December 31, 2018 Feature

Employers Cannot Use Salary History to Pay Women Less Than Men

Ninth Circuit ruling creates Circuit split on whether prior salary is proper defense to Equal Pay Act

By Onika K. Williams

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.

Prior salary can no longer be used to determine pay with a new employer

Prior salary can no longer be used to determine pay with a new employer

Image Illustration by Elmarie Jara | Getty Images

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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