NT Lakis lawyers have filed a “friend-of-the-court” brief with the U.S. Supreme Court in an important case regarding the role prior salary may play in establishing an employee’s compensation and in defending compensation differences under the federal Equal Pay Act’s (EPA) “factor other than sex” defense.

Our brief urges the High Court to review and reverse a controversial ruling by the Ninth Circuit Court of Appeals in the case of Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018), a decision with questionable legal reasoning that upended more than thirty years of precedent and created a split with the other federal courts of appeals that have addressed the issue.

In Rizo, the Ninth Circuit held for the first time that prior salary, either “alone or in combination with other factors,” can never justify a wage differential under the EPA, regardless of whether it was applied in a nondiscriminatory manner. In so ruling, the court reasoned that permitting an employer to justify a gender pay differential based on prior salary would allow it to “capitalize on the persistence of the wage gap and perpetuate that gap” indefinitely, in the Ninth Circuit’s view contrary to the EPA’s purposes.

We argue that without evidence that an employer is actually using prior salary as a means to discriminate because of sex, there is no basis for excluding prior salary from the broad category of non-sex factors that are allowed under the EPA’s “any other factor” defense. We further urge the Court to correct the Ninth Circuit’s notion that somehow the EPA requires employers to remedy gender pay disparities that are not the product of sex-based discrimination.

A copy of our brief is available here.

Members of the Center for Workplace Compliance (CWC) can read more here.