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49 Seton Hall L. Rev. 411 (2018-2019)
Closing the Wage Gap: Cities' and States' Prohibitions against prior Salary History Inquiries and the Implications Moving Forward

handle is hein.journals/shlr49 and id is 411 raw text is: 






      CLOSING THE WAGE GAP: CITIES' AND STATES'
      PROHIBITIONS AGAINST PRIOR SALARY HISTORY
  INQUIRIES AND THE IMPLICATIONS MOVING FORWARD

                                               Timothy J. Nichols*

                            I. INTRODUCTION
     In an effort to eliminate wage discrimination on account of sex,
Congress enacted the Equal Pay Act of 1963 (EPA).' The EPA amended
Section 6 of the Fair Labor and Standards Act of 1938 (FLSA), adding a new
subsection.2 While this new subsection prohibits employers from paying
workers of one sex different wages than workers of the other sex for equal
work, the subsection also includes four enumerated exceptions.3 Despite
efforts to eliminate wage discrimination based on gender, women earned
eighty-three percent of what men earned in 2015 (granted, an increase from
sixty-four percent in 1980).4 While this pay gap is based on many factors,
such as (1) women being more likely to take breaks from careers to care for
a family, and (2) women being overrepresented in lower-paying occupations,
surveys reveal this gap may also be a result of gender discrimination.5
     The broadest and most controversial of the exceptions contained in the
FLSA is a catch-all that permits disparities in pay between the genders
based on any other factor other than sex.6 Prior salary history, the focus
of this Comment, is a regularly relied-upon factor employers assert as a
factor other than sex when facing claims of gender-based wage
discrimination under the EPA and FLSA, as seen in the cases discussed



  J.D. Candidate, 2019, Seton Hall University School of Law; Dual B.A., University of
Michigan-Ann Arbor.
   1 Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56.
   2 Id. The Act created 29 U.S.C. § 206(d) that prohibits gender discrimination in wage
payment practices. Id. at 56-57.
   3 29 U.S.C. § 206(d)(1) (2018).
   4 Nikki Graf, Anna Brown& Eileen Patten, The Narrowing, but Persistent, Gender Gap
in  Pay, PEW   RES. CTR. (Apr. 9, 2018), http://www.pewresearch.org/fact-
tank/2018/04/09/gender-pay-gap-facts/.
   5 Id. Women were twice as likely as men to feel discriminated at work because of
gender (42% vs. 22%); also, 77% of women and 63% of men believe more changes must be
implemented to achieve gender equality in the workplace. Id.
   6 29 U.S.C. § 206(d)(1).

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