Boost For Equal Pay
In February, people pursuing equal pay claims got a big boost from the Ninth Circuit.
The Equal Pay Act was passed to combat pay differences between members of the opposite sex. Though it applies to Under the act, an employer has several affirmative defenses it can rely on to justify a pay disparity. These include a difference in pay based in (1) a seniority system, (2) a merit system, (3) a pay system based on quantity or quality of output, or (4) any factor other than sex.
This law affirmative defense generates the most litigation by far. And, the issue the Ninth Circuit looked as was whether a woman’s prior salary at an earlier employer can be a “factor other than sex” that allows an employer to pay a woman less than male employees who perform the same work.
This case is Rizo v. Yovino and it has been a long time in the making. Rizo originally filed her lawsuit in 2014. Rizo learned she was paid less than her male peer. Her employer defended the pay disparity, which was based solely on her prior salary at an earlier job, as a “factor other than sex.”
After a trip to the Supreme Court and back, an en banc Ninth Circuit definitively held that an employer cannot cite a woman’s prior salary as a “factor other than sex” to justify paying a woman less than her male peers doing the same work.
As the Ninth Circuit noted, because equal pay disparities are so pervasive, allowing an employee to escape liability by relying on prior pay would simply perpetuate the very discrimination that the Equal Pay Act was passed to eliminate.
This is a huge win for anyone trying to pursue an equal pay claim as employers rarely have a good reason to justify a pay disparity. An equal pay case does not require proof of a discriminatory intent. Instead, all that is required is evidence that one gender is paid less than the opposite gender for doing the same work. When that is shown, the employer must show it some job related basis for that difference. And, now that job related factor must be something other than a showing that the employer had a lower salary in an earlier job and thus deserved a lower salary in the current job.