the law’s focus on ending the wage gap.

“For women and people of color, if employers are going to use your prior history as a baseline to pay you, your baseline is going to be lower,” said Pratt.

On average, women in Pennsylvania make 76 cents to every dollar a man is paid for similar work. 

U.S. Circuit Judge Jane Roth appeared skeptical, however, about how Philadelphia’s law can remedy the problem.

“We assume it will help, but we don’t know it will help,” said Judge Roth.

Pratt responded: “That’s just simple legislative policy making at work.”

The lawyer also noted that several other states such as California, Oregon and New York have adopted similar practices.

Another member of Friday’s appellate panel, U.S. Circuit Judge Julio Fuentes,  noted meanwhile that wage history is useful information to an employer.

Pratt agreed but assured Judge Fuentes there were other outlets to find that information. 

“Discrimination taints wage-history information,” said Pratt.

U.S. Circuit Judge Theodore McKee proved Pratt’s point by quickly pulling up an average salary for a law clerk through a Google search on his laptop at the bench. 

As for the law’s reliance provision, Pratt said it regulates conduct not speech and therefore does not violate the First Amendment.

Miguel Estrada, an attorney at Gibson Dunn for the chamber of commerce, said the remedy to the wage gap employed by Philadelphia misses the mark.

Judge McKee struggled with the solution Estrada proposed to the panel, however: allowing employers to ask wage history of those not in a protected class.

“So you’ll continue to pay the white male more because the white male has always made more,” McKee asked. “There’s no equal-protection problem with that?”

Judge Roth said that experience and education should be a larger factor than wage history when hiring for a job.

“You wouldn’t hire me to be an NFL player,” Judge Roth laughed.

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