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. Courts have been unable to interpret federal labor laws in a way that effectively protects women from the unfair use of salary histories in the hiring process. Federal courts have placed strict limitations on the use of salary history yet the request remains widespread among employers because its strict definition theoretically falls under the "factor other than sex" exception under federal law. In practice, however, salary history is not a factor truly unrelated to sex and Congress should act to prohibit its use by employers.
Do Employer Requests for Salary History Discriminate Against Women?
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 s...