Introduction

The case of Greater Philadelphia Chamber of Commerce et al. v. City of Philadelphia addressed the constitutionality of Philadelphia's 2017 ordinance aimed at reducing the gender and racial wage gaps. The ordinance comprised two key provisions: the Inquiry Provision, which prohibited employers from inquiring about a prospective employee’s wage history, and the Reliance Provision, which banned employers from relying on such wage data during the wage-setting process. The Greater Philadelphia Chamber of Commerce, representing its members, challenged both provisions, alleging violations of the First Amendment's free speech protections.

Summary of the Judgment

The United States Court of Appeals for the Third Circuit delivered a significant decision on February 6, 2020. The district court had previously struck down the Inquiry Provision, deeming it unconstitutional under the First Amendment, while upholding the Reliance Provision as non-speech-regulating conduct. Upon appeal, the Third Circuit reversed the district court's decision regarding the Inquiry Provision, affirming its constitutionality. However, the Reliance Provision remained upheld. The appellate court concluded that the Inquiry Provision met the requirements of the Central Hudson Gas & Electric Corp. v. Public Service Commission of New York test for commercial speech restrictions, thereby permitting the ordinance's enforcement.

Analysis

Precedents Cited

The judgment extensively referenced key precedents in First Amendment and commercial speech jurisprudence:

• Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980): Established the four-part test for evaluating restrictions on commercial speech.
• FLORIDA BAR v. WENT FOR IT, INC. (1995): Affirmed the application of intermediate scrutiny to commercial speech, reinforcing that such speech is protected but can be regulated if justified.
• TURNER BROADCASTING SYSTEM, INC. v. FCC (1997): Supported the notion that legislative bodies are not required to present empirical evidence if the legislative determinations are reasonable.
• BURSON v. FREEMAN (1992), Tennessee Secondary School Athletic Association v. Brentwood Academy (2007), and Alameda Books, Inc. v. City of Los Angeles (2002): Demonstrated that substantial evidence, even if not empirically rigorous, is sufficient to uphold commercial speech regulations.

Legal Reasoning

The court applied the Central Hudson test to the Inquiry Provision, which involves:

1. Determining whether the speech concerns lawful activity and is not misleading.
2. Assessing whether the government has a substantial interest in regulating the speech.
3. Evaluating if the regulation directly advances the governmental interest.
4. Ensuring that the regulation is not more extensive than necessary to serve that interest.

Commercial Speech Classification: The Inquiry Provision targets commercial speech as it relates to employment negotiations, fitting within the definition under Central Hudson.

Intermediate Scrutiny: The court affirmed that intermediate scrutiny was appropriate, rejecting the Chamber's argument for strict scrutiny which requires compelling interest and necessary means.

Substantial Evidence: The court found that the City provided substantial evidence, including peer-reviewed studies and expert testimonies, demonstrating that prohibiting wage history inquiries would help mitigate the wage gap resulting from gender and racial discrimination.

Necessity and Fit: The ordinance was deemed narrowly tailored as it specifically targets wage history inquiries without overreaching into other areas of speech or employment practices.

Impact

This judgment sets a new precedent for municipalities seeking to implement wage history bans as a measure against wage discrimination. By upholding the Inquiry Provision under the Central Hudson framework, the decision empowers cities to regulate certain employment practices aimed at promoting wage equity without falling foul of First Amendment restrictions. Future cases involving commercial speech in employment contexts will likely reference this case to balance free speech rights with anti-discrimination objectives.

Complex Concepts Simplified

Central Hudson Test

A four-step framework used by courts to evaluate the constitutionality of commercial speech restrictions:

1. Is the speech about lawful activity and not misleading?
2. Does the government have a substantial interest in regulating the speech?
3. Does the regulation directly advance that interest?
4. Is the regulation not more extensive than necessary to serve that interest?

Commercial Speech

Expression related to the economic interests of the speaker and its audience. In this case, communications involving employment offers and wage discussions qualify as commercial speech.

Intermediate Scrutiny

A medium level of judicial review that requires the government to show that the regulation serves a substantial interest and that the regulation is directly related to achieving that interest.

Conclusion

The Third Circuit's affirmation of Philadelphia's Inquiry Provision marks a pivotal moment in employment law and free speech jurisprudence. By validating the ordinance under the Central Hudson test, the court recognized the legitimacy of municipal efforts to combat wage discrimination through targeted commercial speech regulation. This decision not only upholds the city's commitment to wage equity but also provides a robust legal foundation for other jurisdictions aiming to implement similar measures. The ruling underscores the balance between safeguarding free speech and promoting social justice objectives, setting a clear pathway for future legislative and judicial actions in this domain.