A new law going into effect on September 1 in Alabama addresses discrimination in pay based on race or sex as well as questions about pay history.
The Clarke-Figures Equal Pay Act (CFEPA) prohibits race or sex discrimination in pay if the work “requires equal skill, effort, education, experience and responsibility, and performance under similar working conditions” unless the difference is due to “a seniority system, a merit system, quantity or quality of production or a differential based on any factor other than sex or race.”
The CFEPA substantially overlaps with the federal Equal Pay Act of 1963 (EPA), which prohibits sex discrimination in pay decisions under a similar standard. Unlike the federal EPA, however, the CFEPA also prohibits race discrimination.
The CFEPA creates a cause of action (or claim) for retaliation if an individual chooses not to disclose his wage history and believes he suffers an adverse action because of that nondisclosure. Employers still may inquire about applicants’ or employees’ wage history but may not treat them adversely because they choose not to disclose it. So, the options for employers are:
- Continue to ask about wage history, knowing the potential implications for a retaliation claim.
- Discontinue asking about wage history altogether. Instead, ask individuals about their compensation expectations as opposed to their wage history.
- Place a disclaimer next to the wage history question on an application or if discussed during an interview that the individual’s failure to respond won’t result in adverse treatment.
The safest course is to refrain from asking the question on the application or during a job interview, instead phrasing your inquiries in terms of pay expectations.
For more information on Alabama’s new equal pay law, see the June issue of Alabama Employment Law Letter.