On February 27, 2020, the United States Court of Appeals for the
Ninth Circuit, in Rizo v. Yovino, (again) found that
salary history is not a "factor other than sex" that can
justify a pay disparity in defense of a claim under the Equal Pay
Act of 1963 (EPA). The Ninth Circuit made the same finding in 2018,
but the Supreme Court of the United States
remanded the case because the judge who authored the original
opinion died before it was published.
The EPA requires employers to provide equal pay for "equal
work on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar working
conditions." The EPA provides that employers may identify
legitimate reasons for differences in pay, including "a
seniority system," "a merit system," "a system
which measures earnings by quantity or quality of production,"
or "any other factor other than sex."
