Legal Briefings

ARE PAY HISTORY INQUIRIES … HISTORY?

Prior salary and experience may not be a bias-free basis for wage disparities.

In Bowen v. Manheim Remarketing Inc., Qunesha Bowen sued her employer, Manheim Remarketing Inc. for pay discrimination in violation of the Equal Pay Act and Title VII. Bowen worked for Manheim for three years before being promoted to arbitration manager. Her male predecessor in the same position was paid nearly 50 percent more than her in his first year. Bowen’s predecessor also had more relevant experience and a higher salary than Bowen prior to promotion. But even after six years of working as an effective arbitration manager, Bowen still earned only as much as her male predecessor did during his first year in that role.

The U.S. Court of Appeals for the 11th Circuit found that Bowen demonstrated a pay disparity between her and her male predecessor. Manheim attempted to defeat liability by showing it considered a “factor other than sex” when it relied on Bowen’s prior salary and experience to set her salary each year. However, the court held that after Bowen performed as an effective arbitration manager for many years, her prior salary and experience no longer seemed to justify treating her differently than her male predecessor. The 11th Circuit overturned the lower court’s finding that Manheim’s reasons for paying Bowen less than her male predecessor were nondiscriminatory, and remanded the claims for trial.

IMPACT:

Many jurisdictions are adopting laws that prohibit employers from asking employees about prior salary, including California, Oregon, Massachusetts, Delaware, Puerto Rico, New York City, Philadelphia and New Orleans. Even outside of these jurisdictions, employers should be wary of consistently setting salaries based on compensation history.

NOSY EMPLOYERS AND PERSONAL EMAIL ACCOUNTS

Lois Owen was an employee for Professional Consultants Inc. Owen occasionally would access her personal email account on her work computer. After leaving PCI, Owen filed a discrimination complaint with a state agency, accusing PCI of sexual harassment and creating a hostile work environment. During the discovery stage, Owen learned that PCI employees had accessed her AT&T account without her permission after she left PCI. Owen sued PCI for violation of the Federal Stored Communications Act, which prohibits the intentional unauthorized access of a plaintiff’s electronic communications stored at a third party facility. The court denied PCI’s motion to dismiss Owen’s SCA claim. The court rejected PCI’s argument that it had authorized access, merely because it owned Owen’s work computer. To the contrary, the court stated that Owen’s personal email account was private and could not be accessed by an employer without authorization. Owen v. Cigna, 188 F. Supp. 3d 790 (N.D. Ill. 2016)

IMPACT:

Employers should revisit their information technology protocol regarding the handling of employee computer systems and devices. And, employers (and their IT staff) should beware of letting curiosity get the best of them and refrain from logging into any employee’s personal accounts.

Rachel L. Schaller and Daniel Saeedi are attorneys at Taft Stettinius & Hollister LLP. To comment, email editors@workforce.com.