PHILADELPHIA – In what could serve as a test case for similar laws around the country, the city of Philadelphia asked the 3rd U.S. Circuit Court of Appeals Friday to restore its ordinance forbidding city employers from asking workers about their pay histories.

The ban is the best answer to the city's pay equity problem, Marcel S. Pratt, the city solicitor, told a three-judge panel.

At the request of the local chamber of commerce, a federal district court judge last year granted a preliminary injunction temporarily blocking the part of the law that banned pay history inquiries, finding that it violated the First Amendment's free speech clause. Specifically, it didn't pass a legal test known as "intermediate scrutiny" that courts use to consider commercial speech questions. The judge allowed another portion, which prohibits employers from relying on known pay information, to remain intact.

Showdown in Philly

The city appealed and, at oral arguments last week, told the 3rd Circuit that the lower court applied intermediate scrutiny incorrectly. The city shouldn't be required to prove that a salary history ban would address its pay gaps, Pratt said. There's an "academic consensus" that it will help, and "we don't have to prove the point," he said; it's "the most common-sense solution to the problems."

That's what legislatures do, Pratt continued. They attempt a fix and if it doesn't work as intended, "they tweak it." Additionally, "this ordinance is very narrow," as speech restrictions must be, Pratt said; employers remain free to ask applicants what salary they expect, for example.

The Greater Philadelphia Chamber of Commerce, the business group challenging the ban, told the panel that the lower court should have gone further, applying "strict scrutiny" instead. Restrictions on speech must be subject to a higher bar, said Miguel A. Estrada, a partner at Gibson Dunn, representing the chamber. Government must demonstrate that its fix will solve the problem, he said, and a speech remedy is an indirect way of getting at the problem. Instead, the city should be required to attempt other remedies, such as increased enforcement or mandatory self-evaluations, he said.

States weigh in

As states and cities across the country continue to enact bans, many are awaiting the 3rd Circuit's decision. Eleven states, as well as Washington, D.C., and Puerto Rico, filed a friend-of-the-court brief, arguing that these laws are no different from other bans on inquiries that are likely to facilitate discrimination. This method was used by Congress, for example, in both the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, they said.

"Regulating pre-employment inquiries thus plays a critical role in governmental efforts to ensure that non-discrimination protections are effective. Lawmakers across the country have drawn a similar commonsense conclusion: where possible, the best way to prevent unlawful discrimination is to eliminate the source of discrimination," the states said; "Philadelphia has done the same here."