Prior salary and the Equal Pay Act

[Video] If starting salary is based on prior salary, that's not a defense to an Equal Pay Act suit. So says the 9th Circuit in an en banc (11 judges) decision: Rizo v. Yovino (9th Cir 02/27/2020) [PDF].

Setting initial wages based on prior wages is always problematic because it tends to perpetuate the discrimination that might have been practiced by previous employers to the disadvantage of women and racial minorities.

Now, we've got a 9th Circuit case saying that an employer cannot ever use prior wages to justify a pay differential between men and women which otherwise would violate the Equal Pay Act.

A woman was paid less than men who were doing the same job and the employer said Look, the Equal Pay Act has a defense. It's called any other factor other than sex, and we put her on the pay schedule based on her prior salary, and that is an other factor other than sex.

And the 9th Circuit says No. The other factor has to be job related, and prior salary is not job related.

My issue with this case, which we’ll see discussed in the Supreme Court, is that the statute says ANY other factor other than sex, and the statute does not say anything at all about that other factor having to be job related.