It’s too expensive to prove there is no gender pay gap. This is Google’s argument following their refusal to turn over compensation data to the U.S. Department of Labor, highlighted on social media and various publications following a recent hearing before a DOL administrative law judge (ALJ). However, there’s another argument not receiving nearly as much buzz—Google has a constitutional right to raise a lawful defense against a request that, in its opinion, is unreasonable and goes beyond the scope of the DOL’s investigation.
The use of a previous salary as a factor in setting starting pay has been a frequently debated topic. Many groups have argued that using pay history in setting starting pay has the risk of perpetuating pay discrimination that may have occurred in previous jobs. Some states are considering legislation that would ban employers from asking about previous pay and, in 2016, Massachusetts became the first state to ban asking about pay history. The issue is under current scrutiny in the case of Rizo v. Yovino. The United States Court of Appeals for the Ninth Circuit recently held that prior pay could be used as a defense for a pay disparity in certain circumstances because it is a factor “based on any other factor other than sex” under the Equal Pay Act (EPA). In the newest twist, the Equal Employment Opportunity Commission and employee advocacy groups recently asked the Ninth Circuit to revisit its decision, arguing that reliance on prior salary “perpetuates” what the EPA sought to correct.
Circuit courts throughout the country have not come to a consensus when it comes to interpreting a critical portion of the federal Equal Pay Act, and whether it permits employers to base an employee’s salary on prior pay history alone. An April 2017 decision in the Ninth Circuit has added to the growing debate around this issue.