## Facts

- Fresno County Office of Education hired Aileen Rizo in 2009 as a math consultant.
- The County set starting pay under Standard Operating Procedure 1440, which used a pay schedule and determined placement by taking a new hire’s prior salary, adding 5%, and matching the result to a step on the schedule.
- Rizo’s salary was set using this prior-salary formula.
- Rizo later learned male math consultants hired after her were placed at higher steps and paid more for the same work.
- The County attributed the pay differences solely to its prior-salary-based policy rather than to job performance or other job-related considerations.

## Issues

1. Whether prior salary can qualify as a “factor other than sex” under 29 U.S.C. § 206(d)(1)(iv) to justify paying a woman less than men for equal work.
2. Whether the Equal Pay Act’s “factor other than sex” defense is limited to job-related factors.
3. Whether circuit precedent permitting consideration of prior salary as part of a wage-setting policy should be overruled.

## Decision

- The en banc Ninth Circuit affirmed the district court’s denial of the County’s motion for summary judgment on the Equal Pay Act claim.
- The court held that prior salary is not a permissible “factor other than sex” under the Equal Pay Act.
- The court held that only job-related factors may qualify under the Act’s catch-all affirmative defense.
- The court overruled prior circuit precedent that had permitted prior salary to be considered (under a business-policy reasonableness approach) as part of a wage-setting process.

## Legal Principles

- The Equal Pay Act prohibits paying different wages to employees of opposite sexes for equal work, unless the differential is justified by an affirmative defense: a seniority system, a merit system, a production-based system, or a differential based on “any other factor other than sex.”
- The “any other factor other than sex” defense is limited to job-related factors similar in nature to the Act’s enumerated defenses.
- Prior salary—whether used alone or combined with other considerations—cannot serve as an affirmative defense to an Equal Pay Act wage-disparity claim because it is not job-related and risks perpetuating historic sex-based pay disparities.
- A generalized “business reasonableness” justification is not an independent Equal Pay Act defense absent a job-related factor supporting the wage differential.

## Conclusion

The Ninth Circuit held that employers may not defend Equal Pay Act wage disparities by pointing to an employee’s prior salary, because the Act’s catch-all defense permits only job-related factors; the ruling tightened permissible justifications for pay differentials and rejected prior circuit precedent allowing reliance on past pay.


Rizo v. Yovino, 950 F.3d 1217 (9th Cir. 2020)