Rigorous Gender Pay Equity Measure Reintroduced

February 08, 2019

Perennial legislation that would bolster the success of pay equity lawsuits has been reintroduced, and now includes a salary history consideration ban.

Expanding maze of pay history bans:  The bill (H.R. 7/S. 270) would make it unlawful at the federal level for employers to rely on the wage history of a prospective employee when determining the wages for such prospective employee, or for considering that person for employment.  Currently, eight states and six localities have differing laws.  The ban is a relatively new concept that was not included in legislation passed by the House in 2009.

The bill would also:

  • Penalize legitimate, nondiscriminatory pay decisions by weakening employer defenses;

  • Create unlimited compensatory damages and unlimited punitive damages where an employee can show the employer acted with malice or reckless indifference; and

  • Require the EEOC and OFCCP to collect compensation, hiring, termination, and promotion data.

Employer concerns:  Most large companies are actively addressing gender pay gaps and do not view increased litigation as the solution, particularly if it implicates legitimate nondiscriminatory pay distinctions based on shift differentials, productivity, geography, etc.

Outlook: The House bill already has 239 cosponsors and the Senate bill has 45.  The House Education and Labor Committee has scheduled a hearing on the issue on Wednesday, February 13, and the full House will likely vote on the legislation in March or April.