Do Employer Requests for Salary History Discriminate Against Women? - Vol. 58 Nbr. 1, April 2007 - Labor Law Journal - Books and Journals - VLEX 63909536

Do Employer Requests for Salary History Discriminate Against Women?

SUMMARY

This article focuses on how the use of salary history discriminates against women and argues that the practice should be prohibited in the hiring process because of its propensity to perpetuate the pay disparity between men and women. Federal courts and negotiation experts have long recognized the propensity of salary history to be used unfairly against women, but to date legislators have failed... (see full summary)

FREE EXCERPT

Anyone who has ever sought employment has at some point seen a very common request from employers: "Please provide your salary history." Sometimes, the employer will even warn applicants that resumes submitted without this information will not be considered. Salary history requests are so common that job applicants, and even career counselors, have accepted it as a fair and legitimate employment practice. Yet many of these same career counselors routinely advise job applicants to avoid answering salary history requests for as long as possible.

At first glance, this advice may seem surprising, but upon closer inspection it becomes clear why answering the request often subjects the applicant to unfair prejudice. Consider, for example, a job applicant who submits a salary history that an employer considers "too high." This applicant instantly prices herself out of a job that she may have been willing to take for less. Conversely, an applicant who submits salary information that an employer views as "too low" gives the employer an immediate negotiating edge by making herself appear to be worth less than she actually is. Nevertheless, most career counselors, negotiation experts and even lawyers have consistently focused on how job applicants should respond to the salary history request rather than dealing with a far more important issue-whether a demand for salary history is an inherently unfair practice that should be prohibited.

Indeed, there are several reasons that employer requests for salary history are unfair to job applicants. First, forcing an applicant to submit a bid before any job offer or salary range is tendered puts the weaker party at an immediate negotiation disadvantage. Many negotiation experts believe that the first party to state a dollar figure usually loses.1 Second, when it is unrelated to an applicant's past job duties or actual skills, requesting salary history is an invasion of privacy equally as irrelevant and prejudicial as asking for an applicant's marital status. Third, a demand for salary history is especially discriminatory against women whose salaries and wages have historically been artificially depressed. This article focuses on how the use of salary history discriminates against women and argues that the practice should be prohibited in the hiring process because of its propensity to perpetuate the pay disparity between men and women. Federal courts and negotiation experts have long recognized the propensity of salary history to be used unfairly against women, but to date legislators have failed to prevent its unfair use.

SALARY HISTORY UNDER THE EQUAL PAY ACT AND CIVIL RIGHTS ACT

Federal law prohibits discriminatory pay practices under the Equal Pay Act (the "EPA")2 and under Title VII of the Civil Rights Act ("Title VII").3 The EPA specifically prohibits unequal pay (for equal work) between genders, but allows employers to assert one of four pay systems that would act as an affirmative defense to justify a pay disparity between men and women:4 1) a seniority system; 2) a merit system; 3) a system which measures earnings by quantity or quality...

To continue reading

REQUEST YOUR FREE TRIAL