December 18, 2018 Substantive Law

Employers Cannot Use $alary History to Pay Women Less Than Men

By Onika K. Williams

Reprinted with permission from Litigation News, Fall 2018 (44:1) at 4-5. ©2018 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Employers cannot use prior salary, either alone or in combination with other factors, to justify paying different wages to comparable employees doing the same work under the Equal Pay Act, according to the U.S. Court of Appeals for the Ninth Circuit. The en banc decision in Rizo v. Yovino overturns prior Ninth Circuit precedent on the issue and creates a circuit split. ABA Section of Litigation leaders view the Ninth Circuit’s decision as part of a growing national trend prohibiting employers from considering prior salary to determine initial pay.

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