In an effort to close the wage gap between men and women, the Illinois Senate is considering amending the Illinois Equal Pay Act ("EPA"). The amendment, known as Senate Bill 0981, would, in part, make it unlawful for an employer to seek the wage or salary history of any job applicant. If enacted, Illinois would be only the second state to adopt such a law. Massachusetts currently is the only state that prohibits employers from asking applicants about their current or past salary, although several states are considering similar measures and some cities, like New York City, have passed similar measure.
The Equal Pay Act of 2003 prohibits employers from discriminating between employees on the basis of sex by paying wages to an employee at a rate less than the rate at which the employer pays wages to another employee. It has been reported that women in Illinois only make 80 cents for every dollar paid to their male counterparts.
The amendment's supporters assert that asking an applicant, or the applicant's current or prior employer, about his or her prior salary, benefits or other compensation, serves to perpetuate past discrimination. As amended, the EPA would also unlawful for an employer to require an employee to sign a contract or waiver that would prohibit the employee from disclosing or discussing information about the employee's wages or to screen job applicants based on their wage or salary history.
The EPA currently provides that if an employee is paid by his or her employer less than the wage to which he or she is entitled, the employee may recover in a civil action the entire amount of any underpayment together with interest, and the costs and reasonable attorney's fees. Employers who violate the EPA can also be subject to civil penalties ranging from $500 to $5,000 for each violation for each employee, depending on the size of the employer and whether it is a first offense.
The amendment makes additional remedies available, including compensatory damages if the employee demonstrates that the employer acted with malice or reckless indifference, punitive damages as may be appropriate, and injunctive relief. If the employer unlawfully asks about salary history or violates other provisions of the amendment, the employee may also recover "special damages" not to exceed $10,000.
Opponents of the bill argue that the amendment will be burdensome for employers and will lead to increased litigation. Many employers believe that salary history is a relevant measure of someone's past performance. Nevertheless, the fact that the House passed the proposed amendment April by a vote of 91-24 is a good indicator of the strong support for the amendment.