In Bowen v. Manheim Remarketing, Inc., No. 16-17237 (Feb. 21, 2018), the Eleventh Circuit concluded that Qunesha Bowen, an arbitration manager, could proceed with claims that she was paid less than a male predecessor because of her sex in violation of the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The court concluded that, contrary to the defendant's contention, a jury could find that the predecessor's prior salary and prior experience alone did not explain the pay differential. The court noted that such factors would not seem to have justified Bowen's lower pay once she had proven herself to be an effective arbitrator. Moreover, Bowen had presented evidence that the defendant's general managers engaged in sex discrimination, including the prior failure to correct sex-based wage disparities; sexist comments; the refusal to hire women for managerial positions; and the existence of a "good ole' boy" system.
As I've discussed previously (see here and here), the Ninth Circuit case of Rizo v. Yovino also involves an Equal Pay Act claim in which pay history was a factor in setting employee pay. These cases are very different, however. In Rizo, the issue was whether the defendant's reliance on prior salary could be used to justify the pay differential under the Equal Pay Act. Here, the employer's reliance on prior salary is not at issue. Rather, the question is whether the employer also -- or instead -- relied on sex. Thus, unlike Rizo, this case does not present a sweeping challenge to the practice of relying on pay history in setting an employee's pay, and involves a straightforward claim of sex-based wage discrimination.
Rizo is a case to watch. If the Ninth Circuit rejects any reliance on pay history, I would expect this issue to go to the Supreme Court.
This 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.