Salary History Ban in Virginia: What Employers Can Ask

Federal law under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, does not ban salary history inquiries. The Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination law and permits employers nationwide to ask about prior compensation. However, the EEOC has stated that using salary history as the primary determinant of new pay, without considering job-related factors, may perpetuate historical pay discrimination and could constitute disparate impact discrimination if it disproportionately affects members of protected classes (race, color, religion, sex, national origin).

Federal law does not establish a federal right to salary history privacy. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., governs background checks and verification of prior employment but does not restrict salary inquiries. As of 2024, no federal statute explicitly bans salary history questions. Employers covered by Title VII (those with 15+ employees) may ask about salary history, but cannot use such information in a manner that violates equal pay or anti-discrimination laws. The EEOC is the federal enforcement agency and has issued guidance suggesting that over-reliance on salary history may create legal exposure under discrimination law.

Virginia does not have a comprehensive statewide salary history ban. Virginia Code § 40.1-28.7 requires equal pay for substantially equal work and protects employees from discrimination, but this statute does not restrict employer inquiries about prior compensation during the hiring process. Virginia employers with 15 or more employees are covered by both federal Title VII law and Virginia's discrimination laws, but neither statute prohibits asking about salary history.

Virginia is significantly weaker than states with explicit salary history bans (such as California, New York, and Colorado) because Virginia imposes no categorical restriction on salary history questions. However, Virginia employers must ensure that salary history inquiries and the use of that information do not result in unlawful discrimination. Under Virginia Code § 40.1-28.7, employers cannot use salary history as a vehicle to discriminate based on protected status.

Critically, some Virginia localities have enacted their own salary history restrictions. Arlington County and the City of Alexandria have adopted ordinances that prohibit or restrict salary history inquiries for public employment and, in some cases, private employers doing business with the locality. These local restrictions are more stringent than state law and apply within those jurisdictions. Employers operating in Virginia must therefore check both state law and applicable local ordinances.

Virginia Code § 40.1-28.7:1 addresses pay equity and mandates that employers not discriminate in compensation. While this statute does not ban salary history questions, it does require that compensation decisions be based on legitimate, job-related criteria and not on discriminatory factors. An employer's use of salary history that perpetuates historical discrimination (particularly if it disproportionately affects women or minorities) could potentially violate this statute in combination with federal law.

Under Virginia law, remedies for pay discrimination include back pay, front pay, damages, attorney's fees, and court costs under Virginia Code § 40.1-28.7. However, absent a local ban on salary history inquiries, an employee's recourse would be limited to proving that the use of salary history resulted in unlawful discrimination based on protected class membership, rather than challenging the inquiry itself.

Virginia has no statewide exceptions to a salary history ban because no statewide ban exists. However, important exceptions and defenses in the discrimination context apply: (1) Legitimate business reasons: An employer may ask about salary history if it serves a documented business purpose unrelated to discrimination (e.g., verification of employment history). (2) Bona fide occupational qualification (BFOQ): Narrow exceptions under federal law permit consideration of protected characteristics in rare circumstances, though salary history is not typically a BFOQ.

(3) At-will employment: Virginia is a pure at-will employment state under Virginia Code § 40.1-2(A). At-will employment permits employers to set compensation based on many factors, including negotiation and prior experience, but does not permit discrimination. An employer's general freedom to set pay is not an exception to anti-discrimination law.

(4) Collective bargaining agreements: Unionized employers may have contractual restrictions on salary-setting practices, which could limit reliance on individual salary history.

(5) Good-faith business judgment: Courts recognize a bona fide business judgment defense, but over-reliance on salary history to the exclusion of job-related factors may undermine a good-faith defense if discrimination results.

(6) Local ordinance carve-outs: Arlington County and Alexandria ordinances contain exceptions for certain public sector roles or contractors. Employers should review local ordinance text for specific carve-outs.

(7) Confidentiality agreements: If a prior employer required salary confidentiality, an applicant cannot waive that obligation, and an employer requesting such information may face claims from the prior employer, though not from the applicant.

Step 1: Document the salary history inquiry and response. Keep written copies of job applications, interview notes, email communications, and offer letters that reference salary history. Preserve any internal compensation analysis or spreadsheets. If you believe the inquiry or the use of your salary history resulted in discriminatory pay, document the final offer amount, the stated reason for that amount, comparable pay for similarly situated employees, and the protected characteristic (age, race, sex, etc.) you believe was the basis for lower pay.

Step 2: Attempt internal complaint if feasible. Review the employer's anti-discrimination or equal pay policy. File a written complaint with the HR department or employee relations office, if one exists, describing the salary history inquiry and any resulting pay disparity. Keep a copy of your complaint and any response from management. Document the date and person to whom you submitted the complaint. Note that internal complaints are not required before filing externally but may be helpful for demonstrating notice and supporting a later claim.

Step 3: File a charge of discrimination with the appropriate agency. For federal Title VII claims (employers with 15+ employees), file with the U.S. Equal Employment Opportunity Commission (EEOC) at eeoc.gov or by contacting the Richmond District Office at 804-771-2692. The mailing address is U.S. EEOC, Richmond District Office, 3600 West Broad Street, Suite 229, Richmond, VA 23230. Deadline: You have 180 days from the alleged discrimination to file a federal charge (no state deferral agreement extends this in Virginia). Provide the employer name, location, date of the salary history inquiry, the offer amount, and the names of similarly situated employees paid more.

For violations of Virginia Code § 40.1-28.7 (state equal pay law), you may file with the Virginia Department of Labor and Industry (DOLI) at doli.virginia.gov or call 804-786-2377. Provide the same information as above. If you are pursuing a local ordinance violation (Arlington or Alexandria), file with the respective locality's human rights office or employment discrimination agency.

Step 4: Agency investigation and process. The EEOC or state agency will contact the employer and request information about the compensation decision, prior salary history, and comparable pay data. You will be notified of the charge and the investigation timeline. The agency typically completes investigations within 180 days but may extend. You may be asked to provide additional documentation, pay stubs, offer letters, or witness statements. The agency will issue a determination (probable cause or no reasonable cause). If probable cause is found, the agency may attempt conciliation. If conciliation fails, the EEOC will issue a right-to-sue letter, allowing you to file a private lawsuit in federal court.

Step 5: Consult an employment attorney. Given the complexity of discrimination law and the burden of proving that salary history inquiries caused pay discrimination, consult an employment law attorney licensed in Virginia after the salary history inquiry (or immediately if pay disparity is evident). An attorney can evaluate whether you have a viable discrimination claim, help you file administrative charges, and represent you in conciliation or litigation. Many employment attorneys work on a contingency or mixed fee basis for discrimination cases.