Best Ohio Employment Discrimination Attorney Answer: How will new salary history ban laws affect me? Can my new job base my salary on how much I made before? Can I be asked about my current pay at interviews? Can a prospective employer ask for my current or past salary? Is it illegal for a prospective employer to ask my earning history or how much I make at my current job? Can A Potential Employer Ask About My Current Salary?
Interviews are stressful for a variety of reasons. Everyone wants to nail it from picking out the right interview clothes, planning ahead to make sure there is available parking, practicing how to answer standard questions, and so on.
One question that interviewers ask may have different implications for some groups than others. “How much did you get paid in your last position?” If you answer too high, you may be weeded out because the employer doesn’t want to match your pay. If you answer too low, you may be disqualified because the employer may think you are unqualified or get less pay than the employer was intending to offer.
So, “can a potential employer ask about my current salary?” Absent a specific city law that applies, the answer is yes. There are no state or federal laws that prevent you from being asked that question at an interview.
Our employment law lawyers at Spitz, The Employee’s Law Firm pride ourselves on keeping abreast of the latest employment law developments with regard to applying and interviewing for job. (See Can Employers Take Only Younger Job Applicants?; Can An Employer Make Me Answer Health Questions As Part Of The Hiring Process?; I Was Denied A Job Because I Am A Woman! I Need The Best Lawyer To Sue For Gender Discrimination!; Top Employment Lawyer Reply: Can Prospective Employers Require My Facebook Password?). The new city ordinances that are gathering more support and passed being in Ohio are a big win for Ohio interviewees.
So, what’s the big deal? Well for far too long, cycles of discrimination have persisted under this system. Employers use salary history to set compensation for new hires. However, this practice is thought to keep income disparities alive among women and minorities. Think about it this way, at the first job, the employee makes less because of overt or even subconscious discrimination based on race/color, religion, gender/sex, national origin, age, or disability. Now, the at the next job, the boss or manager doing the interview has absolutely no discriminatory intent or motive and may actually be the same minority as the person interviewing, but he or she asks, “what did your last job pay you?” and bases the pay offer on the answer. Now, that next job has unwittingly paid the new employee less because the prior employer was discriminatory.
Relying on salary history to set future salary rates assumes that prior salaries were fairly established in the first place. Using this system almost ensures that discriminatory pay follows workers wherever they go, from job to job.
In 2016, many states and municipalities began passing legislation to put a ban on these practices. Now, some cities in Ohio are following suit. Effective in April 2020, under Cincinnati Law, employers may not ask applicants about their salary history and may not rely on known salary histories. Employers must also, upon reasonable request, provide a pay scale for a position for which an applicant has been provided a conditional offer of employment. The law will apply to employers with 15 or more employees located within the city, including job placement and referral agencies. State and local governments are excluded, with the exception of the City of Cincinnati. The new city law does not stop employers from asking applicants “about their expectations with respect to salary, benefits, and other compensation, including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant’s resignation from their current employer.”
Another Ohio city that is taking action is up north, in Toledo. In Toledo, effective starting in June 25, 2020, employers may not ask for nor screen job applicants based on their pay history. They may not require that an applicant’s pay history, benefits or other compensation satisfy minimum or maximum criteria. Employers, may however, discuss applicant’s pay expectations during the interview process. The law will apply to all employers located within the city that employer 15 or more employees, including referral and employment agencies, as well as the city.
As of right now, these two cities are the only Ohio cities to enact salary history ban legislation. However, hopefully there will be more legislation like this passed in Ohio because of its growing popularity.
The really interesting part about these new laws to our employment attorneys is the pay scale requirement. Often, employers like to engage employees to a game of chicken when negotiating pay. Instead of making the applicant guess at what the employer has valued that particular position, the new law forces the employer to show a bit of their hand. This section of the law is awesome for employees but is still murky as to what a “pay scale” would look like. It will be interesting to see how this part of the ordinance plays out, because as of now, there is no real guidance as to what level of specificity is required when employers provide a “pay scale.”
The problem with many city ordinances is often the lack of any bite or penalty. Not here. The new Cincinnati and Toledo law provides: “If an employer, employment agency, or employee or agent thereof fails to comply with any provision of this chapter, the applicant shall have a private cause of action to enforce the provisions of this chapter against the employer, employment agency, or employee or agent thereof for compensatory damages, reasonable attorney’s fees, the costs of the action, and such legal and equitable relief as the court deems just and proper.” Compensatory damages could include any amount that the new employee was paid less than other similarly situated employees or the full salary if the employee did not get the job. Further, the inclusion of the right to recover attorneys’ fees makes it very difficult for employers to defend these types of claims. For example, let’s say the applicant says that she made $10 per hour at her last job and the new employer, based on this answer, offers $11 per hour even though the company is paying $14 per hour to similarly situated new employees. At a loss of $3 per hour over a full year at 40 hours per week, the damages would be $6,240. However, because of the hammer of the attorneys’ fee provision, if an employer refuses to settle and takes the matter all the way through trial, where the employee wins, it will cost that employer between $125,000 and $250,000 to pay their attorney and about the same amount to the employee’s attorney if they lose. (See also) Indeed, even to get to the point of moving the court to dismiss the case by summary judgment, is expensive. As Cleveland employment attorney and frequent blogger, Jon Hyman, said in 2013 and repeated two and a half years later: “The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000.”
The reality is that pay disparity is very real. While these laws are a good first step, it won’t solve everything. One of the motivating cases that lead to the passage of the Cincinnati Ordinance was from 2018. Professor Colleen McTague started working for the University of Cincinnati in 2004. Over the course of her career, she discovered that there was a substantial pay gap between herself and male co-workers. When Colleen tried to speak up, the University tried to silence her. This case in particular, was highly publicized and brought more attention to the pay gap and pay inequality in Cincinnati.
When Colleen started at UC she was an Assistant Professor in the Geography Department. In 2007, she became a tenure-track assistant professor and was paid $52,000 a year. According to the Complaint, Colleen had one of the highest numbers of combined service and teaching assignments compared to the other tenure-track faculty member in the department. Despite this, two years later, the Geology department hired two male assistant professors, Mr. Kim and Mr. Beck, who both taught two less classes than Colleen. Their starting salary was $66,000 plus money for research! That’s at least $14,000 more per year despite them doing less work than Colleen.
In 2008, when Colleen discovered the pay difference between her and her male colleagues, she approached the department head and asked for fair treatment and fair pay. Instead of discussing the matter with Colleen, the department head responded by saying that she, “must wear the pants in the family” and asked her to stop being so aggressive. So, when a woman tries to be assertive at work and stand up for her rights, when she is clearly being shorted at work, she’s too aggressive? What kind of standard is that? UC was basically setting her up to fail. No matter how hard she worked it was never going to be enough to earn as much as her male counterparts.
Colleen was in an environment where she was the only girl in what was essentially a boys’ club. When a package would come to the department, or something that required a signature, Colleen was expected to stop whatever she was doing and sign for the package. Essentially, her co-workers treated her like a glorified secretary. According to her Complaint, on one occasion, Colleen was in the middle of a research project when a package came. She did not immediately get up to receive the package at the door, Mr. Beck angerly called her a “lazy bitch.” Excuse me? That type of language is not only offensive but has no place in the workplace. This is just one example of the constant gender stereotypes that Colleen had to fight against on a daily basis.
Per the conditions of her contract, she had to re-apply to be re-hired every few years. She was rehired in 2009 and in 2011, however, when she applied again in 2013 UC did not rehire her because she “didn’t have enough publications.” Colleen sued the university on February 24, 2015, for violating Title VII of the Civil Rights Act of 1964, when they failed to rehire her because of her gender and in retaliation for reporting gender discrimination. She also alleged that UC violated the Equal Pay Act (“EPA“).
The United States District Court for the Southern District of Ohio ruled in favor for UC and dismissed Colleen’s Title VII complaint because she did not successfully plead to all of the required elements. But the District Court denied UC’s motion for summary judgment on the EPA claim because UC did not meet their burden. UC gave reasons “other than sex” that may legitimately explain the pay discrepancy between Colleen and her male colleagues but did not submit enough evidence to prove its defense “so clearly that no rational jury could have found to the contrary.” In other words, UC did not have or did not submit enough evidence to prove that they did not discriminate against Colleen regarding her gender and salary.
On February 16, 2018, Colleen agreed to settle the case with UC. Colleen walked away with $212,500. This number was supposed to cover the difference in wages and the retirement that she would have been entitled to had she been paid fairly. When asked why Colleen pursued her case, she said that she did it for her daughter and future female professors who feel like they are silenced. What a hero. She also said that she wants women to feel more empowered.
Unfortunately, Colleen’s story is not unique. After her case ended, Colleen retired from teaching. However, if she applied to another job, and was asked the dreaded question, “How much did you make at your previous job?” the cycle of inequity would continue. Even though there are only two major cities in Ohio that enacted the salary history ban, this is a great first step. As employment attorneys we always support new legislation that benefits the working class. Our office hopes to see more municipalities follow Cincinnati and Toledo’s lead.
If you are searching “I need a lawyer because I’m being paid less for doing the same job;” or “I have been discriminated against because of my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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