The full Ninth Circuit Court of Appeals has agreed to rehear the case of Rizo v. Yovino, which presents the issue of whether prior salary standing alone can ever be a factor other than sex justifying a pay discrepancy under the Equal Pay Act. While I acknowledge that there may be reasonable arguments that prior salary -- because it may be tainted by sex discrimination -- cannot be a sufficient basis standing alone to defend against an EPA claim, I can only lament the fact that no one in this case has noticed that the plaintiff's salary was not based solely on her prior salary. The defendant set the plaintiff's starting salary at the low end of a predetermined range. Had the plaintiff's salary been based solely on her prior salary, she would have made far less. So the plaintiff's salary was based in part on her prior salary, but it was also based in part on the defendant's determination of an appropriate salary range for the plaintiff's position. Whether prior salary alone can be a defense to an EPA claim may very well be an important question but this case is not an appropriate vehicle for answering it.
For more, see my prior posts here and here.
blog reflects the views solely of its author. It is not intended, and
should not be regarded, as legal advice on how to analyze any particular
set of facts.