An Employee's Prior Salary Cannot Justify a Wage Differential Between Male and Female Employees

In Rizo v. Yovino, 2018 U.S. App. LEXIS 8882 (April 9, 2018), the en banc court held that "prior salary alone or in combination with other factors cannot justify a wage differential. To hold otherwise - to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum - would be contrary to the text and history of the Equal Pay Act and would vitiate the very purpose for which the Act stands."

In Rizo v. Yovino, Plaintiff Rizo was hired as a math consultant to the Fresno County Office of Education. After several years of employment with Defendant County, Rizo learned of a pay discrepancy between male and female math consultants and initiated an action against the County for, among other things, violation of the Equal Pay Act. The County did not dispute that it paid Rizo less than comparable male employees for the same work, but argued that the wage differential was lawful under the Equal Pay Act because it was based on a "factor other than sex" pursuant to 29 U.S.C. ยง 206(d)(1); namely, Rizo's prior salary.

In rejecting the County's argument and affirming the district court's denial of summary judgment to the County, the en banc court overruled Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), holding that an employee's prior salary does not constitute a "factor other than sex" upon which a wage differential may be based. The court reasoned that "any other factor other than sex" is limited to legitimate, job-related factors such as a prospective employee's experience, educational background, ability, or prior job performance.

If you have any questions about the foregoing or other employment related concerns or questions, please contact Kiara W. Gebhart, Esq., or any of the attorneys at Shulman Bastian Friedman & Bui LLP at (949) 340-3400.

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