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.