Salary History Ban in Texas: What Employers Can Ask

Federal law does not prohibit salary history inquiries. The Fair Credit Reporting Act (15 U.S.C. § 1681) regulates background checks but does not address compensation history. The Equal Pay Act (29 U.S.C. § 206(d)) requires equal pay for equal work but does not restrict how employers gather salary information during hiring.

The EEOC has not issued guidance treating salary history questions as inherently discriminatory. However, if an employer uses salary history as a proxy to perpetuate discrimination based on sex, race, age, disability, or another protected class, that use may violate Title VII of the Civil Rights Act (42 U.S.C. § 2000e) or the Age Discrimination in Employment Act (29 U.S.C. § 623).

Federally, employers are free to ask about past pay and consider it in compensation decisions, provided the decision does not result in pay discrimination. The EEOC enforces federal equal pay and non-discrimination laws. Complaints must be filed within 180 days (or 300 days in deferral states), though Texas is not a deferral state, so 180 days applies.

Texas has no state-level salary history ban. The Texas Labor Code (Title 2, § 21.001 et seq.) governs at-will employment, minimum wage, overtime, and workplace rights but does not restrict salary history inquiries or the use of past compensation in hiring decisions.

Texas law is substantially weaker than states like California, Massachusetts, Oregon, and Washington, which explicitly prohibit employers from asking about salary history or using it in compensation decisions. In Texas, private employers operating statewide or within Texas borders may freely ask job applicants about prior compensation, benefits, and pay structures. There is no state-level carve-out for any industry or employer size.

However, Texas municipalities have adopted local restrictions. The City of Austin and City of Dallas have ordinances prohibiting salary history inquiries for their own employees and, in some cases, contractors. Austin's ordinance (City Code § 25-2-792) applies to city employment. These local rules do not extend to private employers or employers outside city limits.

Texas state law aligns with federal law: pay discrimination is prohibited if based on sex, race, color, religion, national origin, age (40+), disability, or genetic information (Title VII, Age Discrimination in Employment Act, Americans with Disabilities Act, and Genetic Information Nondiscrimination Act). Using salary history as a proxy to perpetuate discrimination may violate these protections, but asking the question itself is legal. Texas employers must comply with the Fair Labor Standards Act (29 U.S.C. § 201 et seq.) for minimum wage and overtime but have no statutory obligation to avoid salary history questions.

Texas law contains no salary history ban, so there are no statutory exceptions or carve-outs to the general rule that employers can ask about past pay.

However, several important exceptions and limitations apply to how salary history can be used:

1. Protected Class Discrimination: Using salary history as a pretext or tool to discriminate based on sex, race, national origin, age, disability, religion, or genetic information violates Title VII, the Age Discrimination in Employment Act (29 U.S.C. § 623), the Americans with Disabilities Act (42 U.S.C. § 12101), and Title II of the Genetic Information Nondiscrimination Act (42 U.S.C. § 2000ff). If a woman or minority applicant's prior lower salary is used to justify a lower offer when similarly situated candidates of other genders or races received higher offers, this may constitute illegal pay discrimination.

2. Equal Pay Act Defense: The Equal Pay Act allows employers to use factors "other than sex" to justify pay differences, potentially including salary history. However, courts scrutinize whether salary history is a legitimate, job-related factor or merely perpetuates historical discrimination (see Freyd v. University of Oregon, 990 F.3d 1211 (9th Cir. 2021), which applies persuasive reasoning nationally).

3. Good Faith Wage Negotiations: If an applicant negotiates from a higher past salary and reaches agreement, the employer's reliance on that negotiation is not automatically unlawful.

4. Austin and Dallas Municipal Employees: City employees in Austin and Dallas cannot be asked about salary history for city positions. Contractors may be subject to these restrictions depending on contract language.

5. At-Will Employment: Texas is a true at-will employment state (Texas Labor Code § 21.001). An employer can refuse to hire someone based on salary history, prior pay, or salary expectations—this is not a violation unless it masks discrimination.

Step 1 – Document Everything.

If you believe an employer violated anti-discrimination law in how they used your salary history, keep detailed records: (1) write down the date and time of the conversation in which salary history was discussed; (2) record the specific questions asked ("What is your current salary?" "What did you earn at your last job?"); (3) note who asked (hiring manager name, title, company); (4) preserve any emails, job postings, offer letters, or communications that reference compensation; (5) document the offer you received and compare it to offers given to similarly situated candidates of other genders, races, or ages; (6) save any comments suggesting the salary history was used as a pretext for discrimination (e.g., "women in this area don't need high salaries").

Step 2 – Explore Internal Complaint Process.

Before filing externally, contact the employer's HR department or compliance office in writing (email preferred for a timestamp). State clearly that you believe the salary history inquiry or the offer made was discriminatory based on sex, race, age, disability, or another protected characteristic. Request a written response and copies of all hiring documents for your position and comparable positions. This step is not required by Texas law but establishes an internal record and may result in resolution. Keep copies of all internal communications.

Step 3 – File a Federal EEOC Charge.

Texas is not a deferral state, so you do not need to file with the Texas Workforce Commission first. File directly with the U.S. Equal Employment Opportunity Commission (EEOC). You have 180 days from the date of the alleged violation to file. The violation date is typically when you received the discriminatory offer or were not hired.

File at: https://www.eeoc.gov/filing-charge-discrimination

Or file in person at: EEOC Dallas District Office, 207 S. Houston St., Dallas, TX 75202, Phone: (214) 655-3355. You can also file at any EEOC office nationwide.

Required information: (1) your full name, address, phone, email; (2) employer's name, address, phone; (3) date the alleged violation occurred; (4) clear description of what happened (e.g., "On March 15, 2024, I was asked about my prior salary. The offer was $15,000 less than a male colleague in the same role"); (5) identification of the protected characteristic (sex, race, age, disability); (6) names of witnesses if available; (7) copies of relevant documents (emails, offer letters, job postings).

The EEOC will mail you a charge form to review and sign. Filing is free. The charge triggers an EEOC investigation.

Step 4 – EEOC Investigation Process.

After you file, the EEOC sends a notice to the employer, who has 30 days to respond. The EEOC then investigates by: (1) interviewing you and the employer; (2) requesting documents (hiring files, pay records, email communications); (3) analyzing whether similarly situated candidates of other protected classes received different treatment; (4) determining whether there is reasonable cause to believe discrimination occurred.

Investigation timeframes vary but typically range from 2 to 12 months. You will receive periodic updates. If the EEOC finds reasonable cause, it attempts conciliation—a negotiated settlement—before proceeding to litigation.

If the EEOC closes the investigation without finding cause, you receive a Notice of Right to Sue, allowing you 90 days to file a private lawsuit in federal court.

Step 5 – Consult an Employment Attorney.

Consult an employment law attorney as soon as possible—ideally before or immediately after filing the EEOC charge. An attorney can: (1) evaluate whether you have a strong claim under Title VII, the Equal Pay Act, or the Age Discrimination in Employment Act; (2) help you gather evidence (prior applicant data, pay equity analyses); (3) represent you in EEOC mediation; (4) pursue a private lawsuit if the EEOC does not help resolve the matter; (5) negotiate a settlement; (6) recover attorney's fees and costs if you prevail.

Many employment attorneys work on contingency (no upfront cost; they take a percentage of your recovery). Initial consultations are often free. Search the State Bar of Texas (texasbar.com) for attorneys licensed in your region with employment law expertise.