9th Circuit Rules Salary History Cannot Justify Unequal Pay

Author: Robert S. Teachout, XpertHR Legal Editor

March 4, 2020

Prior salary history may not be used to justify paying women a lower salary than men, the 9th US Circuit Court of Appeals has ruled. In Rizo v. Yovino, the court held that an employee's prior rate of pay is not a "factor other than sex" under the Equal Pay Act (EPA) that would have allowed an employer to pay female employees less than male employees who performed the same work.

The case involved claims brought by a female math consultant, Aileen Rizo, who earned less than her fellow math consultants, all of whom were male. Her employer justified the difference on the basis that it was standard operating procedure for Rizo to receive a 5 percent increase over her salary from her previous job.

The EPA makes it illegal to pay different wages to men and women if they perform equal work in the same workplace. However, employers can defend against a claim of unequal pay on the basis of:

  • Seniority;
  • Use of a merit system;
  • Use of a system measuring earnings by quantity or quality of production; or
  • Any factor other than sex.

The court found - as with the other three defenses - that only job-related factors qualify under the EPA's "factor other than sex" defense and that "prior pay is not one of them."

This is the second time the Circuit has made the same ruling. In 2019, The Supreme Court had vacated and remanded an earlier 9th Circuit ruling in the case because a judge who participated and voted in the case had died before the ruling was published.

The Rizo ruling was issued en banc by an 11-judge panel rather than the typical three-judge panel, meaning it can be overturned only by the US Supreme Court.

The 9th Circuit covers employers operating in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.