Illinois legislators continue to combat the wage gap

2017 was a year of sweeping political changes. Some successful and some not so much. The year started with the inauguration of what could have been our country’s first female president had Hillary Clinton won the 2016 presidential election. For me personally, it marked finally pursuing my dream of going to law school, and being a 1L at Southern Illinois University, a humbling, exhausting, and rewarding experience that required more strength than I ever knew I had. Women are resilient and with focus and determination, we can accomplish anything. However, sometimes progress is slow and an uphill battle. Such was the case for HB 2462, a piece of legislation intended to narrow the wage gap and put an end to the perpetual cycle of women being underpaid. Despite its ultimate death by executive veto, hope is not lost and the pursuit of equality continues.

Intended to restrict employers from obtaining a job applicant’s pay history, HB 2462 was sponsored by Rep. Anna C. Moeller of the 43rd District and introduced on Feb. 8, 2017. It specifically states that it:

Amend[s] the Equal Pay Act of 2003. Prohibits an employer from: (i) screening job applicants based on their wage or salary history, (ii) requiring that an applicant’s prior wages satisfy minimum or maximum criteria, and (iii) requesting or requiring as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that an applicant disclose prior wages or salary. Prohibits an employer from seeking the salary, including benefits or other compensation or salary history, of job applicant from any current or former employer. Limits defenses. Provides for penalties and injunctive relief.1

The bill passed in the Illinois House and Senate with strong Democratic support in April and May 2017, respectively. Unfortunately, it was vetoed by Governor Rauner on August 24, 2017. A veto override was successful in the House in October 2017 but ultimately failed in the Senate.

The issues that HB 2462 was specifically designed to address were employment, affirmative action, civil liberties, civil rights, and women’s rights. By prohibiting the screening of job applicants based on wage or salary history, advocates of the legislation claimed that it would expand the Illinois Equal Pay Act of 2003 and further restrict employers from using gender as a basis to differentiate pay between employees performing similar duties. Those supporting the bill claim that it would help narrow the wage gap that exists between men and women because it would reduce hiring discrimination. Historically, women on average are paid less than men and in Illinois the facts are staggering. Women in Illinois make 80 cents for every dollar that a man makes.2 Black women make 63 cents for every dollar made by non-white Hispanic men and Latina women make 48 cents on the dollar. Overall, women make less than men across all occupations and regardless of education level. Wendy Pollack of Sargent Shriver National Center on Poverty Law in Chicago, a policy and research think tank states “Asking about previous salary just perpetuates the lower salaries of women and people of color and it carries over into retirement. So that poverty rates among women and people of color are just higher- and it is a lifelong situation.”3

Of the bill’s opponents, Rep. Mark Batinick (97th District), who happens to have worked in commercial real estate, stated that he found salary history important for commission-based jobs in order for a future employer to best evaluate an applicant’s past performance. “To say that it is not relevant when I am hiring somebody that works on commission . . . when [salary history] is a direct correlation to how well they did their last job, I think that it is an absurdity.”4

For the most part, bills are proposed with the intention of promoting the greater good. Unfortunately, lawmakers often lack the psychic powers necessary to fully predict how legislation will affect everyday working people. Although politicians differ in opinion on the efficacy of HB 2462, a better way to gauge the efficacy of such legislation may be to ask a hiring professional. With over 16 years experience in human resources and presently Human Resources Manager for an Illinois-based chemical manufacturer, Phil Taylor believes “this bill will not impact a wage gap between genders.” Taylor explains that “within my experience, the wage gap doesn’t exist when applicants bear similar qualifications.”

Restricting the questions that can be asked of job applicants could ultimately make the interviewing process easier for applicants but harder for those actually doing the hiring. Taylor explained that if the legislation passes, it would alter the questions employers can ask during the interview and qualification process. He could still ask questions like “What are your wage expectations for this position” during initial screenings. This still sets the tone of expectations from the employers, but limits questions employers are able to ask during interviews.

As Taylor illustrates, many people don’t believe a wage gap exists between sexes. This is problematic and there are three possible explanations. First, it is possible that they believe the wage gap is a myth, based on skewed statistics that do not account for hours worked and experience earned. Secondly, a great deal of gender wage gap skepticism can be attributed to factors such as “occupational segregation” because work in female-dominated fields is valued less than work in male-dominated fields. One example would be the typical lower rate of pay given to women engaged in traditional roles as unpaid caretakers and caregivers. The third and last possible explanation to why some men don’t believe in the wage gap is the possibility that they don’t want to believe they are benefiting from an unequal system, in which one would imply they’ve been rewarded for more than they rightly deserve.

Regardless of the opposing mentality, Washington, D.C., has enacted a salary ban, along with several other jurisdictions including California, Delaware, Massachusetts, Texas, Oregon, New Orleans, New York, and San Francisco, based on the premise that something must be done about wage inequality between sexes.5 As wage history bans continue to grow in popularity, it is expected that Illinois will eventually adopt similar legislation. As for what this will mean for everyday people, Taylor says he thinks “everyday people would welcome the law passing as it would eliminate a very tough question that applicants would be directed to answer during the interview process.” Job interviews are stressful and often candidates feel the temptation to lie or to inflate their salary history to qualify for an increase when switching employers. This puts the burden on the employer to determine wage gaps, which sometimes leads to employees being undercompensated.

Thankfully, the hope for equality has not been abandoned. On February 15, 2018, Illinois State Senator Jennifer Bertino-Tarrant filed SB 3100, which is described as the Equal Pay-Salary History Bill. The bill is also sponsored by three male State Senators: Michael Connelly, John G. Mulroe, and Bill Cunningham. Its purpose is to amend the Equal Pay Act of 2003. If enacted, SB 3100 will prohibit an employer from requiring an employee to sign a nondisclosure agreement regarding the employee’s salary, from seeking the salary history of a prospective employee, and from requiring that a prospective employee’s salary history meet any specified criteria. It will provide for employers to establish a self-evaluation plan of the employer’s pay practices and set forth permissible components of a self-evaluation plan. SB 3100 will require submission of self-evaluation plans to the Department of Labor for verification. It will provide that an employer complete a self-evaluation plan that has been verified by the Department of Labor and provides it with an affirmative defense to liability for certain alleged violations of the Act. Lastly, SB 3100 will require that an employer that does not have a verified self-evaluation plan be subject to civil penalties for violations of the Act. The bill was assigned to the Senate Labor Committee on February 27, 2018 and will garner increasing amounts of attention as it progresses through the Legislature. Be sure to stay tuned for more on the progress of SB 3100 and Illinois’ latest attempt at legislation specifically intended to narrow the wage gap.

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Elizabeth Reynolds is a first-year law student at Southern Illinois University School of Law and originally from Downers Grove, IL. She is the proud mother of two children, Francis and Cecilia, and has a passion for women’s rights and international business law.

 

1. H.R. 2462, 100th Gen. Assemb., Reg.Sess. (Il. 2017).

2. Daisy Contreras, Equal Pay Act Goes to Senate (Feb. 27, 2018, 6:00 PM), nprillinois.org/post/equal-pay-act-goes-senate#stream/0.

3. Id.

4. Id.

5. Darren Mungerson and Betsy Cammarata Will Illinois Ban Salary History Inquiries? Hang on for a Bumpy Override! (Feb 27, 2018, 11:31 PM), www.littler.com/publication-press/publication/will-illinois-ban-salary-history-inquiries-hang-bumpy-override.

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March 2018Volume 23Number 4PDF icon PDF version (for best printing)