Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The City of Philadelphia has agreed to stay the enforcement of the Philadelphia Wage Equity Ordinance, which was to take effect on May 23, 2017, and be codified in the Philadelphia Code at Sections 9-1103((1)(i) and 9-1131. The Ordinance has generated controversy because it bans employers who do business in Philadelphia from asking prospective employees about their wage or benefits history.
On April 6, 2017, the Chamber of Commerce for Greater Philadelphia filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania seeking declaratory and injunctive relief to prevent the City of Philadelphia and the Philadelphia Commission on Human Relations from enforcing the Ordinance. The suit alleges that while the Chamber supports the goal of eliminating gender-based wage discrimination, the Ordinance fails to advance that goal. Instead, the Ordinance takes an ineffective, roundabout and over-inclusive approach that: (1) violates the First Amendment by chilling protected speech of employers and impairing their ability to make informed hiring decisions, (2) violates the Due Process clause by imposing severe penalties for violation of vague provisions, e.g. "knowing and willing disclosure" and a definition of "employer" that would apply beyond the City limits and Pennsylvania borders, (3) violates the Commerce Clause by having extraterritorial effect that burdens interstate commerce, and (4) violates the Pennsylvania Constitution and Home Rule Act by regulating individuals who neither live nor work in the City of Philadelphia. Several days after filing the suit, the Chamber filed a motion for preliminary injunction.
At a scheduling conference earlier this week with Judge Mitchell Goldberg, the City agreed to stay enforcement of the Ordinance pending resolution of the motion for preliminary injunction. Based on this agreement, the Court issued an Order staying the enforcement of the Ordinance. The Court will first consider the City's forthcoming motion contesting the Chamber's standing to bring the case, which will be fully briefed by May 12, 2017. If the case proceeds, the Court will set a briefing schedule to resolve the Chamber's motion for preliminary injunction.
For a detailed discussion of the Ordinance, see Denise Maher and Martha Keon, The Philadelphia Wage Equity Bill Will Ban Employers From Asking Prospective Employees About Their Past Wages and Fringe Benefits, Littler Insight (Oct. 24, 2016); and Martha Keon and Denise Maher, Philadelphia’s Wage Equity Bill Set To Go Into Effect On May 23, 2017, Littler ASAP (Jan. 25, 2017).