Philadelphia Temporarily Halts Ban on Salary History Questions

By Martha J. Keon © Littler Apr 26, 2017

The city of Philadelphia has agreed to stay the enforcement of the Philadelphia Wage Equity Ordinance, which was to take effect on May 23 and to be codified in the Philadelphia Code at Sections 9-1103((1)(i) and 9-1131. 

The ordinance has generated controversy because it bans employers who do business in Philadelphia from asking prospective employees about their wage or benefits history. 

On April 6, the Chamber of Commerce for Greater Philadelphia filed a lawsuit in the U.S. District Court for the Eastern District of Pennsylvania seeking declaratory and injunctive relief to prevent the city of Philadelphia and the Philadelphia Commission on Human Relations from enforcing the ordinance. 

The suit alleges that while the Chamber supports the goal of eliminating gender-based wage discrimination, the ordinance fails to advance that goal. Instead, the ordinance takes an ineffective, roundabout and over-inclusive approach that violates: 

  • The First Amendment by chilling protected speech of employers and impairing their ability to make informed hiring decisions.
  • The Due Process Clause by imposing severe penalties for violation of vague provisions, e.g. "knowing and willing disclosure" and a definition of "employer" that would apply beyond the city limits and Pennsylvania borders
  • The Commerce Clause by having extraterritorial effect that burdens interstate commerce.
  • The Pennsylvania Constitution and the Pennsylvania Home Rule Act by regulating individuals who neither live nor work in the city of Philadelphia.

Several days after filing the suit, the Chamber filed a motion for preliminary injunction. At a scheduling conference with Judge Mitchell Goldberg, the city agreed to stay enforcement of the ordinance pending resolution of the motion for preliminary injunction.

Based on this agreement, the court issued an order staying the enforcement of the ordinance. The court will first consider the city's forthcoming motion contesting the Chamber's standing to bring the case, which will be fully briefed by May 12. 

If the case proceeds, the court will set a briefing schedule to resolve the Chamber's motion for preliminary injunction. 

Martha J. Keon is an attorney with Littler in Philadelphia. © Littler. All rights reserved. Reposted with permission. 

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