Never Ask a Woman Her Wage: The Constitutionality of Salary-History Bans

For over a half-century, legislatures have struggled to close the pay gap be-tween men and women. Although the gap has shrunk substantially since Congress passed the Equal Pay Act in 1963, in recent years, progress has slowed to a near standstill. Why has the residual gap remained so persistent? Some argue that employers—by asking applicants to reveal their wage histories and then relying on that information to set future wages—have forced women to carry wage discrimination from job to job. Reacting to this argument, some states and cities have provided a simple solution: ban salary-history inquiries. This Comment addresses whether these salary-history bans are constitutional. Responding to recent claims that these bans unconstitutionally burden employers’ right to free speech—namely, by restricting the questions that employers are allowed to ask applicants—I argue that these bans permissibly restrict only the commercial speech of employers. In making this argument, I seek to prove that—in any jurisdiction—salary-history bans should withstand the intermediate scrutiny afforded to commercial speech restrictions. By assessing the structure, function, and (critically) effectiveness of salary-history bans, this Comment finds that there is sufficient evidence to show that these bans directly and materially serve to shrink the gender-wage gap. Therefore, I conclude that such laws are safely within the constitutional authority of the governments that enact them