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The City of Columbus in Ohio has just passed an ordinance that prevents employers from asking job applicants about their salary history during the hiring process. While the stated purpose of the law is important to correct historical discriminatory pay practices, the legislature made sure that the law will never have any real effect. It has no bite at all. At most, this law is the equivalent of a photo opp that can be viewed as the legislature softly asking you to please don’t ask for prior salary information during interviews (but nothing is going to happen if you do).

This “ban,” which goes into effect on March 1, 2024, makes Columbus the third city in Ohio to have a salary history “ban,” following Cincinnati and Toledo. The aim of the Columbus ordinance is to promote pay equity for women, particularly women of color – the theory being that if Black women, for example, are currently paid less and the new employer only feels the need to nominally pay a candidate more than her last job, the pay disparity continues to be perpetuated. Importantly, these salary history ordinances recognize that even if the new employer is not intent on engaging in race/color discrimination or equal pay violations, it may unknowingly be perpetuating historical pay inequities by relying on past pay information.

The legislative notes accompanying this law provide: “As of 2022, women who work full-time and year-round make $0.84 for every dollar that men make. For Black women, that number is $0.64. For Latina women, it is a staggering $0.46. On average, women lose out on over $400,000 over the course of a 40-year career due to the pay gap. For Black and Latina women, that number is closer to $1,000,000. This means that the lack of pay equity contributes to both the wage gap and the wealth gap. Issues of pay equity are the result of both personal discrimination and systemic discrimination. Eliminating questions about salary history helps to address the systemic discrimination that women face.”

In accordance with this aim, the ordinance prohibits several discriminatory practices, such as screening job applicants based on their previous wages, refusing to hire applicants who don’t disclose their salary history, and relying solely on salary history in making hiring and compensation decisions.

The ordinance applies to all employers within the city limits of Columbus that have 15 or more employees, including job placement and referral agencies. It also covers all job applicants who apply for employment within Columbus and whose applications will be solicited, received, possessed, or considered, in whole or in part, in Columbus. However, employers in Columbus are allowed to ask job applicants about their salary expectations and inquire about objective measures such as productivity.

The ordinance allows for several exceptions, such as actions taken by employers pursuant to federal, state, or local laws, voluntary and unprompted disclosure of salary history information by the job applicant, and applicants for internal transfer or promotion with their current employer. Additionally, certain employee positions are exempted from the ordinance, such as those whose compensation is determined pursuant to procedures established by collective bargaining, and federal, state, and local governmental employers, except for the City of Columbus.

Unfortunately, while the legislation has very good intent, it lacks any real bite. There is no private civil action permitted – which means that you cannot sue the potential employer for asking about wage information. Moreover, to hold the employer in violation, a person has to present evidence to the Columbus Community Relations Commission, which is highly improbable that any person will be able to present evidence that such a question was asked orally during the hiring process. Thus, this law is likely limited to stupid employers who place this question on application forms or in email.  Even then, a staff member at the Columbus Community Relations Commission can decline to pursue the matter if the staff member determines that “there is no reasonable basis to believe that unlawful discriminatory practices.” Thus, the determining factor at this point is not whether the employer raised a question about past wages but rather if there was a discriminatory purpose in doing so. That will further cut down on any findings of violations. Still worse, in the few instances where the staff member elects to move forward, if the employer agrees to eliminate the practice, the “staff may recommend to the community relations commission that it treat the complaint as conciliated. If the commission agrees, staff shall notify the complainant that the complaint will be dismissed.” So even if caught red-handed, the employer need only say, “Oops, my bad; won’t happen again” and no penalty will likely be levied.

And to really just put the cherry on top of this useless law, if after all of that, an employer is somehow found to be in violation for the first time, the city will issue a hefty fine of $1,000. Because this is designated as a fine, the money does not go to the victim who reported the violation – meaning that there is absolutely no incentive for a job candidate to gather and submit the evidence in the first place. And if you think that an overworked government staff member is going to conduct a full investigation for the possibility of a $1,000 over just accepting an employer’s indication that it will not happen again and close the file, I have a bridge I’d like to sell you.

Similar salary history bans have already been enacted in Cincinnati and Toledo, and while all three cities have similar definitions of covered employers and job applicants, Cincinnati and Toledo require employers to provide a “pay scale” for the position upon request after making a conditional offer of employment, which Columbus does not. While this provides the employee with a little more, it only applies to employees who receive an offer – you know the employees that are happy they got the job and are not likely to complain.

These ordinances are designed to that politicians can say to the electorate, “Hey, look at this positive thing we are doing” while at the same time whispering to the businesses that support their campaigns, “Nothing to worry about here.”

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What should I do about unequal pay on my job?

The Equal Pay Act (“EPA”) that women be given equal pay as men are paid in the same workplace for equal work. Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (“ADEA”), and Americans with Disabilities Act (“ADA”) prohibit pay discrimination on the basis of race/color, gender, gender identity, sexual orientation, national origin, religion, disability, and age. These federal laws, like corresponding state laws, provide employees with a direct cause of action to recover money for pay discrimination.

Like most employment laws, employee’s pay discrimination rights are complicated. To determine if you have a wage discrimination or unequal pay claim, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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