New opinions: Third Circuit rules for Philadelphia in major wage-gap fight

Greater Phila. Chamber of Commerce v. City of Phila.—civil/ constitutional—partial reversal—McKee

In an effort to reduce the persistent and substantial gap between what white men earn and what women and minorities earn, Philadelphia unanimously passed an ordinance in 2017 that bars employers in the city from asking about or relying on a prospective employee’s wage history.  Philadelphia was the first city in the country to enact such an ordinance, and since it did so more than a dozen states and municipalities did the same. The ordinance was opposed by various businesses in the city including Comcast, and the city chamber of commerce sued to enjoin enforcement of the ordinance. The district court enjoined the part of the ordinance that bars employers from asking about wage history as a commercial-speech violation, but denied the injunction as to the part that bars them from relying on wage history during hiring and salary negotiations.

Today, the Third Circuit ruled for the city across the board. It affirmed the district court’s ruling as to the reliance provision, observing that the chamber “does not present any arguments before us that seriously challenge” it. The court reversed the district court’s ruling against the city on the inquiry provision, upholding it under intermediate scrutiny because the city has a substantial interest in closing the wage gap and barring wage-history inquiry directly advances that interest.

This is a major victory for the city, which has an impressive recent track record in the circuit with big wins in the sanctuary-city case, the Fulton foster-program non-discrimination case, and today’s case in the past year. But it goes without saying that the city isn’t out of the woods yet in this one.

Joining McKee were Roth and Fuentes. Arguing counsel were city solicitor Marcel Pratt for the city and Miguel Estrada of Gibson Dunn for the city chamber of commerce. The case also featured substantial amicus participation on both sides.


U.S. v. Apple MacPro Computer—civil—reversal—Fuentes

The Third Circuit today ordered the release of a man named Rawls who’s been locked up for civil contempt for more than four years for not providing passwords for his computer to federal agents investigating him for child pornography possession. A federal statute,  18 U.S.C. § 1826(a), provides that witnesses held in contempt for refusing to comply may be confined for at most 18 months, and the court today held that “witnesses” includes suspects from whom the government demands passwords.

Judge McKee concurred to criticize the government’s apparent “insisting that Rawls’ incarceration for contempt be continued even though it already possesses sufficient evidence of Rawls’ possession and production of child pornography to obtain a conviction.” He expressed his hope that, if Rawls is criminally convicted, that the sentencing judge will take his lengthy civil-contempt incarceration into account when deciding his sentence.

Judge Roth dissented, arguing that the pre-indictment federal criminal investigation here does not fall within § 1826(a)’s scope because it is not a “proceeding before or ancillary to any court or grand jury of the United States.”

Arguing counsel were Keith Donoghue of the EDPA federal defenders for the confined man and Robert Zauzmer of the EDPA U.S. Attorney’s office for the government.