By: Kimberly J. Kisner, Esq.
On February 27, 2020, the Ninth Circuit Court of Appeals ruled that a female employee’s prior pay history is not a defense to an Equal Pay Act (EPA) claim that a female was paid less than a male for the same work. The 9th Circuit now follows the holding of the majority of circuits to limit the affirmative defense of “factors other than sex” (FOTS) in an EPA claim. In Rizo v. Yovino, FOTS are limited to specified “job related factors” which do not include prior pay. A female employee’s prior pay is no longer a job-related factor that can defeat a prima facie EPA claim.
All justices joined, or concurred, in the opinion. Three justices concurred only to the extent prior pay salary standing alone is not a defense, but employers may consider prior salary among other FOTS when setting initial wages. Three justices concurred in the decision, but disagreed with the majority’s holding that prior pay may never be considered as FOTS in an EPA claim.
On April 9, 2018, the Ninth Circuit previously ruled in the instant matter that a person’s previous compensation may not be used to justify gender pay disparity. The United States Supreme Court vacated the decision on a technicality, as the judge who had authored the ruling died before the appeals court’s final decision was issued.
The appeals court decision mirrors a growing trend. Almost 20 states have passed or enacted salary history bans and another 20 cities — like Atlanta, New Orleans, New York City, and Philadelphia — have bans in some form.
Rizo and the EPA highlight the very technical nature of “modern” employment law. The interface between federal, state, and local ordinances add an additional level of complexity for businesses.
If you have any questions about the Equal Pay Act or other employment law issues, please contact Kimberly J. Kisner. Kim is a Partner with Leech Tishman and a member of the firm’s Employment & Labor, Alternative Dispute Resolution, Litigation and Real Estate Practice Groups. Kim is based in Leech Tishman’s Pittsburgh office and can be reached at 412.261.1600 or via email at firstname.lastname@example.org.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, internal investigations, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in El Segundo, CA, Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.