©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 9 employers from inquiring into or relying upon job applicants’ prior wage history in establishing starting pay. The ordinance consisted of two provisions: the “Inquiry Provision” and the “Reliance Provision.” The Inquiry Provision prohibits an employer from asking about a prospective employee’s wage history, and the Reliance Provision prohibits an employer from relying on wage history at any point in the process of setting or negotiating a prospective employee’s wage. Both provisions were upheld by the Third Circuit. Among other things, the court agreed that solving the gender pay gap is a substantial government interest and that the ordinance directly advances that interest.16 The court found that the City Council relied upon sufficient testimony and studies to support the enactment of the Ordinance, including that: (1) the wage gap is substantial and real; (2) numerous experiments have been conducted, which controlled for variables such as education, work experience, and academic achievement, still finding a wage gap; (3) researchers have long attributed the gap to discrimination; (4) existing civil rights laws have been inadequate to close the wage gap; and (5) witnesses who reviewed the data concluded that relying on wage history can perpetuate gender and race discrimination.17 This decision is significant because it upheld the ordinance based on many of the same arguments and analysis that support the rationale for salary history bans generally, including the alleged scientific bases of the gender pay gap and the purported failure of existing anti-discrimination legislation to address that issue. In addition to salary history bans, some states and localities have enacted legislation that requires employers to be more transparent about compensation. Those laws come in a variety of forms, but they often require employers to provide salary range information to applicants or employees. The assumption underlying such laws appears to be that employees will be able to use this information to advocate for higher pay, which over time could help to narrow pay differentials. Colorado was one of the first states to pass such a law; it requires employers to notify employees of “job opportunities.” Job opportunities are job vacancies for which the employer is considering or interviewing candidates or that the employer posts externally, but does not include career development or career progression. The law mandates that such notices/postings must include a list of information about the position, including detailed compensation and benefits information, and when the applicant window is anticipated to close.18 In particular, the law requires employers to “make reasonable efforts to announce, post, or otherwise make known each job opportunity to all current employees on the same calendar day and prior to making a selection decision.”19 The law also requires employers to disclose in each announcement or posting for each job opening the hourly or salary compensation, or the range of the hourly or salary compensation, and a general description of all of the benefits and other compensation applicable to the job opportunity, as well as the date the application window is anticipated to close and details on how to apply for the position.20 The Colorado law also requires employers to “keep records of job descriptions and wage rate history for each employee for the duration of the employment plus two years after the end of employment in order to determine if there is a pattern of wage discrepancy.”21 Violations of the job posting requirements are subject to state agency enforcement.22 16 Id. at 143. 17 Id. 18 C.R.S. § 8-5-201. 19 Id. § 8-5-201(1). 20 Id. § 8-5-201(2). 21 Id. § 8-5-202. 22 7 CCR 1103-18
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