The District of Columbia and the Gender Pay Gap

By James J. Murphy © Ogletree Deakins Oct 12, 2016

The District of Columbia may soon join Massachusetts in prohibiting employers from asking job candidates about their prior salary histories.

On Sept. 20 legislation known as the Fair Wage Amendment Act of 2016 (FWAA), B21-0878, was introduced in the Council of the District of Columbia by Councilmember David Grosso (I-At-Large) and six other councilmembers and was cosponsored by four other members. (In total, the Council of the District of Columbia consists of 13 members.)

According to Grosso, the measure is aimed at preventing new employers from perpetuating the lower levels of pay experienced historically by women and minorities in the District of Columbia.

The Fair Wage Amendment Act of 2016

As proposed, the FWAA would amend the district's Wage Transparency Act of 2014 to prohibit a prospective employer from:

  • Screening a prospective employee based on his or her wage history.
  • Seeking a prospective employee's wage history from his or her current or former employers.

The prohibition on "screening" would bar a prospective employer from requesting or requiring a candidate to disclose his or her wage history as a condition of being interviewed or considered for a job and from requiring that a candidate's wage history fall within certain minimum or maximum parameters.

The legislation contains an exception that would permit an employer to obtain wage history from a current or former employer for the "sole purpose of confirming" information about the prospective employee's wage history, but only if:

  • The prospective employer has made a job offer to the individual, including an offer of compensation.
  • The individual provides written authorization consenting to the disclosure.

The FWAA also would amend the Wage Transparency Act to prohibit an employer from taking any kind of adverse action against an employee for inquiring about, disclosing, comparing or discussing his or her wages or the wages of another employee.

The prospects or timing of enactment of the FWAA are uncertain, since the D.C. Council already has a backlog of ambitious legislation related to employment issues. The Council has scheduled a public hearing on the FWAA for Nov. 29 at 10:00 a.m.

Other States Lead the Way

The FWAA is part of an emerging patchwork of pay equity legislation enacted across the country in the last year.

California, New York, Massachusetts and Maryland each have enacted pay equity laws aimed at closing the gender pay gap. If the FWAA is enacted, the District of Columbia would be only the second jurisdiction in the country to prohibit employers from asking about a candidate's past pay history. Massachusetts, which enacted the Act to Establish Pay Equity earlier this year, was the first state in the nation to prohibit such inquiries. Similar legislation has been introduced in both New York and New Jersey.

In neighboring Maryland, Gov. Larry Hogan signed the Equal Pay for Equal Work Act, which took effect on Oct. 1. Like the Massachusetts law and the D.C. bill, the Maryland law contains a provision barring employers from taking adverse action against employees for inquiring about or discussing their pay.

Unlike D.C. and Massachusetts, however, Maryland's law does not prohibit prospective employers from inquiring about a candidate's compensation history with other employers.

Just last week, California Gov. Jerry Brown signed Assembly Bill 1676, a bill prohibiting pay differentials based solely on prior salary history, though not expressly prohibiting inquiries about a candidate's compensation with current or former employers.  

The Pay Equity for All Act of 2016

Federal legislation also has been introduced. On Sept. 14, Rep. Eleanor Holmes Norton (D-DC), the District of Columbia's nonvoting delegate to the U.S. House of Representatives, introduced the Pay Equity for All Act, H.R. 6030. H.R. 6030 includes language similar to the FWAA and would amend the Fair Labor Standards Act to include proscriptions against obtaining wage histories. Violations of the Pay Equity for All Act would be subject to civil penalties ranging from $5,000 to $10,000 per violation and special damages of up to $10,000 per victim.

The prospects for Congress to move forward with pay equity legislation during the homestretch of the presidential campaign season are relatively low. Whether such initiatives stand a better chance in the next presidential administration will turn on the results of the November elections and the makeup of the House and Senate in January. In the meantime, employers should keep an eye out for additional initiatives at the state level.

James J. Murphy is an attorney with Ogletree Deakins in Washington, D.C. © Ogletree Deakins. All rights reserved. Reposted with permission.


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