The Ninth Circuit recently held for the second time in Rizo
v. Yovino that, under the federal Equal Pay Act (the
"EPA"), prior salary history cannot be used by employers
to justify sex-based pay differentials.
The EPA prohibits pay discrimination on the basis of sex and
does not require proof of discriminatory intent. Specifically, the
EPA requires equal pay for equal work that is performed under
similar working conditions on jobs that require equal skill, effort
and responsibility. The EPA permits unequal pay only if the
inequality results from (i) a seniority system; (ii) a merit
system; (iii) a system that measures earnings by quantity or
quality of production; or (iv) a differential based on any other
factor other than sex. In Rizo, the Ninth Circuit held
that past salary is not a "factor other than sex" that
can justify sex-based pay gaps.
