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Historic Gender-Based Wage Disparity Cannot Justify Future Gender-Based Disparity

April 30, 2018 by

In a significant decision expanding the protections of the Federal Equal Pay Act, the 9th Circuit Court of Appeals has ruled that an employer cannot lawfully rely on an employee’s prior salary history, either alone or in combination with other factors, to compensate women lower than men performing the same work . (Rizo v. Yovino, No. 16-15732 (April 9, 2018).) The Court, overruling its own 1982 decision, found that past salary can reflect historical sex discrimination and therefore, does not constitute a “factor other than sex” upon which an employer may lawfully base a wage differential. Paying employees different amounts based on what they were paid at their former jobs “perpetuates the very gender-based assumptions about the value of work that the Equal Pay Act was supposed to end,” explained the Court. The ruling aligns with recent California law that prohibits employers from asking applicants about their past salaries or paying different amounts to equally qualified women and men based on their previous salaries.

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