How can gender-based pay discrimination — intentional or not — be squelched? Lawmakers have been working on this issue for decades. Perhaps the most important recent development is the enactment of state laws that make it mandatory for employers to include pay and benefit information when they post new job openings. That trend follows a proliferation in jurisdictions that ban employers from requiring job applicants to provide their salary history.
Roughly 19 states and 21 cities currently have such laws, which seek to correct the disadvantage that many women experience when they try to reenter the workforce after taking a break from work due to childcare responsibilities. If their pay before the gap in work history was well below the market rates when they return, they may suffer in salary negotiations.
Two states — Colorado and Washington — have taken the lead on reinforcing the laws against pay practices that lead to gender-based discrimination. The state of Washington acknowledges that point in the preamble to their Equal Pay and Opportunities Act, which says, "The long-held business practice of inquiring about salary history has contributed to persistent earning inequalities."
If your state doesn't yet have such laws on the books today, that could change. It's important to have a response plan to respond if the laws change, as well as to consider the merits of adopting such policies even if you're not legally required to. Either way, you're on the hook if you're found to have a pattern of gender-based pay discrimination.
Employers in Colorado recently tried to block a new state law along these lines that took effect at the beginning of 2021. Those employers were rebuffed by a federal district court (though the ruling might be appealed). Among other things, the state's Equal Pay for Equal Work Act requires employers to:
Any employer based outside Colorado that has at least one employee in Colorado is subject to the law as it pertains to job opportunities in that state. If the promotion opportunity is potentially available to that company's Colorado employees, the disclosure information must be made available to the employees currently based in Colorado. That's true even for employees that would have to move to another state to take the job.
The effort by employers to block the Colorado law was based on the premise that widespread harm in job markets would result from it. However, the judge found that reasoning to be "extraordinarily broad" and lacking in specific evidence, so the argument was rejected.
As for specificity, however, the law itself doesn't require Colorado employers to provide a single precise pay amount for posted jobs. The regulations allow employers to post a compensation range, if that range represents a good faith estimate on the employer's part of the minimum and maximum it would offer for the position.
Washington's 2019 Equal Pay and Opportunities Act, like many other such laws, recognizes as nondiscriminatory a variety of factors that might result in various people being paid different rates for the same job. Those factors include:
The law also prohibits employers from punishing employees who openly discuss their pay among their colleagues.
Even when not obligated to disclose a salary range in a job posting, some employers have opted to do so, anticipating several benefits. Those include:
There are also potential downsides to posting salaries. For example, you might not want your competition to know what you're paying to avoid getting in a bidding war for talent. Or if the market for the kind of talent you need today has tightened recently, you might have to offer higher compensation than you currently pay for similar positions to recruit the employees you need. That can lead to resentment from current employees and put pressure on you to raise their pay.
But such pay differences are often unavoidable. If a discrepancy is found, scrutinize it to ensure that the pay differentials aren't based on gender or any other demographic categories that could be viewed as illegal discrimination. Even if the difference only appears to be discriminatory, be sure you can document the reasons for pay differentials if you're challenged.
If your state appears to be following the lead of Colorado and Washington, requiring big procedural changes on your part, map out your compliance strategy. And, if feasible, get ahead of the curve by phasing in compensation adjustments to avoid possible problems if the law forces you to change your pay practices.
Get in touch today and find out how we can help you meet your objectives.
