In Colorado, Employers Can Still Ask for Pay History

Senate committee postpones latest attempt to limit pay history inquiries

A watershed 9th Circuit decision in April wasn’t enough to convince Colorado senators to pass a bill limiting employers’ ability to ask about applicants’ pay history. The State, Military and Veterans Affairs Committee voted Wednesday to indefinitely postpone House Bill 1377. 

The bill’s substantive text is a mere quarter-page long and provides two exceptions under which employers can ask applicants for their pay history: If the employer has notified an applicant about the pay range for the opening or the applicant has voluntarily agreed to discuss his or her pay history with the employer. House Bill 1377 marks the second time in three years the Colorado legislature has attempted to pass a bill to limit employers’ ability to seek pay history information about applicants. A similar bill died in the Senate in the 2016 session.

The House introduced 1377 on April 10, the day after the 9th Circuit Court of Appeals issued its decision in Rizo v. Yovino, which ruled compensation history alone or combined with other factors does not justify a pay disparity between men and women.

Sybil Kisken, a Davis Graham & Stubbs partner who practices in employment law, said gender discrimination in pay is more complex than other types of discrimination because other forms such as racial discrimination often involve comments or other more tangible behaviors. Employers understandably want a benchmark for how to pay particular positions, and pay history is one possible marker, even if employers do not have a discriminatory intent in asking about it.

Although she understands the objective of House Bill 1377, its short length seems to “leave more questions than answers,” Kisken said. For example, the exception related to an applicant’s voluntary agreement to discuss pay history raises the question of whether an employer asked them if they would discuss it.

“That exception almost seems to swallow the rule,” Kisken said.

During the committee hearing, Democratic Sen. Lois Court brought up the bill’s exception for an employer that has notified an applicant about the pay range for an opening, saying the exception might have the possibility for broad applicability.

“It seems to me … there’s a lot of opportunity for the employer to be able to ask about the history, so it’s not a blanket,” Court said. “I don’t think it’s a blanket prohibition like I believe previous bills have been, so this is, I think, a huge compromise, frankly.”

Much of the testimony in favor of House Bill 1377 focused on using pay history to determine an applicant’s compensation perpetuating the historical gender pay gap, especially for women of color.

“Being asked to disclose salary history hurts women, people of color and other marginalized groups disproportionately because it perpetuates existing wage gaps that those communities faced,” said Anna Crawford, who testified on behalf of the Women’s Lobby of Colorado. “So if you start behind, even with a 10 percent increase, you’re still behind.”

Sen. Kerry Donovan, a Democrat, closed testimony in favor of House Bill 1377 by pointing to the significance of the 9th Circuit’s decision to hear Rizo v. Yovino en banc. 

“I repeat the importance that this was done by the full 11-judge panel of the 9th Circuit,” she said. “That’s quite an interesting aspect of it.”

But Republican Sen. John Cooke did not seem convinced of the gravity of the 9th Circuit’s ruling, saying the court does not have jurisdiction in Colorado and claiming it is the most overturned circuit court.

“They’re not the law of the land, and they have no authority here,” he said.

Cooke might have been taking a cue from a much-circulated figure that 80 percent of the 9th Circuit’s decisions that the U.S. Supreme Court reviews get overturned, when in fact, that number, and its relation to the national average, fluctuates with each Supreme Court term. 

House Bill 1377 is one of two bills addressing pay equity in the last few weeks of the legislative session, which ends May 9. House Bill 1378, called the Equal Pay for Equal Work Act, allows employees to bring civil actions against employers for gender discrimination and also requires employers to announce advancement opportunities to all employees, as well as the pay ranges for the positions. The bill was assigned to the Senate State, Veterans and Military Affairs Committee last Tuesday.

Kisken said the legislature might have been trying simply to put the issue of pay history out in the open with House Bill 1377 to start a conversation. “It’s difficult to formulate legislation to address this problem.”

— Julia Cardi

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