WASHINGTON — The DOJ Gender Equality Network, a 1,250-member organization of workers employed by the U.S. Department of Justice, is pushing federal leaders in charge of hiring to ban salary history questions because they’ve been associated with furthering pay gaps.

Solicitation of salary history, both during the interview process and in setting pay, is forbidden in 21 states for its tendency to reflect wage discrimination and artificially measure, and compensate, a candidate’s merit, according to DOJ GEN and several other legal research groups.

Federal regulation allows agencies to consider a new hire’s prior salary when setting pay.

“OPM’s regulation should ban not only agencies’ solicitation of salary history, but also their reliance on to it set pay—regardless of how an agency acquires the information,” the group’s letter said.

There has been some discussion by the Biden administration of a ban on the practice, which DOJ GEN says is critical given that women employed by the executive branch still make about 6% less than their male colleagues — a disparity that sharpens especially for minority women.

“We all want past pay gaps to stop at the federal government,” said Stacey Young, president of DOJ GEN, in a comment to Federal Times. “To do that, OPM should do more than ban agencies from simply soliciting salary history — the office has to ban agencies from using salary history, regardless of how it’s acquired.

“Unless it does, the federal government will perpetuate past pay inequities that disproportionately harm women and people of color,” she said.

The Biden administration has called on the government’s human resources arm to evaluate such a rule. Following an executive order last June, White House’s Office of Personnel Management set a goal to issue regulations that will address the use of salary history in the hiring and pay-setting processes for federal employees.

In the latest progress report, OPM said it completed a draft of proposed regulations that address the use of salary history and the agency is “on track” to issue final rules in the third quarter of 2023.

“Closing gender and racial pay gaps in the federal government is a priority goal for the Office of Personnel Management,” said the office in a statement to Federal Times. “Revising the regulations to address the use of salary history in hiring and pay-setting processes for federal employees to advance pay equity is one of OPM’s strategies for achieving this goal.”

OPM said it plans to issue these regulations soon but declined to elaborate on whether a ban would be included in them.

“Taking meaningful steps to shrink salary gaps will improve agencies’ ability to recruit and retain top talent, advance compliance with the Administration’s DEIA mandates, and reduce costly legal challenges to salary disparities under the Equal Pay Act and other civil rights laws,” the letter said.

The courts seem to have agreed, at least in some part.

In one case, a 2018 federal appeals court decision ruled that salary history cannot serve as a legitimate justification for a pay disparity.

Some studies have also suggested that not disclosing salary history decreases salary offers for all applicants.

“A disclosure could increase chances of a callback, but decrease chances of getting a high salary offer, conditional on a callback,” the National Bureau of Economic Research found. “Candidates, employers and policymakers may thus face tradeoffs using and regulating salary history information.”

DOJ GEN also noted that though a ban is unlikely to prevent job applicants or new hires from volunteering past salary information, OPM should instruct agencies not to consider it under any circumstances.

“But even if agencies stop soliciting salary history, pay inequities will continue to be carried from job to job if agencies are allowed to rely on salary history information that applicants choose to provide, or that agencies otherwise learn about,” the letter said.

Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.

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