Court rules that a past salary cannot excuse gender pay discrimination:
· performed under similar working conditions.
After a plaintiff proves her prima facie case, the burden then shifts to the employer to prove an affirmative defense under one of four exceptions to the EPA. These defenses are that the pay difference was based on:· a system that measures earnings on quality or quantity of production; orRizzo established her prima facie case, and the county argued that basing pay on past wages falls under the fourth affirmative defense and is a factor other than sex.
The court held that based on the text and the purpose of the EPA, only job-related factors other than sex fall under the fourth affirmative defense. The court reasoned that, among other things, the fact that the first three affirmative defenses all relate to a plaintiff’s current job indicates that the fourth defense must also relate to the plaintiff’s current job, so the fourth affirmative defense only includes job-related factors other than sex.Further, the court held that allowing prior pay to justify paying women and men differently for substantially similar work would undermine the purpose of the EPA.
The 9th Circuit’s decision is a step forward in eliminating pay discrimination. Indeed, basing unequal current salary on unequal past salary perpetuates wage discrimination and contravenes the purpose of the EPA. While wage discrimination is still far too prevalent in the workplace, it can be difficult to know how to fight against this unjustified difference in pay. Our free
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