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A Changing Pay Equity Landscape

Sam Lillard was recently published in the Columbus Bar Association’s Legal Connections on “A Changing Pay Equity Landscape.” This article reviews the federal and state laws that prohibit pay discrepancies based on sex.

Pay Equity Efforts Gain Momentum

With the #MeToo and #Time’sUp movements bringing more focus to the issue of equal pay for women, employers are taking gender pay equity more seriously, with some reporting success.

Ninth Circuit Holds "Catchall" Exception to the Equal Pay Act is Limited to "Job-Related" Factors, Excludes Consideration of Prior Salary

In Rizo v. Yovino,1 the U.S. Court of Appeals for the Ninth Circuit recently examined whether an employer can justify a wage differential between male and female employees by relying on prior salary. The Ninth Circuit determined that prior salary—alone or in combination with other factors—cannot justify such a wage differential because prior salary is not job-related, and perpetuates the gender-based assumptions about the value of work that the Equal Pay Act was designed to end. In reaching this conclusion, the Ninth Circuit became the first appellate court to definitively address whether and how employers may consider wage history. Other federal appellate courts that have examined this question have typically concluded that while employers may not rely on an individual’s salary history alone to support a wage differential, they may do so if prior salary is considered among other factors.2

Employers Cannot Consider Prior Salary History to Justify Wage Gap under the Federal Equal Pay Act

On April 9, 2018, the Ninth Circuit Court of Appeals issued its opinion in Rizo v. Yovino, holding that employers cannot consider an employee’s prior salary either alone or in combination with other factors to justify salary differentials between men and women for the purposes of the federal Equal Pay Act.

Employers Can't Use Salary History to Justify Gender Pay Gaps, 9th Circuit Rules

An employee's prior salary cannot justify a pay gap between men and women for performing similar work, the 9th Circuit Court of Appeals has ruled in Rizo v. Yovino.

What Employers Need to Know Now About the Ninth Circuit’s Salary History Decision

The Ninth Circuit Court of Appeals recently released its opinion in Rizo v. Yovino, No. 16-15372 (April 9, 2018). In this high-profile case, the court held that “prior salary alone or in combination with other factors cannot justify a wage differential” between male and female employees. This article provides practical answers to employers’ questions regarding the ruling.

Employers Can’t Use Salary History to Defend Pay Gap

On Monday, April 9, 2018, the day before Equal Pay Day, the Ninth Circuit Court of Appeals held that employers cannot use an employee’s past salary to justify paying women less than men under the federal Equal Pay Act (EPA). The Ninth Circuit’s decision in Rizo v. Yovino overruled prior holdings in the circuit that past salary is a “factor other than sex” that employers could use to justify a pay gap between men and women under the EPA, concluding that prior salary cannot be used, alone or in combination with other factors, to justify a wage differential.

Ninth Circuit Reverses Its Own Precedent and Newly Holds That Prior Salary History Cannot Justify a Pay Disparity Between Men and Women

You may recall that last year, we reported on a Ninth Circuit case, Rizo v. Yovino, wherein the Court of Appeal held that an applicant’s prior salary history is a “factor other than sex” that an employer may rely on, either alone or in combination with other factors, in setting pay rates--even though the use of that factor may result in men and women being paid different rates of pay for similar work. In so holding, the Court of Appeal relied on its own prior precedent (dating back to 1982), Kouba v. Allstate, wherein the Court expressly held that this was permissible and could not support a federal Equal Pay Act violation.

Salary History is Not a Permitted ‘Factor Other Than Sex’ under Equal Pay Act, Ninth Circuit Holds

Prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees under the Equal Pay Act, the U.S. Court of Appeals for the Ninth Circuit has held in an en banc decision. Rizo v. Yovino, No. 16-15372 (Apr. 9, 2018). This decision overturns the 2017 decision of a three-judge panel of the Ninth Circuit and the Court’s 1982 decision holding that prior salary was a permissible “factor other than sex” under the Equal Pay Act. Kouba v. Allstate Ins. Co., 691 F.3d 873 (9th Cir. 1982).

Appeals Court Says Salary History Can’t Block Equal Pay Act Claims

In a landmark decision that will accelerate the growing pay equity movement, especially for employers on the west coast, the 9th Circuit Court of Appeals today became the latest federal court of appeals to rule that employers cannot justify a wage differential between men and women by relying on prior salary. By tightening the language contained in the Equal Pay Act, the 9th Circuit has just made it more difficult for employers to justify pay differentials and defend pay equity claims. This is a wake-up call for all employers to ensure their compensation structures do not unfairly limit the amount of money women earn at their organizations.