Greater Phila Chamber Commerce v. City of Philadelphia ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 18-2175 & 18-2176
_____________
GREATER PHILADELPHIA CHAMBER OF
COMMERCE, Individually and on behalf of its members,
Appellant in No. 18-2176
v.
CITY OF PHILADELPHIA; PHILADELPHIA
COMMISSION ON HUMAN RELATIONS,
Appellants in No. 18-2175
________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-17-cv-01548)
District Judge: Honorable Mitchell S. Goldberg
________________
Argued on March 15, 2019
Before: McKEE, ROTH, and FUENTES, Circuit Judges
(Opinion filed: February 6, 2020)
Benjamin H. Field
Jane L. Istvan
Nicole S. Morris
Marcel S. Pratt, Esquire (Argued)
City of Philadelphia
Law Department
1515 Arch Street
Philadelphia, PA 19102
Counsel for Appellants/Cross-Appellees
Adam R. Pulver
Scott L. Nelson
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009
Counsel for Amicus Public Citizen Inc.
Maura Healey
Elizabeth N. Dewar
Genevieve Nadeau
Erin K. Staab
Office of Attorney General Massachusetts
One Ashburton Place
McCormack Building
Boston, MA 02108
Counsel for Amicus Commonwealth of Massachusetts;
District of Columbia; Commonwealth of Puerto Rico;
Commonwealth of Virginia; State of Connecticut;
State of Delaware; State of Illinois; State of New
Jersey; State of New Jersey; State of New York; State
of Vermont; State of Washington
Zachary W. Carter
Richard Dearing
Devin Slack
Eric Lee
Jamison Davies
New York City Law Department
Room 6-178
100 Church Street
New York, NY 10007
Counsel for Amicus City of New York; City of
Berkeley; City of Columbus; City of Oakland; County
of Santa Clara; City and County of San Francisco;
City of Seattle; City of South Bend
Terry L. Fromson
Amal Bass
Women’s Law Project
125 South 9th Street
Suite 300
Philadelphia, PA 19107
Counsel for Amicus Womens Law Project;
2
36 Organizations Dedicated to Gender Wage Equity
Richard A. Samp
Cory L. Andrews
Washington Legal Foundation
2009 Massachusetts Avenue, N.W.
Washington, DC 20036
Counsel for Amicus Washington Legal Foundation
Kellam M. Conover
Miguel A. Estrada (Argued)
Amir C. Tayrani
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Franco A. Corrado
Marc J. Sonnenfeld
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103
Kevin M. Siegel
Suite 201
10000 Lincoln Drive East
Marlton, NJ 08053
Counsel for Appellee/Cross-Appellant
Michael L. Kichline
Michael H. McGinley
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Counsel for Amicus African American Chambers of
Commerce of Pennsylvania., New Jersey and
Delaware
Robert L. Byer
John E. Moriarty
Robert M. Palumbos
Andrew R. Sperl
Duane Morris
3
30 South 17th Street
Philadelphia, PA 19103
________________
OPINION OF THE COURT
________________
Table of Contents
I. BACKGROUND......................................................... 6
A. The Disparity And The Ordinance ....................... 8
B. Legislative Background ......................................... 9
1. Testimony Before the City Council ............. 10
a. Barbara Price .......................................... 10
b. Terry Fromson ........................................ 11
c. Marianne Bellesorte ............................... 14
d. Rue Landau ............................................. 15
2. Other Testimony Before the City Council .. 16
C. The Legal Challenge ............................................ 17
1. The Madden Affidavit .................................. 18
2. Declarations Filed by Chamber Members .. 23
D. The District Court Opinion ................................ 24
II. DISCUSSION .......................................................... 25
A. The Reliance Provision ........................................ 27
1. The District Court Correctly Concluded an
Injunction as to the Reliance Provision Fails
4
Because the Provision does not Implicate
Speech ............................................................ 27
2. None of the Chamber’s Arguments Call into
Question the District Court’s Conclusions . 29
B. The Inquiry Provision ......................................... 32
1. The Legal Standard ...................................... 32
a. Commercial Speech ................................ 32
b. Intermediate Scrutiny Under Central
Hudson is Appropriate ........................... 34
c. Strict Scrutiny is Inappropriate Here ... 35
2. The Inquiry Provision Satisfies Central
Hudson Intermediate Scrutiny .................... 38
a. The Speech at Issue is not “Related to
Illegal Activity” ........................................ 39
b. The City has a Substantial Interest in
Closing the Wage Gap ............................ 41
c. The Inquiry Provision Directly Advances
the City’s Interest in Pay Equity ........... 42
i. Caselaw Considering Whether a
Legislature Relied on Substantial
Evidence to Support a Speech
Restriction Under Central Hudson
Demonstrates that the City
Presented Sufficient Evidence to
Support the Ordinance ............... 45
ii. The Evidence Here is Stronger
Than the Evidence Supporting the
Restrictions in Florida Bar and
King .............................................. 55
5
d. The Inquiry Provision is not More
Extensive than Necessary ....................... 61
III. CONCLUSION ......................................................... 67
McKEE, Circuit Judge
This appeal requires us to decide whether a Philadelphia
Ordinance that prohibits employers from inquiring into a
prospective employee’s wage history in setting or negotiating
that employee’s wage violates the First Amendment. The
district court held the Ordinance unconstitutional insofar as it
prohibits that inquiry. However, the court upheld the provision
of the Ordinance that prohibits reliance on wage history based
on the court’s conclusion that such reliance did not implicate
protected speech.
For the reasons that below, we affirm the court’s order insofar
as it upholds the Reliance Provision but reverse it insofar as it
strikes down the Inquiry Provision.
I. BACKGROUND
In 2017, the City of Philadelphia enacted an ordinance to
address the disparity in the pay of women and minorities that
is often called the “pay gap.” The Ordinance contains two
provisions: the “Inquiry Provision,” which prohibits an
employer from asking about a prospective employee’s wage
history, and the “Reliance Provision,” which prohibits an
employer from relying on wage history at any point in the
process of setting or negotiating a prospective employee’s
wage. The Greater Philadelphia Chamber of Commerce filed
this suit, individually and on behalf of some of its members,
alleging that both provisions of the Ordinance infringe on the
freedom of speech of the Chamber and its members.
The Chamber concedes that the pay gap exists, and that the
City has a substantial governmental interest in addressing it.
However, the Chamber argues that the City passed the
Ordinance “with only the barest of legislative records” and,
therefore, did not present sufficient evidence to establish that
the Ordinance would satisfy the City’s objective.1
1
Chamber Br. at 1.
6
Accordingly, the Chamber claims that the Ordinance cannot
survive its First Amendment challenge under either strict or
intermediate scrutiny.
The district court agreed that the Inquiry Provision violated the
First Amendment speech rights of employers and invalidated
that part of the Ordinance. But the court concluded that the
Reliance Provision withstood the Chamber’s First Amendment
challenge because it did not impact speech.
As we explain below, we conclude that the district court erred
in holding that the Inquiry Provision was unconstitutional. We
believe the court’s analysis of that provision applied a much
higher standard than required. The Supreme Court has not
demanded that the enacting authority achieve legislative
certainty or produce empirical proof that the adopted
legislation would achieve the stated interest even when
applying strict scrutiny. Rather, the appropriate inquiry
requires courts to determine whether the legislature “has drawn
reasonable inferences based on substantial evidence.”2 The
Supreme Court has even “permitted litigants to justify
[analogous] speech restrictions by reference to studies and
anecdotes pertaining to different locales altogether, or even, in
a case applying strict scrutiny, to justify restrictions based
solely on history, consensus, and ‘simple common sense.’”3 In
short, the Supreme Court has upheld similar restrictions based
on much less evidence than the City presented here.
2
Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997)
(“Turner II”) (internal quotation marks and citation omitted).
3
Florida Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)
(internal citations omitted). See also City Br. at 43-44 (citing
Heffner v. Murphy, 745 F.3d 56, 92 (3d Cir. 2014), WV Ass’n
of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553
F.3d 292, 303–04 (4th Cir. 2009), Coyote Pub., Inc. v. Miller,
598 F.3d 592, 608 (9th Cir. 2010) (illustrating recent
decisions reflecting the Supreme Court’s flexible approach to
speech restrictions under intermediate scrutiny. As we explain
below, we conclude that the Ordinance need only satisfy
intermediate scrutiny.)
7
A. The Disparity And The Ordinance
According to the 2015 census, women in Pennsylvania earned
79 cents for every dollar earned by similarly situated men.4 For
women of color, the wage gap is even more profound. Black
women earn 68 cents for every dollar paid to similarly situated
men, and Latina women earn 56 cents for every dollar paid to
similarly situated men.5 The gap begins for women as soon as
they enter the workforce. In just the first year after college, full-
time working women earn, on average, just 82% of what their
male peers earn.6 Overall, women under the age of 35 earn 88-
91% of what their male peers earn.7 Rather than improve, as
women gain experience in the work force the situation gets
worse. Women aged 35 and over earn only 77-81% of what
male peers earn.8
In response to this persistent wage disparity, the City of
Philadelphia enacted the Ordinance at the center of this
dispute. The Ordinance states:
It is an unlawful employment practice for an
employer . . .
(i) To inquire about a prospective employee’s
wage history, require disclosure of wage history,
or condition employment or consideration for an
interview or employment on disclosure of wage
4
See JA119–20 (discussing the City Council’s legislative
findings supporting the Ordinance).
5
Id.
6
See, e.g., Christianne Corbett & Catherine Hill, Am. Ass’n
of Univ. Women (“AAUW”), Graduating to a Pay Gap: The
Earnings of Women and Men One Year After College
Graduation, at 9 (Oct. 2012),
https://www.aauw.org/files/2013/02/graduating-to-a-pay-gap-
the-earnings-of-women-and-men-one-year-after-college-
graduation.pdf.
7
U.S. Bureau of Labor Statistics, Highlights of Women’s
Earnings in 2017, at 9 (Aug. 2018),
https://www.bls.gov/opub/reports/womens-
earnings/2017/pdf/home.pdf.
8
Id.
8
history, or retaliate against a prospective
employee for failing to comply with any wage
history inquiry.
(ii) To rely on the wage history of a prospective
employee from any current or former employer
of the individual in determining the wages for
such individual at any stage in the employment
process, including the negotiation or drafting of
any employment contract, unless such applicant
knowingly and willingly disclosed his or her
wage history to the employer, employment
agency, employee or agent thereof.
(c) For purposes of this Section 9-1131, “to
inquire” shall mean to ask a job applicant in
writing or otherwise. . . . 9
Employers who violate the Ordinance are subject to
civil and criminal penalties, including compensatory
damages, up to $2,000 in punitive damages per
violation, and an additional $2,000 and 90 days’
incarceration for a repeat offense.10
B. Legislative Background
The City seeks to justify the Ordinance by relying on the
testimony of witnesses who testified before the City Council
prior to the enactment of the Ordinance and an affidavit by Dr.
Janice Madden that the City submitted to the district court in
response to the Chamber’s constitutional challenge. Dr.
Madden reviewed thousands of peer-reviewed research studies
and concluded, among other things, that “there is wage
discrimination in the labor market, suppressing the prior wages
of women and minorities” and this “is consistent with the
findings of thousands of research studies.”11 She concluded
that “these scholarly studies show . . . that significant and
substantial wage differentials by race and gender, which are
9
Phila. Code § 9-1131.
10
Id. §§ 9-1105(1)(c)–(d), 9-1121(2).
11
JA297.
9
not explained by credentials or qualification, persist.”12 The
Chamber presented no evidence challenging any of Dr.
Madden’s conclusions or the studies those conclusions were
based on.
1. Testimony Before the City Council
a. Barbara Price
Barbara Price, the Public Policy Chair of the American
Association of University Women, testified before the Council
and submitted written testimony. She reiterated that “the
[wage] gap still exists today at 80 cents nationally and 79 cents
for Pennsylvania, which ranks [Pennsylvania] 27th as a state in
the country.”13 She confirmed that “[t]he gap remains
consistent across age groups, levels of education, and for full-
time workers across a number of occupations.”14 She discussed
research that showed, after accounting for choice of
occupation, hours worked, economic sector, experience, grade
point average, undergraduate institution, marital status and
other factors, a significant gap between the earnings of men
and women remained—beginning one year after graduation
and widening in the years thereafter.15 For example, in
12
JA298 (emphasis added).
13
Council of the City of Philadelphia Committee on Law and
Government: Hearing on Bill No. 160840, (Nov. 22, 2016)
(hereinafter “Hearing Transcript” or “Hr’g Tr.”) at 70,
available at
http://legislation.phila.gov/transcripts/Public%20Hearings/la
wngov/2016/lg112216.pdf; see also JA272-277.
14
JA273.
15
JA275 (citing AAUW, The Simple Truth About the Gender
Pay Gap, at 17 (Fall 2014),
https://fortunedotcom.files.wordpress.com/2014/12/the-
simple-truth_fall.pdf (“After accounting for college major,
occupation, economic sector, hours worked, months
unemployed since graduation, GPA, type of undergraduate
institution, institution selectivity, age, geographical region,
and marital status, Graduating to a Pay Gap found that a 7
percent difference in the earnings of male and female college
graduates one year after graduation was still unexplained.”).
10
Philadelphia, “[t]he single most common occupation for
Latinas is that of maids, housekeepers, janitors or building
cleaners where they make up 22 percent of the people
employed in those jobs.”16 However, “Latinas who work full
time in these occupations, year round, are paid just 58 cents for
every dollar paid to White, non-Hispanic men in the same
occupations.”17 She testified that the pay gap “costs a typical
woman in Pennsylvania about $918,120 over the course of her
career.”18
b. Terry Fromson
Terry L. Fromson, the Managing Attorney for the Women’s
Law Project, testified before the City Council that the practice
of obtaining and using wage history to set pay is one
contributor to the pay gap.19 She told the City Council that “a
sizable wage gap exists between men and women in
Pennsylvania, one that is substantially larger for women of
color.”20 She testified that unequal pay “has persisted despite
the existence of equal pay laws banning sex discrimination [in]
wages for five decades.”21
She explained that discrepancy in pay continues, in part,
because current laws targeting discrimination, such as “the
Equal Pay Act[,] specifically[] allow[] employers to justify
paying women less than men based on what is described as a
factor other than sex.”22 Ms. Fromson explained that “many
courts have interpreted prior wages as a factor other than sex,
when in fact, it is typically not. It is not gender neutral.”23 She
elaborated, “[a] woman’s prior pay may very well be based on
a sex discriminatory assessment of her worth. It reflects
historical market forces based on sex stereotypes and
16
JA273.
17
Id.
18
Id.
19
JA268; see also H’rg Tr. at 63-69.
20
H’rg Tr. at 65.
21
Id. at 65–66.
22
Id. at 66.
23
Id.
11
assumptions about the value of the equal work of one sex over
the other.”24
Fromson also gave a detailed explanation of how wage history
perpetuates and institutionalizes wage discrimination. “Wage
policies challenged in recent years show how this happens.”25
One’s initial salary at a given employer is based in part upon
the salary of the employee’s most recent job. “The wage gap
data tells us that the woman’s salary is most likely less than the
man who is equally situated to her.”26 Subsequent pay is then
based on that starting salary “plus an increment that would be
applied equally to the men and the women. . . . [E]very time a
salary increase happens, an equal percentage of prior pay is
applied. And so, women . . . remain paid less than men.”27 In
other words, the initial discrepancy in pay is baked into all
future pay increases, even in workplaces in which pay is
increased at the same percentage for similarly situated men and
women.
Fromson told the Council: “[b]y specifically outlawing the
practice of relying on prior wages to set a new employee’s pay,
this [O]rdinance will provide clarity that will relieve women of
having to gamble on whether a court will properly interpret this
practice as unlawful” discrimination.28 It will therefore help
ensure that wage growth and wage decisions are based on
qualifications and job requirements “rather than a factor that
likely reflects longstanding gender-based wage disparities in
the labor market.”29 She also noted that the EEOC recognizes
24
Id.
25
Id.
26
Id. at 66–67 (emphasis added). This testimony does not
distinguish between salary and wage discrepancy and the text
of the Ordinance refers only to a wage discrepancy. However,
we can discern no significant distinction for the purposes of
our discussion and much of the testimony strongly suggests
that the compensation gap that Fromson and others referred to
for salaries is indistinguishable from the compensation gap in
wages.
27
Id. at 67.
28
Id.
29
Id.
12
prior salaries of job candidates can reflect sex-based
compensation discrimination.30
Fromson informed the Council that Massachusetts had
approved a similar ban on inquiries into wage history and New
York City had adopted an executive order to that effect insofar
as public employees were concerned.31 She added that similar
legislation was then pending in several jurisdictions including
New Jersey, the District of Columbia, and New York City (to
expand to all employers in the city and not just municipal
employers).32
Fromson also suggested that the Council consider adding two
clarifications to the proposed Ordinance based on provisions in
the Massachusetts law and New York City executive order.
The first provision would have prohibited employers from
seeking an employee’s wage history from current or former
employees. She noted that “while [the Ordinance] prohibits an
employer from asking a job applicant for wage history, it does
not bar inquiries directly to current and former employers.”33
The second suggested change was to allow reliance on wage
history after an offer of employment and compensation had
been made.34 She explained that without the second change, the
proposed legislation allowed employers to consider wage
history if the employee volunteered it before an offer was
30
Id. at 66.
31
Id. at 64.
32
Id. The state of New Jersey has since passed a similar wage
history inquiry and reliance ban. See Act of July 25, 2019,
Pub. L. No. 2019, c.199 (N.J. 2019). That act states: “it shall
be an unlawful employment practice for any employer: (1) to
screen a job applicant based on the applicant’s salary history,
including, but not limited to, the applicant’s prior wages,
salaries or benefits; or (2) to require that the applicant’s salary
history satisfy any minimum or maximum criteria.” As
Fromson’s testimony suggests, New Jersey’s recently enacted
law appears to be part of an emerging trend that recognizes
the extent to which reliance on wage history inevitably
perpetuates historic wage disparity.
33
H’rg Tr. at 68.
34
Id.
13
made.35 Fromson suggested that this “place[d] applicants in an
untenable position of having to choose between protecting
what is biased information that may adversely affect their
future wages or [] risk being denied a job.”36 In her opinion,
that was “an inherently coercive situation for someone to be
in.”37
Ultimately, these added provisions were not incorporated into
the Ordinance. Councilman William Greenlee, Chairman of
the Committee of Law and Government, noted that, in
declining to include these added provisions, the Philadelphia
Ordinance did not go as far as other proposed wage history
bans around the country. He told the committee, “the
Massachusetts law goes a little wider than we do. We’re trying
to keep it real basic[;] . . . you’ll hear from a witness that thinks
we don’t make it strong enough, but we’re trying to find that
great balance that we always try to in legislation. . . .”38 We are
trying “at this point [to] limit it to stopping the employer from
asking, directly asking, the prospective employee what they
make.”39 He also noted “for the record, as far as the Chamber
of Commerce goes, the Boston Chamber of Commerce
supported the Massachusetts law. . . . [T]hey obviously did not
believe it was that injurious to businesses.”40
c. Marianne Bellesorte
Marianne Bellesorte, Vice President of Advocacy at Pathways
PA,41 analyzed wage gap data and concluded that the wage gap
for women and men of color “are compounded” when these
individuals are asked to share their wage history.42 She told the
Council “[o]ne step in addressing wage inequality is ensuring
35
Id.
36
Id. at 68–69.
37
Id. at 69.
38
Id. at 15.
39
Id.
40
Id. at 80.
41
“PathWays PA works to end the cycle of poverty,
homelessness, and abuse in the Philadelphia region.” Id. at
74.
42
JA276.
14
that a history of low salaries does not follow women into a new
workplace.”43 She emphasized that “the wage gap is not just
about women. It is also about people of color, men and
women.”44 She explained how wage inquiries perpetuate
discrimination for women and minorities: “Inequitable wages
start right out of college, and they’re compounded when
women and [minorities] apply for new jobs and are asked to
share their pay history. Instead of starting their job on an equal
footing, they enter with a lower salary because it was based on
previous employment.”45 She continued: “Not surprisingly as
women get older, the wage gap continues to grow and
continues to affect women in retirement.”46 Bellesorte also
explained: “By preventing potential employers [from] asking
for salary history, Philadelphia’s workers gain the ability to
earn what their work is actually worth. A woman who starts
her career at the low end of a salary range will not be held to
that standard for the rest of her work life.”47
d. Rue Landau
Rue Landau, the Executive Director of the Philadelphia
Commission on Human Relations, told the committee that, “as
the agency charged with enforcing the Fair Practices
Ordinance . . . the PCHR understand[s] that the wage gap is
real.”48 According to Ms. Landau, “women working in
Pennsylvania are paid only 79 cents for every dollar a man
earns.49 In real numbers, median annual earnings in
43
H’rg Tr. at 74.
44
Id. at 75.
45
Id.
46
Id.
47
Id. at 76.
48
Id. at 8.
49
Jovida Hill, the Executive Director of Philadelphia’s
Commission on Women, affirmed the testimony of Ms.
Landau with nationwide empirical evidence. She testified
that, “[a]ccording to calculations by the National Committee
on Pay Equity, for a woman with a high school education, the
difference [in pay arising from the pay gap] can amount to
$700,000, $1.2 million for a woman with a college degree,
15
Pennsylvania are $51,212 for a man and $40,742 for a
woman.”50 She testified “the practice of asking about an
applicant’s wage history during the hiring process can
perpetuate wage inequality, low wages, and poverty. . . . [A]
jobseeker who has suffered from the wage gap can only be
harmed when required to disclose her salary history.”51 She
concluded “the PCHR strongly believes[] that taking out any
obstacles that employers could use . . . to discriminate is a very
important thing to do. This is one of these barriers.”52
2. Other Testimony Before City Council
The Chamber did not present any witnesses in opposition to the
Ordinance, but it did submit written testimony from Rob
Wonderling, President and CEO of the Chamber. He wrote that
the Ordinance “goes too far in dictating how employers can
interact with potential hires.”53 Rather surprisingly, he
submitted that employers use wage history to “have a better
understanding of whether a candidate is worth pursuing based
on previous compensation levels as well as the market value or
salaries for comparable positions.”54 That of course is exactly
why the City Council was considering the Ordinance. It was
trying to cut the Gordian knot that continues to tie past
discriminatory wages to future job opportunities and wages so
that employers would not decide if a given employee was
“worth pursuing based on previous compensation levels.”
Wonderling also asserted that “[i]n speaking with our members
. . . we hear that compensation decisions are based on a number
of different factors such as market value, internal equity,
funding limitations and competition. It is not made based on a
candidate’s past salary history, gender or race.”55 As discussed
and $2 million for women with advanced degrees.” H’rg Tr.
at 12.
50
Id. 6.
51
Id. at 8.
52
Id. at 23.
53
JA124.
54
Id.
55
Id. This testimony is also surprising since, if salary history
is not a factor in setting compensation levels, it is not at all
16
below, however, this claim was contradicted by the Chamber
members’ own submissions to the district court in which they
confirmed that they use wage history to set wages.56
The Chamber offered no testimony to refute the existence of
the wage gap, the role of discrimination in the wage gap, or the
conclusion that prohibiting inquiry into one’s wage history
could help mitigate the wage gap. Based on this record, on
December 8, 2016, after weighing the testimony and
submissions, the City Council unanimously passed the
Ordinance.57
C. The Legal Challenge
In April 2017, the Chamber filed a Complaint and Motion for
Preliminary Injunction alleging the Ordinance violated the
First Amendment.58 The district court dismissed the original
complaint for lack of standing. The Chamber addressed that
deficiency in a subsequently filed Amended Complaint and
refiled Motion for a Preliminary Injunction.59
The City responded to the Amended Complaint by submitting
the affidavit of Dr. Janice Madden.60
clear how employers would be harmed or prejudiced by the
Inquiry Provision.
56
See e.g., JA130 (Chamber Member Bittenbender: “Wage
history information is essential to salary offers in positions
where Bittenbender is unaware of the market wage.”).
57
JA283–89. On January 23, 2017, the bill was signed into
law. JA122.
58
JA072-117.
59
JA74. The City has agreed that the Chamber and its
members have standing to bring suit here. See JA250, ¶ 18;
see also JA081-117.
60
See Affidavit of Janice F. Madden, Ph.D. JA291–306. Dr.
Madden is a labor economist “with extensive experience in
the analysis of labor markets and, in particular, gender and
racial differentials in labor markets.” JA292. She attended the
Wharton School after completing an M.A. and Ph.D. at Duke
University and previously earned her B.A. in economics and
mathematics at the University of Denver. She is a tenured
faculty member of the University of Pennsylvania and teaches
17
1. The Madden Affidavit
The City retained Dr. Madden, a highly respected labor
economist, to summarize the research in each of the following
areas: (1) the extent to which salaries of qualified job
applicants have historically differed by race or gender; (2) the
effect of starting salaries on the overall salary differentials of
comparable qualified employees by race or gender–
information that can be provided by an applicant’s salary
history; and (3) whether there are “alternative sources of such
information” to support the need for, and potential
effectiveness of, the Ordinance. Her affidavit corroborated the
testimony of the witnesses who had testified before the City
Council.61
She concluded in her affidavit that “there is wage
discrimination in the labor market[] suppressing the prior
wages of women and minorities” and that this “is consistent
with the findings of thousands of research studies.”62 Dr.
Madden reviewed the research on pay differentials by race and
gender for workers with equivalent skills and experience. She
stated that “[h]undreds, possibly thousands, of scholarly
studies over the years have decomposed the overall gender and
undergraduate and graduate “courses dealing with economics,
labor markets, and . . . relevant statistical methods.” Id. In
addition, Dr. Madden has authored five books on economics
and discrimination and has testified as an expert witness in
over 45 cases in federal and state courts. JA292–93.
61
Although her affidavit was not before the Council when the
Ordinance was passed, it was appropriately considered by the
district court. As we have previously recognized, “[i]f a
legislative body can produce in court whatever justification is
required of it under the applicable constitutional doctrine, we
perceive little to be gained by incurring the expense, effort,
and delay involved in requiring it to reenact the legislative
measure after parading its evidence through its legislative
chamber.” Phillips v. Borough of Keyport, 107 F.3d 164, 178
(3d Cir. 1997). The district court was therefore correct in
“consider[ing] post-enactment evidence offered in support of
City Council’s decision.” Id.
62
JA297.
18
racial pay gaps into the proportion arising from gender and
racial differences in experience, education, training, work
hours, occupations and industries.”63 Madden concluded that
“these scholarly studies show that the pay gap remains when
comparing only men and women or minorities and non-
minorities with the same education, experience, training, work
hours, occupations and industries.”64 These studies found
“significant and substantial wage differentials by race and
gender, which are not explained by credentials or qualification,
persist.”65
Dr. Madden reached several other conclusions based on her
survey of the voluminous research supporting the need for the
Ordinance, including that:
• “Labor market researchers are in general
agreement that women and/or members of racial
and ethnic minorities have received and
currently receive lower wages than comparably
qualified and performing men and/or members
of majority racial and ethnic groups.”66
• “Antidiscrimination laws, including the Civil
Rights Act and the Equal Pay Act, have not
eliminated the lower wages generally received
by women and minority workers relative to men
and majority workers of equivalent skill, ability,
experience, and performance.”67
• “Starting salaries typically differ by race and
gender for workers of equivalent skills and
abilities.”68
63
JA298.
64
Id. (emphasis added).
65
Id.
66
JA294.
67
Id.
68
Id.
19
• “The available evidence shows that when
employers do not have access to salary history,
they easily obtain information on past
performance and skills of applicants and they
select hires with this information as effectively
as those using salary histories.”69
According to Dr. Madden, denying employers information
about a perspective employee’s wage history does not deprive
a perspective employer of information needed to make an
informed employment decision, including determining an
appropriate wage. Concomitantly, putting such wage history
beyond the reach of new employers helps break the
discriminatory chain linking an employee’s new salary to past
salaries and any discriminatory judgments that may have
influenced those past salaries.70 The studies cited in Dr.
Madden’s affidavit included comprehensive reviews of scores
of other studies. For example, she cites Stanley and Jarrell who
performed a meta-regression analysis of fifty-five other studies
and concluded that there is a “wide consensus that gender wage
discrimination exists” and the “vast empirical economic
literature, containing hundreds of studies, reveals that women
are ‘underpaid’ disproportionate to their observed skills.”71
That study focused on determining the extent of the reported
gaps. Dr. Madden also relied upon the research of Blau and
Kahn, who found in their review of data from 1980 to 2010,
“an unexplained gender wage gap in each year[’s data].”72
They explained that the “finding of such an unexplained gap is
69
JA295.
70
JA305-06.
71
T.D. Stanley & Stephen B. Jarrell, Gender Wage
Discrimination Bias? A Meta-
Regression Analysis, 33 J. Hum. Resources 947, 948 (Fall
1998) (hereinafter “Stanley & Jarrell”).
72
Francine D. Blau & Lawrence M. Kahn, The Gender Wage
Gap: Extent, Trends, and Explanations, 31, NBER Working
Paper No. 2193, National Bureau for Economic Research
(2016), http://www.nber.org/papers/w21913 (published in 55
J. of Econ. Lit. 789 (2017)) (hereinafter “Blau & Kahn”).
20
fairly standard in the literature” and is “taken as an estimate of
labor market discrimination.”73
Dr. Madden also cited Wilson and Rodgers who concluded
“discrimination has consistently played a major role” in “the
widening of racial wage gaps since 1979.”74 This study focused
on the minority wage gap and the causes of the gap for specific
minority sub-groups. It concludes, among other things:
“Between the Great Recession of 2007–2009 and 2015, gaps
among new-entrant women expanded more than among any
other experience/gender group. The same factor that
dominated prior to 2000—growing labor market
discrimination—is the primary source of the erosion.”75
Additionally, “[a]mong black college graduates, growing
discrimination was essentially the sole cause of the [wage]
gap’s expansion, far outweighing the advantages black college
graduates gained as a result of being slightly older (i.e., more
experienced) than their white counterparts.”76
Her distilled conclusions of these studies were that “labor
market discrimination continues to contribute to the wage
gap;” “discriminatory wages persist;” and the “racial wage gap
[is] increasing.”77
To eliminate the effect of variables other than race or gender
such as: education, experience, training, occupation, and
industry, which could explain the wage gap, Madden also cited
the studies relied on by Blau and Kahn whose reviews focused
on homogenous populations within the same industry. For
example, they analyzed studies within a group of lawyers and
MBAs that were able to control for very detailed
characteristics, including, for example, grade point averages
73
Id.
74
Valerie Wilson & William M. Rodgers III, Black-White
Wage Gaps Expand with Rising Wage Inequality, 4,
Economic Policy Inst., (September 19, 2016)
https://www.epi.org/files/pdf/101972.pdf (hereinafter
“Wilson & Rodgers”).
75
Id. at 5.
76
Id. at 27.
77
JA298 n.3.
21
while in school.78 “The studies of lawyers and MBAs . . . find
that, even if one accounts for variables related to family status,
like work force interruption and fewer hours worked,
unexplained gender earnings differences remain which are
potentially due to discrimination.”79 Among lawyers, “men
earned 11 percent more, controlling for an extensive list of
worker qualifications and other factors, including grades while
in law school, detailed work history data, and type and size of
employer.”80 Among MBAs, “men earned nearly 7 percent
more even accounting for work force interruptions, fewer
hours worked, and gender differences in business school GPAs
and finance courses taken.”81
Blau and Kahn also reviewed experimental studies that
similarly concluded discrimination is a primary cause of the
wage gap. The authors believed that experiments “provide[]
particularly persuasive evidence of discrimination . . .
[because] they offer estimates of the role of discrimination that
are potentially less contaminated by unmeasured factors.”82
For example, the authors describe an experimental study that
not only replicated the gender wage gap in otherwise identical
candidates, but also showed that starting salaries for women in
the study were set far lower than the (otherwise identical) male
candidates. In the experiment, employers reviewed “the
application materials of (fictitious) [applicants] who[m] they
were told . . . applied for a science laboratory manager
position.”83 Study participants “rated the male applicant as
significantly more competent and suitable for the position than
the (identical) female applicant. Participants also set a starting
salary for male applicants that was almost $4,000 higher than
the salary offered to female applicants and offered more career
mentoring to the male applicants.”84 Blau and Kahn conclude
this research “strongly suggests that discrimination cannot be
78
Blau & Kahn at 32.
79
Id.
80
Id.
81
Id.
82
Id.
83
Id. at 33.
84
Id.
22
discounted as contributing to the persistent gender wage
gap.”85
In addition to synthesizing the conclusions reached in various
studies, some of which are highlighted above, Dr. Madden’s
affidavit relies on her “consulting experience with a wide range
of employers over forty years.”86 That experience corroborates
that “gender and racial pay gaps between otherwise equivalent
workers largely arise from gender and racial differences in the
salary set at hire.”87
2. Declarations Filed by Chamber Members
Members of the Chamber filed declarations in support of their
Motion for Preliminary Injunction. Those declarations
asserted that a wage history ban would harm businesses
because they use wage history as a factor in making salary
offers and for other purposes.88 For example, Chamber
Member Bittenbender stated that “[w]age history information
is essential to salary offers in positions where [it] is unaware of
the market wage.”89 Similarly, Comcast asserted it “frequently
inquires” about an applicant’s “previous compensation and
wage history,” among other things, to “understand the level of
responsibility the applicant had,” evaluate the value the prior
employer placed on the candidate, and “determine market
wage for similar positions.”90 Similarly, the Children’s
Hospital of Philadelphia submitted that it “relies on wage
history in making a salary offer.”91 The Chamber and its
members, however, presented no evidence that refuted or
challenged the testimony before the City before passing the
Ordinance. That evidence showed that prior wages of women
and minorities is more indicative of compounded
discrimination than an accurate assessment of the individual’s
value to their prior employer. Thus, information obtained to
85
Id. at 50.
86
JA300.
87
Id.
88
See JA126–247.
89
JA130.
90
JA137–38.
91
JA147.
23
assess the applicant’s market value only perpetuates wage
disparity.
D. The District Court Opinion
As we noted at the outset, the district court granted the
Chamber’s motion for a preliminary injunction as to the
Inquiry Provision. The court held that it likely violated the
Chamber’s and its members’ free speech rights. However, it
found that the Reliance Provision–which prohibits relying on
an applicant’s wage history at any point in the process–
regulated conduct rather than speech. Accordingly, the court
refused to enjoin that provision.92
The court reasoned that the Reliance Provision, is “not subject
. . . to First Amendment scrutiny” because the provision “does
not ‘on its face, implicate the spoken or written word.’”93
Instead, “[t]o the extent the Reliance Provision is content- or
speaker-based,” the court found the Reliance Provision
“targets conduct and not speech.”94 Because the Chamber did
not meet its burden of showing that the provision implicates
speech, no First Amendment analysis was required.95
However, the court found that the Inquiry Provision did
implicate speech and that it could not survive even the less
stringent intermediate scrutiny required under the First
Amendment.96 Thus the court did not discuss the actual level
of scrutiny required to withstand the Chamber’s First
Amendment challenge.97 Rather, the court held that the
Ordinance was unconstitutional under the less stringent
92
See Chamber of Commerce, 319 F. Supp. 3d at 779.
93
Id. at 801, 803.
94
Id. at 803–04.
95
Id. at 804.
96
Id. at 785.
97
Id. (“[B]ecause I conclude infra that the Inquiry Provision
does not pass muster under the Central Hudson framework, I
need not determine whether the Central Hudson test has been
broadened for content- or speaker-based restrictions. I will
thus apply Central Hudson’s intermediate scrutiny to the
Inquiry Provision.”).
24
standard of Central Hudson Gas & Electric Corp. v. Public
Service Commission of New York.98 That decision rested on the
court’s belief that the City had not presented substantial
evidence to support a conclusion that the Inquiry Provision
would help close the wage gap.99
The district court determined that the requirements for a
preliminary injunction were met with respect to the Inquiry
Provision because “the Chamber ha[d] alleged a real and actual
deprivation of its and its members' First Amendment rights
through declarations.”100 Accordingly, it found, “the City
cannot claim a legitimate interest in enforcing an
unconstitutional law” because “there is a significant public
interest in upholding First Amendment principles.”101
This appeal and cross appeal followed. The Chamber argues
that the district court erred in refusing to enjoin the Reliance
Provision and that both provisions should have been reviewed
under strict scrutiny. The City alleges the district court erred in
enjoining the Inquiry Provision.
II. DISCUSSION
A preliminary injunction “is an extraordinary remedy, which
should be granted only in limited circumstances.”102 As the
98
447 U.S. 557 (1980).
99
Chamber of Commerce, 319 F. Supp. 3d at 800 (“I
conclude that there is insufficient evidence to establish the
alleged harm of discriminatory wages being perpetuated in
subsequent wages such that they contribute to a
discriminatory wage gap.”).
100
Id. at 807 (citing e.g., Wonderling Decl. ¶¶ 16, 22 (“If the
Ordinance is allowed to stand, it will harm the Chamber’s
members named in the First Amended Complaint as well as
other members within the Chamber’s broader membership by
preventing them from making wage-history inquiries that they
otherwise normally would make.”)).
101
Id. 807–08.
102
Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d
797, 800 (3d Cir. 1989) (internal citations omitted).
25
district court explained, the moving party must establish four
factors to get a preliminary injunction:
(1) the likelihood that the plaintiff will prevail on
the merits at final hearing; (2) the extent to which
the plaintiff is being irreparably harmed by the
conduct complained of; (3) the extent to which
the defendant will suffer irreparable harm if the
preliminary injunction is issued; and (4) [that]
the public interest [weighs in favor of granting
the injunction].103
Generally, the moving party must establish the first two factors
and only if these “gateway factors” are established does the
district court consider the remaining two factors.104 The court
then determines “in its sound discretion if all four factors, taken
together, balance in favor of granting the requested preliminary
relief.”105
In First Amendment cases the initial burden is flipped. The
government bears the burden of proving that the law is
constitutional; thus, the plaintiff “must be deemed likely to
prevail” if the government fails to show the constitutionality of
the law.106 This is because “‘the burdens at the preliminary
injunction stage track the burdens at trial,’” and the burden of
proving the constitutionality of a law rests with the
government.107
103
A.T.&T. Co. v. Winback & Conserve Program, Inc., 42
F.3d 1421, 1427 (3d Cir. 1994) (internal citations omitted)
(quoting Merch. & Evans, Inc. v. Roosevelt Bldg. Prods., 963
F.2d 628, 632–33 (3d Cir. 1992)).
104
Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir.
2017), as amended (June 26, 2017).
105
Id.
106
Id. at 180 (quoting Ashcroft v. ACLU, 542 U.S. 656, 666
(2004)).
107
Id. (quoting Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 429 (2006)).
26
Therefore, in First Amendment cases, the moving party must
first “mak[e] a colorable claim” that the law restricts some
form of speech.108 The government must then “justify its
restriction on speech under whatever level of scrutiny is
appropriate (intermediate or strict) given the restriction in
question.”109 If the government succeeds in showing
constitutionality, “then the motion for a preliminary injunction
fails because there is no likelihood of success on the merits.”110
If the government cannot establish that the law is
constitutional, the challenger must still demonstrate irreparable
harm, though that is generally presumed where the moving
party’s freedom of speech right is being infringed.111
We review the grant or denial of a preliminary injunction for
“an abuse of discretion, an error of law, or a clear mistake in
the consideration of proof.”112 We review de novo the lower
court’s conclusions of law but review its findings of fact for
clear error.113
A. The Reliance Provision
1. The District Court Correctly Concluded that
an Injunction as to the Reliance Provision
Fails Because the Provision Does Not
Implicate Speech
As explained above, the Reliance Provision makes it illegal for
employers to “rely on the wage history of a prospective
employee from any current or former employer of the
individual in determining the wages for such individual at any
stage in the employment process, including the negotiation or
108
Id. at 180 n.5 (quoting Thalheimer v. City of San Diego,
645 F.3d 1109, 1116 (9th Cir. 2011)).
109
Id.
110
Id.
111
Id.
112
Doe by & through Doe v. Boyertown Area Sch. Dist., 897
F.3d 518, 526 (3d Cir. 2018) (citing Kos Pharm., Inc. v.
Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004)).
113
Id.
27
drafting of any employment contract.”114 The district court
correctly concluded that this provision does not regulate
speech. Accordingly, the court did not need to conduct a First
Amendment analysis. As the court explained, the Reliance
Provision does not “on its face, implicate the spoken or written
word.”115 In arguing to the contrary, the Chamber claimed that
the “Provision restricts [the] ability to communicate and/or
convey a message.”116 The court found that here, unlike the
situation in Wollschlaeger v. Governor of Florida117 and
Holder v. Humanitarian Law Project,118 the conduct that the
Reliance Provision regulates “is not executed through
speech.”119
In Wollschlaeger, certain provisions of the Florida Firearms
Owners’ Privacy Act (FOPA), prohibited medical
professionals from, among other things, entering information
about a patient’s gun ownership into medical records, or
inquiring about gun ownership, and discriminating against a
gun owner, unless the action was relevant to the patient’s care.
In explaining why the case was not helpful, the district court
correctly distinguished the “more specific actions” of “physical
entry. . . into a patient log, making a written inquiry[] [and]
asking a question” which “implicate[] speech on their face”
from prohibiting reliance in the Ordinance.120 The district court
also explained that not all of the provisions in Wollschlaeger
were subject to First Amendment scrutiny. Like the Reliance
Provision here, the Wollschlaeger court had concluded that the
anti-discrimination provision of the FOPA did not “on its face,
implicate the spoken or written word,” and therefore scrutiny
under the First Amendment was not appropriate.121
114
Phila. Code. § 9-1131.
115
Chamber of Commerce, 319 F. Supp. 3d at 803.
116
Id.
117
848 F.3d 1293 (11th Cir. 2017).
118
561 U.S. 1 (2010).
119
Chamber of Commerce, 319 F. Supp. 3d at 803–04.
120
Id. at 803–04.
121
Id. at 803.
28
The statute at issue in Humanitarian Law Project banned
providing “material support” to terrorist organizations.122 The
Supreme Court found that the statute did implicate speech
because it prohibited legal training and advice, which was
support given “in the form of speech.”123 In rejecting the
Chamber’s challenge to the Reliance Provision, the district
court correctly concluded that “[h]ere, unlike
in [Humanitarian Law Project], the conduct is not executed
through speech. Reliance on wage history does not demand
speech the way that providing legal advice necessarily
does.”124
2. None of the Chamber’s Arguments Call into
Question the District Court’s Conclusion
The Chamber does not present any arguments before us that
seriously challenge the district court’s reasoning or analysis of
the Reliance Provision. The district court’s discussion of that
provision is thorough, accurate, and persuasive. As the district
court explained, the Reliance Provision does not restrain any
expressive message.
The Chamber argues that in “formulating a proposed salary,” a
prospective employer is “communicating a message about how
much that applicant’s labor is worth to the employer.”125 But
the Reliance Provision does not restrict an employer from
communicating an applicant’s worth. An employer may still
discuss an applicant’s value based on his or her qualifications
and abilities. The Ordinance simply attempts to prevent the
employer from unknowingly incorporating past wage
discrimination into the terms of an applicant’s job offer. The
employer remains free to communicate its own valuation of the
employee by making as many offers at whatever salary it
122
561 U.S. at 28.
123
Id.
124
Chamber, 319 F. Supp. 3d. at 804 (The “provisions [at
issue] prohibited significantly more specific actions that
implicated speech on their face[,] to the extent the Reliance
Provision is content- or speaker-based, it targets conduct and
not speech.”).
125
Chamber Br. at 29.
29
deems appropriate. The Ordinance merely attempts to ensure
that any such offers are not unwittingly tethered to past
discriminatory wage discrepancies.
The Chamber also argues that because the Reliance Provision
is “triggered” during the negotiation of a contract, it
necessarily implicates speech.126 Consequently, the Chamber
cites Valle Del Sol Inc. v. Whiting,127 and Centro de la
Comunidad Hispana de Locust Valley v. Town of Oyster
Bay,128 for the well settled proposition that negotiating the
terms of an employment arrangement–either orally or in
writing–is speech subject to the protections of the First
Amendment.
This argument relies upon a misreading of the Ordinance. The
Reliance Provision is triggered not during negotiation but by
the employer’s reliance on the employee’s wage history “at any
stage in the employment drafting process.”129 The Chamber
focuses on the phrase, “including the negotiating or drafting of
the employment contract,” but that is merely one of the many
“stage[s] of the employment process” during which the
provision applies. It is not, as the Chamber argues, the conduct
that makes the provision applicable.
Moreover, even if the Chamber is correct that the Reliance
Provision is “triggered” by negotiation, “it has never been
deemed an abridgment of freedom of speech or press to make
a course of conduct illegal merely because the conduct was in
part initiated, evidenced, or carried out by means of language,
126
Chamber Br. at 29 (“[T]he conduct triggering coverage
under the statute consists of communicating a message.”).
127
709 F.3d 808, 819 (9th Cir. 2013).
128
868 F.3d 104 (2d Cir. 2017).
129
Phila Code § 9-1131. “To rely on the wage history of a
prospective employee from any current or former employer of
the individual in determining the wages for such individual at
any stage in the employment process, including the
negotiation or drafting of any employment contract, unless
such applicant knowingly and willingly disclosed his or her
wage history to the employer, employment agency, employee
or agent thereof.” Id.
30
either spoken, written, or printed.”130 As explained by the
Supreme Court in National Institute of Family & Life
Advocates v. Becerra,131 regulations that have an incidental
impact on speech are not unconstitutional violations of the
freedom of speech. The district court recognized that, to the
extent that the Reliance Provision has an arguable effect on
speech, it is incidental to the targeted reliance and does not
place the provision under First Amendment scrutiny.
Moreover, Valle Del Sol and Centro de la Comunidad Hispana
de Locust Valley both dealt with ordinances that regulated day
laborers’ abilities to advertise their availability for work.132
Advertising is prototypical speech that depends on spoken or
written communication. Here, by contrast, the only activity
being regulated by the Reliance Provision is the act of relying
on wage history to set a salary. Under the Ordinance, the
speech component of the negotiation process, i.e., the
communication of a wage offer and any resulting discussion,
is left intact. Other courts have reached similar results in
analogous contexts.133
Accordingly, as the Chamber has not shown a likelihood of
success on the merits of its constitutional challenge to this part
of the Ordinance; the district court correctly refused to enjoin
enforcement of the Reliance Provision.
130
Expressions Hair Design v. Schneiderman, 137 S. Ct.
1144, 1151 (2017) (quoting Rumsfeld v. Forum for Acad. &
Inst’l Rights, Inc., 547 U.S. 47, 62 (2006)). During oral
argument, the City Solicitor for the City of Philadelphia
offered a very good analogy: An anti-discrimination
Ordinance that prohibits hiring discrimination based on race
does not implicate speech even though it may cause an
establishment to remove a “Colored Applicants Only” sign.
131
138 S. Ct. 2361 (2018).
132
709 F.3d at 832; 868 F.3d at 113.
133
See, e.g., International Franchise Association, Inc. v. City
of Seattle, 803 F.3d 389, 408 (9th Cir. 2015) (explaining that
the minimum wage law at issue there was an “economic
regulation that does not target speech or expressive conduct”).
31
B. The Inquiry Provision
As discussed above, the Inquiry Provision of the Ordinance
prohibits “ask[ing] a job applicant in writing or otherwise . . .
about [the applicant’s] wage history, requir[ing] disclosure of
wage history, or condition[ing] employment or consideration
for an interview or employment on disclosure of wage
history[.]”134 Unlike the Reliance Provision, the Inquiry
Provision clearly regulates speech because it prevents
employers from asking potential applicants specific questions.
The district court was therefore correct in concluding that it
was first necessary to determine the appropriate level of
scrutiny to apply to that provision.
1. The Legal Standard
The City argues that the speech at issue is commercial speech
and therefore intermediate scrutiny under the test outlined in
Central Hudson is appropriate. The Chamber argues that even
if the speech at issue is commercial speech, we should apply
strict scrutiny because the Inquiry Provision restricts
expression based on content and speaker. We agree with the
district court that the Inquiry Provision regulates commercial
speech and that intermediate scrutiny under Central Hudson is
the appropriate level of review.
a. Commercial Speech
The Supreme Court has described commercial speech as
“expression related solely to the economic interests of the
speaker and its audience.”135 A “proposal of possible
employment . . . [is a] classic example[] of commercial
speech.”136 Additionally, courts have recognized commercial
134
Phila. Code. § 9-1131.
135
Central Hudson, 447 U.S. at 561.
136
Pittsburgh Press Co. v. Pittsburgh Comm’n on Human
Relations, 413 U.S. 376, 385 (1973) (“Each is no more than a
proposal of possible employment. The advertisements are
thus classic examples of commercial speech.”); see also
Bigelow v. Virginia, 421 U.S. 809, 821 (1975) (finding the
speech at issue “classic examples of commercial speech, for
32
speech in a range of employment-related contexts, including
communications that advertise labor availability and terms of
employment,137 as well as agreements “under which services
will be exchanged for compensation.”138
We have recognized three factors that aid the inquiry into
whether speech is commercial: “(1) is the speech an
advertisement; (2) does the speech refer to a specific product
or service; and (3) does the speaker have an economic
motivation for the speech[?] . . . An affirmative answer to all
three questions provides ‘strong support’ for the conclusion
that the speech is commercial.”139 However, all three
characteristics need not be present for a given expression to
qualify as commercial speech.140
Expression pertaining to a possible offer of employment
involves (1) an advertisement by the prospective employee to
the employer; (2) the focus of the employee’s services for hire;
and (3) by definition, an economic motive. The district court
appreciated that the Inquiry Provision pertains only to
communications between an employer and prospective
employee and implicates no interests beyond the contract of
employment. Because the speech occurs in the context of
employment negotiations, the economic motive is clear. The
regulated speech is part of a “proposal of possible
employment.” Thus, the district court correctly concluded:
[T]he Inquiry Provision prohibits Philadelphia-
based employers from asking potential hires
about their previous wage history. This inquiry
occurs in the context of a job application or job
interview, both of which propose a commercial
each was no more than a proposal of possible employment”)
(internal quotations omitted).
137
Valle Del Sol Inc, 709 F.3d at 818–19.
138
Nomi v. Regents for Univ. of Minn., 796 F. Supp. 412, 417
(D. Minn. 1992) vacated on other grounds, 5 F.3d 332 (8th
Cir. 1993).
139
U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898
F.2d 914, 933 (3d Cir. 1990) (citing Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 66–67 (1983)).
140
Id.
33
transaction . . . [where] “all affected speech is
either speech soliciting a commercial transaction
or speech necessary to the consummation of a
commercial transaction.”141
b. Intermediate Scrutiny under Central
Hudson Is Appropriate
“The Central Hudson analysis is commonly referred to
as ‘intermediate scrutiny.’”142 Because commercial speech is
“linked inextricably with the commercial arrangement it
proposes, . . . the State’s interest in regulating the underlying
transaction may give it a concomitant interest in the expression
itself.”143 “The Constitution therefore accords a lesser
protection to commercial speech than to other constitutionally
guaranteed expression.”144
In Central Hudson, the Public Service Commission of New
York City had attempted to address a fuel shortage in New
York by promulgating an ordinance banning electricity-supply
utilities from placing advertisements that promoted the use of
electricity.145 A utility company challenged the ordinance
arguing that it infringed on the company’s free speech rights
because the ordinance banned speech based on the specific
content of the speech and the identity of the speaker. In
resolving the First Amendment issue, the Supreme Court
“articulated a test for determining whether a particular
commercial speech regulation is constitutionally
146
permissible[.]” Courts must determine whether: (1) the
speech concerns lawful activity and is not misleading; (2) the
asserted governmental interest is substantial; (3) the regulation
141
Chamber of Commerce, 319 F. Supp. 3d at 783 (citing
Valle Del Sol, 709 F.3d at 818).
142
Retail Digital Network, LLC v. Prieto, 861 F.3d 839, 844
(9th Cir. 2017) (citing Florida Bar, 515 U.S. at 623).
143
Chamber of Commerce, 319 F. Supp. 3d at 784 (citing
Edenfield v. Fane, 507 U.S. 761, 767 (1993)).
144
Central Hudson, 447 U.S. at 552–53.
145
Id. at 559.
146
Thompson v. W. States Med. Ctr., 535 U.S. 357, 367
(2002).
34
directly advances the governmental interest asserted; and
(4) “whether it is not more extensive than is necessary to serve
that interest.”147 As elaborated on below, under this test, the
“fit” between the proposed restriction and the government’s
interest need not be the least restrictive means. It need only be
a “reasonable fit between the legislature’s ends and the means
chosen to accomplish those ends.”148
c. Strict Scrutiny Is Inappropriate Here
The Chamber argues that because the Ordinance only applies
to employers and is focused squarely on content (wage
history), strict scrutiny should have been applied.149 But as we
described above, the Supreme Court has consistently applied
intermediate scrutiny to commercial speech restrictions, even
those that were content- and speaker-based, particularly when
the challenged speech involves an offer of employment.150
We realize, of course, that it may be appropriate to apply strict
scrutiny to a restriction on commercial speech that is
viewpoint-based.151 If the regulation has the practical effect of
147
Central Hudson, 447 U.S. at 566.
148
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 528 (2001).
149
Chamber Br. at 24. The Ordinance’s speech restrictions,
the Chamber argues, are content-based due to their
“appli[cation] to particular speech because of the topic
discussed—namely, wage history.” Id.
150
See, e.g., Greater New Orleans Broad. Ass’n, Inc. v.
United States, 527 U.S. 173, 176, 183–84 (1999) (applying
intermediate scrutiny to prohibition on broadcast advertising
of legal casino gambling); Rubin v. Coors Brewing Co., 514
U.S. 476, 478, 482, 488 (1995) (applying intermediate
scrutiny to law prohibiting display of alcohol content on beer
labels); Florida Bar, 515 U.S. at 620, 635 (1995) (applying
intermediate scrutiny to prohibition on attorneys sending
written solicitations to prospective clients relating to an
accident or disaster).
151
See Turner Broadcasting System, Inc. v. F.C.C. (“Turner
I”), 512 U.S. 622, 658 (“Congress may not abridge the rights
of some persons to engage in political expression in order to
35
promoting some messages or some speakers based on the
content of the speech or the identity of the speaker, something
more than intermediate scrutiny may be necessary to survive a
First Amendment inquiry. “[S]peaker-based laws demand
strict scrutiny when they reflect the Government’s preference
for the substance of what the favored speakers have to say (or
aversion to what the disfavored speakers have to say).”152
The Supreme Court addressed this in R.A.V. v. City of St. Paul,
Minnesota.153 It explained that the rule that content-based
speech restrictions are subject to strict scrutiny is “not
absolute” and is inapplicable when the restriction does not
“‘raise[] the specter that the Government may effectively drive
certain ideas or viewpoints from the marketplace.’”154
Here, the Inquiry Provision precludes all employers from
inquiring into wage history, without focusing on any particular
viewpoint or favoring any particular employer or job. It also
applies to all employees without regard to the employee’s prior
salary or job title. It does limit the prospective employer’s
speech, but only because that limitation prevents the tentacles
of any past wage discrimination from attaching to an
employee’s subsequent salary. This simply does not implicate
the kind of viewpoint or speaker discrimination that the
Chamber relies on in its attempt to distinguish Central Hudson
and have us apply strict scrutiny.
The Chamber points to Sorrell v. IMS Health, Inc,155 in support
but Sorrell is unhelpful because the restriction there was
viewpoint-based and “heightened scrutiny” was therefore
necessary. In Sorrell, Vermont had passed a law restricting the
sale, disclosure, and use of pharmacy records that revealed the
prescribing practices of individual doctors.156 However, the
enhance the relative voice of other segments of our society.”)
(internal quotations omitted).
152
Id.
153
505 U.S. 377 (1992).
154
Id. at 387–88 (quoting Simon & Schuster, Inc. v. Members
of N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991)).
155
564 U.S. 552 (2011).
156
Id. at 557.
36
law contained exceptions that, for example, allowed entities
engaging in “educational communications” to purchase the
information, but barred disclosure when the recipients would
use the information for marketing.157 Additionally, “Vermont
could supply academic organizations with prescriber-
identifying information to use in countering the messages of
brand-name pharmaceutical manufacturers and in promoting
the prescription of generic drugs,” but the law prevented
pharmaceutical manufacturers from using the information for
their own marketing purposes.158 Thus, the statute
“disfavor[ed] marketing, i.e., speech with a particular content,
as well as particular speakers, i.e., entities engaged in
marketing on behalf of pharmaceutical manufacturers.”159
Strict scrutiny was therefore required.
Moreover, even though the statute there was neither viewpoint
neutral nor speaker neutral, it is not even clear that the Court
applied strict scrutiny there. As the district court astutely
recognized here, Sorrell merely stands for the proposition that
some level of scrutiny above rational basis review applied. The
district court explained: “Sorrell references a ‘heightened
scrutiny,’ but it is just as likely that this is the same as
intermediate scrutiny, which is stricter than rational basis
scrutiny.”160 Moreover, after Sorrell, courts have continued to
apply Central Hudson intermediate scrutiny to commercial
speech restrictions and rejected the notion that Sorrell requires
strict scrutiny in these cases just as the district court
explained.161 That said, we need not resolve that issue here
157
Id. at 564.
158
Id.
159
Id. at 552.
160
Chamber of Commerce, 319 F. Supp. 3d at 784; see also
Prieto, 861 F.3d at 847 (“There is nothing novel in Sorrell’s
use of the term ‘heightened scrutiny’ to distinguish from
rational basis review.”).
161
See, e.g., Prieto, 861 F.3d at 848–49 (rejecting notion that
Sorrell’s reference to ‘heightened” scrutiny was intended to
apply a standard to commercial speech cases that is greater
than intermediate scrutiny); 1-800-411-Pain Referral Serv.,
LLC v. Otto, 744 F.3d 1045, 1055 (8th Cir. 2014) (“The
upshot is that when a court determines commercial speech
37
because it is clear that the restrictions in the Ordinance are
viewpoint neutral and do not merit strict scrutiny. Accordingly,
we agree with the district court’s decision to subject the
Ordinance only to intermediate scrutiny under Central
Hudson.
2. The Inquiry Provision Satisfies Central
Hudson Intermediate Scrutiny
Under Central Hudson, speech “at least must concern lawful
activity and not be misleading[]” to qualify for protection.162 If
the speech concerns illegal activity or is misleading, then it is
not subject to First Amendment protection at all and our
inquiry ends.163 If the subject is not unlawful and the message
not misleading, we must then determine whether the
government has a substantial interest in the restriction. If it
does, the challenged restriction must directly advance that
interest.164 If it does directly advance the interest, the final
prong of the Central Hudson inquiry requires us to decide if
the restriction is nevertheless more extensive than necessary to
serve the government’s substantial interest.165 The last two
elements of the analysis are related because they “basically
involve a consideration of the ‘fit’ between the legislature’s
ends and the means chosen to accomplish those ends.”166
Determining whether the restriction is more extensive than
restrictions are content- or speaker-based, it should then
assess their constitutionality under Central Hudson.”).
162
Central Hudson, 447 U.S. at 566.
163
Id.
164
Id.
165
Id.
166
Posadas e Puerto Rico Assoc. v. Tourism Co. of Puerto
Rico, 478 U.S. 328, 341 (1986).
38
necessary, is not to be confused with the “least restrictive
alternative” inquiry required to survive strict scrutiny.167
a. The Speech at Issue Is Not “Related to
Illegal Activity”
The City has argued that inquiring about wage history is
“related to illegal activity” because the Inquiry Provision
prohibits acquiring information that cannot be legally used
because of the restrictions in the Reliance Provision. In
rejecting that argument, the district court explained that not all
uses of wage history are illegal: “For example, acquisition of
wage history is allowed in other contexts such as for gathering
market information;” and, “the existence of a wage history is
not in and of itself illegal.”168 The district court correctly
concluded: “[s]imply because wage history could be relied
upon in fashioning a salary in violation of the Reliance
Provision does not render all other legal activity related to
wage history illegal.”169 Accordingly, the Court held that the
167
See Lorillard Tobacco, 533 U.S. at 556 (“[I]t [is] clear that
‘the least restrictive means’ is not the standard; instead, the
case law requires a reasonable ‘fit between the legislature’s
ends and the means chosen to accomplish those ends, . . . a
means narrowly tailored to achieve the desired objective’”).
Under strict scrutiny the government faces a more difficult
burden, it “must show that the ‘regulation is necessary to
serve a compelling state interest,’” Burson v. Freeman, 504
U.S. 191, 198 (1992), and the regulation must be the least
restrictive means of achieving the interest. McCullen v.
Coakley, 573 U.S. 464, 478 (2014).
168
Chamber, 319 F. Supp. 3d at 786.
169
Id. (emphasis added); see also Dunagin v. City of Oxford,
718 F.2d 738, 743 (5th Cir. 1983) (en banc) (“The
commercial speech doctrine would disappear if its protection
ceased whenever the advertised product might be used
illegally.”).
39
language the provision targets does not “concern unlawful
activity.”170 We agree.
The City relies in part upon Pittsburgh Press v. Human
Relations Commission,171 in arguing that speech can be
“related to unlawful activity” if only some of its uses are
prohibited. In Pittsburgh Press, one of the provisions in a
Pittsburgh Ordinance prohibited discrimination in employment
and another prohibited “any notice or advertisement relating to
‘employment’ or membership which indicates any
discrimination because of . . . sex.”172 The Pittsburgh
Commission on Human Relations was in charge of
implementing the Ordinance. The Commission concluded that
Pittsburgh Press had violated the Ordinance through its
practice of placing “help-wanted” advertisements in sex-
specific columns (i.e., “Male Help Wanted,” “Female Help
Wanted”). The final Commission Order, however, did not
prohibit all sex-specific advertisements; it exempted certain
jobs such as: “employment in domestic service,” and “jobs for
which the Commission ha[d] certified a bona fide occupational
exception,” and allowed exempted entities to advertise in a
sex-specific manner.173 Pittsburgh Press sued, arguing that the
Commission’s Order violated the First Amendment by
restricting its editorial choices.
The Supreme Court agreed, concluding that “[t]he
advertisements, as embroidered by their placement,
signaled that the advertisers were likely to show an illegal sex
preference in their hiring decisions.”174 Accordingly, the Court
170
Chamber, 319 F. Supp. 3d at 787. Under the district
court’s reasoning, on the other hand, a law that prohibited the
advertising of the sale of cocaine, for example, would present
a speech restriction that always and only related to illegal
activity because there are no other legal uses/purposes behind
the sale of cocaine.
171
413 U.S. 376 (1973).
172
Id. at 378. The Ordinance also prohibited “aid[ing] . . . in
the doing of any act declared to be an unlawful employment
practice under the Ordinance.”
173
Id. at 380.
174
Id. at 389.
40
found that “any First Amendment interest [that] might be
served by [the advertisements] . . . [wa]s altogether absent
when the commercial activity itself [wa]s illegal.”175
The City argues Pittsburgh Press is analogous because even
though there were legal uses for sex-specific advertisements—
i.e., the specific exemptions recognized by the Commission—
the Court still concluded that sex-specific advertising was
related to illegal activity and was therefore not protected by the
First Amendment. Similarly, here, the City would have us
decide that even though every inquiry into a prospective
applicant’s wage history would not necessarily lead to a
violation of law, reliance on that history would be illegal. Thus,
the City urges us to hold that the Ordinance “concerns unlawful
activity.”
We, however, agree with the district court’s conclusion that
commercial speech should not lose the protection of the First
Amendment simply because a legislature has prohibited one of
many uses of the regulated speech.176 As the district court
reasoned, and as the Chamber argues, if the City’s position is
upheld, a city could perform an easy end-run around First
Amendment scrutiny by passing a speech restriction in
conjunction with a law that made one use of the regulated
speech illegal. The result would be that the prohibited speech
would always “relate to unlawful activity” and therefore fail
the first prong of the Central Hudson analysis.
b. The City has a Substantial Interest in
Closing the Wage Gap
The Chamber does not dispute the district court’s conclusion
that remedying wage discrimination and promoting wage
equity is a substantial government interest, and we agree.
Accordingly, we need not discuss the second prong of the
Central Hudson inquiry.
175
Id.
176
Chamber of Commerce, 319 F. Supp. 3d at 787.
41
c. The Inquiry Provision Directly Advances
the City’s Interest in Pay Equity
The third prong of Central Hudson requires us to determine
whether the Inquiry Provision directly “advances the
Government’s interest in a direct and material way.”177 To
survive that inquiry, the City must show that the “the harms it
recites are real and that its restriction will in fact alleviate each
of them to a material degree.”178 “[S]peculation or conjecture”
cannot satisfy this burden.179 A court’s inquiry under this prong
“is not a license to reweigh the evidence de novo, or to replace
[legislators’] factual predictions with our own.”180 Rather, a
court’s task is merely to determine whether the legislature has
“drawn reasonable inferences based on substantial
evidence.”181 This is the heart of the current dispute. The
district court did not believe that the City produced sufficient
evidence to establish that the Inquiry Provision would advance
its substantial interest in mitigating the racial and gender-based
pay gap. The court’s skepticism is summed up in the following
passage from its opinion:
While the conclusion that a discriminatory wage
gap could be affected by prohibiting wage
history inquiries was characterized by respected
professionals as a logical, common sense
outcome, more is needed. Like the Rubin case,
the testimony in support of this theory is riddled
with conclusory statements, amounting to
“various tidbits” and “educated guesses.”
Importantly, aside from Dr. Madden’s affidavit,
the information relied upon by the City does not
address the possibility that disparate wages
could also be based on factors having nothing to
177
Florida Bar, 515 U.S. at 625 (internal citations omitted).
178
Id.at 626.
179
Id.
180
Turner I, 512 U.S. at 666.
181
Turner II, 520 U.S. at 195 (internal quotation marks and
citation omitted).
42
do with discrimination, such as qualifications,
experience, or any number of other factors.182
We disagree.
It is clear to us that Dr. Madden’s affidavit would, by itself,
satisfy the inquiry. However, that is not the point. Dr.
Madden’s affidavit simply corroborated the testimony given to
the City Council prior to it enacting the Ordinance with
additional empirical evidence. The issue is the apparent failure
by the district court to afford the testimony and studies
presented to the City Council sufficient probative value given
its equation of it with conclusory statements and educated
guesses.
The Supreme Court has “permitted litigants to justify speech
restrictions by reference to studies and anecdotes pertaining to
different locales altogether, or even, in a case applying strict
scrutiny, to justify restrictions based solely on history,
consensus, and ‘simple common sense.’”183 And it has often
done so on records far less compelling than the record
supporting the Inquiry Provision of this Ordinance. The Court
has explained that “the quantum of empirical evidence
[required]. . . var[ies] up or down with the novelty and
plausibility of the justification raised.”184 And, especially
relevant here, it has recognized that “[a] municipality
considering an innovative solution may not have data that
could demonstrate the efficacy of its proposal because the
182
Chamber of Commerce, 319 F. Supp. 3d at 797–98
(emphasis added) (internal quotation marks omitted).
183
Florida Bar, 515 U.S. at 628 (citing Burson v. Freeman,
504 U.S. 191, 211 (1992)) (Blackmun, J., plurality opinion))
(emphases added). See also City Br. at 43–44 (citing Heffner
v. Murphy, 745 F.3d 56, 92 (3d Cir. 2014), WV Ass’n of Club
Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292,
303–04 (4th Cir. 2009), Coyote Pub., Inc. v. Miller, 598 F.3d
592, 608 (9th Cir. 2010) to show recent decisions reflecting
the Supreme Court’s flexible approach to speech restrictions
under intermediate scrutiny).
184
Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000).
43
solution would, by definition, not have been implemented
previously.”185
This record contains a plethora of evidence that (1) the wage
gap is substantial and real (indeed, the parties concede this
point); (2) numerous experiments have been conducted, which
controlled for such variables as education, work experience,
academic achievement, etc. and still found a wage gap; (3)
researchers over many years have attributed the gap, in
substantial part, to discrimination; (4) existing civil rights laws
have been inadequate to close the wage gap; and, critically, (5)
witnesses who reviewed the data concluded that relying on
wage history can perpetuate gender and race discrimination.
Based on that substantial evidence, the City Council made a
reasonable judgment that a wage history ban would further the
City’s goal of closing the gap and ameliorating the
discrimination inherent in the disparate wages.
The district court believed that the evidence before the City
didn’t account for variables other than gender and race.
However, Barbara Price presented the Council with evidence
to the contrary, and the studies of Blau and Khan summarized
in the Madden affidavit isolated out the variables of gender and
race, thereby ensuring they did not affect the results.186 This
evidence showed that even after accounting for such variables
as choice of occupation, hours worked, economic sector,
experience, GPA, undergraduate institution, and marital status,
there is a significant gap between the earnings of men and
women beginning one year after graduation and widening in
the years thereafter.187
The City merely “dr[ew] reasonable inferences based on
substantial evidence[]’”188 that the Inquiry Provision would
address the wage gap, and the district court erred when it
“reweigh[ed] the evidence” and “replace[d] [the City’s] factual
predictions with [its] own.”189
185
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,
439–40 (2002).
186
Blau and Khan at 32; see also fn. 60, 75, supra.
187
See JA275.
188
Turner II, 520 U.S. at 181 (internal quotation marks and
citation omitted).
189
Turner I, 512 U.S. at 666.
44
i. Caselaw Considering Whether a
Legislature Relied on
Substantial Evidence to Support
a Speech Restriction Under
Central Hudson Demonstrates
that the City Presented
Sufficient Evidence to Support
the Ordinance.
Our review of caselaw examining whether a legislature had
sufficient evidence to support a challenged legislative
enactment demonstrates that the Inquiry Provision is
constitutional. In Burson v. Freeman,190 Central Hudson itself,
and Tennessee Secondary School Athletic Association v.
Brentwood Academy,191 the Supreme Court upheld laws
restricting commercial speech even though they were
supported by much less evidence than the City produced to
demonstrate the need for the Inquiry Provision.
In Burson, the Court considered whether a 100-foot bubble
zone that prohibited political speech outside of polling places
was constitutional.192 The Tennessee statute at issue implicated
three fundamental First Amendment concerns because it
regulated political speech, speech in a public forum, and the
content of speech.193 The Court subjected the ordinance to
strict scrutiny but still upheld it.194 We realize that the Court
in Burson relied upon a “modified ‘burden of proof’” because
the First Amendment right at issue there “threaten[ed] to
interfere with the act of voting itself.”195 Nevertheless, the
analysis in Burson provides helpful guidance in determining
whether the City’s evidence was sufficient to survive the third
prong of the Central Hudson inquiry.
190
504 U.S. 191 (1992).
191
551 U.S. 291 (2007).
192
Burson, 504 U.S. at 211.
193
Id. at 196.
194
Id. at 197, 211.
195
Id. at 208 n.11.
45
The Burson court explained that it “never has held a State to
the burden of demonstrating empirically the objective effects”
of a speech regulation.196 Accordingly, the Court relied on
history, common sense, and one witness, noting that it would
be “difficult for the states to put on witnesses who [could]
testify as to . . . the exact effect” of the proposed law.197 In fact,
rather than demand strict empirical evidence that the
challenged restriction on speech advanced the underlying
governmental interest, the Court’s analysis rested on the
presumed logic of a 100-foot barrier around a polling place for
the purpose of allowing voters fifteen seconds of uninterrupted
contemplation before casting their ballots.198 There was no
empirical evidence that voters needed fifteen seconds of
uninterrupted contemplation to cast an informed ballot, nor
was there any evidence that voters would use the fifteen
seconds it took to traverse the 100-foot buffer zone for
contemplation, as opposed to conversation, daydreaming, or
reading a newspaper.
The Supreme Court’s decision in Tennessee Secondary, is also
informative. There, the Court accepted commonsense
conclusions in the absence of empirical data in considering
whether the enforcement of a rule governing interscholastic
sports violated the First Amendment.199 The rule under review
prohibited high school coaches from using “undue influence”
when recruiting middle school students for athletic
programs.200 Much like the record here, the evidence before the
Court consisted of testimonial and documentary evidence,
including letters sent by a school football coach to a group of
unenrolled eighth-grade boys inviting them to participate in
spring practice sessions.201 In upholding the sanction imposed
on the coach’s speech, the Court noted that it “need[ed] no
empirical data to credit [the agency’s] commonsense
conclusion” that the speech at issue—an inquiry by a would-
196
Id. at 208 (quoting Munro v. Socialist Workers Party, 479
U.S. 189, 195 (1986)) (internal quotations omitted).
197
Id. at 208-211.
198
Id.
199
551 U.S. at 294.
200
Id.
201
Id. at 294-95.
46
be authority figure of a prospective team member—could exert
the type of undue influence prohibited by the rule.202
Finally, in Central Hudson, the Court held that a prohibition
on advertising by utilities was supported by substantial
evidence.203 Rather than require strict empirical proof, the
Court relied on the commonsense conclusion that “[t]here is an
immediate connection between advertising and demand for
electricity.”204
As we have summarized, the City did offer substantial
evidence in the form of testimony and metanalysis of relevant
research to support the need for the Inquiry Provision.
Reasonable minds can debate whether the City’s evidence
placed the need for, and potential effectiveness of, the Inquiry
Provision beyond doubt. However, given the discussion in
Burson, Tennessee Secondary, and Central Hudson, certainty
of proof or empirical data is not required here. Rather,
substantial evidence of the possibility that the speech
restriction could favorably impact a concern that the state actor
had a fundamental interest in addressing is sufficient. The City
easily satisfied that standard. In concluding otherwise, the
district court imposed too high a burden on the City.
As noted earlier, all parties agree that there is a longstanding
disparity in the pay of women and minorities compared to
wages of White males. The district court readily accepted the
existence of this pay gap.205 Moreover, the Chambers’ CEO
202
Id. at 300.
203
447 U.S. at 568.
204
Id., 447 U.S. at 569. Although the Court eventually found,
under the fourth prong, that the law at issue was overbroad
because it “suppresse[d] speech that in no way impairs the
State’s interest in energy conservation,” id. at 570, under the
third prong, the Court simply recognized the “immediate
connection” that limiting advertising would have on demand
for electricity. Id. at 569.
205
Chamber of Commerce, 319 F. Supp. 3d at 792
(“[P]ractically all of the . . . testimony amplifies a point that
really is not in dispute – that there is a gender pay disparity.”)
Although this excerpt from the district court opinion refers
47
stated that Chamber members relied on wage history “to have
a better understanding of whether a candidate is worth pursuing
based on previous compensation levels.”206 Nevertheless, the
district court relied primarily on four cases in concluding that
the City failed to meet its burden:207 Edenfield v. Fane,208
Rubin v. Coors Brewing Co.,209 Pitt News v. Pappert 210 and
Wollschlaeger. However, the City’s proof here is much more
robust than the records before those courts.
In Edenfield and Rubin the restrictions on commercial speech
were facially based on unsubstantiated fears supported by
conclusory statements. In Edenfield, a Certified Public
Accountant challenged a rule created by the Florida Board of
Accountancy that prohibited CPAs from soliciting clients in-
person.211 The Florida Board believed that in-person
solicitation would lead to unethical conduct by CPAs.212 In
striking down the restriction on commercial speech, the Court
reasoned that the only evidence presented in support of the
Florida Board’s position came from an affidavit by one of its
former chairmen.213 He stated the solicitation ban was
specifically only to the gender disparity, it is clear that the
court also accepted the existence of a racial disparity. The
court’s concern was not with the existence of these
disparities, but with whether the City had established a
sufficient “fit” between the Inquiry Provision and these
disparities to support its conclusions that the Inquiry
Provision was necessary to address the disparities.
206
JA124.
207
Chamber of Commerce, 319 F. Supp. at 794 (“Edenfield,
Rubin, Pitt News, and Wollschlaeger instruct that some
evidence is required for the legislature to conclude that the
law at issue will directly advance the government’s
substantial interest. Theories and unsupported opinions will
not suffice to demonstrate that the asserted harms are real.”).
208
507 U.S. 761 (1993).
209
514 U.S. 476 (1995).
210
379 F.3d 96 (3d Cir. 2004).
210
Id. at 107–08.
211
Edenfield, 507 U.S. at 764.
212
Id.
213
Id. at 764, 771-72.
48
necessary to “prevent overreaching and vexatious conduct by
the CPA.”214 His conclusion in his affidavit depended on the
unsubstantiated theory that a CPA who solicits clients would
be beholden to the client and thus willing to bend the rules.215
Consequently, the Court refused to credit his affidavit.216
In Rubin, the Federal Alcohol Administration Act prohibited
beer labels from displaying alcohol content for fear of a
“strength war” among brewers.217 The justification for the law
was the purported “common-sense” conclusion that if the
alcohol content were not advertised, customers would be less
likely to buy the product based on the alcohol content.218 The
Court found that the Act did not directly advance the stated
purpose because the government’s regulatory scheme was
“irrational.”219 Malt liquor, wine, and other alcohol sellers
could and did label their bottles with the strength of the
drink.220 The government, the Court noted, had relied on
“anecdotal evidence and educated guesses” in contending that
competition based on alcohol content was occurring and found
that these “various tidbits” could not overcome the irrationality
of the scheme.221 Thus, the very existence of a “strength war”
was in doubt and no evidence was offered to establish that any
such phenomena actually existed. Whereas, here, the wage gap
that the Inquiry Provision seeks to address is a given, and the
reasoned conclusions presented to the City Council were
entitled to more credit than owed to the educated guesses
before the Federal Alcohol Administration.
The law we struck down in Pitt News, was similarly based
solely upon “speculation and conjecture.” The law was
premised on the assumption that prohibiting alcohol ads from
appearing in university publications would “slacken the
demand for alcohol by Pitt students” and help curb underage
214
Id. at 765.
215
Id.
216
Id. at 775-76.
217
514 U.S. at 478–79.
218
Id. at 487
219
Id. at 488.
220
Id. at 486–89.
221
Id. at 490.
49
drinking.222 We found that the legislature’s conclusion was
“counterintuitive and unsupported by any evidence.”223 There
was no evidence, for example, that the removal of the ads
would make it harder to find places near campus to buy
alcohol. Furthermore, not only were students able to see
alcohol ads in many other publications and on television, more
that 75% of the university population was of the legal drinking
age.224
Finally, Wollschlaeger is similarly unpersuasive because of the
tenuous reasoning supporting the restriction on commercial
speech. There, the Court of Appeals for the Eleventh Circuit
struck down a law that had been enacted based solely on a few
anecdotes.225 Certain Florida laws prevented doctors from
asking patients “whether they own firearms or have firearms in
their homes, or from recording answers to such questions.”226
The legislature asserted that the law was necessary to protect
gun-owning Floridians from the “private encumbrances” on
their Second Amendment Rights that allegedly came from
being subject to such questions by physicians.227 The
legislature had relied on “six anecdotes and nothing more” to
justify enacting the restrictions.228 In striking down the
legislation, the court observed that while anecdotes can provide
evidence, there was “no other evidence, empirical or
otherwise” presented by the legislature, and the six anecdotes
could not show that the harms were “real, [and] not merely
conjectural,” such that the regulations “will in fact alleviate
[the] harms in a direct and material way.”229 Thus the
Wollschlaeger court required something more than anecdotal
evidence and less than empirical evidence if the restriction was
to survive the third prong of the Central Hudson inquiry.
222
379 F.3d at 107.
223
Id. (emphasis added).
224
Id. at 108.
225
848 F.3d at 1319.
226
Id. at 1303.
227
Id. at 1312.
228
Id. (emphasis added).
229
Id. (quoting Turner II, 512 U.S. 622 at 664).
50
The City’s proof of the nexus between its substantial interest
in eliminating the real phenomenon of a racial and gender-
based wage gap and the need for the limitations that are at the
heart of the Inquiry Provision is in a different category than the
cases we have just discussed. There is testimony here that the
gender disparity in pay in Pennsylvania has existed for the past
five decades despite the passage of laws over that period to
remedy such discrimination.230 Terry Fromson explained how
this wage gap is compounded through institutional
discrimination and explained how other states have addressed
this issue.231 Marianne Bellesorte researched the wage gap for
women and men of color, and explained how the inequities
began right out of college and continued to affect women, in
particular, until retirement. Finally, Jovida Hill and Rue
Landau provided empirical evidence that substantiated the
distilled conclusions of Fromson and Bellesorte.232 This
testimony is much more than “conclusory statements, . . . and
‘educated guesses[.]’”233 Moreover, Dr. Madden’s affidavit
amplified this testimony by viewing it through the empirical
lens of thousands of studies she summarized.234 There is
therefore ample evidence to establish the fit between the
Inquiry Provision and the societal evil it was intended to
address.
Our conclusion that the district court imposed too high a
burden on the City’s proof is consistent with the en banc
opinion of the Court of Appeals for the Ninth Circuit in Rizo v.
Yovino.235 There, the en banc court held that an employer’s
reliance on the plaintiff’s prior salaries to justify paying a
female less than her male cohort’s salary was a violation of the
230
H’rg Tr. at 66.
231
Id. at 75.
232
Id. at 8-12.
233
Chamber of Commerce, 319 F. Supp. At 798.
234
JA297.
235
887 F.3d 453, 460–61 (9th Cir. 2018) (en banc) (holding
that a female employee’s prior salary does not qualify as a
“factor other than sex” under the federal Equal Pay Act that
can justify paying her less than a male employee who
performs substantially equal work), vacated on other grounds
by Yovino v. Rizo, 139 S. Ct. 706 (2019).
51
Equal Pay Act.236 The court’s explanation was straightforward.
“The question before us is . . . simple: can an employer justify
a wage differential between male and female employees by
relying on prior salary? . . . [T]he answer is clear: No.”237
There, the employer had argued that the plaintiff’s disparate
salary was not barred by The Equal Pay Act because, in paying
her a wage based on her prior salaries, the differential was
based on a factor other than sex which is explicitly allowed
under the Equal Pay Act.238 The court held that that
consideration of salary history “allow[s] employers to
capitalize on the persistence of the wage gap and perpetuate
that gap ad infinitum.”239 Other courts have reached the same
conclusion.240
Notwithstanding our recitation of the impressive record that
supports this Ordinance, we think it important to emphasize
that neither scores of empirical studies nor proof to scientific
certainty is necessary to carry the City’s burden here. Even
though we find the City’s evidence here more than sufficient
to carry its burden under the third prong of Central Hudson, it
is important not to lose sight of the fact that where a legislature
presents an “innovative solution,” the Supreme Court has
recognized that it “may not have data that could [conclusively]
demonstrate the efficacy of its proposal because the solution
would, by definition, not have been implemented
236
Id. at 456 (citing 29 U.S.C. § 206(d)(1)).
237
Id.
238
29 U.S.C. § 206(d)(1)(iv) allows “a differential based on
any factor other than sex.”
239
Rizo, 887 F.3d at 456–57 (emphasis added).
240
See, e.g., Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995)
(“if prior salary alone were a justification, the exception
would swallow up the rule and inequality in pay among
genders would be perpetuated”); Riser v. QEP Energy, 776
F.3d 1191, 1199 (10th Cir. 2015) (Equal Pay Act “precludes
an employer from relying solely upon a prior salary to justify
pay disparity”) (citation omitted); but see, e.g., Wernsing v.
Dep’t of Human Servs., 427 F.3d 466, 468-70 (7th Cir. 2005)
(holding that prior salary alone can justify wage disparities).
52
previously.”241 Nevertheless, the City did produce such
evidence here and clearly carried its burden. However, as we
held in King v. Governor of the State of New Jersey,242 and as
we recount in detail below, legislatures are not
“constitutionally required to wait for conclusive scientific
evidence before acting to protect [their] citizens from serious
threats of harm.”243
In Alameda Books, the City of Los Angeles enacted legislation
that prohibited “more than one adult entertainment business”
from inhabiting “the same building, structure or portion
thereof.”244 The Court of Appeals for the Ninth Circuit
invalidated this restriction on speech finding that “the city
failed to present evidence upon which it could reasonably rely
to demonstrate that its regulation of multiple-use
establishments [wa]s “designed to serve” the city’s substantial
interest in reducing crime.”245 The Supreme Court disagreed.
The Court concluded that the City had presented sufficient
evidence upon which to base the speech restriction. Justice
O’Connor, joined by the Chief Justice, Justice Scalia and
Justice Thomas, explained that the respondents “ask[ed] the
city to demonstrate, not merely by appeal to common sense,
but also with empirical data, that its ordinance will successfully
lower crime.”246 But they concluded that “[o]ur cases have
never required that municipalities make such a showing,
certainly not without actual and convincing evidence from
plaintiffs to the contrary.”247
241
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,
439–40 (2002).
242
767 F.3d 216 (3d Cir. 2014), abrogated on other grounds
by Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S.
Ct. 2361 (2018).
243
767 F.3d at 239.
244
Alameda Books, 535 U.S. at 429.
245
Id. at 433.
246
Id. at 439.
247
Id. The court noted, “Respondents’ claim assumes that the
. . . study proves that all adult businesses, whether or not they
are located near other adult businesses, generate crime. This
is a plausible reading of the results from the 1977 study, but
53
Here, as in Alameda Books, the Plaintiff has offered no proof
to counter the City’s conclusion about the need for, or
effectiveness of, the Inquiry Provision. In fact, as we have
explained, some of the Plaintiff’s proof substantiates the City’s
position. A lack of contrary evidence lightens the legislature’s
burden.248
The substantial legislative record here is simply not analogous
to the “irrational,” “conclusory,” “speculative,” and purely
anecdotal evidence presented in Edenfield, Rubin, Pitt News
and Wollschlaeger. Nonetheless, the Chamber argues, that
even though “conclusive scientific evidence of the Ordinance’s
effect is not required, ‘substantial evidence’ means ‘some
concrete evidence is required.’”249 In support, the Chamber
cites to “a 106-page summary of [a] 2-year study,”250 relied
upon in Florida Bar and the “empirical judgments” of “a
number of well-known, reputable professional and scientific
organizations,” from our decision in King.251
respondents do not demonstrate that it is a compelled reading.
Nor do they provide evidence that refutes the city’s
interpretation of the study, under which the city’s prohibition
should on balance reduce crime.” Id. at 438. Accordingly, the
Court concluded that the City had supported the law with
sufficient evidence.
248
See Nixon v. Shrink Missouri Government PAC, 528 U.S.
377, 394 (2000) (“[t]here might, of course, be need for a more
extensive evidentiary documentation if respondents had made
any showing of their own to cast doubt on the apparent
implications of [the government’s] evidence and the record
here”).
249
Chamber Br. at 49.
250
Id.
251
767 F.3d at 238.
54
ii. The Evidence Here is Stronger
Than the Evidence Supporting
the Restrictions in Florida Bar
and King
The Chamber makes much of Florida Bar, and the district
court cited it as demonstrative of the type of “extensive” record
necessary to sustain a speech infringement.252 There, the
Florida Bar Association enacted rules banning direct-mail
solicitation of clients in the 30 days following an accident or
disaster. Members of the Florida bar sued, claiming that the
law infringed their right of commercial speech. In rejecting that
challenge, the Court relied upon the Bar Association’s citation
to a 106-page study purporting to show the harm that the Bar
was attempting to mitigate.253 However, a closer look at the
study reveals that it contained information that was less
relevant, less methodologically sound, and much less
informative than the evidence supporting the Inquiry Provision
here.
The Majority of the Court described the study as “contain[ing]
. . . statistical and anecdotal [data] . . . supporting the Bar’s
contentions” that the direct-mail solicitations in the wake of
accidents “reflects poorly on the profession.”254 The Court
accepted that evidence as sufficiently probative even though
much of the data in the surveys did not address the specific
issues the restriction was supposed to address. The Court
pointed to a subset of the findings from the study: it cited one
survey of Florida adults that “indicated . . . Floridians ‘have
negative feelings about those attorneys who use direct mail
advertising.’”255 It also provided a handful of statistics about
Floridians’ views of lawyer advertising.256 However, only one
question referred to the reputation of the legal community–the
252
Chamber, 319 F. Supp. at 796, 800 (“Unlike in Florida
Bar, there are no comprehensive studies demonstrating the
alleged harm.”).
253
Florida Bar, 515 U.S. at 627.
254
Id. at 626.
255
Id. at 626-27.
256
Id.
55
harm that the law was apparently aiming to remedy.257 It
appeared from the responses to that question that direct mail
solicitation in general, rather than solicitation in the 30 days
following an accident, was what lowered the views of the legal
profession (and did so in only one quarter of those
surveyed).258 The primary evidence relied upon by the Court,
did not squarely address the harm that the rule was enacted to
remedy.
Despite the fact that the study gave “few indications of the
sample size or selection procedures employed” and even
though “no copies of the actual surveys employed,” were
presented to the Court, the Court held that the Bar adequately
supported the law.259 In dissent, Justice Kennedy noted that the
record: (1) contained no explanation of methodology, sampling
or framework; (2) dealt primarily with television and phone
book advertising, which were not at issue; and (3) only two
pages of the more than 100 focused on direct-mail
solicitation.260 He concluded by saying that the “few pages of
self-serving and unsupported statements by the State” should
have been clearly insufficient to “demonstrate that a regulation
directly and materially advances the elimination of a real
257
Id.
258
The report did include “excerpts from complaints of
direct-mail recipients,” id. at 627, some of whom complained
about solicitation in the wake of an injury or accident, but the
Bar presented no evidence that a solicitation ban only in the
first 30 days after an accident would do anything to mitigate
these complaints. Additionally, the comments included
favorable statements about direct mail solicitation as well. Id.
at 641.
259
Id. at 640 (Kennedy, J. dissenting).
260
Id. at 640–41 (Kennedy, J. dissenting) (“[N]o actual
surveys, few indications of sample size or selection
procedures, no explanations of methodology, and no
discussion of excluded results [were presented]. . . . [N]o
description of the statistical universe or scientific framework
that permits any productive use of the information [was
presented].”).
56
harm.”261 Yet the Court upheld the statute on the basis of this
evidence.262
Even if we view the supporting evidence in Florida Bar in the
most favorable light possible, we still conclude that the City
has made a stronger evidentiary showing here. The studies
presented by the City address the specific issue that the
Ordinance was enacted to remedy—discriminatory wage gaps.
And, unlike the study before the Court in Florida Bar, the
studies the City relied upon are peer-reviewed research studies,
many of which were meta-studies that summarized the findings
of hundreds of other such studies.263 The studies support the
City’s conclusion that the wage gap is not attributable to
“legitimate” factors such as education, experience or
qualifications.264 Moreover, researchers’ conclusions that
discrimination is the likely cause of the gaps has been present
in the academic literature for decades.265 The conclusion that
the wage gap is most likely the result of discrimination is also
consistent with voluminous unrebutted independent evidence
of workplace discrimination.266
261
Id.
262
Id. at 641.
263
See, e.g., Stanley & Jarrell (meta-analysis of more than 50
studies investigating the wage gaps).
264
See, e.g., id. at 948 (concluding there is a “wide consensus
that gender wage discrimination exists” and the “vast
empirical economic literature, containing hundreds of studies,
reveals that women are ‘underpaid’ disproportionate to their
observed skills”).
265
See, e.g., Blau & Kahn at 32 (finding from 1980 to 2010,
“an unexplained gender wage gap in each year[’s data],” and
explaining that the “finding of such an unexplained gap is
fairly standard in the literature” and is “taken as an estimate
of labor market discrimination”).
266
See e.g., Arin N. Reeves, “Written in Black and White:
Exploring Confirmation Bias in Racialized Perceptions of
Writing Skills,” Nextions Yellow Paper Series (2014)
(concluding from the results of a controlled experiment on
law firm partners reviewing an identical memo from African-
American Thomas Meyer and Caucasian Thomas Meyer that
the greater number of negative comments and a .9 reduction
57
The Chamber also cites our decision in King v. Governor of the
State of New Jersey267 as another case in which the legislature
presented substantial evidence to support a law. The Chamber
argues, unconvincingly, that the showing in King was more
robust than the City’s evidentiary showing here. In King, we
upheld a New Jersey law prohibiting sexual orientation change
efforts (“SOCE”) therapy to persons under the age of 18 over
a challenge by individuals and organizations providing such
counseling.268
in score on a scale of 5 for African-American Thomas Meyer
was the result of “commonly held racially-based perceptions
about writing ability . . . unconsciously impact [law firm
partners’] ability to objectively evaluate a lawyer’s writing.
Most of the perceptions uncovered in research thus far
indicate that commonly held perceptions are biased against
African Americans and in favor of Caucasians.”). The results
of this controlled experiment are consistent with others like it
conducted in various fields designed to ensure that the only
variable that could explain the more positive reaction to
White employees was the perceived race or gender of the
person they were being compared to. In a similar, well
publicized experiment published under the title: “Are Emily
and Greg More Employable Than Lakisha and Jamal? A Field
Experiment on Labor Market Discrimination,” researchers
Marianne Bertrand and Sendhil Mullainathan of the
University of Chicago and MIT, found “large racial
differences in callback rates. Applicants with White names
need[ed] to send about 10 resumes to get one callback
whereas applicants with African-American names need[ed] to
send about 15.” The fictional White applicant therefore had a
50 percent greater probability of getting a call back than the
fictional African-American applicant. Marianne Bertrand &
Sendhil Mullainathan, Are Emily and Greg More Employable
Than Lakisha and Jamal? A Field Experiment on Labor
Market Discrimination, NBER Working Paper No. 9873,
National Bureau for Economic Research (2003),
https://www.nber.org/papers/w9873.pdf.
267
767 F.3d at 216.
268
Id. at 221.
58
The legislative record there “demonstrate[d] that over the last
few decades a number of well-known, reputable professional
and scientific organizations ha[d] publicly condemned the
practice of SOCE.”269 And we, in reviewing that record,
specifically noted that the American Psychological
Association, the American Psychiatric Association, and the
Pan American Health Organization “have warned of the ‘great’
or ‘serious’ health risks accompanying SOCE counseling,
including depression, anxiety, self-destructive behavior, and
suicidality.”270 We also noted, “[m]any such organizations
have also concluded that there is no credible evidence that
SOCE counseling is effective.”271
We also found, that “the bulk of empirical evidence regarding
the . . . harmfulness of SOCE counseling currently falls short
of the demanding standard imposed by the scientific
community.”272 We recognized there was a “limited amount of
methodologically sound research” on the counseling and that
“the few early research investigations . . . refus[ed] to make a
definitive statement about whether SOCE is safe or harmful . .
. due to a lack of scientifically rigorous studies.”273
Nevertheless, we concluded the legislature was not
“constitutionally require[d] to wait for conclusive scientific
evidence before acting to protect its citizens from serious
threats of harm.”274 Instead, we were convinced by the
legislature’s “highly plausible” judgment that SOCE could be
harmful to minors, and concluded that the statute “directly
advanced” New Jersey’s stated interest.275
Here, the district court concluded that many of the studies cited
by the City did not conclusively prove that discrimination is
the sole cause of the wage gap. That level of certainty is not
required. The City made a well-reasoned judgment based on
the testimony presented to it and the unrefuted existence of the
wage gap that banning wage history inquiries would prevent
269
Id. at 238.
270
Id.
271
Id.
272
Id. at 239.
273
Id. (emphasis added) (citation omitted).
274
Id.
275
Id. at 239.
59
further perpetuation of gender and race discrimination in this
context.
Moreover, we won’t ignore the fact that the very nature of
discrimination in employment is such that showing
discrimination by negative inference is often necessary. As the
Supreme Court has recognized in the context of gender
discrimination in the workplace, “[a]s should be apparent, the
entire purpose of the McDonnell Douglas prima facie case is
to compensate for the fact that direct evidence of
intentional discrimination is hard to come by.”276 We, too,
have previously recognized, “the instances in which employers
. . . openly [discriminate against] employees appear to be
declining. Regrettably, however, this in no way suggests that
discrimination based upon an individual’s race, gender, or age
is near an end.”277 “It has become easier to coat various forms
of discrimination with the appearance of propriety, or to
ascribe some other less odious intention to what is in reality
discriminatory behavior.”278
Accordingly, demonstrating discrimination by controlling for
legitimate factors like education, training, experience, age,
skills, and other factors that could otherwise “legitimately”
explain wage gaps, and through experimental evidence, are
essential means of showing discrimination. Because “direct
evidence . . . is hard to come by,” negative inferences can be
persuasive evidence of discrimination, especially where they
are entirely unrebutted.279
276
Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989)
superseded by statute as stated in Burrage v. U.S., 571 U.S.
204, 214 n. 4 (2014) (permitting a showing that
discrimination was a “motivating” or “substantial factor to
shift the burden of persuasion to the employer, which was
made moot after Congress amended the statute to remove but-
for causality).
277
Aman v. Cort Furniture, 85 F.3d 1074, 1081 (3d Cir.
1996).
278
Id. at 1082 (emphasis added).
279
Price Waterhouse, 490 U.S. at 272.
60
As some of the studies on subliminal or implicit bias which we
have discussed establish, bias is often not even something that
that the actor is aware of.280 This makes it exceedingly difficult
to address such issues as wage disparity because simply
educating employers about the pay gap will not deter an
employer who is not even aware of the fact that s/he is setting
a discriminatory salary. Indeed, without challenging the
existence of the pay gap, the CEO for the Chamber without
pause admitted that Chamber members gain a “better
understanding of whether a candidate is worth pursuing based
on previous compensation.” Consequently, as the Court of
Appeals for the Ninth circuit recognized in in Rizo v. Yovino,
and as the Managing Attorney for the Women’s Law Project,
Ms. Fromson, testified here, criteria that may at first appear to
be race and gender neutral (such as wage history) may be
proxies for race or gender.
d. The Inquiry Provision is Not More
Extensive Than Necessary
“The last step of the Central Hudson analysis complements the
third step, asking whether the speech restriction is not more
extensive than necessary to serve the interests that support
it.”281 However, “‘the least restrictive means’ is not the
standard; instead, the case law requires a reasonable ‘fit
between the legislature’s ends and the means chosen to
accomplish those ends, . . . a means narrowly tailored to
achieve the desired objective.’”282 The “scope” of the law must
be “in proportion to the interest served.”283 The Court does not
280
For a thorough discussion of the prevalence and impact of
such subliminal bias, see Mahzarin R. Banaji and Anthony G.
Greenwald, Blind Spot: Hidden Biases of Good People
(2013).
281
Lorillard Tobacco, 533 U.S. at 556 (internal quotations
omitted).
282
Id. (citing Florida Bar, 515 U.S. at 632).
283
Board of Trustees of State Univ. of New York v. Fox, 492
U.S. 469, 479–80 (1989) (citing In re R.M.J., 455 U.S. 191,
203 (1982)); see also Matal v. Tam, 137 S. Ct. 1744, 1764
(2017) (“[t]he regulatory technique may extend only as far as
61
“impose upon [regulators] the burden of demonstrating that . .
. the manner of restriction is absolutely the least severe that will
achieve the desired end.”284 Instead, the legislation must
provide “a fit that is not necessarily perfect, but reasonable;”
one that “represents not necessarily the single best disposition”
but a “proportion[ate]” one.285 Understandably, the district
court here did not reach the third or fourth prong of the Central
Hudson inquiry because it found that the Ordinance failed
under prong two.
However, the last two prongs “are not entirely discrete.”286
These two prongs “have been considered, somewhat in
tandem, [as courts must] determine if there is a sufficient ‘fit
between the [regulator’s] ends and the means chosen to
accomplish those ends[.]’”287 Given our conclusion that the
City has satisfied its burden of establishing the relationship
between the legislative objective of mitigating the wage-gap
and the remedy afforded by the Inquiry Provision, we will
address the fourth prong.
The Inquiry Provision is narrowly tailored. It only prohibits
employers from inquiring about a single topic, while leaving
employers free to ask a wide range of other questions,
including qualifications, work history, skills and any other job-
related questions relevant to performance or fit with the
the interest it serves.”) (citing Central Hudson, 477 U.S. at
565).
284
Board of Trustees, 492 U.S. at 480.
285
Id. The Court does not invalidate a commercial speech
restriction “that went only marginally beyond what would
adequately have served the governmental interest,” rather
“almost all of the restrictions disallowed under Central
Hudson’s fourth prong have been substantially excessive . . .
.” Id. at 479.
286
Greater New Orleans Broadcasting Ass’n, Inc. v. United
States, 527 U.S. 173, 183 (1999).
287
Bad Frog Brewery, Inc. v. New York State Liquor Auth.,
134 F.3d 87, 98 (2d Cir. 1998) (quoting Puerto Rico Assocs.
478 U.S. at 341).
62
company.288 Additionally, the provision does not prohibit
employers from obtaining market salary information from
other sources. The Ordinance simply seeks to insulate any
discriminatory impact of prior salary levels on subsequent
wages. The Ordinance is thus more narrowly tailored than
similar wage history Ordinances that have been passed since
2017.289 As enacted, it simply prohibits employers from
inquiring about wage history at a specific point in time—after
a prospective employee has applied for a job and before s/he is
hired and a wage is set—when the City has determined that the
risk is greatest for conduct that perpetuates discrimination.
Moreover, applicants can voluntarily provide salary history if
they feel it is in their best interest.290
The Chamber argues that the Ordinance is not sufficiently
tailored because it indisputably “regulate[s] speech that poses
no danger to the asserted [governmental] interest.”291
According to the Chamber, the Ordinance does not achieve its
interest “when it is applied to White male job applicants, whose
salaries the City acknowledges are not tainted by past
288
We caution, however, that, as the discussion of the Court
of Appeals for the Ninth Circuit in Rizo makes clear, some
questions may raise the specter of a wage inquiry, even
though not expressed in so many words.
289
See e.g., H’rg Tr., at 15–16 (“Actually, the Massachusetts
law goes a little wider than we do. We’re trying to keep it real
basic, and I think you’ll hear from a witness that thinks we
don’t make it strong enough, but we’re trying to find that
great balance that we always try to in legislation and at least
at this point limit it to stopping the employer from asking,
directly asking, the prospective employee what they make.
Massachusetts law goes a little farther as far as how far the
employer can inquire, and we’re not ready to go there yet and
we think that could have added more controversy to the bill. .
. . [W]e want to try to keep it real basic as far as the inquiry of
past wages.”).
290
This, of course, does not suggest that an employer can
goad or cajole an employee into disclosing prior wages or
salary.
291
Central Hudson, 447 U.S. at 565.
63
discrimination.”292 At oral argument, the Chamber even went
so far as to argue that the Ordinance should therefore not apply
to White men. The suggestion was offered in all seriousness,
and it shows the difficulty of, and very limited avenues for,
addressing this persistent problem.
Counsel for the Chamber actually suggested that the City set
up a system in which employers are free to ask salary histories
of White male job applicants but are precluded from doing the
same for women and minorities. Aside from the clear equal
protection implications, the suggestion for such a carve-out
fails to understand the nature of the wage gap. As amici point
out, a system that perpetuates higher salaries for men based on
their higher salary histories is no better than one that
perpetuates lower salaries for women and minorities based on
their lower salary histories.293 Indeed, it is the very same
system. Asking White men their prior salary and allowing it to
impact an offer of employment would ensure that the historic
salary advantage enjoyed by White males would continue.
Employers operating under such a scheme would unwittingly
be helping White males to continue to enjoy salary advantages
on new jobs because they would be carried over from their
prior jobs.
More importantly, even were we to credit the Chamber’s
suggestion, we would nevertheless not be free to ignore the
Supreme Court’s decision in Florida Bar where the Court
considered and rejected a similar overbreadth argument. The
Respondents in Florida Bar argued that the ban on
communications to all accident victims within 30 days of an
accident was overbroad because it did not distinguish between
those whom the provision was aiming to protect—injury
victims who were especially vulnerable—and “those accident
victims who are ready, willing and able to utilize a lawyer’s
advice.”294 Rather than require the Bar Association to “draw[]
difficult lines,” the Court concluded that the blanket “ban
applicable to all post-accident or disaster solicitations for a
brief 30–day period” was sufficiently narrowly tailored.295
292
Chamber Br. at 55.
293
See Br. of Amicus City of NY et al.
294
515 U.S. at 632.
295
Id. at 633.
64
Thus, even if we were to credit the Chamber’s argument that
the law is overbroad, it would not prevent the Inquiry Provision
from surviving intermediate scrutiny. The Supreme Court has
refused to invalidate restrictions on commercial speech “that
[go] only marginally beyond what would adequately have
served the governmental interest.”296 We have no trouble
concluding that the City has demonstrated a “proportionate” fit
between its substantial interest and its legislative attempt to
advance that interest.
The Chamber also argues that “underinclusiveness plagues the
Ordinance. Despite the City’s assumption that the wage history
of female and minority applicants is ‘tainted’ by past
discrimination, the Ordinance permits employers to base a
salary offer on wage-history information that an applicant
voluntarily discloses.”297 However, underinclusiveness is only
important to our inquiry if it “raises serious doubts about
whether the government is in fact pursuing the interest it
invokes, rather than disfavoring a particular speaker or
viewpoint.”298 There is no suggestion of such insincerity here.
Moreover, the alleged underinclusiveness is more of a strength
than an infirmity. It allows a female or minority who may have
historically been paid above the normal salary levels because
of extraordinary qualifications to inform a potential employer
of that salary history rather than remain silent and risk
forfeiting the higher salary that s/he may well deserve.
296
Fox, 492 U.S. at 479.
297
Chamber Br. at 57-58.
298
Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 801–02
(2011). See also R.A.V., 505 U.S. at 387 (“[T]he First
Amendment imposes not an ‘underinclusiveness’ limitation
but a ‘content discrimination’ limitation upon a State’s
prohibition of proscribable speech. There is no problem
whatever, for example, with a State’s prohibiting obscenity
(and other forms of proscribable expression) only in certain
media or markets, for although that prohibition would be
‘underinclusive,’ it would not discriminate on the basis of
content.”).
65
Even when this is not the case, Central Hudson does not
require that the Ordinance “redress the harm completely.”299
The City may choose to regulate only “part” of the speech that
causes harm.300 Here, as part of the regulatory scheme, the City
has chosen to allow owners of their own prior salary data to
remain in control of that information and thereby allow the
employee to decide whether s/he wants to disclose it.
The Chamber also suggests that more rigorous enforcement of
current antidiscrimination laws is an alternative that the City
must attempt before passing an Ordinance such as this.
Intermediate scrutiny, however, does not require that the City
adopt such regulatory measures only as a last alternative or that
the City demonstrate that the legislation is the least restrictive
response.301 Moreover, it is clear on this record and from some
of the cases we have discussed (see Rizo) that the wage gap has
survived other remedial measures, including the Equal Pay
Act.302 The testimony supporting the Inquiry Provision
establishes that, despite the presence of antidiscrimination
laws, that “[t]he gender wage gap has narrowed by less than
one-half a penny per year in the United States since 1963.”303
299
Mariani v. United States, 212 F.3d 761, 774 (3d Cir.
2000).
300
Id.
301
See Fox, 492 U.S. at 476–78.
302
The Chamber also cited to our recent decision in Bank of
Hope in its Rule 28(j) letter to argue that the City was
required to attempt a host of other alternatives before
implementing the Ordinance. Central Hudson scrutiny does
not require the City to adopt the least restrictive means to
achieve its goal. Moreover, in Bank of Hope v. Miye Choni,
938 F.3d 389 (3d Cir. 2019). We concluded that there
“neither the magistrate judge nor the district court considered
a single alternative.” Id. at 396. In contrast, the City here,
considered and appropriately rejected a number of
alternatives, including the patently deficient alternatives
suggested by the Chamber, such as simply enforcing current
antidiscrimination laws, which have been insufficient to
meaningfully close the wage gap.
303
§ 9-1131(1); see also JA299-300 (summarizing testimony
before the City regarding existing laws that have
insufficiently closed the pay gap).
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The City enacted the Inquiry Provision in an attempt to address
this persistent problem and the record is clearly sufficient to
withstand this First Amendment challenge to it.
III. CONCLUSION
For the foregoing reasons, we will affirm the district court’s
denial of a preliminary injunction as to the Reliance Provision
and we will vacate the district court’s grant of a preliminary
injunction as to the Inquiry Provision and remand with
directions to the district court to deny the preliminary
injunction as to the Inquiry Provision.
67