Illinois Governor Vetoes Ban on Salary History Inquiries

Illinois Governor Vetoes Ban on Salary History Inquiries

Illinois was poised to become the latest US state to bar employers from inquiring about candidates’ salary histories after a bill passed both houses of the state congress by wide margins, but Governor Bruce Rauner vetoed the bill last Friday, which the Chicago Tribune reports is setting up a battle by the bill’s supporters to garner enough votes to override the veto:

Iliana Mora, CEO of the advocacy group Women Employed, said she was “shocked” and “disappointed” that Rauner blocked the bill, and plans to work with Republicans who supported the legislation on an override during the November veto session. The numbers could work in her favor. The bill passed the House 91-24 and the Senate 35-18, with one Senate member voting present. A veto override requires 71 votes in the House and 36 in the Senate.

Rep. Steve Andersson, R-Geneva, who voted for the bill, expressed optimism that the effort would succeed. “This bill has had strong bi-partisan support from day one,” Andersson said in a comment posted Friday evening to the Facebook page of Rep. Anna Moeller, D-Elgin, chief sponsor of the legislation. “It’s a bill that will right an important wrong. I have faith this will be law shortly. I will vote to override and I don’t think I will be alone…”

The bill would amend the Illinois Equal Pay Act to prohibit employers from asking candidates or their former employers to reveal how much they earned in previous jobs, using salary history criteria to screen candidates, or requiring employees to sign contracts that prevent them from disclosing their pay to others. It also would change the wording of a provision in the Equal Pay Act defining the grounds for discrimination claims: Currently, plaintiffs must show that they were paid unequally for “jobs the performance of which requires equal skill, effort, and responsibility”—the amendment would replace “equal” with “substantially similar.”

Writing at Lexology, Cozen O’Connor attorneys Joseph E. Tilson and Anna Wermuth describe Rauner’s veto as good news for Illinois employers, as the bill would make discrimination claims easier to press and harder to defend against:

The amendments also would have restricted employers’ ability to defend against equal pay claims on the grounds that the payment at issue was “made under a differential based on any factor other than (i) sex or (ii) a factor that would constitute unlawful discrimination under the Illinois Human Rights Act.” Had the bill become law, employers would have borne the additional burden of showing that the other factor was not related to a pay differential based on sex or another protected characteristic, was job-related and consistent with business necessity, and accounted for the entire differential in question.

While the news out of Illinois is a setback for proponents of salary history bans, which advocates say are necessary to protect women against long-term losses of income due to gender-based pay discrimination early in their careers, the movement to excise these inquiries from the hiring process continues apace elsewhere. In the past two months, bans on salary history questions were signed into law in Delaware and San Francisco. Delaware’s law will be the first state ban to take effect when it comes into force this December.

Massachusetts became the first state to pass such a law last year, and since then it has also been emulated in New York City and Puerto Rico. Philadelphia also passed an ordinance barring employers from asking about salary histories earlier this year, but has delayed implementation of the policy pending a court challenge. The proliferation of these laws in various states and localities may have an impact beyond their jurisdictions, as many multi-city or multi-state employers will tend to comply with the most stringent regulation applicable to their business. Although a federal court ruled in April that gender pay gaps based on salary history were not discriminatory, the tide of US public opinion appears to be turning against practices that result in such gaps, even incidentally.