The issue of how or even whether employers can consider an employee’s prior salary in making a compensation decision in light of a challenge under the Equal Pay Act (EPA) will remain unsettled as the result of the recent refusal by the U.S. Supreme Court to review a case that might have resolved the issue.

The High Court’s decision not to hear the merits of Rizo v. Yovino, 950 F.3d 1217 (9th Cir. 2020) (en banc), cert. denied , No. 19-1176 (U.S. July 2, 2020), a ruling by the Ninth Circuit Court of Appeals that held that the “text, history, and purpose of the Equal Pay Act” demands that prior salary can never be used as a factor “other than sex” under that law, perpetuates for now a split with other federal appeals courts that have permitted the use of prior pay in some form to support an “any other factor other than sex” defense under the EPA.

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