319 F. Supp. 3d 773
E.D. Pa.2018Background
- Philadelphia enacted a Wage Equity Ordinance with two key provisions: (1) an Inquiry Provision banning employers from asking prospective employees about prior wage history; and (2) a Reliance Provision forbidding employers from relying on wage history to set wages unless the applicant "knowingly and willingly" disclosed it. Violations carry civil and criminal penalties.
- The Chamber of Commerce and several members sued for a preliminary injunction, arguing the Ordinance (both provisions) violates the First Amendment and other constitutional provisions.
- The district court treated the Inquiry Provision as regulating commercial speech and applied Central Hudson intermediate-scrutiny; it treated the Reliance Provision as regulating conduct, not speech.
- The legislative record supporting the Ordinance consisted mainly of testimony, two anecdotes, and a post-enactment expert affidavit; the court found the record lacked substantial empirical evidence tying wage-history inquiries to perpetuation of discriminatory wage gaps.
- The court granted a preliminary injunction as to the Inquiry Provision (First Amendment violation) and denied relief as to the Reliance Provision (no First Amendment implication). The court denied the City’s requests for a hearing and expedited discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Inquiry Provision restricts protected speech and is constitutional | Inquiry ban targets employers' questions (speech); the law is content- and speaker-neutral and advances wage-equity interests | City: wage-history questions are commercial speech subject to Central Hudson and the ban materially advances a substantial interest | Court: Inquiry Provision regulates commercial speech but fails Central Hudson (insufficient evidence that ban directly advances the stated interest); injunction granted |
| Whether the Reliance Provision implicates the First Amendment | Reliance ban restricts employers' expressive use of wage information in communicating offers; analogous to Sorrell — triggers speech scrutiny | City: Reliance Provision regulates conduct (salary-setting), not speech, so First Amendment not implicated | Court: Reliance Provision regulates conduct, not speech; First Amendment scrutiny not triggered; motion denied as to this provision |
| Vagueness / "knowingly and willingly" safe harbor | Chamber: phrase is vague and fails to give fair notice | City: PCHR Regulation No. 7.3 clarifies the standard (voluntary disclosure with knowledge of possible use) | Court: Ordinance sufficiently clear in light of PCHR regulation; not unconstitutionally vague |
| Extraterritorial effect, Due Process, Commerce Clause | Chamber: Ordinance reaches hiring decisions outside Philadelphia; violates Due Process, Commerce Clause, and state constitution | City: Regulation limited to hiring for positions located in Philadelphia; incidental effects on out-of-state conduct are permissible | Court: Ordinance tailored to local interest (jobs in Philadelphia); no Commerce Clause or state-constitutional violation found |
Key Cases Cited
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (commercial speech intermediate-scrutiny framework)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (regulation of creation/use of data implicated First Amendment; content- and speaker-based concerns)
- Reed v. Town of Gilbert, 576 U.S. 155 (content-based speech analysis)
- Edenfield v. Fane, 507 U.S. 761 (government must show harms are real and restriction will materially alleviate them under Central Hudson)
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (legislative deference; need for substantial evidence to support predictive judgments)
- Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (commercial advertising may be regulated when the underlying commercial activity is illegal)
- Rubin v. Coors Brewing Co., 514 U.S. 476 (insufficient evidence that speech restriction directly advanced asserted interest)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (when conduct consists of communicating a message, First Amendment may apply)
- Wollschlaeger v. Governor of Fla., 848 F.3d 1293 (11th Cir.) (distinguishing provisions that target speech vs. nonexpressive conduct)
- Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir.) (preliminary-injunction burdens and First Amendment burden-shifting)