Hiring nuance raises pay equity concerns, DOJ employees say

A collection of six affinity groups representing employees at the Justice Department are calling on the agency to eliminate a nuance from the agency’s hiring procedures, which they say is having disproportionate impact on women and people of color.

The employee groups say the practice of asking for a candidate’s salary history has created unintentional pay disparities within the department’s workforce. They’ve realized employees who joined DOJ from the private sector are often paid higher levels than their counterparts from the non-profit world or state or local government, despite having similar competencies and experience.

The concerns come from the DOJ Gender Equality Network, Department of Justice Association of Black Attorneys, Blacks in Government Edward Woods Jr., DOJ Chapter, DOJ Native American Association, DOJ Association of Hispanic Employees for Advancement and Development and DOJ Pride, which collectively, represent thousands of employees at the department.

In an Aug. 19 letter sent to each of the leaders of the 35 DOJ subcomponents, the employee groups called on the department to eliminate the practice of asking for salary history in the federal hiring process.

“We have heard from many department employees who started between approximately 2012 and 2018 — when salary history was often a required field in USA Jobs — that the department’s use of their salary history, including salaries based on prior federal service, resulted in inequitable pay disparities,” the letter reads. “Our members have shared many experiences of being paid lower salaries than their similarly situated male and/or white counterparts upon entry and throughout their time at the department.”

The employee groups cite an example from one female attorney within the department’s civil division, who completed two federal clerkships and then took a pay cut to join a public interest group before later joining DOJ.

“Her public interest job was in the same substantive area as the position she eventually received with DOJ,” the employee groups said. “Coincidentally, her male counterpart in the same section with the same position completed the identical two clerkships but joined the department immediately after their completion.”

The female attorney joined the department as GS-14, step 1, while her male counterpart joined DOJ as a GS-14, step 5.

“A human resources official explained to the female attorney that the department decided to pay her less because of her lower salary at the public interest organization,” the employee groups said. “Only by luck did she learn about the pay difference and had she not successfully challenged this decision through the EEO process, the disparity would have continued throughout her employment in the department and could have had a compounding economic effect throughout her career.”

Under the General Schedule, federal employees are supposed to receive equal pay for equal work. The GS was designed to pay federal employees based on their experience and skills — not their gender, race, ethnicity or who they know in government.

But agencies do have some flexibility in setting pay for their employees, said Jeff Neal, a former chief human capital officer at the Department of Homeland Security.

Human resources specialists often ask for a job candidate’s prior salary as a way to easily justify setting a prospective employee’s pay beyond the minimum rate, he said. When someone first joins government, they’re often brought in at the position’s designated GS level and step 1 pay rate, unless the hiring agency can make a meaningful case to place the incoming employee at a higher step.

“The reliance on their previous pay turns into a crutch to avoid making harder decisions about pay,” Neal said. “The reality is [the agency] should be looking at comparable positions, what other people who do comparable work make … and what it takes to recruit them to the job.”

The competitive nature of the applicant pool may also be a factor in setting pay for new employees, he added.

Neal said the question of an incoming employee’s prior salary came up in the early days of the Obama administration, as incoming Secretary Janet Napolitano began to fill out her staff. Napolitano initially brought in former colleagues from the Arizona state government, where she was governor for six years before joining DHS.

State and local government salaries often pale in comparison to those at a high-paying law firm or consultancy, Neal said.

“You might find that different demographics are attracted to different employers, and that might create some bias for you,” he said.

At least 19 states and 21 localities have banned the practice of asking for salary history in the hiring process, the DOJ Gender Equality Network said. Now, it’s asking Justice subcomponents to do the same.

“By implementing these straightforward measures, the department will join the growing number of companies, states and localities that prohibit the use of salary history information,” the employee groups said. “This will help the department to become a more equitable workplace, enhance employee morale, increase transparency and improve recruitment and retention of highly qualified employees.”

The Justice Department didn’t immediately respond to a request for comment.

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