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Jeffrey S. Klein and Nicholas J. PappasJeffrey S. Klein and Nicholas J. Pappas ()

Some jurisdictions have begun restricting the practice by many employers of considering applicants’ earnings history when setting compensation. Those in favor of such measures maintain that when employers consider prior earnings, “women often end up at a sharp disadvantage and historical patterns of gender bias and discrimination repeat themselves, causing women to continue earning less than their male counterparts.” A.B. 1676, Cal. Leg. (2016). Several federal appellate courts have discussed a related issue—whether the Equal Pay Act already prohibits sole reliance on prior earnings to explain a wage differential challenged under the Act. In this month’s column, we outline the circuit split on this issue, summarize recent measures in California, Massachusetts, and Philadelphia restricting the use of prior earnings, and provide guidance for employers seeking to maintain compliant hiring and pay practices.

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