Tue, 11/10/2020
Employers may not rely on an employee’s past salary as a defense to claims alleging unequal pay on the basis of sex, according to the U.S. Court of Appeals for the Ninth Circuit. The Equal Pay Act, which requires equal pay for equal work, allows employers to present affirmative defenses for disparate pay, which include seniority, merit, productivity systems, and any factor other than sex. At issue in the case before the Ninth Circuit, Rizo v. Yovino, was whether the employee’s past salary was a factor other than sex for the purposes of the Act. The plaintiff, Aileen Rizo sued the Superintendent of Schools for Fresno County, California (Jim Yovino) after discovering that she, the only female math consultant in the County, earned less than all her male colleagues, even though she had more education and experience. The formula the County used to determine math consultant pay used an employee’s past salary with additional amounts for certain educational attainments.
The district court initially held that “a pay structure based exclusively on prior wages is so inherently fraught with the risk—indeed, here, the virtual certainty—that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand, even if motivated by a legitimate non-discriminatory business purpose.” The Ninth Circuit affirmed the lower court’s reasoning that a factor other than sex had to be job-related and based on legitimate business needs, and that prior pay does not qualify as a job-related factor.
MSE represents workers challenging gender-based pay disparity, sexual harassment, and sex discrimination in the workplace. For more on our commitment to gender equality in the workplace, visit https://www.mselaborlaw.com/practice-areas/metoo-in-the-workplace.
