## Facts

- Jenny Wernsing was hired by the Illinois Department of Human Services (DHS) as an Internal Security Investigator II, a position with a civil-service monthly pay range of $2,478 to $4,466.
- DHS used a salary-setting practice for lateral entrants: set starting pay at least equal to the employee’s prior salary, plus a raise if feasible within the position’s pay range.
- Wernsing’s prior job paid $1,925 per month; DHS hired her at $2,478 per month.
- A male employee, Charles Bingaman, was hired at the same time into the same job classification and performed the same work.
- Bingaman’s prior job paid $3,399 per month; DHS set his starting pay at $3,739 per month.
- Because raises were applied proportionally, the initial disparity persisted until employees reached the top of the pay range.
- Wernsing alleged DHS’s reliance on prior salary perpetuated lower wages for women and violated the Equal Pay Act.

## Issues

1. Whether DHS’s reliance on prior salary (plus a raise) to set starting pay qualifies as a “factor other than sex” defense under the Equal Pay Act when employees of different sexes perform equal work but are paid differently.
2. Whether the Equal Pay Act permits liability based on disparate impact from a facially neutral pay-setting practice absent proof the practice was adopted because of sex.

## Decision

- The Seventh Circuit affirmed summary judgment for DHS.
- The court held DHS’s use of prior salary plus a uniform raise satisfied the Equal Pay Act’s “factor other than sex” defense.
- The court rejected an Equal Pay Act theory based on disparate impact from facially neutral practices without evidence of sex-based intent.
- The court declined to evaluate whether DHS’s policy was wise, consistent with civil-service goals, or should correct broader market wage disparities.

## Legal Principles

- Under the Equal Pay Act, once an employer shows a wage differential is based on “any other factor other than sex,” the employer may avoid liability even if the factor produces sex-correlated outcomes.
- Prior wages can constitute a “factor other than sex” because prior salary is not sex and may be used as part of a standard hiring practice to recruit lateral entrants.
- The Equal Pay Act does not impose a duty on employers to adjust for alleged sex-based underpayment by prior employers or to equalize market-based wage differences.
- Disparate-impact analysis is not part of Equal Pay Act doctrine as applied by the Seventh Circuit in this case; the statute targets pay differences “on the basis of sex,” not neutral practices with disproportionate effects.

## Conclusion

The Seventh Circuit held that DHS lawfully set different starting salaries for equal work when the differences resulted from a uniform practice of matching prior pay plus a raise, treating prior salary as a permissible “factor other than sex” and rejecting disparate-impact liability under the Equal Pay Act without proof of sex-based intent.


Wernsing v. Dep’t of Hum. Servs., 427 F.3d 466 (7th Cir. 2005)