In a recent Justia blog post, Illinois Law dean and professor Vikram David Amar and co-author Alan Brownstein (UC-Davis Law School) consider potential First Amendment challenges to a new law in Philadelphia that prohibits employers in the city from asking job applicants to provide their past salary data.
The theory appears to be that if women’s wages currently lag men’s for illegitimate reasons, and if employers base new starting salaries in any significant measure on salary histories (which in turn would be affected by improperly low historical salaries for women), then gender wage discrepancies will be more likely to persist. But if an employer is not able to ask for past salary information, it is less likely to be influenced by (unfairly low, for women) wage track records and instead may be more likely to craft salary offers that simply reflect the likely value new employees will add to the enterprise regardless of their gender.
After considering a number of potential challenges, Amar and Brownstein conclude that laws like Philadelphia’s ordinance remind us that the Court’s recent increased protection for commercial speech could potentially cut quite broadly, and raises as many questions as it answers.
Read the full post at verdict.justia.com.