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88 U. Chi. L. Rev. 1247 (2021)
Never Ask a Woman Her Wage: The Constitutionality of Salary-History Bans

handle is hein.journals/uclr88 and id is 1277 raw text is: 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 em- ployers-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 jurisdic- tion 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 evi- dence 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. INTRODUCTION.................................................................................................. 1248 I. SALARY-HISTORY BANS AND THEIR OPPOSITION ........................................ 1251 A. The Movement to Prohibit Salary-History Inquiries ...................... 1251 B. The Anatomy of a Salary-History Ban............................................. 1254 C. Opposition to Salary-H istory Bans .................................................. 1256 D . The First Am endm ent Challenge..................................................... 1257 II. CATEGORIZING COMMERCIAL SPEECH ........................................................ 1259 A. Emergence of the Commercial Speech Doctrine.............................. 1259 B . W hen Speech Is Com m ercial............................................................ 1261 C. Casting Salary-History Inquiries as Commercial Speech............... 1264 III. CAN SALARY-HISTORY BANS SURVIVE CENTRAL HUDSON? ........................ 1265 A . The N arrow ly Tailored Prong........................................................... 1267 t B.A. 2017, Connecticut College; J.D. Candidate 2022, The University of Chicago Law School. Many thanks to Professor Geoffrey Stone and the University of Chicago Law Review editors for their helpful feedback and advice on this Comment. 1247

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