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

Aileen Rizo, who is an employee of the public schools in Fresno County, sued for violation of the federal Equal Pay Act (“EPA”) after she learned that her male counterparts were being paid more for performing the same work. In its summary judgment motion, the county argued that it paid males more than females based upon a factor other than sex, namely the higher salaries that male employees earned before being employed by the county. The district court rejected that argument and held that when an employer bases a pay structure “exclusively on prior wages,” any resulting pay differential between men and women is not based on a factor other than sex. A panel of the Ninth Circuit previously vacated and remanded the judgment, holding that if the employer is able to show that prior salary “effectuates some business policy” and the employer uses prior salary “reasonably in light of its stated purpose,” prior salary can be a factor other than sex, resulting in no liability under the EPA. However, in this en banc opinion, the Ninth Circuit vacated the panel decision and affirmed the district court’s judgment, holding that prior salary “is not a legitimate measure of work experience, ability, performance, or any other job-related quality” and that it had an attenuated relationship with “legitimate factors other than sex such as training, education, ability, or experience.”