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January 12, 2017

Law professors: Comcast 'arrogant,' 'insidious' to oppose wage discrimination bill via First Amendment

Business Employment
Carroll - Comcast Center Thom Carroll/PhillyVoice

The Comcast Center

Two local law professors with decades of legal experience say Comcast is taking an "arrogant" and "insidious" position by opposing a pending wage gap ordinance that would bar Philadelphia employers from asking job applicants to disclose their salary history.

The legislation, sponsored by Philadelphia City Councilman-at-Large Bill Greenlee, was approved by a 16-0 vote in early December. It aims to prevent discrimination during the hiring process and reverse the disparity in salaries earned by women and minorities compared to white, non-Hispanic men. Modeled on a similar law adopted by the Massachusetts state legislature in August, Greenlee's ordinance would become the first of its kind enacted by a U.S. municipality.

Mayor Jim Kenney signaled his support and intent to sign the legislation immediately after City Council's vote in December, but more than a month after the Title IX amendment to the Philadelphia Code gained passage it's still awaiting his signature.

"What government is trying to do is something everybody applauds, which is eliminating prejudice, whether it's on the basis of race, gender or religion." — Burton Caine, Temple University law professor

A 25-page memo sent to the city's Law Department could help explain why.

Written by Comcast senior Vice President David L. Cohen and Greater Philadelphia Chamber of Commerce CEO Rob Wonderling, the memo argues the wage discrimination ordinance violates an employer's First Amendment right to free speech.

Multiple attempts to obtain a copy of the memo from Comcast, Greenlee, the Chamber of Commerce and the Mayor's Office were unsuccessful. Neither Comcast nor the chamber responded to requests for comment about their position on the legislation.

Obtained by the Inquirer, the memo reportedly warns of the possibility – if Kenney signs the bill – of a constitutional challenge that could leave the city "liable for a substantial award of attorneys fees."

Without a copy of the memo to review in detail, Temple University law professor Burton Caine and Drexel University Kline School of Law professor Chapin Cimino, both experts on constitutional law and the First Amendment, attempted to read between the lines to make sense of Comcast's opposition.

"What's the theory?" Caine asked. "There is a theory that I thought Comcast was alluding to that the First Amendment is not only a right to speak, but a right to receive information. If they are saying that, the only cases I know that deal with that are what happens in public schools, such as what is allowed in a library, whether the government can dictate that and whether it hinders the school's mission to educate."

The wage gap legislation, Caine said, involves a different purpose. Greenlee's ordinance cites 2015 data from the U.S. Census Bureau, which found Pennsylvania women earn 79 cents for every dollar earned by a man. Among minorities, African-American women are paid 68 cents, Latinas are paid 56 cents and Asian women are paid 81 cents for every dollar paid to white, non-Hispanic men.

"The reason [City Council] is doing this here has nothing to do with censorship, but advancing civil rights," Caine continued. "Comcast is saying, 'We have a right to discriminate against the people we hire.' That's a lousy argument and one many companies have made. What government is trying to do is something everybody applauds, which is eliminating prejudice, whether it's on the basis of race, gender or religion. It seems like Comcast is really arrogant in making an argument against that. The government's goal is to help people who have been discriminated against. It's not a theoretical thing. It's the history of our country."

'HATCHED'

Greenlee has no plans to budge on the legislation, even as the memo's author, attorney Miguel Estrada, effectively lectures the city – presumptively on behalf of Philadelphia's business community.

"This threw me for such a loop," Greenlee admitted Tuesday. "Some businesses told me in casual conversation that they don't even ask (about salary history). I think this is a reasonably mild bill. It doesn't interfere with negotiations. It removes one single question. We feel that forcing people to give their previous salary starts them at a disadvantage, particularly women and minorities."

What little can be gleaned from the memo's contents includes an assertion that the wage gap legislation will be "the straw that broke the camel's back" for companies in Philadelphia. Comcast, the city's largest corporation with about 150,000 employees, appears to be leveling an ideological counterpunch at what management believes is an onerous regulatory and tax climate.

The core legal issue is the deployment of the First Amendment as a way to protect commercial interests.

One of Cimino's specialties at Drexel is public law and the question of whether the First Amendment and anti-discrimination measures are applied with virtue and sincerity. With Comcast's memo, she sees signs of a potentially dangerous trend of expanding corporate protections established by the Supreme Court's controversial 5-4 ruling in 2010's Citizens United v. Federal Election Commission.

"Citizens United really made manifest a movement that was started — really hatched — by legal academics and has made its way into actual litigation strategy, specifically among economic libertarians and conservatives," Cimino said. "One of the ideas that has come out of this is that corporations have all these speech rights. It's become a corporate rights movement aimed at the First Amendment, which was never intended to be an instrument of deregulation."

"It's basically saying that any time the state tries to legislate against discrimination in ways that impact speech, it's Constitutionally suspect." — Chapin Cimino, Drexel University Kline School of Law professor

To illustrate the movement's evolution, Cimino cited an influential article, "The New Lochner," published last year in the Wisconsin Law Review. The article examines how the constitutional "mainstay of political liberty" has been turned into a "powerful deregulatory engine," pitting the First Amendment against the modern administrative state:

The stakes of this conflict are high. For the often-overlooked reason that nearly all human action operates through communication or expression, the contours of speech protection — more than other constitutional restraint — set the boundary of permissible state action. Put differently, the First Amendment possesses near total deregulatory potential.

As the United States prepares to inaugurate a billionaire businessman as its highest elected official, and as Congress remains solidly in Republican control, the potential for this movement to seek "commercial speech doctrine" as a broadly applicable First Amendment protection has arguably never been greater. It would upend the standards of review and scrutiny that have long guided courts' interpretation of what government does in order to legitimately serve and protect the rights of the public.

"I think what Comcast is doing is insidious," Cimino said. "It's basically saying that any time the state tries to legislate against discrimination in ways that impact speech, it's constitutionally suspect. That just cannot be right. It guts the whole anti-discrimination principle. Normally, that's just straight-up economic regulation."

'A FAIR BILL'

Whether or not a heavyweight challenge to Greenlee's bill can weaken or kill it looks to be a decision for the city's solicitors.

"The Law Department is performing its due diligence by reviewing (objections from the business community)," said Kenney spokeswoman Lauren Hitt. "The mayor continues to support the legislation, but of course wants to give the Law Department an opportunity to review any issues."

From a technical standpoint, Comcast has argued that the bill must prove it can reduce wage discrimination without restricting speech more than is necessary. Comments made by Cohen and Wonderling to the Inquirer also seem to indicate that much of their concern is with the bill's impact on determining the salaries of high-level positions.

Greenlee doesn't see how his bill disrupts that negotiation process. Prospective employees are free to volunteer their salary history if discussions reach a stage at which such information would benefit both parties in coming to an anticipated agreement.

"What I find most disturbing is that whenever you do something to help working people, you're somehow anti-business." — Bill Greenlee, Philadelphia City Councilman-at-Large

"They seem to think it hurts the whole interview and application process," Greenlee said. "They think it's anti-business. What I find most disturbing is that whenever you do something to help working people, you're somehow anti-business. Why would we want to do that? We want people to have good, fair jobs with fair pay and fair benefits. I think that helps business."

Comcast's hard stance on the popular legislation surprised him, Greenlee said.

"To throw out the idea of a lawsuit and all that — really?" he said. "Could this be an effective way of at least addressing the issue of wage inequity? I think it's logical to believe it can. How do you prove something absolutely until it happens? I'm not going to say that all of a sudden this will change things in a year. The Civil Rights Act didn't solve every discrimination issue. I think it's a fair bill and I will continue to support it."

As for the larger legal implications of Comcast's memo, Cimino thinks that even if a legal challenge drew the interest of think tanks and supportive advocates, getting it through the courts in this particular case would be a real uphill battle. 

"Comcast may not even realize, who knows? They're smart people. They can't be unaware," Cimino said. "Advancing discrimination is qualitatively different from receiving information in the marketplace. One is forwarding an unlawful objective and the other is for the public good.

"They are taking what is a real civil rights issue, income disparity, and waving the flag of the First Amendment."