## Facts

- Aileen Rizo was hired in 2009 as a math consultant by the Fresno County Office of Education.
- The employer set starting pay under a policy that used an employee’s prior salary plus 5% and then placed the employee on the salary schedule.
- Rizo learned male consultants in the same position were placed at higher salary steps, including at least one male with less experience and education.
- The employer did not dispute a pay disparity for equal work but asserted the disparity was fully explained by its prior-salary-based formula.

## Issues

1. Whether prior salary, alone or in combination with other factors, qualifies as a “factor other than sex” under the Equal Pay Act’s affirmative defenses.
2. Whether an employer may use a prior-salary-based pay-setting policy to justify paying a female employee less than male employees for equal work.

## Decision

- The en banc Ninth Circuit affirmed the district court’s denial of summary judgment for the employer and remanded.
- The court held that prior salary, whether used alone or with other factors, cannot justify a wage differential under the Equal Pay Act.
- The court overruled prior circuit precedent to the extent it permitted reliance on prior salary as a “factor other than sex.”

## Legal Principles

- Under the Equal Pay Act, once a plaintiff shows a sex-based wage disparity for equal work, the employer must prove an affirmative defense, including that the differential is based on a “factor other than sex.”
- The “factor other than sex” defense is limited to legitimate, job-related factors such as experience, education, ability, or prior job performance.
- Prior salary is not a permissible “factor other than sex,” because it is not itself job-related and allowing its use risks perpetuating historic sex-based wage disparities.

## Conclusion

The Ninth Circuit held that employers may not rely on employees’ prior salary—either by itself or as part of a pay-setting formula—to defend sex-based wage differentials for equal work under the Equal Pay Act, and it sent the case back for further proceedings.


Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018) (en banc)