Skip to Content

9th Circuit Rules Employers Can’t Use an Employee’s Salary History to Justify Gender Pay Disparity


According to a recent ruling from the 9th Circuit Court of Appeals, employers cannot justify gender pay disparity among workers based on prior pay history. This major ruling will eliminate a common defense that business owners across the west coast have used to fight against pay equity claims. Under the Equal Pay Act (EPA), there is a catch-all provision that employers tend to use to defend pay differentials caused by “any other factor other than sex.” However, the decision reached by an en banc panel in Rizo v. Yovino says that prior salary history does not meet the criteria for this exception.

About Rizo v. Yovino

In 2009, Aileen Rizo was hired by the Fresno County Office of Education to be a math consultant. According to the Fresno County’s Standard Operating Procedure to determine employee salaries, new employees should be given a 5% raise from whatever their salaries had been at their previous job and then placed into a structured salary schedule. At Rizo’s previous job, she earned just over $50,000. Fresno County placed her into the appropriate pay step based on her old pay-rate, however, the county failed to account for Rizo’s previous experience or any other factors.

Rizo would learn a few years later that some of her male colleagues who had been hired in similar roles were being paid higher salaries, supposedly because they were paid higher salaries at their previous jobs. After an internal complaint didn’t resolve the issue, Rizo decided to file an EPA claim against Fresno County in 2014.

While a lower federal court ruled in Rizo’s favor and said she could take her case to trial, a three-judge panel of the 9th Circuit Court of Appeals reversed the decision. Since this case could have significant ramifications for employers and employees, the 9th Circuit heard the matter en banc.

11 judges ruled on the matter and rejected the argument that the employer should be allowed to base Rizo’s pay on her salary history because it is, technically, a factor “other than sex.” According to the panel:

“Prior salary alone or in combination with other factors cannot justify a wage differential. To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands.”

This reiterates that only job-related criteria can be used to claim the EPA’s catch-all defense. According to the court, “prior pay isn’t job-related for purposes of an EPA claim because it pertains to the salary the employee was paid at a different job,” so employers can’t use it to justify paying workers of one sex less than workers of the opposite sex for equal work.

According to the 9th Circuit, “The express purpose of the EPA was to eradicate the practice of paying women less simply because they are women. Allowing employers to escape liability by relying on employees’ prior pay would defeat the purpose of the Act and perpetuate the very discrimination the EPA aims to eliminate.”

Equal Pay Attorneys Serving Clients in Northridge

Have you recently discovered that your employer is paying you less than your coworkers of the opposite sex, even though you have the same job? If so, get in touch with K2 Employment Law Group today to get legal advice from one of the dedicated lawyers at our law firm. We are committed to protecting the rights of workers throughout California, and we are prepared to get to work on your case today.

Call us at (800) 590-7674 if you’re ready to schedule your free case consultation with our equal pay attorneys.