{"id":10895,"date":"2026-06-07T03:01:49","date_gmt":"2026-06-07T03:01:49","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/ninth-circuit-finds-employers-cannot-use-an-employees-prior-pay-to-defend-against-equal-pay-act-claims\/"},"modified":"2026-06-07T03:01:49","modified_gmt":"2026-06-07T03:01:49","slug":"ninth-circuit-finds-employers-cannot-use-an-employees-prior-pay-to-defend-against-equal-pay-act-claims","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/ninth-circuit-finds-employers-cannot-use-an-employees-prior-pay-to-defend-against-equal-pay-act-claims\/","title":{"rendered":"Ninth Circuit Finds Employers Cannot Use an Employee\u2019s Prior Pay to Defend Against Equal Pay Act Claims"},"content":{"rendered":"\n
\n

\n Overview<\/strong>\u00a0
Employers cannot justify disparity in pay for employees of the opposite sex based on past earnings, an en banc panel of the Ninth Circuit ruled in Rizo <\/em>v. Yovino<\/em>, No. 16-15372, \u2014 F.3d \u2014 (Feb. 27, 2020).\u00a0 The decision eliminates a defense to claims under the Equal Pay Act that allowed employers to avoid liability by relying on an employee\u2019s prior salary history to justify paying male and female employees differently for the same work.
\u00a0
The Equal Pay Act<\/strong>\u00a0
The Equal Pay Act of 1963 (\u201cEPA\u201d) \u201cenacted into law the principle of equal pay for equal work.\u201d\u00a0 Corning Glass Works<\/em> v. Brennan<\/em>, 417 U.S. 188, 205 (1974).\u00a0 The EPA provides that employees of the opposite sex must be paid at an equal rate for work that \u201crequires equal skill, effort, and responsibility\u201d and is \u201cperformed under similar working conditions.\u201d\u00a0 29 U.S.C. \u00a7\u00a0206(d)(1).\u00a0 The statute identifies four exceptions to the equal-pay mandate, where payment is made pursuant to:\u00a0 \u201c(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.\u201d \u00a0Id.<\/em>\u00a0
\u00a0
Case Background<\/strong>\u00a0
Plaintiff Aileen Rizo was hired as a math consultant by the Fresno County Office of Education in 2009.\u00a0 In accordance with standard operating procedure, the County determined Rizo\u2019s salary by starting with her prior salary, increasing it by 5%, and placing her at the corresponding step on the County\u2019s pay schedule.\u00a0
\u00a0
When Rizo learned several years later that she was earning less than all of her male colleagues, she sued alleging, among other claims, a violation of the EPA.\u00a0 The County argued that its policy was lawful because prior salary was a \u201cfactor other than sex\u201d and therefore permitted under the EPA\u2019s so-called \u201ccatch-all\u201d fourth affirmative defense.\u00a0 Although the district court denied the County\u2019s motion for summary judgment, a three-judge panel of the Ninth Circuit reversed the district court decision and ruled in the County\u2019s favor.\u00a0 Thereafter, the Ninth Circuit voted to hear the case en banc, and in April 2018, the en banc panel issued an opinion holding that an employer could not justify a wage differential between male and female employees by relying on prior salary.\u00a0 Rizo <\/em>v. Yovino<\/em>, 887 F.3d 453, 456 (2018).\u00a0 The Supreme Court subsequently vacated this decision, however, because the author of the majority opinion, Judge Stephen Reinhardt, died eleven days before the en banc opinion issued.\u00a0 Yovino<\/em> v. Rizo<\/em>, 139 S. Ct. 706, 710 (2019) (per curiam).
\u00a0
The Ninth Circuit Decision<\/strong>\u00a0
On remand from the Supreme Court, the Ninth Circuit en banc panel again rejected the County\u2019s argument and ruled that the EPA\u2019s catch-all affirmative defense \u201cencompasses only job-related factors other than sex,\u201d such as education, skills, or prior experience.\u00a0 The Court further held that \u201c[p]rior pay\u2014pay received for a different job\u2014is necessarily not\u201d a job-related factor.\u00a0 The Court noted that \u201c[t]he express purpose of the Act was to eradicate the practice of paying women less simply because they are women.\u201d\u00a0 \u201cAllowing employers to escape liability by relying on employees\u2019 prior pay would defeat the purpose of the Act and perpetuate the very discrimination the EPA aims to eliminate.\u201d
\u00a0
The Ninth Circuit\u2019s decision stops short of holding that the EPA prevents employers from considering salary history for all purposes, noting that \u201cit is not unusual for employers and prospective employees to discuss prior pay in the course of negotiating job offers.\u201d\u00a0 Nevertheless, the Court stated that \u201cwhatever factors an employer considers, if called upon to defend against a prima facie showing of sex-based wage discrimination, the employer must demonstrate that any wage differential was in fact justified by job-related factors other than sex.\u201d\u00a0 \u201cPrior pay, alone or in combination with other factors, cannot serve as a defense.\u201d
\u00a0
Although other circuit courts have limited the scope of the EPA\u2019s catch-all defense, the Ninth Circuit is the first to hold that prior salary may never be used as a defense.\u00a0 The decision also directly conflicts with the Seventh Circuit, which has held that prior wages are a \u201cfactor other than sex.\u201d\u00a0 See<\/em> Wernsing <\/em>v. Dep\u2019t of Human Servs.<\/em>, 427 F.3d 466, 468 (7th Cir. 2005).\u00a0 Given the circuit split, if the County ultimately appeals the decision, the scope of the EPA\u2019s catch-all defense is ripe for review by the Supreme Court.
\u00a0
The Ninth Circuit\u2019s decision also aligns with various state and local laws that prohibit employers from requesting prior salary information from job applicants and making compensation decisions based on such information.\n <\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

Overview\u00a0Employers cannot justify disparity in pay for employees of the opposite sex based on past earnings, an en banc panel of the Ninth Circuit ruled in Rizo v. […]<\/p>\n","protected":false},"author":1,"featured_media":10896,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[911,610,300,1404,676,3800,7973,674,3912,510,1478],"class_list":["post-10895","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-act","tag-circuit","tag-claims","tag-defend","tag-employees","tag-employers","tag-equal","tag-finds","tag-ninth","tag-pay","tag-prior"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10895","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=10895"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10895\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/10896"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=10895"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=10895"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=10895"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}