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 The Spitz 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
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.
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
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
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
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
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
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interviewer questioned me about my current pay rate” or “I didn’t get hired
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