United States District Court, E.D. Pennsylvania
THE CHAMBER OF COMMERCE FOR GREATER PHILADELPHIA, individually and on behalf of its members, Plaintiff,
CITY OF PHILADELPHIA and PHILADELPHIA COMMISSION ON HUMAN RELATIONS, Defendants.
to the problem of wage inequality for women and minorities,
the City of Philadelphia has enacted an ordinance amending
Title 9 of The Philadelphia Code to include provisions on
wage equity. The ordinance has two parts. First, it prohibits
an employer from inquiring about a prospective employee's
wage history (“the Inquiry Provision”); and
second, it makes it illegal for an employer to rely on wage
history “at any stage in the employment process”
to determine a salary for an employee (“the Reliance
Provision”). The basic premise of the law's
prohibitions is that allowing employers to formulate job
offers based on prior salaries that are historically lower
for women and minorities perpetuates the wage inequity
the Chamber of Commerce for Greater Philadelphia (“the
Chamber”),  on behalf of itself and several of its
members including Comcast Corporation, Children's
Hospital of Philadelphia, and Bittender Construction, seeks a
preliminary injunction, arguing that both the Inquiry and
Reliance Provisions violate the First Amendment's free
the City of Philadelphia's efforts in passing the
ordinance are certainly laudable, I conclude that the Inquiry
Provision violates the First Amendment's free speech
clause. Consequently the Chamber's Motion for a
Preliminary Injunction as to that portion of the Ordinance
will be granted. Because I conclude that the Reliance
Provision does not implicate speech, and thus the First
Amendment, the Chamber's Motion as to that portion of the
ordinance will be denied.
AND PROCEDURAL BACKGROUND
2015, women in Pennsylvania earn 79 cents for every dollar a
man earns, and African American women earn 68 cents for every
dollar a man earns. Phila. Code. § 9-1131(1)(a) (citing
United States Census Bureau Report 2015). As I note
throughout this Opinion, the existence of this wage gap is
City of Philadelphia has endeavored to diminish the wage gap
in Philadelphia through amendment of Title 9 of The
Philadelphia Code to include provisions on wage equity
(“the Ordinance”). The relevant portions of the
Ordinance are codified at Philadelphia Code § 9-1131 and
§ 9-1131. Wage Equity.
. . . .
(2) Prohibition on Inquiries into Wage History.
(a) It is an unlawful employment practice for an employer,
employment agency, or employee or agent thereof:
(i) To inquire about a prospective employee's wage
history, require disclosure of wage history, or condition
employment or consideration for an interview or employment on
disclosure of wage history, or retaliate against a
prospective employee for failing to comply with any wage
history inquiry or for otherwise opposing any act made
unlawful by this Chapter.
(ii) To rely on the wage history of a prospective employee
from any current or former employer of the individual in
determining the wages for such individual at any stage in the
employment process, including the negotiation or drafting of
any employment contract, unless such applicant knowingly and
willingly disclosed his or her wage history to the employer,
employment agency, employee or agent thereof.
(b) This subsection (2) shall not apply to any actions taken
by an employer, employment agency, or employee or agent
thereof, pursuant to any federal, state or local law that
specifically authorizes the disclosure or verification of
wage history for employment purposes.
(c) For purposes of this Section 9-1131, “to
inquire” shall mean to ask a job applicant in writing
or otherwise, and “wages” shall mean all earnings
of an employee, regardless of whether determined on time,
task, piece, commission or other method of calculation and
including fringe benefits, wage supplements, or other
compensation whether payable by the employer from employer
funds or from amounts withheld from the employee's pay by
Id. § 9-1131(2).
who violate the Ordinance are subject to civil and criminal
penalties, including compensatory damages, up to $2, 000 in
punitive damages per violation, and an additional $2, 000 and
90 days' incarceration for a repeat offense. Id.
§§ 9-1105(1)(c)-(d), 9-1121(2).
in September 2016, the Ordinance was the subject of a hearing
before Philadelphia City Council's Committee on Law and
Government on November 22, 2016. After the Committee reported
the bill favorably, it was unanimously passed on December 8,
2016. The Ordinance was signed into law by the Mayor of
Philadelphia on January 23, 2017 and was scheduled to take
effect on May 23, 2017. The Ordinance relies on the following
(a) In Pennsylvania, women are paid 79 cents for every dollar
a man makes, according to a United States Census Bureau 2015
report. Women of color are paid even less. African American
women are paid only 68 cents to the dollar paid to a man,
Latinas are paid only 56 cents to the dollar paid to men, and
Asian women are paid 81 cents to the dollar paid to men.
(b) The gender wage gap has narrowed by less than one-half a
penny per year in the United States since 1963, when the
Congress passed the Equal Pay Act, the first law aimed at
prohibiting gender-based pay discrimination, according to the
National Committee on Pay Equity.
(c) In August of 2016, Massachusetts became the first state
to enact a law prohibiting employers from seeking or
requiring a prospective employee's wage history.
(d) Since women are paid on average lower wages than men,
basing wages upon a worker's wage at a previous job only
serves to perpetuate gender wage inequalities and leave
families with less money to spend on food, housing, and other
essential goods and services.
Id. § 9-1131(1). Finding (d)-that setting
salaries based on previous employment wages perpetuates
gender wage inequalities-is the central issue in this
April 6, 2017, the Chamber, filed a Complaint and a motion
for a preliminary injunction against the City of Philadelphia
and the Philadelphia Commission on Human Relations
(“the PCHR”) (collectively, “the
City”), primarily averring that the Ordinance violates
the First Amendment rights of employers. I dismissed the
Chamber's original Complaint for lack of standing on May
1, 2017, allowing the Chamber to file an amended complaint.
On June 13, 2017, the Chamber filed the Amended Complaint and
refiled its Motion for a Preliminary Injunction
(“Motion”). Following extensive briefing, I held
oral argument on the Motion on February 1,
STANDARD - PRELIMINARY INJUNCTIONS IN FIRST AMENDMENT
preliminary injunction is an extraordinary remedy.
Instant Air Freight Co. v. C.F. Air Freight,
Inc., 882 F.2d 797, 800 (3d Cir. 1989). As such, the
granting of preliminary injunctive relief is restricted to
limited circumstances. Id. In order to obtain a
preliminary injunction, a plaintiff must establish four
(1) the likelihood that the plaintiff will prevail on the
merits at final hearing;
(2) the extent to which the plaintiff is being irreparably
harmed by the conduct complained of; (3) the extent to which
the defendant will suffer irreparable harm if the preliminary
injunction is issued; and (4) the public interest.
A.T.&T. Co. v. Winback & Conserve Program,
Inc., 42 F.3d 1421, 1427 (3d Cir. 1994) (internal
citations omitted) (quoting Merch. & Evans, Inc. v.
Roosevelt Bldg. Prods., 963 F.2d 628, 632-33 (3d Cir.
1992)). A party moving for a preliminary injunction must
initially “meet the threshold for the first two . . .
factors, ” and only if these “gateway
factors” are met, should the district court then
consider the remaining two factors. Reilly v. City of
Harrisburg, 858 F.3d 173, 178 (3d Cir. 2017), as
amended (June 26, 2017). The court must then determine
“in its sound discretion if all four factors, taken
together, balance in favor of granting the requested
preliminary relief.” Id. at 179.
United States Court of Appeals for the Third Circuit recently
clarified the standard for a preliminary injunction in First
Amendment cases in Reilly v. City of Harrisburg, 858
F.3d 173 (3d Cir. 2017), as amended (June 26, 2017).
Typically, to obtain a preliminarily injunction, the
plaintiff has the burden of demonstrating a likelihood of
success on the merits. The Third Circuit explained in
Reilly that in First Amendment cases, the government
bears the burden of proof as to the constitutionality of a
law, thus the plaintiff “must be deemed likely to
prevail” unless the government demonstrates the
constitutionality of the law. Id. at 180 (quoting
Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)). This is
because “‘the burdens at the preliminary
injunction stage track the burdens at trial, '” and
for First Amendment purposes the burden of demonstrating the
constitutionality of a law rests with the government.
Id. (quoting Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006)).
light of the above, the analysis in First Amendment cases
proceeds as follows. The initial burden of proving that a law
restricts protected speech lies with the challenger.
Id. at 180 n.5. The burden then shifts to the
government to demonstrate the constitutionality of the
challenged restriction under the appropriate level of
scrutiny. Id. If the government is successful in
demonstrating constitutionality, “then the motion for a
preliminary injunction fails because there is no likelihood
of success on the merits.” Id. If the
government cannot establish that the law is constitutional,
the challenger must still demonstrate irreparable harm.
Chamber argues that both the Inquiry and Reliance Provisions
of the Ordinance violate the First Amendment, the Due Process
Clause of the Fourteenth Amendment, the Commerce Clause of
the United States Constitution, and the Pennsylvania
Constitution. Because the Ordinance essentially has two
parts, I will analyze each in turn.
Likelihood of Success on the Merits
The Inquiry Provision
parties agree that the Inquiry Provision targets speech, and
indeed it does-it forbids employers from asking questions on
a specific topic. The question is whether the Inquiry
Provision violates the First Amendment. As noted above, the
burden for proving the constitutionality of the Inquiry
Provision rests with the City. The parties disagree as to
what type of speech the provision regulates and thus what
level of scrutiny should be applied in determining the
constitutionality of the provision. They also disagree as to
the result when scrutiny is applied.
What Type of Speech Does the Inquiry Provision
City urges that wage history inquiries are related to the
economic interest of the speaker and thus constitute
commercial speech. The Chamber responds that the speech at
issue is not commercial speech.
seminal case of Central Hudson Gas & Elec. Corp. v.
Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980), the
United States Supreme Court defined commercial speech as
“expression related solely to the economic interests of
the speaker and its audience.” Id. at 561.
Since then, the Court has stated that “core”
commercial speech is “‘speech which does no more
than propose a commercial transaction.'” Bolger
v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983)
(quoting Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, Inc., 425 U.S. 748, 762 (1976))
(finding that informational pamphlets containing
contraceptive advertisements constituted commercial speech).
U.S. Healthcare, Inc. v. Blue Cross of Greater
Phila., 898 F.2d 914 (3d Cir. 1990), the Third Circuit
noted that “[c]ommercial speech may be broadly defined
as expression related to the economic interests of the
speaker and its audience, generally in the form of a
commercial advertisement for the sale of goods and
services.” Id. at 933. The Third Circuit has
identified three questions courts should consider in
determining whether speech is commercial: (1) “is the
speech an advertisement”; (2) “does the speech
refer to a specific product or service”; and (3)
“does the speaker have an economic motivation for the
speech.” Id. (citing Bolger, 463 U.S.
at 66-67). The Third Circuit observed in U.S.
Healthcare that “[a]n affirmative answer to all
three ‘provides strong support for the conclusion that
the speech is commercial.'” Id. (quoting
Bolger, 463 U.S. at 67). This inquiry “rests
heavily on ‘the common sense distinction between speech
proposing a commercial transaction . . . and other varieties
of speech.'” Id. (quoting Zauderer v.
Office of Disciplinary Counsel, 471 U.S. 626, 637
have interpreted the definition of commercial speech to
include a broad range of commercial-related expression.
See, e.g., Valle Del Sol Inc. v.
Whiting, 709 F.3d 808, 818-19 (9th Cir. 2013) (finding a
provision making it unlawful for an occupant of a car to
solicit or hire a day laborer if the car blocks traffic
implicated the day laborers' commercial speech because
“the primary purpose of the communication is to
advertise a laborer's availability for work and to
negotiate terms of such work”); Campbell v.
Robb, 162 Fed.Appx. 460, 469-70 (6th Cir. 2006) (finding
a statement made by a landlord to a prospective tenant
describing conditions of a rental was “part and parcel
to a rental transaction” and thus constituted
“core” commercial speech); Hyman v. City of
Louisville, 132 F.Supp.2d 528, 541-42 (W.D. Ky. 2001)
(finding a doctor's advertisements were proposals of
possible employment and thus constituted commercial speech),
vacated on other grounds, 53 Fed.Appx. 740 (6th Cir.
2002); Nomi v. Regents for Univ. of Minn., 796
F.Supp. 412, 417 (D. Minn. 1992), (finding that military
recruitment “proposes a commercial transaction [with]
the purpose of . . . reach[ing] an agreement under which
services will be exchanged for compensation, ” and thus
constituted commercial speech), vacated on other
grounds, 5 F.3d 332 (8th Cir. 1993).
the Inquiry Provision prohibits Philadelphia-based employers
from asking potential hires about their previous wage
history. This inquiry occurs in the context of a job
application or job interview, both of which propose a
commercial transaction, with the “purpose of . . .
reach[ing] an agreement under which services will be
exchanged for compensation.” Nomi, 796 F.Supp.
at 417. Similar to the day laborer provision in Valle Del
Sol, the Inquiry Provision relates to attempts to hire
and hiring, and thus “all affected speech is either
speech soliciting a commercial transaction or speech
necessary to the consummation of a commercial
transaction.” 709 F.3d at 818. While a wage history
inquiry may not fit as neatly into the commercial speech
category as the advertisement for contraceptives in
Bolger, it is akin because a wage history inquiry
occurs in the context of negotiating a job. Based upon this
precedent, and the activity affected by the Ordinance, I
conclude that the Inquiry Provision regulates wage history
inquiries, which constitute commercial speech.
What Level of Scrutiny Applies?
City submits that laws regulating commercial speech are
subject to intermediate scrutiny under Central
Hudson. Citing to the Supreme Court's decisions in
Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) and
Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), the
Chamber responds that even if the targeted speech is
commercial, strict scrutiny, and not Central
Hudson's intermediate scrutiny, applies because the
Inquiry Provision is content and speaker based.
Supreme Court announced in Central Hudson that
commercial speech receives reduced protection because it
transpires in an area traditionally subject to government
regulation. 447 U.S. at 562-63; see also King v. Governor
of the State of N.J., 767 F.3d 216, 234 (3d Cir. 2014).
Commercial speech is “linked inextricably with the
commercial arrangement it proposes, ” and thus
“‘the State's interest in regulating the
underlying transaction may give it a concomitant interest in
the expression itself.'” King, 767 F.3d at
234 (quoting Edenfield v. Fane, 507 U.S. 761, 767
(1993)). The type of scrutiny applied to commercial speech
has been labeled “intermediate scrutiny.” See
id. at 234 (quoting Fla. Bar v. Went for It,
Inc., 515 U.S. 618, 623-24 (1995)).
the Supreme Court upended the Central Hudson
intermediate scrutiny test in Sorrell and
Reed for content-based or speaker-based commercial
speech regulations is not abundantly clear. Reed
does not address commercial speech. Sorrell
references a “heightened scrutiny, ” but it is
just as likely that this is the same as intermediate
scrutiny, which is stricter than rational basis scrutiny.
See Retail Digital Network, LLC v. Prieto, 861 F.3d
839, 847 (9th Cir. 2017) (“There is nothing novel in
Sorrell's use of the term ‘heightened
scrutiny' to distinguish from rational basis
since Sorrell and Reed, circuit courts
confronted with content- and speaker-based restrictions on
commercial speech have continued to apply Central
Hudson's intermediate scrutiny rather than strict
scrutiny. See, e.g., Retail Digital
Network, 861 F.3d at 846 (“Sorrell did
not mark a fundamental departure from Central
Hudson's four-factor test, and Central
Hudson continues to apply.”); 1-800-411-Pain
Referral Serv., LLC v. Otto, 744 F.3d 1045, 1055 (8th
Cir. 2014) (“The upshot is that when a court determines
commercial speech restrictions are content- or speaker-based,
it should then assess their constitutionality under
Central Hudson.”); Educ. Media Co. at Va.
Tech, Inc. v. Insley, 731 F.3d 291, 298 (4th Cir. 2013)
(declining to determine whether strict scrutiny applied
because the challenged regulation failed Central
Hudson's intermediate scrutiny); United States
v. Caronia, 703 F.3d 149, 165-69 (2d Cir. 2012)
(applying Central Hudson to a content- and
speaker-based regulation); see also King v. Gen. Info.
Servs., Inc., 903 F.Supp.2d 303, 308 (E.D. Pa. 2012)
(observing that in Sorrell, “the Supreme Court
stopped far short of overhauling nearly three decades of
precedent, which is clearly demonstrated by the fact that the
opinion characterizes commercial speech precedence, including
Central Hudson itself, for support”).
circuit courts have either highlighted a lack of clarity
around the commercial speech doctrine post-Sorrell,
see, e.g., Ocheesee Creamery LLC v.
Putnam, 851 F.3d 1228, 1235 n.7 (11th Cir. 2017), or
addressed it in the context of other types of speech.
See, e.g., King, 767 F.3d at 235
(finding that professional speech receives the same
protection as commercial speech and relying on Central
Hudson for the standard); ACLU of Ill. v.
Alvarez, 679 F.3d 583, 586, 604-08 (7th Cir. 2012)
(referencing “several variations of intermediate
scrutiny” in various speech contexts and concluding the
statute at issue failed to satisfy the elements of any of
light of the lack of clarity surrounding this issue, and
because I conclude infra that the Inquiry Provision
does not pass muster under the Central Hudson
framework, I need not determine whether the Central
Hudson test has been broadened for content- or
speaker-based restrictions. I will thus apply Central
Hudson's intermediate scrutiny to the Inquiry
Application of Central Hudson to the Inquiry
City urges that the Inquiry Provision passes muster under the
Central Hudson test. With the exception of the
City's interest, which the Chamber concedes is
substantial, the Chamber contests the Inquiry Provision's
ability to satisfy all steps of the Central Hudson
framework outlined in Central Hudson for analyzing
commercial speech is as follows:
For commercial speech to come within [the First Amendment],
it at least must concern lawful activity and not be
misleading. Next, we ask whether the asserted governmental
interest is substantial. If both inquiries yield positive
answers, we must determine whether the regulation directly
advances the governmental interest asserted, and whether it
is not more extensive than is necessary to serve that
447 U.S. at 566. A regulation that does not pass muster under
this test violates the First Amendment.
first step, which asks whether the speech concerns unlawful
activity or is misleading, is a threshold question. If
answered in the affirmative, the analysis ends because
commercial speech that concerns unlawful activity or is
misleading remains unprotected. See Zauderer, 471
U.S. at 638. Where the speech does not concern unlawful
activity and is not innately misleading, the government may
regulate the speech only if its restriction satisfies all of
the remaining prongs of the Central Hudson test.
last two steps of the Central Hudson analysis
basically involve a consideration of the ‘fit'
between the legislature's ends and the means chosen to
accomplish those ends.” Posadas de Puerto Rico
Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341
Does the Commercial Speech at Issue Concern Unlawful
Activity or Is It Misleading?
City posits that, “[b]ecause employer wage history
queries are ‘commercial speech related to [the] illegal
activity' of relying upon wage history, they are
unprotected speech under Central Hudson.” The
City explains that similar to provisions contained in
anti-discrimination laws, the Inquiry Provision prohibits
acquiring information that the “main” provision
of the Ordinance (the Reliance Provision) prohibits employers
from using. The Chamber responds that because the Reliance
Provision is unconstitutional, the Inquiry Provision cannot
be justified as related to this other unconstitutional speech
restriction. The Chamber also contends that even if the
Reliance Provision is a constitutional restriction on
conduct, wage history inquiries do not pertain to unlawful
activity simply because the Reliance Provision makes it
illegal to rely on wage history in fashioning a salary.
Because I conclude below that the Reliance Provision does not
constitute a speech restriction, I will address only the
Chamber's second argument.
City relies upon Pittsburgh Press Co. v. Pittsburgh
Comm'n on Human Relations, 413 U.S. 376 (1973), a
case that informed the Supreme Court's ruling in
Central Hudson. In Pittsburgh Press, the
Supreme Court concluded that commercial speech related to
illegal activity could be regulated. There, the Court
addressed an ordinance that precluded, among other things,
(1) discrimination in employment on the basis of a variety of
characteristics, including sex; (2) publishing or
circulating, or causing to publish or circulate, “any
notice or advertisement relating to ‘employment' or
membership which indicate[d] any discrimination because of
sex”; and (3) aiding “in the doing of any act
declared to be an unlawful employment practice by this
ordinance.” Id. at 378. The lower court had
found Pittsburgh Press in violation of the Ordinance's
third provision for carrying “help-wanted”
advertisements in sex-designated columns. Id. at
Supreme Court agreed that Pittsburgh Press's practice of
placing “help-wanted” advertisements for
employment in sex-designated columns aided employers in
“indicating” illegal sex preferences.
Id. at 388. The Court found that this amounted to
illegal commercial activity because discrimination in
employment was illegal under the ordinance. Id.
(“We have no doubt that a newspaper constitutionally
could be forbidden to publish a want ad proposing a sale of
narcotics or soliciting prostitutes.”). The Court
further concluded that the provision prohibiting the aiding
of discrimination was a permissible speech restriction
because “[a]ny First Amendment interest which might be
served by advertising an ordinary commercial proposal and
which might arguably outweigh the governmental interest
supporting the regulation is altogether absent when the
commercial activity itself is illegal and the restriction on
advertising is incidental to a valid limitation on economic
activity.” Id. at 389. Significantly, the
Court observed that the provision making sex discrimination
in employment illegal was unchallenged, as was the provision
prohibiting employers from publishing or causing to be
published any advertisements “indicating” sex
discrimination. Id. at 388-89.
while using wage history to formulate salaries is made
illegal pursuant to the Reliance Provision, other uses of
wage history are not illegal. For example, acquisition of
wage history is allowed in other contexts such as for
gathering market information or identifying applicants whom
employers can or cannot afford. And, unlike discrimination,
the existence of a wage history is not in and of itself
illegal. In Pittsburgh Press, the aiding of a
discriminatory employment practice necessarily pertained to
illegal discriminatory employment practice. Simply because
wage history could be relied upon in fashioning a salary in
violation of the Reliance Provision does not render all other
legal activity related to wage history illegal. See
Dunagin v. City of Oxford, 718 F.2d 738, 743 (5th Cir.
1983) (en banc) (“The commercial speech doctrine would
disappear if its protection ceased whenever the advertised
product might be used illegally.”). Additionally,
unlike in Pittsburgh Press where the provision
rendering discriminatory employment practices was
unchallenged, here, the Reliance Provision is challenged.
Pittsburgh Press is therefore distinguishable.
City's reliance upon Nat'l Ass'n of Tobacco
Outlets, Inc. v. City of Providence, 731 F.3d 71 (1st
Cir. 2013), is also unavailing. In that case, one provision
of an ordinance prohibited the sale of tobacco products by
way of coupons and multi-pack discounts, and a second
provision prohibited licensed tobacco retailers from
accepting, redeeming, or offering to accept or redeem coupons
providing tobacco products for free or at a discounted price.
Id. at 74. Applying the first prong of Central
Hudson, the United States Court of Appeals for the First
Circuit found that the second provision of the ordinance
regulated illegal activity because the underlying transaction
was illegal pursuant to the first provision. Id. at
78. The court explained that the second provision prohibited
offering to engage in illegal activity, “that is, sales
of tobacco products by way of coupons and multi-pack
discounts, which are banned, ” and consequently such
offers could be “freely regulated.” Id.
contrast, to inquire into wage history is not an offer to
engage in otherwise illegal activity, as information gathered
through a wage history inquiry could be used for many
activities other than relying upon it to determine a salary.
The underlying commercial transaction is not illegal like the
sale of tobacco products through coupons or multi-pack
discounts was in Tobacco Outlets. Rather, the
underlying commercial transaction here, hiring employees, is
lawful. See also Katt v. Dykhouse, 983 F.2d 690, 697
(6th Cir. 1992) (“The proper inquiry under the first
prong of the Central Hudson test is whether the
underlying commercial transaction is lawful.”)
(emphasis in original).
a ruling as the City requests would stand Central
Hudson on its head. If the City's position were
correct, City Council could pass any law with two provisions,
one of which impermissibly regulates commercial speech, so
long as the other provision renders one use of the underlying
commercial speech unlawful. For all of the forgoing reasons,
I find that the Inquiry Provision does not concern unlawful
activity nor is it misleading, and will thus proceed to the
next step of the Central Hudson test.
Is the City's Interest Substantial?
parties agree that the City has a substantial interest in
promoting wage equity and reducing discriminatory wage
Does the Inquiry Provision Directly Advance the
City's Asserted Interest?
City maintains that the Inquiry Provision satisfies this
prong of the analysis, insisting there is sufficient evidence
to establish that the wage gap is the result of
discrimination and that City Council's decision to
prohibit inquiries into wage history will promote wage
equality. The City first points to the testimony before City
Council of Terry L. Fromson, Managing Attorney for the
Women's Law Project, for the proposition that the wage
gap begins with a woman's first job and grows over time
because raises after an employee is hired are calculated
based on current salary. Relying on the testimony of Rue
Landau, Executive Director of the PCHR, the City then asserts
that based on this initial wage gap, common sense suggests
that asking about wage history during the hiring process
propagates wage inequality. The City also points to the
affidavit of a labor economics expert, Dr. Janice Madden, and
an article published quoting Dr. Victoria Budson, Executive
Director of the Women and Public Policy Program at Harvard
University's Kennedy School, which I address in greater
detail below. The City concludes that Council “had more
than enough expert opinion and information” to conclude
that the Inquiry Provision would advance the asserted
interest. (Resp. at 12-15.)
to Turner Broad, System, Inc., v. F.C.C., 520 U.S.
180 (1987) (“Turner II”), King v.
Governor of the State of New Jersey, 767 F.3d 216 (3d
Cir. 2014), and Florida Bar v. Went for It, Inc.,
515 U.S. 618 (1995), the City also urges that City
Council's predictive judgment is entitled to deference
and that empirical studies demonstrating that the Inquiry
Provision will narrow the wage gap are not required. It avers
that based on the record before it, Council properly
exercised its predictive judgment. The City notes that this
is especially true here where no other law regulating wage
history inquiries is yet in effect and therefore evidence
detailing what happens when wage history is withheld does not
yet exist. (Resp. at 15-16; Reply at 8-9.)
response, the Chamber relies upon Edenfield v. Fane,
507 U.S. 761 (1993), Wollschlaeger v. Governor of
Fla., 848 F.3d 1293 (11th Cir. 2017), Rubin v. Coors
Brewing Co., 514 U.S. 476 (1995), and Pitt News v.
Pappert, 379 F.3d 96 (3d Cir. 2004), all discussed
infra, to illustrate that there is insufficient
evidence to establish that the harm is real and that the
Ordinance will alleviate the alleged harm. The Chamber urges
that the City relies upon “[m]ere speculation and
conjecture” and fails to provide “at least
some concrete evidence” that the Inquiry
Provision will alleviate the asserted harms. According to the
Chamber, there was no evidence before City Council about how
often employers rely on wage history in setting salaries or
to what extent that practice perpetuates the wage gap, nor
was there any empirical or anecdotal evidence to demonstrate
that employers rely on wage history to reduce a salary below
what they would otherwise offer. Given these deficiencies,
the Chamber concludes that no evidence supports City
Council's finding that reliance on wage history
perpetuates discriminatory gender wage inequalities, nor does
any evidence eliminate the real possibility that pay
disparities are caused by other factors. (Mot. at 15-16.)
its burden of showing that a law “directly
advances” a substantial interest, the City must
establish that “the harms it recites are real and that
its restriction will in fact alleviate them to a material
degree.” Edenfield, 507 U.S. at 770-71;
see also Turner Broad. Sys., Inc. v. F.C.C., 512
U.S. 622, 664 (1994) (“Turner I”)
(“When the Government defends a regulation on speech as
a means to redress past harms or prevent anticipated harms,
it must do more than simply ‘posit the existence of the
disease sought to be cured.'”) (quoting Quincy
Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir.
1985)); King, 767 F.3d at 238 (explaining that the
government “must show the harms are ‘real, not
merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material
way.'”) (quoting Turner I, 512 U.S. at
conducting this analysis, the court “do[es] not review
a legislature's empirical judgment de novo,
” but instead “determines whether the legislature
has ‘drawn reasonable inferences based on substantial
evidence.'” King, 767 F.3d at 238 (quoting
Turner II, 520 U.S. at 195). “‘[T]he
quantum of empirical evidence'” necessary to
satisfy intermediate scrutiny “‘will vary up or
down with the novelty and plausibility of the justification
raised.'” Id. (citing Nixon v. Shrink
Mo. Gov't PAC, 528 U.S. 377, 391 (2000)).
carefully reviewed the record before City Council, which
consists of testimony from six professionals in Philadelphia
as well as anecdotes of two women who have been asked about
their wage history during the job application process. In
summary, the record is comprised of the following:
- Rue Landau, Executive Director of the PCHR, stated that
according to a 2015 United States Census report, women in
Pennsylvania earn 79 cents for every dollar a man earns. She
described the effect of the 2007-2009 recession on this gap.
Ms. Landau concluded that “[i]t stands to reason that
the practice of asking an applicant's wage history during
the hiring process can perpetuate wage inequality, low wages,
and poverty, ” and ...