Cincinnati Mulls Barring Employers From Asking About Salary History

The law could help address the city's wage gap for women and minorities, supporters say. But similar legislation has drawn legal fire.

click to enlarge Cincinnati City Hall - Nick Swartsell
Nick Swartsell
Cincinnati City Hall

If you're a prospective employee fielding a question about your salary history during a job application process, it can put you between a rock and a hard place — you don't want to price yourself out of the job, but you also don't want to end up with less than the job is worth because you don't make as much currently.

The question can be even tougher if you're a woman who experiences statistically lower earnings than men in the workplace. In Cincinnati, a recent study found that that women make 80 percent of what men make per hour when other factors like experience and education are taken into account — a gap that is even larger for women of color.

A proposal by Cincinnati City Council member Tamaya Dennard would bar employers from asking about an applicant's salary history, a move supporters say would begin to address the wage gap women and minorities face in Cincinnati.

But the law could have some legal complications. Philadelphia, the first city in the country to adopt such a law in January, 2017, has since come under legal fire for the ban.

Council's Equity, Inclusion, Youth & The Arts Committee, which Dennard chairs, today wrestled with the proposed law, ultimately opting to delay voting on it for two weeks. Committee members P.G. Sittenfeld and David Mann said they support the aim of the law, but want city administration to study potential legal liabilities for the city.

Barring an employer from inquiring about previous compensation keeps that information from affecting salary offers to prospective employees, thus making it less likely unequal pay practices will continue. At least, that's the theory.

The problem is, there isn't much data on the effect prohibitions on salary questions have on wage gaps, and the 13 states and 10 municipalities that have implemented similar laws haven't had them on the books long enough to judge results.

And in Philadelphia, a federal district court recently struck down a similar law on First Amendment grounds after a lawsuit by the local chamber of commerce there. The city has appealed that decision.

Katie Eagan, Vice President of Government Affairs with the Cincinnati USA Regional Chamber, says that the chamber and its member businesses are very supportive of efforts toward greater wage equity. But Egan says the proposed law isn't the way to get there.

Eagan applauds changes to Dennard's proposal, including a clause that would shield employers from legal action when an applicant volunteers past pay information, but says there are other concerns the proposal leaves unaddressed.

"It is our belief that there are alternative ways to achieve these policies ends," Eagan told council today, saying that education efforts and incentivizing employers to voluntarily drop questions about salary history would be a better, less legally-fraught option than "onerous" regulation.

"We're not here to protect any businesses' right to ask any particular question," Eagan said. "We are here to protect the First Amendment rights of businesses and their protections to operate in an air where they are able to responsibly use hiring practices."

There are a number of questions employers already aren't allowed to ask during the hiring process, including those about age, race, sexual orientation and other personal details. The difference between those questions and questions about previous earnings, according to Cincinnati City Solicitor Paula Boggs Muething, is that the already-barred questions tie directly to instances of discrimination demonstrated in research and recognized by past court cases.

Without empirical evidence that the law in question relates to discriminatory practices and would have a positive effect on the wage gap, Muething told today's council committee, the city could be liable for "substantial" damages should an employer bring a First Amendment lawsuit.

Other groups, including the AFL-CIO and The Women's Fund of The Greater Cincinnati Foundation, support the law.

"Of all the potential preventions the city could take to curtail pay inequity, the Women's Fund believes this legislation is the most effective without being too onerous to business," Women's Fund Executive Director Meghan Cummings told council today. "Simply put, under this ordinance, employees who have been underpaid will have the opportunity to reset and shed the historic pay inequity with their next employment opportunity.

Cummings acknowledged the current legal challenge to Philadelphia's law and the paucity of research about the effect of the laws passed in New York City, the state of California and a number of other cities and states. But she said the effort would be worth it.

"These concerns are not immaterial, and it is impossible to predict all the implications to the Cincinnati community if the proposed law was to be enacted," she said. "However, what we are certain about and have plenty of data on right at this moment is that the status quo is not working for women and people of color. On balance, we believe this law moves our community in the right direction on pay inequity."

Dennard first floated the questioning restriction in October last year. A working group was put together to research potential legislation, and the proposal before council now came out of that work.  

"We wanted to create something that was bold and a little bit different for Cincinnati," Dennard says, citing studies about the city's current pay inequities as a driver of the law.

A 2017 study by the University of Cincinnati Economics Center found that in Cincinnati, women make about 80 cents on the dollar compared to men when qualifications, age and other attributes are controlled for.

That gap is greater for women of color. A study last year by PolicyLink found that 18 percent of Latinas and 17.6 percent of black women in Hamilton County in 2014 were “working poor”: that is, working full-time for income that is less than 200 percent of the federal poverty guidelines. Just 5.4 percent of white women fell into that category.

Ohio is near the top of the list for states with big wage gaps between men and women, a 2018 study found. According to research by the National Partnership for Women and Families, the Buckeye State ranks 14th in the nation for that dubious distinction, with women earning roughly 77 cents for every dollar men earn and losing an annual $29 billion in wages. Louisiana has the highest wage gap in the country — women there earn 70 cents on the dollar. New York, where women earn 11 cents less than men on average, has the lowest wage gap.

While Sittenfeld and Mann pushed for a delay so that the city could research the proposal's legal implications, Dennard pointed out that a study on the effects of the law would likely be costly, time-consuming and perhaps out of the city's reach entirely.

"Because of the newness of this, (the specific research) doesn't exist," she said.

Dennard agreed to the two-week delay on the committee vote, but said she would rather present it for full council approval sooner rather than later.

"I feel a sense of urgency about this, if we're serious about poverty, if we're serious about equity," she said.