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Ninth Circuit Holds Prior Decision about Salary History under the Equal Pay Act

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Prior Salary alone or with other factors cannot justify wage differences based on sex

On April 9, 2018, the U.S. Court of Appeals for the 9th Circuit held an en banc decision in Rizo v. Yovino. The decision stating that prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees. The court held that the “factor other than sex” affirmative defense is limited to “job-related factors” and that prior salary is not “a legitimate measure of work experience, ability, performance, or any other job-related quality.”

This decision overturns the 2017 decision of a three-judge panel of the Ninth Circuit as well as the Court’s 1982 decision stating that prior salary was a permissible “factor other than sex” under the Equal Pay Act in Kouba v. Allstate Insurance Company.

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