Salary History Ban in Delaware: What Employers Can Ask

Federal law, including Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) and the Equal Pay Act of 1963 (29 U.S.C. § 206), does not prohibit employers from asking about salary history or considering it in hiring decisions. The EEOC has expressed concerns that salary history inquiries can perpetuate gender and racial pay gaps, but has not issued regulations banning the practice.

Federal law does protect employees from pay discrimination based on protected characteristics (race, color, religion, sex, national origin, age, disability, or genetic information). However, employers can legally defend pay differences based on factors such as prior salary, merit, seniority, or production quantity under the Equal Pay Act's affirmative defense provisions.

The Fair Labor Standards Act (FLSA) and the Department of Labor enforce minimum wage and overtime requirements but do not restrict salary history inquiries. The EEOC enforces Title VII and other discrimination statutes. No federal agency has issued a blanket ban on salary history questions.

Delaware has not enacted a statewide salary history ban law. Delaware Code Title 19, Chapter 11 governs employment discrimination, covering race, color, religion, sex, national origin, age, disability, and other protected categories, but does not address salary history inquiries. This means employers in Delaware are not prohibited from asking candidates about their compensation history, prior salary, or current pay expectations under state law.

Delaware's approach differs significantly from states like California, Massachusetts, New York, and Oregon, which have enacted comprehensive salary history bans. In those jurisdictions, employers cannot ask candidates about salary history, and may face civil penalties or injunctive relief for violations. Delaware imposes no such restriction.

However, some Delaware municipalities have adopted local ordinances prohibiting salary history inquiries for positions located within their boundaries. Wilmington and Newark have considered or adopted local protections, though enforcement and scope vary. Employers should check local city or county ordinances where positions are based, as local laws may override the absence of state protection.

Under Delaware law, employers may consider prior salary in setting compensation, subject only to the requirement that pay differences not be based on protected characteristics. An employer could legally pay two candidates differently based on salary history alone, provided the disparity is not tied to discrimination. Delaware law does not require pay transparency or salary range disclosure in job postings.

Delaware's lack of a salary history ban creates broad exceptions permitting salary history inquiries. Employers may ask candidates directly about current salary, prior compensation, salary expectations, and reasons for leaving previous positions. No legal restriction applies to considering this information in hiring or compensation decisions.

Important edge case: If a salary history inquiry is used as a pretext for discrimination, it may violate Delaware Code Title 19, Chapter 11 or Title VII if the underlying decision reflects discrimination based on race, color, religion, sex, national origin, age, or disability. For example, if an employer asks all female candidates about salary history but not male candidates, or uses salary history as a proxy for age, this could constitute illegal discrimination.

Another edge case involves collective bargaining agreements. If a union contract or collective bargaining agreement restricts salary inquiries or mandates pay transparency, those contractual obligations supersede common law rights. Additionally, some federal contractors may be subject to Executive Order restrictions on salary history inquiries, depending on the contract type.

Employees are not legally required to disclose salary history in Delaware, but declining to do so does not shield them from non-hiring or adverse employment action. A candidate cannot claim retaliation under Delaware law for refusing to answer salary history questions. Private sector at-will employment rules apply; employers may decline to hire candidates who refuse to answer compensation questions.

Step 1: Document the salary history inquiry. Record when the question was asked (in writing, phone call, or interview), who asked it, exactly what was requested, and your response. Save any written communications (emails, application forms, messages) that reference salary history. Note whether other candidates were asked the same question or whether the inquiry appeared targeted. Keep records of the position title, date, and context.

Step 2: Understand that Delaware has no statewide salary history ban, so an inquiry alone is not an illegal violation. However, if the salary history inquiry was used as a pretext for discrimination—for example, if the employer asked about salary history only for women or only for applicants over 40—this may constitute discrimination. Determine whether the inquiry was part of a discriminatory pattern.

Step 3: If you believe discrimination occurred, file a charge of discrimination with the Delaware Division of Industrial Relations, Office of Labor, Civil Rights Section (DLIR), or simultaneously with the EEOC's Delaware Field Office. The deadline is 300 days from the discriminatory act (federal deferral state standard). You may file online at the EEOC website (www.eeoc.gov) or contact the Delaware DLIR at (302) 761-8000. Provide your name, employer name, date of the incident, detailed description of the inquiry, and explanation of how it relates to discrimination based on a protected characteristic.

Step 4: Expect a 30–60 day intake period. The agency will notify the employer and request a response. An investigator may contact you and the employer for interviews and review relevant documents. In dual-filing (EEOC/state agency), the investigation typically takes 120–180 days. You will receive a determination or be offered settlement mediation.

Step 5: Consult an employment law attorney if you believe discrimination occurred or if you are considering legal action. An employment litigation attorney in Delaware can evaluate whether the salary history inquiry was part of a broader discriminatory pattern and advise on damages (back pay, front pay, emotional distress, punitive damages). Many attorneys work on contingency for discrimination claims.