In September 2016, the Philadelphia City Council passed an ordinance designed to reduce the wage gap between women and men. Recognizing the role prior salary histories play in perpetuating this wage gap, the City (1) prohibited employers from requiring prospective employees to divulge their salary history as part of the hiring and recruitment process (the “Inquiry Provision”) and (2) prohibited employers from using an employee’s prior salary history as a factor in calculating his or her wages (the “Reliance Provision”).
One month before the law was scheduled to go into effect, the Chamber of Commerce for Greater Philadelphia sued in federal district court to stop both provisions of the law from going into effect, and sought a preliminary injunction. In April 2018, the district court granted the preliminary injunction with respect to the Inquiry Provision, concluding that the provision failed to meet intermediate scrutiny under the standard established by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980), and denying the injunction with respect to the Reliance Provision. Both sides appealed to the Third Circuit Court of Appeals.
Public Citizen submitted a brief as amicus curiae in the Third Circuit, in support of the City, and urging the court to reverse the district court with respect to its injunction against the Inquiry Provision, and to affirm with respect to the Reliance Provision. In the brief, we argued that the speech regulated by the Inquiry Provision was “commercial,” and thus that Central Hudson and intermediate scrutiny, not strict scrutiny as urged by the Chamber, applied. On an appropriate review of the evidence, the City had met that standard. As to the Reliance Provision, we argued that the district court’s determination that it did not regulate speech or expressive conduct, and thus did not trigger First Amendment scrutiny at all, was correct.
In February 2020, the Third Circuit issued a decision upholding both parts of the ordinance, agreeing with Philadelphia and Public Citizen that the Reliance Provision did not regulate speech, and that the Inquiry Provision was correctly analyzed under Central Hudson, and passed scrutiny under that standard.