Emily M. Wajert

A growing number of cities and states have enacted legislation banning employers from inquiring about an applicant’s past salary history in an effort to remedy the gender pay gap and combat discrimination.  Illinois will not be joining that list—at least not yet.

On Thursday, November 9, 2017, the Illinois state senate failed to override the governor’s veto of its salary history bill.  The governor, Bruce Rauner, initially vetoed the bill in August suggesting his state should instead model its bill after its Massachusetts counterpart—providing more flexibility to employers.  A successful veto override required 71 votes in the House and 36 in the Senate—the override failed in the Senate on Thursday, receiving 29 “yeas,” despite some bi-partisan support.  Much like other jurisdictions’ versions of salary history bans, the proposed legislation would have made it unlawful for an employer to seek a job candidate’s compensation history, including pay and benefits, unless a matter of public record.  The ban would not have applied to current employees seeking another position within the company.

Illinois is not the only jurisdiction struggling to implement a salary history ban.  Philadelphia, despite being one of the first cities to introduce a ban, recently agreed to stay its law until a legal challenge is resolved. New Jersey is also facing similar struggles after New Jersey governor, Chris Christie, vetoed legislation in August that would have amended the New Jersey Law Against Discrimination to prohibit employers from requesting salary history information from prospective employees. However, NJ employers should be cognizant of changes in this area because it is likely that lawmakers will introduce the same or similar legislation once he is out of office next year.

While the “past salary” question is thus still permissible in Illinois, employers should be aware of the expanding list of cities and states where the question is impermissible and could lead to a multitude of headaches and potential litigation.   Employers in jurisdictions listed below should ensure their HR managers, recruiters, and applications are up-to-date on what type of, if any, inquiries into an applicant’s salary history are acceptable.

State/City/Locality Effective Date Which employers are covered?
Pittsburgh In effect Only applies to city employees
New York In effect Only applies to state employees
New Orleans In effect City employees and employees of contractors who work for the city
Oregon In effect All employers
New York City In effect All employers of any size that are hiring job applicants in New York City
Puerto Rico In effect All employers
Delaware Dec. 14, 2017 All employers
San Francisco July 1, 2018 All employers
Philadelphia Stay pending legal challenge All employers


Max's Mistakes -Salary History Ban

Max’s Mistakes



About Emily M. Wajert
Emily M. Wajert is an Associate with the Employment, Labor, Benefits and Immigration Practice Group. Ms. Wajert is a 2017 cum laude graduate of the University of Pennsylvania Law School, where she was online managing editor of Vol. 19 of the University of Pennsylvania Journal of Constitutional Law, and a graduate of The Pennsylvania State University.
Jonathan A. Segal

But again we have been rocked by explosive allegations of sexual harassment and sexual assault. In the case of Harvey Weinstein, there are now more than 30 women who have stepped forward. Weinstein admits to bad behavior but claims it was all consensual.  From what I have read, this is not a good defense, even for a science fiction movie.

Weinstein is far from the only predator in Hollywood, and Hollywood is just a symptom of the problem. The casting couch can affect who gets plum assignments, leads, contacts, etc. in any industry. Few men with power would ever consider, let alone engage in, the kind of conduct engaged in by Weinstein and others but they must do more than just refrain from the indefensible. With power, men  have the opportunity, indeed the obligation, to create cultures where harassment does not flourish. So what do we do?

1. Stand up in the moment.

You don’t need to have a daughter to stand up. You just need a conscience and a spine. So speak up if you see or hear bad behavior. To be silent is to condone. Yes, the worst behaviors are very often private but sometimes they are accompanied by less serious but still bad public behavior. For example, don’t laugh at the sexist jokes. Instead, make clear they are offensive to you and then take corrective action.

The less serious public behaviors may be but the tip of the iceberg. Where appropriate, engage a third party to see if there is more than meets the eye. Climate surveys by skilled professionals can uncover what has not been reported without creating claims where none may exist.

2. Don’t wait for the direct complaint.

The victims of harassment frequently are embarassed or feel unwarranted shame. Some women won’t vocalize their discomfort but instead avoid the harasser or become uncomfortable when his name is mentioned. Observe closely for, and listen carefully to, signals that something may be wrong.

There won’t always be signals. But where there are warning signs, think about  how to offer your help in a way that respects the recipient and does not create an issue where there may not be one.  This can and has been done successfully.

3. Create additional reporting vehicles.

Fear of retaliation is a great inhibitor of timely reporting. So you may want to take a look at your company’s policies and at least consider having a procedure by which employees can report complaints externally, even anonymously.

Not every complaint is true and that applies to anonymous complaints, too. But every complaint should be taken seriously, and  I have been involved in matters where the ability to report externally and anonymously has  led to the facts that resulted in the unmasking of a serial harasser. So consider the option.

4. Hold other leaders accountable.

Harassers sometimes generate big bucks and that is why individuals sometimes cover up for, and even truckle up to, them. You need to cross their bridge to get meaningful work and the money that goes with it. Make clear to other leaders that you expect them not only to refrain from harassing behavior (severe or subtle) but also to report to a designated person or entity complaints or potential problems which they see, hear or of which they otherwise become aware. Ostriches don’t make good leaders.

As with all expectations, reward those who live up to them and punish those who don’t.  Your organization is only as strong as its reputation and it can be  destroyed if leaders are passive bystanders.

5. Model what you expect.

Most of all, men in power need to be good role models. There is nothing cool about demeaning women. The abuse is both powerful and pathetic. There is no defense to the indefensible. Sexual addiction is no more a defense to harassment than alcoholism is to driving drunk.

Speaking of alcohol, it is a major risk factor. Some cultures celebrate alcohol and such alcohol-centric cultures take away any slim inhibitors that otherwise might exist. Bottom line: it’s on men. Any questions, pal?

This column was originally published on Entrepreneur.com on 10/20/17. 



About Jonathan A. Segal
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .