NT Lakis attorneys have filed a “friend-of-the-court” brief with the U.S. Court of Appeals for the Ninth Circuit in an important case arising under the federal Equal Pay Act (EPA). The en banc appeals court will decide whether, and to what extent, the EPA allows prior salary to be used to justify differences in pay pursuant to a facially neutral compensation policy.
Earlier this year, a three-member panel of the court ruled unanimously in Rizo v. Yovino that prior salary can in fact serve as a “factor other than sex” under the EPA, so long as its use as a factor is reasonable and effectuates a business policy. In so ruling, the panel reaffirmed the precedent set by the Ninth Circuit in its 1982 ruling in Kouba v. Allstate Ins. Co. The Ninth Circuit subsequently vacated the panel’s decision in Rizo and granted the plaintiff’s request to rehear the case by a new “en banc” panel.
Our brief argues that the EPA bars employers only from paying men and women in the same job different wages because of sex, and expressly permits wage differentials that are the result of objective, gender-neutral factors such as prior salary.
We also urge the court to reject the argument made by the Equal Employment Opportunity Commission (EEOC) in its brief in support of the plaintiff that any factor that may “perpetuate the gender pay gap” is inherently discriminatory and thus unlawful under the EPA, pointing out that the EPA expressly permits the use of “any other factor other than sex” – including the neutral system used by the County in this case – in setting pay.
A copy of our brief in Rizo is available here.
Members of the Center for Workplace Compliance (CWC) can read more here.