Monday, April 16, 2018
An en banc federal appeals court ruled Monday that salary history cannot be used to justify paying less to women in comparable jobs.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that salary history is not relevant in a suit under the Equal Pay Act, report the Recorder, the Los Angeles Times and Courthouse News Service. How Appealing links to additional coverage and to the opinion.
The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.” The defendants had argued salary history was a factor “other than sex.”
The appeals court ruled that “a factor other than sex” is limited to legitimate, job-related factors such as experience, educational background, ability or prior job performance.
Prior salary, whether considered alone or with other factors, is not job-related, and relying on it perpetuates discrimination, the appeals court said.
Federal appeals courts are split on the issue, according to the National Law Journal. The U.S. Courts of Appeals for the Denver-based 10th Circuit and for the Atlanta-based 11th Circuit have held that prior pay can’t be considered alone as an exemption to equal pay laws. The Chicago-based 7th U.S. Circuit Court of Appeals has ruled salary history can be considered.
The decision is here at Rizo v. Yovino (9th Cir. en banc April 9, 2018).
There were three concurrences (5 judges of 11), with two of the concurrences reserving the option for businesses to use salary histories as a relevant, but not determinative, factor in pay decisions. Three of the four women on the en banc panel joined a concurrence (only one of whom is a Republican appointee).
For prior coverage of the earlier panel decision on this blog, see