You Might Not Realize That This Interview Question Is Actually Discriminatory

In another blow to the salary history standard, the Ninth Circuit of the U.S. Court of Appeals unanimously ruled today that women's previous salaries can't be used to justify gender pay gaps in the future.

Per Huff Post, the ruling overturns a previous decision in California, "which stated that employers could in fact pay women less than men for doing the same job, based on what their previous salaries were."

Several judges cited the Equal Pay Act to explain their decision. Justice Stephen Reinhardt (who wrote his opinion prior to his death), called the Act a "principle as simple as it is just," and that any attempt to "capitalize on the persistence of the wage gap ad perpetuate that gap ad infinitum" would violate the Equal Pay Act itself.

"Salaries speak louder than words," he wrote. "Although the Act has prohibited sex-based wage discrimination for more than fifty years, the financial exploitation of working women embodied by the gender pay gap continues to be an embarrassing reality of our economy."

For workers and job seekers in New York City who hate the dreaded question during salary negotiations (you know which one), the beginning of November will hopefully mark a new era: The city's new salary history ban went into effect on October 31st.

Last year, Massachusetts passed a law prohibiting employers from asking applicants their salary histories, how much they're currently paid, using that to determine compensation, and preventing employees from sharing their pay with colleagues. Oregon followed suit.

"The thinking behind that law is [that] it's a discriminatory practice to ask someone about what they made previously because it disproportionately affects women and people of color — who historically make less from the outset of their careers," says Sarah Brafman, an attorney at the legal advocacy organization A Better Balance.

"It might not be the case that an employer is overtly trying to discriminate and run afoul of the law, but they know that when they ask a woman what she made previously, she probably will have made less — and so they're going to end up paying the woman less than they pay the man. This law is saying that is a form of sex discrimination, race discrimination, and wage discrimination."

Although some employers contest that banning questions about salary history will make it more difficult for them to screen job applicants, significant research shows that salary negotiations often penalize qualified applicants. If women don't negotiate, they stand to lose significant amounts of money over their lifetimes. If they do negotiate (something they now try at comparable rates to men), they are often penalized for asking for more money. And if they fail to disclose their earnings, they can be discounted wholesale.

A 2017 survey from PayScale reveled that "a woman who was asked about her salary history and refused to disclose was actually offered 1.8% less than a woman who was asked and did disclose. Meanwhile, if a man refused to disclose when asked about salary history, he received an offer that was 1.2% higher than a man who did."

Brafman explains that anti-salary disclosure laws are part of ongoing efforts to further equal pay and fairness for oft-targeted workers. These laws are focused on all the places pay comes up during negotiations.

"Discriminatory questions in terms of salary history can happen in a couple of ways. It can be in an interview [with] an employer asking you what you made previously; it can mean an employer putting a question on an application about what you made previously; it could mean an employer calling your former employer or talking to someone from your old job and asking them what you made; and it could also mean looking into public records and trying to figure out," Brafman says. "There are two major prongs to the law; employers can't ask the question, and they also can't rely on the information — even if they get it — to set the salary."

Here's what to do if you are asked about it in a state that's outlawed the practice.

Even if the average person has no idea this law is going into effect, employers should. Brafman says that New York City public advocate Letitia James, who introduced the bill, has worked to spread awareness about the change.

Last month, the NYC Commission on Human Rights launched an ad campaign running on popular job search sites, including LinkedIn, Monster, and CareerBuilder, as well as an Facebook and Twitter, about the law going into effect; and they have also organized roundtables and events "geared towards business to make sure that employers know about their obligations," according to Brafman.

Additionally the Commission has a hotline where workers can report incidents of discrimination, and find a fact sheet and answers to frequently asked questions about job seekers' rights, and employers' responsibilities.

"This is a law with teeth," Brafman says. "The enforcing agency is the Commission on Human Rights, and there are significant penalties for employers that violate the law. It's included in the city human rights law, [which] has penalties up to $250,000 for particularly malicious violations."

There are bound to be employers who will try to flout the law — penalties or not. So even if job seekers are unnerved by discriminatory or inappropriate questions in the moment, most people who want or need a job are unlikely to storm out of a meeting and forfeit a professional opportunity.

The nuclear option — legal recourse — may sometimes be preferable, depending on the person and the strength of the case. But before going in that direction, Brafman says that workers caught in such a moment should do their best to reframe the conversation in three ways.

"Reframe the question to focus on the value that you bring to the job, why you're qualified to work at this company, what you can add to the company, and why you're so excited to be applying — rather than [discussing] what you made previously," she suggests.

"Reframing to talk about your salary expectations or demands is different than disclosing what you made previously," Brafman notes. "You can say: I understand that in this field, people make between ____ and ____ range, and I'm looking to make ____. You're still having a discussion about salary, but it's not predicated on what you made previously."

She explains that under NYC's new law, salary expectations are a fair topic of conversation. The difference is that while neither party is curbing a salary discussion, the data point of what you specifically made previously is remove from the discussion.

LeanIn.org cofounder Debi Hemmeter learned an excellent tactic from her friend and mentor Tim McGee. After a new boss gave her an offer far beneath that of future colleagues' (due to a "lack of experience"), she pushed back, "noting that regardless of my experience, I was being held to the same goals as my counterparts." After that, he either had the choice to "reduce [her] goals in proportion to the reduced compensation, or hold [her] goals steady and adjust compensation accordingly."

"In other words," she explains, "I asked that he let the burden of experience be mine to overcome by proving myself on the job."

Indicate what you should be paid now, based on the requirements and responsibilities of the job — even if they differ from the work you did before, Brafman says.

"You may be pivoting from one industry to another; you may be pivoting from nonprofit to for-profit and vice versa, and you want to discuss compensation based on the job you're applying for, not the job you're coming from, which may be vastly different [in terms of salary]," she advises.

"Increasingly, legislative bodies at state and local and federal levels are making things that employers have done, asked for, and asked during interviews increasingly illegal," says Susan Heathfield, a writer of HR content for TheBalance.com. "The key takeaway for people is to know the law where they live, and to periodically check their Department of Labor website to stay on top of the latest happenings in employment law."

She says that because of the way many companies conduct interviews today — alone with one other person, or in much more informal settings, such as cafés or restaurants, where conversation can meander and "quickly turn chatty" — proving your case might be difficult.

"It's your word against their word, and your word against how they say they actually made a decision about hiring a candidate. A good discussion with an employment law attorney would give you some ways to gauge whether you have a potential case."

She suggests that people who don't have the money to retain an attorney contact the Department of Labor or other pro-bono organizations in their state. These organizations often provide free in-person meetings or phone calls in which people can seek advice on how to proceed and "weigh if they have enough to move forward with any sort of case against the company."

If someone decides to pursue full legal action, Brafman says they can contact an organization like the Commission on Human Rights in New York City. The individual would submit a complaint or have an attorney file on their behalf.

"That triggers a process by which they gather information to see what happened," she explains. "They look at both sides and then conduct a very comprehensive investigation into whether there's probable cause that discrimination took place."

Another legal option, she adds, is contacting an organization like A Better Balance, which is based in New York City and Nashville, TN, and has a hotline that provides free, direct contact to attorneys.

"If someone calls our hotline, we can talk through self-advocacy and how one can advocate for themselves, which can be empowering and very effective," Brafman says. "Going through a protracted legal avenue can be time consuming. In some cases, it's definitely warranted, but in other cases, knowing your rights and explaining to a future employer what their obligations are can prevent having to go through that long process. To be able to feel confident that you understand what you are legally entitled to, what constitutes discrimination, and to educate both your employer and your community about those rights is a really powerful tool."