by Katherine M. Flett
Equal Pay Day 2021 is March 24, symbolizing how far into the year women must work to earn what men earned in the previous year. Thankfully, this date is not static and falls earlier each year with this year falling 19 days earlier than just five years ago. While we celebrate this achievement, we have a long way to go to completely close the pay gap between men and women.
The Equal Pay Act has prohibited sex-based wage discrimination for over 50 years. Under the act, an employer may justify wage disparities only based on one of four exceptions: (i) seniority; (ii) merit; (iii) measurement of earnings by quantity or quality of production; or (iv) a differential based on “any factor other than sex.”
The last “catch-all” exception was the focus of Rizo v. Yovino. Aileen Rizo was hired as a math consultant by the Fresno County Office of Education (“Fresno”). The district’s policy for new hires was to add 5% to the employee’s previous salary and place them within the corresponding salary scale. After learning that her male coworkers were placed into higher salary scales upon hire than she was, Rizo sued Fresno for violating the Equal Pay Act, among other claims.
The trial court rejected Fresno’s argument that Rizo’s prior salary was a permissible “factor other than sex.” Fresno appealed to the Ninth Circuit which rejected their argument, holding that a “factor other than sex” must be “limited to legitimate, job-related factors such as [prior] experience, educational background, ability, or prior job performance.”
Fresno appealed to the U.S. Supreme Court which vacated and remanded the decision on a technicality: Judge Reinhardt, author of the Ninth Circuit’s majority opinion, died before the decision was published. While the other judges concurred for various reasons, the Court could not determine the outcome without Judge Reinhardt as the majority opinion.
In February 2020, the Ninth Circuit determined that prior salary cannot be used as a “factor other than sex” to justify pay differences under the Equal Pay Act.
In July 2020, the Supreme Court denied Fresno’s petition to review the decision.
Circuit courts split on the issue. The Seventh and Eighth Circuits hold that prior pay can be considered to establish starting salary. The Ninth Circuit closely aligns with Tenth and Eleventh Circuit decisions that prior pay alone cannot be considered when establishing a starting salary.
With the variety of interpretations of the federal Equal Pay Act, some states, including Illinois, have enacted strong equal pay laws making it more difficult to justify disparities in pay between men and women. While the Missouri Equal Pay Act does not directly address the issue, Kansas City passed an ordinance prohibiting employers from asking job applicants about their salary history.
While these changes in laws are definitely a step in the right direction, we still have a long way to go to completely close the gender wage gap. Because after all, salaries speak louder than words.
Katherine M. Flett is a member of Danna McKitrick’s litigation team whose primary focus is on assisting clients in insurance defense, business litigation, employment law, and bankruptcy matters. She can be reached at 314.889.7182 or firstname.lastname@example.org.