Aileen Rizo v. Jim Yovino ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AILEEN RIZO, No. 16-15372
Plaintiff-Appellee,
D.C. No.
v. 1:14-cv-00423-
MJS
JIM YOVINO, Fresno County
Superintendent of Schools,
Erroneously Sued Herein as Fresno OPINION
County Office of Education,
Defendant-Appellant.
On Remand from the United States Supreme Court
Resubmitted En Banc September 24, 2019*
San Francisco, California
Filed February 27, 2020
Before: Sidney R. Thomas, Chief Judge, and M. Margaret
McKeown, William A. Fletcher, Richard A. Paez, Marsha
S. Berzon, Richard C. Tallman, Consuelo M. Callahan,
Carlos T. Bea, Mary H. Murguia, Morgan B. Christen,
and Paul J. Watford, Circuit Judges.
*
The panel unanimously concluded this case was suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 RIZO V. YOVINO
Opinion by Judge Christen;
Concurrence by Judge McKeown;
Concurrence by Judge Callahan
RIZO V. YOVINO 3
SUMMARY**
Employment Discrimination / Equal Pay Act
Affirming, on remand from the Supreme Court, the
district court’s order denying defendant’s motion for
summary judgment on claims under the Equal Pay Act, the en
banc court held that plaintiff’s prior rate of pay was not a
“factor other than sex” that allowed defendant to pay her less
than male employees who performed the same work, and only
job-related factors may serve as affirmative defenses to Equal
Pay Act claims.
The en banc court’s previous opinion was vacated by the
Supreme Court on a procedural issue concerning the death of
the author of the majority opinion. On remand, the en banc
court affirmed the district court’s denial of summary
judgment. Agreeing with other circuits, the en banc court
held that the scope of the “factor other than sex” affirmative
defense is limited. Based on the text and purpose of the
Equal Pay Act, the en banc court held that this defense
comprises only job-related factors. The en banc court held
that prior pay does not qualify as a job-related factor that can
defeat a prima facie Equal Pay Act claim. The en banc court
overruled Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir.
1982), which held that prior pay could qualify as an
affirmative defense if the employer considered prior pay in
combination with other factors and used it reasonably to
effectuate a business policy.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 RIZO V. YOVINO
Concurring, Judge McKeown, joined by Judges Tallman
and Murguia, wrote that prior salary alone is not a defense to
unequal pay for equal work, but employers do not necessarily
violate the Equal Pay Act when they consider prior salary
among other factors when setting initial wages. Accordingly,
Judge McKeown concurred in the result but not in the
majority’s rationale.
Concurring, Judge Callahan, joined by Judges Tallman
and Bea, disagreed with the majority’s holding that prior pay
can never be considered as a factor in determining pay under
the Equal Pay Act.
COUNSEL
Shay Dvoretsky (argued) and Jeffrey R. Johnson, Jones Day,
Washington, D.C.; Michael G. Woods and Timothy J.
Buchanan, McCormick Barstow Sheppard Wayte & Carruth
LLP, Fresno, California; for Defendant-Appellant.
Daniel M. Siegel (argued) and Kevin Brunner, Siegel Yee
Brunner & Mehta, Oakland, California, for Plaintiff-
Appellee.
Jessica Stender (argued) and Jennifer A. Reisch, Equal Rights
Advocates, San Francisco, California; Marianne Reinhold,
Laurence S. Zakson, and Aaron G. Lawrence, Reich Adell &
Cvitan, Los Angeles, California; for Amici Curiae Equal
Rights Advocates; 9to5, National Association of Working
Women; American Association of University Women;
American Association of University Women—California
Chapter; ACLU of Northern California and ACLU Women’s
Rights Project; Atlanta Women for Equality; California
RIZO V. YOVINO 5
Women’s Law Center; Feminist Majority Foundation; Legal
Aid at Work; Legal Voice; National Organization for Women
(NOW) Foundation; National Partnership for Women and
Families; National Women’s Law Center; Southwest
Women’s Law Center; Women Employed; and Women’s
Law Project; Make-Up Artists and Hair Stylists Guild, Local
706 of the International Alliance of Theatrical State
Employees, Moving Picture Technicians, Artists and Allied
Crafts of the United States, its Territories and Canada, AFL-
CIO, CLC; Costume Designers Guild, Local 892 of the
International Alliance of Theatrical Stage Employees,
Moving Picture Technicians, Artists and Allied Crafts of the
United States, its Territories and Canada, AFL-CIO, CLC;
Orange County Managers Association; Clearinghouse on
Women’s Issues; Gender Justice; KWH Law Center for
Social Justice and Change; and National Asian Pacific
American Women’s Forum; National Council of Jewish
Women.
Barbara L. Sloan (argued), Attorney; Margo Pave and
Elizabeth E. Theran, Assistant General Counsel; Jennifer S.
Goldstein, Associate General Counsel; James L. Lee, Deputy
General Counsel; P. David Lopez, General Counsel; Office
of the General Counsel, Washington, D.C.; as and for Amicus
Curiae Equal Employment Opportunity Commission.
Rae T. Vann and Danny E. Petrella, Washington, D.C., for
Amicus Curiae Center for Workplace Compliance.
6 RIZO V. YOVINO
OPINION
CHRISTEN, Circuit Judge:
In 1963, Congress enacted the Equal Pay Act with a
mandate as simple as it was profound: equal pay for equal
work. The question we consider today is whether Aileen
Rizo’s prior rate of pay is a “factor other than sex” that allows
Fresno County’s Office of Education to pay her less than
male employees who perform the same work. 29 U.S.C.
§ 206(d)(1)(iv). We conclude it is not.
Congress enacted the Equal Pay Act (EPA) to combat pay
disparities caused by sex discrimination, but it allowed
employers to justify different pay for employees of the
opposite sex based on three enumerated affirmative defenses,
or “any other factor other than sex.” Id. (emphasis added).
Contrary to Fresno County’s argument, we conclude that only
job-related factors may serve as affirmative defenses to EPA
claims.
The express purpose of the Act was to eradicate the
practice of paying women less simply because they are
women. Allowing employers to escape liability by relying on
employees’ prior pay would defeat the purpose of the Act and
perpetuate the very discrimination the EPA aims to eliminate.
Accordingly, we hold that an employee’s prior pay cannot
serve as an affirmative defense to a prima facie showing of an
EPA violation.
I. Background
The Fresno County Office of Education hired Aileen Rizo
as a math consultant in October 2009. She held two master’s
RIZO V. YOVINO 7
degrees when she was hired: one in educational technology
and one in mathematics education. She began teaching
middle and high school math in 1996. Her employment
experience included three years as head of the math
department for an online school and designer of the school’s
math curriculum. Rizo worked at this position while earning
her first master’s degree. She taught middle school math for
six more years, and then she was hired by Fresno County.
The County set its new employees’ salaries according to
a pay schedule governed by Standard Operating Procedure
1440 (SOP 1440). The schedule designated 12 salary levels.
Each level corresponded to different job classifications and
had up to 10 steps. To calculate a new employee’s pay, the
County started with the employee’s prior wages, increased
the wages by 5%, and placed the employee at the
corresponding step on its pay schedule. Rizo’s prior
employer paid her $50,630 for 206 days of work, plus an
additional $1,200 because she had a master’s degree. Based
on her prior wages, the County placed Rizo at Step 1, Level
1 on its pay schedule. Her starting wage at Fresno County
was $62,133 for 196 days of work, plus an additional $600
for holding a master’s degree.
While having lunch with colleagues in 2012, Rizo learned
that a newly hired male math consultant had been placed at
Level 1, Step 9. That put the new consultant’s starting pay at
$79,088, significantly more than Rizo was paid after working
three years for the County. Rizo realized that she was the
only female math consultant at Fresno County, and that all of
her male colleagues were paid more than she was, even
though she had more education and experience. She
expressed concern about this pay disparity to the Human
Resources department, and an administrator gave her a copy
8 RIZO V. YOVINO
of SOP 1440. The administrator assured Rizo that the policy
was applied across the board, regardless of the employee’s
sex.
In February 2014, Rizo filed a complaint in Fresno
County Superior Court against the Superintendent of Fresno
County’s Office of Education.1 The complaint alleged that
the County violated the Equal Pay Act, 29 U.S.C. § 206(d),
and included claims for sex discrimination under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; sex
discrimination under California’s Fair Employment and
Housing Act, § 12940(a); and failure to prevent
discrimination under California’s Fair Employment and
Housing Act, § 12940(k).
Fresno County removed the complaint to the United
States District Court for the Eastern District of California,
and in June 2015 it moved for summary judgment. The
County’s motion did not contest that Rizo was paid less than
her male counterparts or that Rizo established a prima facie
EPA violation. Instead, the County argued that Rizo’s pay
was the result of SOP 1440, and that this pay policy, which
was based solely on its employees’ prior pay, was a “factor
other than sex” that defeated Rizo’s EPA claim.
In the district court, both parties argued that Kouba v.
Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982),
supported their positions. Kouba considered whether an
employee’s prior pay, in combination with other factors,
justified a pay differential between two workers of the
1
Because Yovino is sued in his official capacity as Superintendent,
we refer to the appellant as “Fresno County” or “the County” throughout
this opinion.
RIZO V. YOVINO 9
opposite sex. Id. at 875. We held that the EPA “does not
impose a strict prohibition against the use of prior salary,” so
long as employers consider prior pay “reasonably” to advance
“an acceptable business reason.” Id. at 876–77, 878. The
district court concluded that Kouba did not resolve whether
the pay disparity in Rizo’s case violated the EPA because the
differential resulted solely from Rizo’s prior rate of pay, not
from her prior pay in combination with other factors. See
Rizo v. Yovino, No. 1:14-cv-0423-MJS, 2015 U.S. Dist.
LEXIS 163849, at *21–22 (E.D. Cal. Dec. 4, 2015). The
court held that “a pay structure based exclusively on prior
wages is so inherently fraught with the risk—indeed, here, the
virtual certainty—that it will perpetuate a discriminatory
wage disparity between men and women that it cannot stand,
even if motivated by a legitimate non-discriminatory business
purpose.” Id. at *26. The court concluded that the County’s
“SOP 1440 necessarily and unavoidably conflicts with” the
EPA, and it denied the County’s motion for summary
judgment. Id.
The district court certified its order for interlocutory
appeal pursuant to 28 U.S.C. § 1292(b). A three-judge panel
reversed and held that the district court was bound by Kouba.
See Rizo v. Yovino, 854 F.3d 1161 (9th Cir. 2017), reh’g en
banc granted, 869 F.3d 1004 (9th Cir. 2017). A majority of
the active members of our court voted to hear the County’s
appeal en banc, see Rizo v. Yovino, 869 F.3d 1004 (9th Cir.
2017), and the en banc court issued an opinion on April 9,
2018. See Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018). The
Supreme Court subsequently vacated our decision on a
10 RIZO V. YOVINO
procedural issue.2 The parties submitted supplemental
briefing after the case was remanded from the Supreme
Court, and we reconsidered the County’s appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1292(b), and we affirm
the district court’s order denying the County’s motion for
summary judgment.
II. Standard of Review
We review the district court’s order denying summary
judgment de novo. See Evon v. Law Offices of Sidney
Mickell, 688 F.3d 1015, 1023 (9th Cir. 2012). “We adopt the
same standard used by the district court and ‘view the
evidence in the light most favorable to the nonmoving party,
determine whether there are any genuine issues of material
fact, and decide whether the district court correctly applied
the relevant substantive law.’” Booth v. United States,
914 F.3d 1199, 1203 (9th Cir. 2019) (quoting Animal Legal
Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989
(9th Cir. 2016)).
III. Discussion
We took this case en banc to reconsider Kouba’s rule that
prior pay can qualify as an affirmative defense to an EPA
2
The author of the majority opinion, Judge Stephen Reinhardt, died
eleven days before the en banc opinion issued. Fresno County petitioned
for certiorari on the merits and also argued the opinion should not have
been issued after Judge Reinhardt died. See Pet. for Writ of Cert., Yovino
v. Rizo, 139 S. Ct. 706 (2019) (per curiam) (No. 18-272). The Supreme
Court granted the petition and held that it was error to issue the opinion
after Judge Reinhardt’s death. Yovino, 139 S. Ct. at 710. On remand from
the Supreme Court, another judge was selected at random to participate on
the en banc panel.
RIZO V. YOVINO 11
claim if the employer considers prior pay in combination with
other factors and uses it reasonably to effectuate a business
policy. On appeal, the County contends that its policy of
setting employees’ wages based on their prior pay is premised
on a factor other than sex. Therefore, the County argues, its
use of prior pay is a valid affirmative defense. The County
concedes that it has no other defense to Rizo’s claim.
Rizo responds that the use of prior pay to set prospective
wages, by its nature, would perpetuate the gender-based pay
gap indefinitely. She argues that because Congress aimed to
eliminate deeply rooted pay discrimination between male and
female employees who perform the same work, employers
are not allowed to rely on prior pay to justify wage disparities
for employees of the opposite sex. We agree with Rizo.
The Equal Pay Act was enacted as an amendment to the
Fair Labor Standards Act. See Corning Glass Works v.
Brennan, 417 U.S. 188, 190 (1974). In Corning Glass, the
Supreme Court observed, “Congress’ purpose in enacting the
Equal Pay Act was to remedy what was perceived to be a
serious and endemic problem of employment discrimination
in private industry.” Id. at 195. The EPA was described as
“a very simple piece of legislation” establishing that “equal
work will be rewarded by equal wages.” S. Rep. No. 88-176,
at 1 (1963); Equal Pay Act of 1963, S. Comm. on Labor, 88th
Cong. 12 (1963) (statement of Sen. Clifford P. Case). The
EPA provides:
No employer . . . shall discriminate . . .
between employees on the basis of sex by
paying wages to employees . . . at a rate less
than the rate at which he pays wages to
employees of the opposite sex . . . for equal
12 RIZO V. YOVINO
work on jobs the performance of which
requires equal skill, effort, and responsibility,
and which are performed under similar
working conditions . . . .
29 U.S.C. § 206(d)(1). The statute identifies four exceptions
to its equal-pay mandate:
except where such payment is made pursuant
to (i) a seniority system; (ii) a merit system;
(iii) a system which measures earnings by
quantity or quality of production; or (iv) a
differential based on any other factor other
than sex . . . .”
Id. (emphasis added).
The EPA’s four exceptions operate as affirmative
defenses. Corning Glass, 417 U.S. at 196–97; Kouba,
691 F.2d at 875. As the Supreme Court has explained, the
Act’s structure is straightforward. Corning Glass, 417 U.S.
at 195. An employee bears the burden of establishing a prima
facie case of wage discrimination by showing that “the
employer pays different wages to employees of the opposite
sex for substantially equal work.” Maxwell v. City of Tucson,
803 F.2d 444, 446 (9th Cir. 1986). If the plaintiff puts forth
a prima facie case of an EPA violation, “the burden shifts to
the employer to show that the differential is justified under
one of the Act’s four exceptions.” Corning Glass, 417 U.S.
at 196. To counter a prima facie case, an employer must
prove “not simply that the employer’s proffered reasons could
explain the wage disparity, but that the proffered reasons do
in fact explain the wage disparity.” EEOC v. Md. Ins.
Admin., 879 F.3d 114, 121 (4th Cir. 2018) (emphasis in
RIZO V. YOVINO 13
original) (citing Stanziale v. Jargowsky, 200 F.3d 101,
107–08 (3d Cir. 2000)); see also Mickelson v. N.Y. Life Ins.
Co., 460 F.3d 1304, 1312 (10th Cir. 2006).
A wage differential arose in Corning Glass because male
employees were not willing to work for the low wages paid
to women. Corning Glass rejected what was later called the
“market force theory,” holding that the EPA did not permit
Corning Glass to pay women less simply because they were
willing to work for less. See 417 U.S. at 205. The Court
explained that although it may have been “understandable as
a matter of economics” that the company took advantage of
these market conditions, “its [wage] differential nevertheless
became illegal once Congress enacted into law the principle
of equal pay for equal work.” Id.
Unlike Title VII, the EPA does not require proof of
discriminatory intent. See Ledbetter v. Goodyear Tire &
Rubber Co., 550 U.S. 618, 640 (2007) (stating that “the EPA
and Title VII are not the same,” in part because “the EPA
does not require . . . proof of intentional discrimination”),
superseded by statute, Lilly Ledbetter Fair Pay Act, Pub. L.
No. 111-2, 123 Stat. 5 (2009); Maxwell, 803 F.2d at 446
(observing the EPA “creates a type of strict liability” and “no
intent to discriminate need be shown”). For that reason, the
familiar three-step McDonnell Douglas framework that
applies to Title VII claims is not used in EPA cases. See
Corning Glass, 417 U.S. at 195–96; see also 6 Larson on
Emp’t Discrimination § 108.10 (2019) (“Note that the
McDonnell [Douglas]-Burdine burden-shifting framework
does not apply to Equal Pay Act discrimination claims, since
there is no need for the EPA plaintiff to show discriminatory
animus.”); 1 Sex-Based Emp’t Discrimination § 7:1 (Oct.
14 RIZO V. YOVINO
2019) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)).
The EEOC’s amicus brief observes that some of our prior
case law “could be read to blur the line between Title VII and
the EPA” by incorrectly suggesting that the third step of the
McDonnell-Douglas test applies to EPA claims. We agree
that our case law has confused this point. Likely because of
dicta in our previous cases,3 the district court suggested that
Rizo would bear the burden of showing pretext if the County
demonstrated that a factor other than sex accounted for Rizo’s
pay. This is not correct. To clear up any confusion, we
reiterate that EPA claims do not require proof of
discriminatory intent. See Maxwell, 803 F.2d at 446; see also
Ledbetter, 550 U.S. at 640. EPA claims have just two steps:
(1) the plaintiff bears the burden to establish a prima facie
showing of a sex-based wage differential; (2) if the plaintiff
is successful, the burden shifts to the employer to show an
affirmative defense. No showing of pretext is required.4
3
See, e.g., Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1076 (9th Cir.
1999) (suggesting that the EPA plaintiff bore the burden of demonstrating
a material factual dispute regarding pretext in order to survive summary
judgment); see also Maxwell, 803 F.2d at 446.
4
Accord Md. Ins. Admin., 879 F.3d at 120 n.6 (“The EPA burden-
shifting framework is distinct from the McDonnell Douglas burden-
shifting framework that we apply when reviewing claims brought under
Title VII.”); Taylor v. White, 321 F.3d 710, 716 (8th Cir. 2003) (the EPA’s
“analytical framework differs from the [McDonnell Douglas] burden
shifting analysis”); Stanziale, 200 F.3d at 107 (“[C]laims based upon the
Equal Pay Act do not follow the three-step burden-shifting framework of
[McDonnell Douglas]; rather, they follow a two-step burden-shifting
paradigm.” (internal citation omitted)); see also Buntin v. Breathitt Cty.
Bd. of Educ., 134 F.3d 796, 799 & n.6 (6th Cir. 1998); McMillan v. Mass.
SPCA, 140 F.3d 288, 298 (1st Cir. 1998). But see Wernsing v. Dep’t of
RIZO V. YOVINO 15
A.
This appeal requires that we consider the scope of the
EPA’s fourth exception. The County contends that the fourth
exception allows any factor that is not sex itself to serve as an
affirmative defense. We conclude otherwise. As we
recognized in Kouba, and as the Second, Fourth, Sixth, Tenth,
and Eleventh Circuits have ruled, the scope of the fourth
exception is limited. See Kouba, 691 F.2d at 876; see also
Md. Ins. Admin., 879 F.3d at 122–23; Riser v. QEP Energy,
776 F.3d 1191, 1198 (10th Cir. 2015); Aldrich v. Randolph
Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992); Glenn v.
Gen. Motors Corp., 841 F.2d 1567, 1570–71 (11th Cir. 1988);
EEOC v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir.
1988) (“[T]he ‘factor other than sex’ defense does not include
literally any other factor . . . .”). Based on the text and
purpose of the Act, we conclude that the fourth affirmative
defense comprises only job-related factors, not sex.
To define the scope of the EPA’s fourth exception, we
begin with the language of the statute and apply familiar
principles of statutory construction. Congress first defined
the protection afforded by the statute in job-related
terms—equal pay for “equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions.”
29 U.S.C. § 206(d)(1). It then specifically enumerated three
Human Servs., 427 F.3d 466, 469 (7th Cir. 2005); Irby v. Bittick, 44 F.3d
949, 954 (11th Cir. 1995) (applying the McDonnell Douglas framework
to an EPA claim and requiring “the plaintiff must rebut the explanation
[for the differential] by showing with affirmative evidence that it is
pretextual or offered as a post-event justification for a gender-based
differential.”).
16 RIZO V. YOVINO
exceptions to the prohibition of sex-based distinctions for
such work, but described the fourth generally as “any other
factor other than sex.” The fourth exception is often
shortened to “any factor other than sex,” but here we are
called upon to define its precise contours and we examine
every word: “any other factor other than sex.” Id.
§ 206(d)(1)(iv) (emphasis added). Giving meaning to each
word by its context, the phrase “any other factor other than
sex” requires that the fourth exception be read in relation to
the three exceptions that precede it, as well as in relation to
the “equal work” principle to which it is an exception. See
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 56 (2012); see also William N.
Eskridge Jr., Interpreting Law: A Primer on How to Read
Statutes and the Constitution 113 (2016). If any factor other
than sex could defeat an EPA claim, the first “other” in the
phrase “any other factor other than sex” would be rendered
meaningless, as would the three enumerated exceptions. See
Norman J. Singer & Shambie Singer, 2A Sutherland
Statutory Construction § 46:6 (7th ed.) (“It is an elementary
rule of construction that effect must be given, if possible, to
every word, clause and sentence of a statute.”). Because the
three enumerated exceptions are all job-related, and the
elements of the “equal work” principle are job-related,
Congress’ use of the phrase “any other factor other than sex”
(emphasis added) signals that the fourth exception is also
limited to job-related factors.
Other well-settled rules of statutory construction reinforce
the conclusion that the fourth affirmative defense includes
factors of the same type as the ones Congress specifically
identified. The first is the noscitur a sociis canon—a word is
known by the company it keeps. See Sutherland, § 47:16
(“[A] word is given more precise content by the neighboring
RIZO V. YOVINO 17
words with which it is associated.”). This rule provides that
words grouped together should be given similar or related
meaning to avoid “giving unintended breadth to the Acts of
Congress.” See, e.g., Yates v. United States, 135 S. Ct. 1074,
1085 (2015) (plurality opinion) (quoting Gustafson v. Alloyd
Co., 513 U.S. 561, 575 (1995)). In the EPA, the first three
exceptions—seniority systems, merit systems, and
productivity systems—relate to job experience, job
qualifications, and job performance. Because the enumerated
exceptions are all job-related, the more general exception that
follows them refers to job-related factors too.5 See, e.g.,
Eskridge at 77.
Relatedly, the EPA’s list of specific exceptions is
followed by a general exception and this calls for application
of the ejusdem generis canon. See Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1625 (2018) (“[W]here . . . a more general
term follows more specific terms in a list, the general term is
usually understood to ‘embrace only objects similar in nature
to those objects enumerated by the preceding specific
words.’”) (quoting Circuit City Stores, Inc. v. Adams,
532 U.S. 105, 115 (2001)). The ejusdem generis canon
provides that the EPA’s three specific exceptions cabin the
scope of the general exception. See Sutherland, § 47:17.
“The principle of ejusdem generis essentially . . . implies the
addition of similar after the word other.” Scalia & Garner at
199 (emphasis in original). Thus, “any other factor other than
sex” implicitly refers to “any other similar factor other than
sex.” See Circuit City, 532 U.S. at 114–15 (holding that the
phrase “any other class of workers engaged in . . .
commerce,” following the specific examples of seamen and
5
Contrary to our concurring colleague’s assertion, seniority systems
reward job experience and are plainly job-related.
18 RIZO V. YOVINO
railroad employees, includes only “transportation workers,”
because construing it to include all other workers “fails to
give independent effect to the statute’s enumeration of the
specific categories of workers” that precede it).
Applying the ejusdem generis canon to the EPA’s fourth
exception, we consider the scope of the category implied by
the three enumerated exceptions and “ask what category
would come into the reasonable person’s mind.” Scalia &
Garner at 208; see also Eskridge at 78. Here, the obvious
category is job-relatedness. Because all of the enumerated
exceptions are job-related, the general exception that
follows—“any other factor other than sex”—is limited to job-
related factors.
B.
As the Supreme Court did in Corning Glass, we also look
to the EPA’s history and purpose. 417 U.S. at 195. Both
confirm the scope of the Act’s fourth exception.
The Supreme Court emphasized in Corning Glass that the
EPA was intended to address “the fact that the wage structure
of ‘many segments of American industry [had] been based on
an ancient but outmoded belief that a man, because of his role
in society, should be paid more than a woman even though
his duties are the same.’” Id. (quoting S. Rep. No. 88-176,
at 1). The problem of wage discrimination was
“overwhelmingly apparent” to Congress when it passed the
EPA in 1963. S. Rep. No. 88-176, at 3. Congress heard
testimony that women in the workplace were no longer a
novelty. One in three workers were women, yet sex-based
wage discrimination remained overt and widely accepted.
President’s Comm’n on the Status of Women, American
RIZO V. YOVINO 19
Women, at 27 (1963).6 Among other things, Congress
considered a survey of 1,900 employers that showed one in
three used entirely separate pay scales for female employees
who performed similar jobs to male employees.7 Congress
also considered that, in 1963, American women could expect
to earn only about 60% of the wages paid to their male
colleagues. Id.
The County’s suggestion that the EPA’s legislative
history supports an expansive reading of the fourth exception
is unavailing. The House Report provided several examples
that it anticipated would qualify as exceptions to the equal
pay mandate, and all were job related: shift differentials,
differences based on time of day worked, hours of work,
lifting or moving heavy objects, and differences based on
experience, training, or ability. H.R. Rep. No. 88-309, at 3
(1963); see also 109 Cong. Rec. 8683 (1963) (statement of
Rep. Adam Powell) (rejecting “[t]he payment of wages on a
basis other than that of the job performed”); id. at 8694
(statement of Rep. Edith Green) (speaking against a proposal
to allow higher wages for heads of household with more
dependents, because “[t]his [Act] is based on merit, on work
6
Available at https://www.dol.gov/wb/American%
20Women%20Report.pdf; see also Staff of H. Comm. on Educ. & Labor,
88th Cong., Legis. Hist. of the Equal Pay Act of 1963 4, 27 (Comm. Print
1963); Equal Pay Act of 1963: Hearings on S. 882 and S. 910 Before the
Subcomm. on Labor of the S. Comm. on Labor & Pub. Welfare, 88th
Cong. 13–14 (1963) (statement of Sen. Maurine B. Neuberger); id. at 16
(statement of W. Willard Wirtz, Sec’y of Labor).
7
See 109 Cong. Rec. 8688 (1963) (statement of Rep. Edith Green);
Equal Pay Act of 1963: Hearings on S. 882 and S. 910 Before the
Subcomm. on Labor of the S. Comm. on Labor & Pub. Welfare, 88th
Cong. 14 (1963) (statement of Sen. Maurine B. Neuberger).
20 RIZO V. YOVINO
that is performed, rather than on other factors”). The equal-
pay-for-equal-work mandate would mean little if employers
were free to justify paying an employee of one sex less than
an employee of the opposite sex for reasons unrelated to their
jobs. See, e.g., Scalia & Garner at 20 (“The evident purpose
of what a text seeks to achieve is an essential element of
context that gives meaning to words.”); see also Dig. Realty
Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018) (explaining
that the relevant statute’s “purpose and design corroborate . . .
comprehension” of a specific provision).
C.
Other circuits agree that only job-related factors provide
affirmative defenses to EPA claims. In Aldrich v. Randolph
Central School District, the Second Circuit reasoned,
“[w]ithout a job-relatedness requirement, the factor-other-
than-sex defense would provide a gaping loophole in the
statute through which many pretexts for discrimination would
be sanctioned.” 963 F.2d at 525; see also Tomka v. Seiler
Corp., 66 F.3d 1295, 1312 (2d Cir. 1995), abrogated on other
grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998)).
The Fourth and Tenth Circuits followed the Second
Circuit’s lead. Both have ruled that pay classification
systems must be rooted in legitimate differences in
responsibilities or qualifications for specific jobs. See Md.
Ins. Admin., 879 F.3d at 123 (“[W]hile MIA uses a facially
gender-neutral compensation system, MIA still must present
evidence that the job-related distinctions underlying the
salary plan . . . in fact motivated MIA to place the claimants
and the comparators on different steps of the pay scale at
different starting salaries.” (first emphasis added)); Riser,
RIZO V. YOVINO 21
776 F.3d at 1198; see also Balmer v. HCA, Inc., 423 F.3d
606, 612 (6th Cir. 2005), abrogated on other grounds by Fox
v. Vice, 563 U.S. 826 (2011).
Only the Seventh Circuit has held that the scope of the
fourth exception “embraces an almost limitless number of
factors, so long as they do not involve sex.” Fallon v.
Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989). The Seventh
Circuit has not required that those factors be related “to the
requirements of the particular position in question.” Id. The
Seventh Circuit’s opinion is an outlier, and we cannot
reconcile it with either well-settled rules of statutory
construction or the “broadly remedial” purpose of the EPA.
See Corning Glass, 417 U.S. at 208.
The Eighth Circuit has not established a bright-line rule
defining factors other than sex. It requires a case-by-case
analysis of the proffered factor to “preserve[] the business
freedoms Congress intended to protect.” Taylor v. White,
321 F.3d 710, 720 (8th Cir. 2003). We are not persuaded to
follow this approach because “business freedoms” is broad
enough to accommodate circumstances that run afoul of the
Supreme Court’s admonition in Corning Glass that market
forces cannot justify unequal pay for comparable work.
A significant majority of the circuit courts agree that the
scope of the EPA’s fourth exception is not unlimited. Rather,
the text of the Act and canons of construction, and the EPA’s
history and clear purpose, all point to the conclusion that the
fourth exception is limited to job-related factors only.
22 RIZO V. YOVINO
D.
Having determined that the fourth affirmative defense
encompasses only job-related factors other than sex, we next
consider whether prior pay qualifies as a job-related factor
that can defeat a prima facie EPA claim. The answer to this
question is compelled by the EPA’s narrow focus on the
purest form of sex-based wage discrimination and the
statute’s two-step framework. Prior pay—pay received for a
different job—is necessarily not a factor related to the job for
which an EPA plaintiff must demonstrate unequal pay for
equal work.
In 1963, Congress not only knew that wages earned by
America’s workforce were infused with the legacy of sex
discrimination, that legacy motivated Congress to act. See,
e.g., S. Rep. No. 88-176, at 2–3. The Assistant Secretary of
Labor testified that women on average earned only about
59% of what their male colleagues earned,8 but Congress
recognized that America’s pay gap was not entirely
attributable to sex-based wage discrimination. The gap was
also due to circumstances that caused women to be less
prepared to enter the workforce, such as fewer opportunities
for training, education, skills development, and experience.
See Kouba, 691 F.2d at 876. Though Congress knew the
cause of America’s earnings gap was multi-factorial, it kept
8
Equal Pay Act of 1963: Hearings on S. 882 and S. 910 Before the
Subcomm. on Labor of the S. Comm. on Labor & Pub. Welfare, 88th
Cong. 68 (1963) (statement of Esther Peterson, Assistant Sec’y of Labor).
RIZO V. YOVINO 23
its solution simple.9 The EPA did not raise women’s wages
nor create remedial education or training opportunities. The
Act’s limited goal was to eliminate only the purest form of
sex-based wage discrimination: paying women less because
they are women.
The precise and focused goal of the EPA is evidenced by
the exceptions built into it that expressly allow employers to
pay different wages to employees of the opposite sex if the
differences are caused by job-related factors other than sex.
H.R. Rep. No. 88-309, at 3. As the Supreme Court explained
in County of Washington v. Gunther, the EPA’s fourth
exception was intended “to confine the application of the Act
to wage differentials attributable to sex discrimination.”
452 U.S. 161, 170 (1981). The EPA’s limited aim at just one
of the many causes of the wage gap reinforces our conclusion
that allowing prior pay to serve as an affirmative defense
would undermine the Act’s promise of equal pay for equal
work. Our interpretation, that only job-related factors come
within the “any other factor” rubric and do not include prior
pay, is consistent with the Supreme Court’s guidance in
Corning Glass that “[t]he Equal Pay Act is broadly remedial,
and it should be construed and applied so as to fulfill the
underlying purposes which Congress sought to achieve.”
417 U.S. at 208.
The County argues that Rizo presumes the use of past
wages perpetuates historic pay discrimination, and that Rizo
impermissibly shifts the burden to the County to disprove the
influence of wage discrimination on her prior pay. The
9
Equal Pay Act of 1963: Hearings on S. 882 and S. 910 Before the
Subcomm. on Labor of the S. Comm. on Labor & Pub. Welfare, 88th
Cong. 68 (1963) (statement of Esther Peterson, Assistant Sec’y of Labor).
24 RIZO V. YOVINO
County’s argument reflects its confusion about the EPA’s
burden-shifting framework, which we have now clarified.
We agree the EPA does not require employers to prove that
the wages paid to their employees at prior jobs were
unaffected by wage discrimination. But if called upon to
defend against a prima facie showing, the EPA requires
employers to demonstrate that only job-related factors, not
sex, caused any wage disparities that exist between
employees of the opposite sex who perform equal work.
Accordingly, what the County considers to be an
impermissible shift is actually the burden-shift required by
the EPA’s two-step framework. After Rizo established a
prima facie showing, the County had the burden of proving
that “sex provide[d] no part of the basis for the wage
differential.” Balmer, 423 F.3d at 612 (quoting Timmer v.
Mich. Dep’t of Commerce, 104 F.3d 833, 844 (6th Cir. 1997))
(emphasis in original); see also Md. Ins. Admin., 879 F.3d
at 121 (citing Stanziale, 200 F.3d at 107–08); Mickelson,
460 F.3d at 1312.
We do not presume that any particular employee’s prior
wages were depressed as a result of sex discrimination. But
the history of pervasive wage discrimination in the American
workforce prevents prior pay from satisfying the employer’s
burden to show that sex played no role in wage disparities
between employees of the opposite sex. And allowing prior
pay to serve as an affirmative defense would frustrate the
EPA’s purpose as well as its language and structure by
perpetuating sex-based wage disparities.
We acknowledge that prior pay could be viewed as a
proxy for job-related factors such as education, skills, or
experience related to an employee’s prior job, and that prior
pay can be a function of factors related to an employee’s prior
RIZO V. YOVINO 25
job. But prior pay itself is not a factor related to the work an
employee is currently performing, nor is it probative of
whether sex played any role in establishing an employee’s
pay. Here, the County has not explained why or how prior
pay is indicative of Rizo’s ability to perform the job she was
hired to do. An employer may counter a prima facie EPA
claim by pointing to legitimate job-related factors, if they
exist. Accordingly, using the heuristic of an employee’s prior
pay, rather than relying on job-related factors actually
associated with an employee’s present position, does not
suffice to defeat an EPA claim.
We agree with Rizo and the EEOC that setting wages
based on prior pay risks perpetuating the history of sex-based
wage discrimination. The Supreme Court recognized as
much in Corning Glass. There, the Court held that a sex-
based pay disparity violated the EPA. 417 U.S. at 209–10.
After Corning Glass administered a uniform wage increase to
the men and women who worked pursuant to its prior
discriminatory pay structure, Corning Glass argued that the
continuing wage differential was due to a “factor other than
sex” because it resulted from the prior disparity in the
employees’ base wages. Id. The Court ruled that Corning
Glass’s across-the-board wage increase did not remedy the
EPA violation, it merely perpetuated the differential. Id.
Hopefully, we have moved past the days when employers
maintained separate pay scales that explicitly condoned
paying women less than men for comparable work, but the
wage gap that so concerned Congress in 1963 has only
narrowed, not closed. The wage gap persists across nearly all
occupations and industries, regardless of education,
26 RIZO V. YOVINO
experience, or job title.10 In 2017, women on average earned
82% of men’s earnings. See U.S. Bureau of Labor Statistics,
Rep. 1075, Highlights of Women’s Earnings in 2017, 1–2
(Aug. 2018).11 These differences are even more pronounced
among women of color. Id. at 3–4.12 Women of all races and
ethnicities earn less than men of the same group, id. at 4, and
economic literature suggests that even after accounting for
certain observable characteristics—such as education and
experience—an unexplained disparity largely persists. See,
e.g., Francine D. Blau & Lawrence M. Kahn, The Gender
Wage Gap: Extent, Trends, and Explanations, 55 J. Econ.
Literature 789, 790, 852–55 (2017).
To the extent the present-day pay gap is the product of
historic wage discrimination based on sex—rather than
different pay due to unequal qualifications, effort,
productivity, regional cost of living, or other factors other
than sex—the gap is a continuation of the very discrimination
Congress sought to end. In Kouba, we cautioned that the use
10
See U.S. Census Bureau, Women’s Earnings Lower in Most
Occupations (May 22, 2018), https://www.census.gov/library/stories/
2018/05/gender-pay-gap-in-finance-sales.html; see also Inst. for Women’s
Pol’y Res., The Gender Wage Gap by Occupation 2018 and by Race and
Ethnicity (April 2, 2019) (citing U.S. Bureau of Labor Statistics, Current
Population Survey (2018)), https://iwpr.org/wp-content/uploads/2019/
04/C480_The-Gender-Wage-Gap-by-Occupation-2018-1.pdf.
11
https://www.bls.gov/opub/reports/womens-earnings/2017/
pdf/home.pdf.
12
See also Nat’l Women’s L. Ctr., The Wage Gap: The Who, How,
Why, and What to Do (Sept. 2019) (citing U.S. Census Bureau, Current
Population Survey, 2019 Ann. Soc. & Econ. Supp., Table PINC-05),
https://nwlc.org/resources/the-wage-gap-the-who-how-why-and-what-to-
do/.
RIZO V. YOVINO 27
of prior pay to defend against equal-pay violations “can easily
be used to capitalize on the unfairly low salaries historically
paid to women.” 691 F.2d at 876. Other circuits have made
the same observation. See, e.g., Taylor, 321 F.3d at 718
(cautioning that prior pay may be used as “a means to
perpetuate historically lower wages”); Irby v. Bittick, 44 F.3d
949, 955 (11th Cir. 1995) (stating that allowing prior pay as
an affirmative defense “would swallow up the rule and
inequality in pay among genders would be perpetuated.”).
We agree with Kouba’s early warning, and with the
observations of our sister circuits.
The EPA’s fourth exception allows employers to justify
wage disparities between employees of the opposite sex based
on any job-related factor other than sex. Because prior pay
may carry with it the effects of sex-based pay discrimination,
and because sex-based pay discrimination was the precise
target of the EPA, an employer may not rely on prior pay to
meet its burden of showing that sex played no part in its pay
decision. For purposes of the fourth exception, we conclude
that the wage associated with an employee’s prior job does
not qualify as a factor other than sex that can defeat a prima
facie EPA claim.
E.
Having reconsidered Kouba, we are persuaded that it
must be overruled. Kouba recognized that allowing prior pay
to serve as an affirmative defense to an EPA claim could
perpetuate wage discrimination, but it ultimately held that the
EPA “does not impose a strict prohibition against the use of
prior salary,” so long as employers considered prior pay
reasonably to advance an acceptable business reason.
691 F.2d at 876–77, 878. Kouba’s holding that prior pay in
28 RIZO V. YOVINO
combination with other factors may serve as an affirmative
defense is inconsistent with the EPA’s text, purpose, and
burden-shifting framework for the same reasons the use of
prior pay alone is inconsistent with the EPA’s text, purpose,
and burden-shifting framework. At best, requiring the use of
other factors in combination with prior pay waters down the
influence of whatever historic wage discrimination remains.
Kouba’s consideration of whether the employer used prior
pay reasonably is also in tension with the EPA’s strict
liability framework, in which intent to discriminate plays no
role. 691 F.2d at 876. As the EEOC’s brief diplomatically
puts it, our case law “could be read to blur the line” between
the McDonnell Douglas three-step test for Title VII claims
and the two-step test applicable to the EPA. See Kouba,
691 F.2d at 876, 878; Maxwell, 803 F.2d at 446; Stanley,
178 F.3d at 1076. Having recognized these errors, we have
an obligation to correct our case law.
Finally, Kouba’s reliance on “business reasons” and
“business policy,” 691 F.2d at 876, provides little guidance to
district courts, and cannot be squared with the Supreme
Court’s rejection of the market force theory. See Corning
Glass, 417 U.S. at 205. “Business reasons” is a category so
capacious that it can accommodate factors entirely unrelated
to the work employees actually perform. The phrase sweeps
in what Corning Glass described as business decisions that
“may be understandable as a matter of economics,” but which
nonetheless “became illegal once Congress enacted into law
the principle of equal pay for equal work.” Id. For these
reasons, we narrow our definition of the scope of the fourth
exception to job-related factors other than sex and clarify that
RIZO V. YOVINO 29
prior pay, alone or in combination with other factors, is not
one of them.13
Despite our concurring colleagues’ agreement that prior
pay alone cannot serve as an affirmative defense to a prima
facie EPA claim, they abruptly shift gears when it comes to
consideration of prior pay in combination with other factors.
For the concurring members of our panel, prior pay—a factor
they agree risks perpetuating baked-in sex
discrimination—becomes palatable if it is considered along
with other factors. Yet they never explain why this is so.
Some case law from other circuits suggests that prior pay
may serve as an affirmative defense if it is considered in
combination with other factors, but these cases uniformly rely
on those other factors to excuse wage differentials. See, e.g.,
Irby, 44 F.3d at 955, 957 (allowing “prior salary and
experience” as an affirmative defense, but relying on the co-
employee’s “[u]nique, long-term experience as an
investigator” to justify a pay difference under the EPA’s “any
other factor other than sex” exception); Balmer, 423 F.3d
at 612–13 (allowing consideration of prior pay along with
prior relevant work experience because “[a] wage differential
based on education or experience is a factor other than sex for
purposes of the Equal Pay Act” and “most importantly, the
13
Some circuits have nominally adopted Kouba’s “business-related”
rule, but even these circuits clearly examine the specific requirements of
the job at issue. See Aldrich, 963 F.2d at 525 (explaining that the fourth
affirmative defense imposes a “job-relatedness requirement” and that
employers must prove that the pay differential is “rooted in legitimate
business-related differences in work responsibilities and qualifications for
the particular positions at issue” (emphasis added)); see also Md. Ins.
Admin., 879 F.3d at 123 (following Aldrich); Riser, 776 F.3d at 1198
(same).
30 RIZO V. YOVINO
ultimate decision maker at [the employer] determined that
[the male employee] had greater relevant industry experience
than Plaintiff.” (emphasis added)); see also Riser, 776 F.3d
at 1199 (approving an EPA defense based on an employee’s
prior salary, qualifications, and experience). None of these
cases suggests that the use of prior pay is acceptable, so long
as it is sufficiently diluted by other considerations.
Citing these cases, our concurring colleagues insist that
prior pay is a valid affirmative defense if considered with
other factors. But they overlook that using the proxy of prior
pay, rather than relying on the factors actually related to the
job being performed, adds nothing to the employer’s defense
because any legitimate job-related factors can themselves
defeat a prima facie EPA showing. Nor is it correct to say
that we deepen a circuit split. Only the Seventh Circuit has
conclusively relied on prior pay as an affirmative defense to
a prima facie EPA claim.14 Wernsing, 427 F.3d at 469.
Following Kouba, the Sixth, Tenth, and Eleventh Circuits
articulated rules purporting to allow prior pay to serve as an
affirmative defense if considered with other factors, but they
have substantively relied on the “other factors” to justify the
challenged pay differentials.15
14
The Fourth Circuit has suggested it may share this view, but only
in dicta. See Spencer v. Virginia State Univ., 919 F.3d 199, 206 (4th Cir.
2019).
15
Our concurring colleagues imply that the EEOC advocates a rule
that allows consideration of prior pay along with other factors. They rely
on a statement from the EEOC Compliance Manual that prior pay may
succeed as an affirmative defense when “other factors [are] also
considered.” See U.S. Equal Emp’t Opportunity Comm’n, Compliance
Manual § 10-IV(F)(2)(g) (2000). This merely reflects the EEOC’s
understanding of current case law. See id. § 10-II. Setting aside the
RIZO V. YOVINO 31
Our holding prevents employers from relying on prior pay
to defeat EPA claims, but the EPA does not prevent
employers from considering prior pay for other purposes. For
example, it is not unusual for employers and prospective
employees to discuss prior pay in the course of negotiating
job offers, and the EPA does not prohibit this practice.16
Certainly, our opinion does not prohibit this practice. But
whatever factors an employer considers, if called upon to
defend against a prima facie showing of sex-based wage
discrimination, the employer must demonstrate that any wage
differential was in fact justified by job-related factors other
than sex. Prior pay, alone or in combination with other
factors, cannot serve as a defense.
The concurring members of our panel repeatedly incant
that our opinion prohibits any consideration of prior pay. But
this is just not so. The disconnect appears to be the result of
overlooking the difference between considering prior pay
when setting a salary—which the EPA does not address,
much less prohibit—and relying on prior pay to defend an
EPA violation. Our statement that “prior pay, alone or in
combination with other factors, is not [a job-related factor]”
Supreme Court’s direction that the Compliance Manual is not entitled to
deference, Ledbetter, 550 U.S. at 642 n.11, the Compliance Manual’s sole
support for this statement is its citation to our opinion in Kouba and the
Eleventh Circuit’s decision in Irby. EEOC Compliance Manual § 10-
IV(F)(2)(g). But the EEOC urged us to take this case en banc to
reconsider Kouba, which we did, and for the reasons we explain here, we
conclude that neither Kouba nor Irby can be reconciled with Supreme
Court precedent.
16
In this way, the EPA is less stringent than California’s pay privacy
law, which does not allow employers to inquire about prior pay. See Cal.
Lab. Code § 432.3.
32 RIZO V. YOVINO
addresses the use of prior pay as an affirmative defense, not
the consideration of prior pay to make a competitive job
offer, to negotiate higher pay, or to set a salary. And there is
no basis for concern that our opinion will prevent employers
from considering prior pay when employees disclose it.
We recognize there may seem to be tension between
allowing employers to consider prior salary in setting wages
on the one hand, and requiring that they defend an EPA claim
without relying on prior pay on the other. But this is inherent
in the terms of the EPA itself. The statute places no limit on
the factors an employer may consider in setting employees’
wages, but it places on employers the burden of
demonstrating that sex played no role in causing wage
differentials. To meet this burden, employers may rely on
any bona fide job-related factor other than sex. But relying
on the heuristic of prior pay, rather than the actual factors
associated with employees’ current work, risks perpetuating
historic sex discrimination.
F.
Applying the rule that only job-related factors qualify
under the EPA’s fourth affirmative defense and that prior pay
is not one of them, resolution of Rizo’s case is
straightforward. The district court ruled that Rizo satisfied
her prima facie burden. Fresno County relied on Rizo’s prior
pay to justify paying her less than male colleagues who
performed the same work. For the reasons we have
explained, Rizo’s prior wages do not qualify as “any other
factor other than sex,” and the County cannot use this factor
to defeat Rizo’s prima facie case. The County cites no other
reason for paying Rizo less. We therefore affirm the district
court’s order denying Fresno County’s motion for summary
RIZO V. YOVINO 33
judgment and remand for further proceedings consistent with
this opinion.
AFFIRMED.
McKEOWN, Circuit Judge, with whom Judge TALLMAN
and Judge MURGUIA, Circuit Judges, join, concurring:
The majority embraces a rule not adopted by any other
circuit—prior salary may never be used, even in combination
with other factors, as a defense under the Equal Pay Act. The
circuits that have considered this important issue have either
outright rejected the majority’s approach or declined to adopt
it. I see no reason to deepen the circuit split. What’s more,
the majority’s position is at odds with the view of the Equal
Employment Opportunity Commission (“EEOC”), the agency
charged with administering the Act. And, perhaps most
troubling, the majority fails to account for the realities of
today’s dynamic workforce, choosing instead to view the
workplace in a vacuum. In doing so, it betrays the promise of
equal pay for equal work and disadvantages workers
regardless of gender identity.
I agree with much of the majority opinion—particularly
the observation that past salary can reflect historical sex
discrimination. For decade after decade, gender
discrimination has been baked into our pay scales, with the
result that women still earn only 80 percent of what men
make. As the majority notes, this pay gap is “even more
pronounced among women of color.” Unfortunately, women
employed in certain sectors face an even larger gap. This
disparity is exacerbated when a woman is paid less than a
34 RIZO V. YOVINO
man for a comparable job solely because she earned less at
her last job. The Equal Pay Act prohibits precisely this kind
of “piling on,” whereby women can never overcome the
historical inequality.
I welcome the day when this would no longer be so
because women have achieved parity in the workplace. But
the majority goes too far in holding that any consideration of
prior pay is “inconsistent” with the Equal Pay Act, even when
it is assessed alongside other job-related factors such as
experience, education, past performance, and training. This
declaration may in fact disadvantage job applicants, whether
female, male, or non-binary. For this reason, I concur in the
result but not in the majority’s rationale. In my view, prior
salary alone is not a defense to unequal pay for equal work.
If an employer’s only justification for paying men and
women unequally is that the men had higher prior salaries,
odds are that the one-and-only “factor” causing the difference
is sex. However, employers do not necessarily violate the
Equal Pay Act when they consider prior salary among other
factors when setting initial wages. As always, the employer
has the burden to show that any pay differential is based on
a valid factor other than sex.
To be sure, the majority correctly decides the only issue
squarely before the court: whether the Fresno County Office
of Education was permitted to base Aileen Rizo’s starting
salary solely on her prior salary. The answer is no. But
regrettably, the majority goes further and effectively bars any
consideration of prior salary in setting a salary. Not only
does Rizo’s case not present this issue, but this approach is
unsupported by the statute, is unrealistic, and may work to
applicants’ disadvantage.
RIZO V. YOVINO 35
Rizo’s case is an easy one. After she was hired as a math
consultant, she learned that male colleagues in the same job
were being hired at a higher salary. The only rationale
offered by the County was that Rizo’s salary was lower at a
prior job. In effect, the County “was still taking advantage of
the availability of female labor to fill its [position] at a
differentially low wage rate not justified by any factor other
than sex”—a practice long held unlawful. Corning Glass
Works v. Brennan, 417 U.S. 188, 208 (1974); see Glenn v.
Gen. Motors Corp., 841 F.2d 1567, 1570 (11th Cir. 1988)
(“[T]he argument that supply and demand dictates that
women qua women may be paid less is exactly the kind of
evil that the [Equal Pay] Act was designed to eliminate, and
has been rejected.”); Drum v. Leeson Elec. Corp., 565 F.3d
1071, 1073 (8th Cir. 2009) (It is “prohibited” to rely on the
“‘market force theory’ to justify lower wages for female
employees simply because the market might bear such
wages”).
This scenario provides a textbook violation of the “equal
pay for equal work” mantra of the Equal Pay Act. Prior
salary level created the only differential between Rizo and her
male colleagues. In setting her initial wage, the County did
not, for example, consider Rizo’s two advanced degrees or
her prior experience. This historical imbalance entrenched
unequal pay for equal work based on sex—end of story. The
County cannot mount a defense on past salary alone.
Congress enacted the Equal Pay Act to root out historical
sex discrimination, declaring it the “policy” of the Act “to
correct the conditions” of “wage differentials based on sex.”
Pub. L. No. 88-38, 77 Stat. 56 (1963). At the signing
ceremony, President John F. Kennedy called the Act “a first
step” in “achiev[ing] full equality of economic
36 RIZO V. YOVINO
opportunity—for the average woman worker earns only
60 percent of the average wage for men.” President John F.
Kennedy, Remarks Upon Signing the Equal Pay Act (June 10,
1963), http://www.presidency.ucsb.edu/ws/?pid=9267. The
unqualified goal of the statute was to “eliminate wage
discrimination based upon sex.” H.R. Rep. No. 88-309, at 1
(1963). Sadly, that gap remains today. See Nat’l P’ship For
Women & Families, America’s Women And The Wage Gap
1 (2017), https://goo.gl/SLEcd8.
Given the stated goal of the Equal Pay Act to erase the
gender wage gap, it beggars belief that Congress intended for
historical pay discrepancies like Rizo’s to justify pay
inequity. See Corning, 417 U.S. at 195 (“Congress’ purpose
in enacting the Equal Pay Act was to remedy . . . [an]
endemic problem of employment discrimination . . . based on
an ancient but outmoded belief that a man . . . should be paid
more than a woman even though his duties are the same.”).
Congress recently noted that the existence of gender-based
pay disparities “has been spread and perpetuated” since the
passage of the Act and “many women continue to earn
significantly lower than men for equal work.” H.R. Rep. No.
110-783, at 1–2 (2008). “In many instances, the pay
disparities can only be due to continued intentional
discrimination or the lingering effects of past discrimination.”
Id. (emphasis added). Because past pay can reflect the very
discrimination Congress sought to eradicate in the statute,
allowing employers to defend unequal pay for equal work on
that basis alone risks perpetuating unlawful inequity. C.f.
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 647
(2007) (Ginsburg, J., dissenting), dissenting position adopted
by legislative action (Jan. 29, 2009) (“Paychecks perpetuating
past discrimination . . . are actionable . . . because they
discriminate anew each time they issue.”). That danger is
RIZO V. YOVINO 37
best avoided by construing the Equal Pay Act “to fulfill the
underlying purposes which Congress sought to achieve” and
rejecting prior salary as its own “factor other than sex”
defense. Corning, 417 U.S. at 208.
Yet I differ with the majority in one key respect. Merely
because prior pay is unavailable as a standalone defense does
not mean that employers should be barred from using past
pay as a factor in setting an initial salary. Contrary to the
majority’s assertion, it is wholly consistent to forbid
employers from baldly asserting prior salary as a
defense—without determining whether it accurately measures
experience, education, training or other lawful factors not
based on sex—but to permit consideration of prior salary
along with those valid factors. Using prior salary along with
valid job-related factors such as education, past performance
and training may provide a lawful benchmark for starting
salary in appropriate cases. But “wage differentials based
solely on the sex of the employee are an unfair labor
standard.” H.R. Rep. No. 88-309, at 3 (emphasis added).
This interpretation of the statute still places the burden on the
employer to justify that salary is determined on the basis of
“any other factor other than sex.” 29 U.S.C. § 206(d)(1). And,
as Congress observed, “there are many factors which may be
used to measure the relationships between jobs and which
establish a valid basis for a difference in pay.” H.R. Rep. No.
88-309, at 3 (1963).
My views align with those of the EEOC and most of our
sister circuits that have addressed the question. The EEOC’s
Compliance Manual states:
[A]n employer may consider prior salary as
part of a mix of factors—as, for example,
38 RIZO V. YOVINO
where the employer also considers education
and experience and concludes that the
employee’s prior salary accurately reflects
ability, based on job-related qualifications.
But because “prior salaries of job candidates
can reflect sex-based compensation
discrimination,” “[p]rior salary cannot, by
itself, justify a compensation disparity.”
EEOC Compliance Manual, Compensation Discrimination
§ 10-IV.F.2.g (Dec. 5, 2000), available at
https://www.eeoc.gov/policy/docs/compensation.html. The
EEOC’s pragmatic approach accounts for realities in the
workplace while preserving the promise of equal pay for
equal work. Because many job-related factors, such as
education and experience, are not gender-based and
“applicants rarely have ‘identical education and
experience’… [i]f an employer sincerely weighs such factors
with prior salary, there is no reason to think the resulting pay
decisions would perpetuate the gender pay gap.”
The Tenth and Eleventh Circuits reached the same
conclusion, holding that prior pay alone cannot justify a
compensation disparity. See Riser v. QEP Energy, 776 F.3d
1191, 1199 (10th Cir. 2015) (an employer may decide to pay
an elevated salary to an applicant who rejects a lower offer,
but the Act “precludes an employer from relying solely upon
a prior salary to justify pay disparity”); Irby v. Bittick,
44 F.3d 949, 955 (11th Cir. 1995) (“This court has not held
that prior salary can never be used by an employer to
establish pay, just that such a justification cannot solely carry
the affirmative defense.”). The Eighth Circuit adopted a
similar approach, permitting the use of prior salary as a
defense, but “carefully examin[ing] the record to ensure that
RIZO V. YOVINO 39
an employer does not rely on the prohibited ‘market force
theory’ to justify lower wages” for women based solely on
sex. Drum, 565 F.3d at 1073. The Second Circuit likewise
allows the prior-salary defense, but places the burden on an
employer to prove that a “bona fide business-related reason
exists” for a wage differential—i.e., one that is “rooted in
legitimate business-related differences in work
responsibilities and qualifications for the particular positions
at issue.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520,
525–26 (1992). The more nuanced holding adopted by our
sister circuits better accords with common sense and the
statutory text. The Equal Pay Act provides an affirmative
defense for “any other factor other than sex.” 29 U.S.C.
§ 206(d)(1) (emphasis added).
Meanwhile, the Fourth and Seventh Circuits have veered
off course, holding that prior salary is always a “factor other
than sex.” See Spencer v. Virginia State Univ., 919 F.3d 199,
206 (4th Cir. 2019); Wernsing v. Dep’t of Human Servs.,
State of Ill., 427 F.3d 466, 468–70 (7th Cir. 2005). But this
conclusion—that a “factor other than sex” need not be
“related to the requirements of the particular position” or
even “business-related”—contravenes the Act’s purpose of
ensuring women and men earn equal pay for equal work.
Wernsing, 427 F.3d at 470. After all, inherent in the Act is
an understanding that compensation should mirror one’s
“skill, effort, and responsibility.” See Corning, 417 U.S.
at 195 (quoting 29 U.S.C. § 206(d)(1)); see also Glenn,
841 F.2d at 1571. Because we know that historical sex
discrimination persists, it cannot be that prior salary always
reflects a factor other than sex. I fear, however, that the
majority makes the same categorical error as the Fourth and
Seventh Circuits, but in the opposite direction: it announces
that prior salary is never a “factor other than sex.” By
40 RIZO V. YOVINO
forbidding consideration of prior salary altogether, the
majority extends the scope of the statute and risks imposing
Equal Pay Act liability on employers for using prior salary as
any part of the calculus in making wage-setting decisions.
That, too, is a drastic holding, particularly because companies
and institutions often consider prior salary in making offers
to lure away top talent from their competitors or to attract
employees with specific skills. In unpacking what goes into
the calculation, it may well be that past salary accurately
gauges a prospective employee’s “skill, effort, and
responsibility,” as the Equal Pay Act envisions—in addition
to her education, training, and past performance—and a new
employer wants to exceed that benchmark.
The Equal Pay Act should not be an impediment for
employees seeking a brighter future and a higher salary at a
new job. See generally Orly Lobel, Talent Wants to Be Free
49–75 (Yale Univ. Press 2013) (concluding that employee
mobility between competitors promotes innovation and job
growth); Cade Metz, Tech Giants Are Paying Huge Salaries
for Scarce A.I. Talent, N.Y. Times, Oct. 23, 2017, at B1
(noting that employers pay a premium to hire top engineering
talent).
On that front, states and cities have begun passing
statutes1 that prohibit employers from asking employees
1
See, e.g., Cal. Labor Code § 432.3; Or. Rev. Stat. Ann. § 659A.357;
San Francisco Ordinance 142-17 (2017); Del. Code Ann. tit. 19, § 709B
(2017); Mass. Acts ch. 177 (2016); N.Y.C. Local Law No. 67 (2017).
RIZO V. YOVINO 41
about their prior salaries.2 These laws represent creative
efforts to narrow the gender wage gap. But they also provide
important exemptions for employees who wish to disclose
prior salaries as part of a salary negotiation. See, e.g., Cal.
Labor Code § 432.3(g); Del. Code Ann. Tit. 19, § 709B(d).
The majority’s holding may reach beyond these state
statutes by making it a violation of federal antidiscrimination
law to consider prior salary, even when an employee chooses
to provide this information as a bargaining chip for higher
wages. I am concerned about chilling such voluntary
discussions. The majority handcuffs employers from relying
on past salary information—but in doing so, equally shackles
women from using prior salary in their favor. Indeed, the
result may disadvantage rather than advantage women.
To avoid these consequences, the majority endeavors to
limit its decision by announcing that neither its holding nor
the Equal Pay Act prevents employers from “consider[ing]
prior pay for other purposes.” But the majority’s vague
disclaimer hardly dilutes the practical effects of the holding’s
broad sweep. In the same breath, the majority states that its
holding both “prevents employers from relying on prior pay
to defeat EPA claims” and that it does not reach the
“discuss[ion of] prior pay in the course of negotiating job
offers.” But an Equal Pay Act claim could include violations
arising from negotiated salaries. And, because the majority
bars the use of prior salary to set initial wages under the Act,
2
A bill was introduced in Congress to enact a federal prohibition on
“requiring” or “requesting” that prospective employees disclose previous
wages or salary history. See H.R. 2418, 115th Cong. (2017). Like its
state counterparts, this bill does not seek to outlaw salary negotiations
initiated by an employee.
42 RIZO V. YOVINO
it has left little daylight for arguing that negotiated starting
salaries should be treated differently. In the real world, an
employer might consider prior salary—disclosed voluntarily
by an employee during negotiations—to offer a pay bump
above that prior salary. Permitting prior pay in setting salary
but not as an affirmative defense to the Equal Pay Act results
in an indefensible contradiction. The “tension” highlighted
by the majority is precisely the reason that prior pay cannot
be relegated to the dust bin.
The majority states that other circuits merely “suggest[]
that prior pay may serve as an affirmative defense if it is
considered in combination with other factors.” But our sister
circuits do much more. They affirmatively permit the use of
prior salary in wage setting so long as it is considered in
tandem with a permissible job-related factor, a far cry from
concluding that watered down discrimination is acceptable.
See Irby, 44 F.3d at 954 (“This court has not held that prior
salary can never be used by an employer to establish pay, just
that such a justification cannot solely carry the affirmative
defense.”) (emphasis added); Riser, 776 F.3d at 1198–99
(holding that the EPA precludes an employer from relying
solely upon a prior salary for justification of a pay disparity).
The majority also avoids grappling with the EEOC’s
guidance, which permits employers to consider prior salary,
so long as it is considered as part of a mix of permissible
factors such as education or experience.
I agree with the majority that the three-step McDonnell
Douglas test does not apply to Equal Pay Act claims.
However, neither Corning nor the facts of this case compel
the majority to go so far as to conclude that employers may
not rely on prior pay in combination with other factors as an
affirmative defense.
RIZO V. YOVINO 43
The majority’s rule does not just function as a one-way
ratchet to protect women from discrimination. Instead, based
on a myopic view of the workplace, it creates a regime that
prevents all employees from seeking fair compensation,
regardless of gender. This is particularly true when an
employee’s total salary includes incentive, performance, or
commission-based pay. Imagine a stockbroker who receives
50 percent of his salary as a bonus for stellar performance, or
a manager who, over five years, receives periodic raises
based on her extraordinary contributions and performance.
In both situations, past pay serves as a surrogate for
achievement and helps the employees quantify their worth to
potential employers. Excluding reliance on salary when it is
considered with other job-related factors makes no sense.
The majority recognizes that legitimate, job-related
factors such as a prospective employee’s “education, skills,
or experience” operate as affirmative defenses. But the
majority nonetheless renders those valid, job-related factors
nugatory when an employer also considers prior salary. That
is a puzzling outcome that does not square with the statute,
common sense, the contemporary workplace, the EEOC, or
other circuits.
For these reasons, I concur only in the result.
CALLAHAN, Circuit Judge, with whom TALLMAN and
BEA, Circuit Judges, join, concurring:
We all agree that men and women should receive equal
pay for equal work. Indeed, we agree that the purpose of the
Equal Pay Act of 1963 was to change “should receive equal
44 RIZO V. YOVINO
pay” to “must receive equal pay.” However, I write
separately because in holding that “wages associated with an
employee’s prior job” can never be considered as a factor in
determining pay under 29 U.S.C. § 206(d)(1)(iv), the
majority fails to appreciate Supreme Court precedent and
creates an amorphous and unnecessary new standard for
interpreting that subsection, which ignores the realities and
dynamic nature of business. In doing so, the majority may
hinder rather than promote equal pay for equal work.
I
As required by the Equal Pay Act, Rizo made a prima
facie case of pay discrimination by showing that (1) she
performed substantially equal work to that of her male
colleagues; (2) the work conditions were basically the same;
and (3) the male employees were paid more. See Riser v.
QEP Energy, 776 F.3d 1191, 1196 (10th Cir. 2015).
The County does not contest the prima facie case but
argues that Rizo’s salary was exempt from Equal Pay Act
coverage under the fourth exception in 29 U.S.C. § 206(d)(1).
Subsection (d)(1) reads:
No employer having employees subject to any
provisions of this section shall discriminate,
within any establishment in which such
employees are employed, between employees
on the basis of sex by paying wages to
employees in such establishment at a rate less
than the rate at which he pays wages to
employees of the opposite sex in such
establishment for equal work on jobs the
performance of which requires equal skill,
RIZO V. YOVINO 45
effort, and responsibility, and which are
performed under similar working conditions,
except where such payment is made pursuant
to (i) a seniority system; (ii) a merit system;
(iii) a system which measures earnings by
quantity or quality of production; or (iv) a
differential based on any other factor other
than sex.
We agree that this suit turns on our interpretation of the
fourth exception in 29 U.S.C. § 206(d)(1): “a differential
based on any other factor other than sex.”
II
“The Equal Pay Act is broadly remedial and it should be
construed and applied so as to fulfill the underlying purposes
which Congress sought to achieve.” Corning Glass Works v.
Brennan, 417 U.S. 188, 208 (1974). The majority struggles
mightily and unnecessarily to couple the fourth
exception—despite its clear language—so closely with the
other three exceptions that it loses independent meaning.
The majority suggests that the first three exceptions are
all “job-related.” This is not an unreasonable observation, but
it does not support creating a definition of “job-related” that
includes “a seniority system” but excludes “prior salary.”
Indeed, the sole purpose of the majority’s parsing of the
statute appears to be to exclude “prior salary” from its
common sense inclusion in subsection (iv)—“a differential
based on any other factor other than sex.”
In its approach, the majority conveniently overlooks the
differences within the three specific exceptions. While merit
46 RIZO V. YOVINO
systems and measuring earnings by quantity and quality of
production are specifically job-related, that is not true of
seniority systems, which are often unrelated to performance.
Indeed, at the time of the passage of the Equal Pay Act, if not
today, seniority systems accounted for a fair amount of pay
inequality.1
The majority’s insistence that the fourth exception is
limited to its narrow definition of “job-related” is therefore
flawed because the term “job-related” is a poor descriptor of
the prior three exceptions. And the majority’s reliance on
noscitur a sociis and ejusdem generis to define the fourth
exception as encompassing only “job-related” factors is also
incorrect. The Supreme Court has called the fourth exception
a “general catchall provision,” Corning Glass, 417 U.S. at
196, that “was designed differently, to confine the application
of the Act to wage differentials attributable to sex
discrimination,” Washington County v. Gunther, 452 U.S.
161, 170 (1981). The canons of statutory interpretation that
the majority employs are of no use where a catchall provision
is meant to contrast with specific exceptions, not reflect them.
The Gunther Court explained that Equal Pay Act litigation
“has been structured to permit employers to defend against
charges of discrimination where their pay differentials are
based on a bona fide use of ‘other factors other than sex.’”
Id. The Court cautioned that courts and administrative
agencies “were not permitted to substitute their judgment for
1
For example, one-quarter of the complaints filed in the year after the
passage of the Equal Pay Act concerned complaints by women who were
excluded from jobs because of seniority rules or because men were
preferred over women after layoffs. Vicki Lens, Supreme Court
Narratives on Equality and Gender Discrimination in Employment:
1971–2002, 10 Cardozo Women’s L.J. 501, 507 (2004).
RIZO V. YOVINO 47
the judgment of the employer . . . so long as it does not
discriminate on the basis of sex.” Id. at 171. Thus, the
standard is not whether a factor is “job-related,” but whether
regardless of its “job-relatedness,” the factor promotes or
perpetuates gender discrimination.
This conclusion is further supported by a footnote in
Gunther, which states:
The legislative history of the Equal Pay Act
was examined by this Court in Corning Glass
Works v. Brennan, 417 U.S. 188, 198–201
(1974). The Court observed that earlier
versions of the Equal Pay bill were amended
to define equal work and to add the fourth
affirmative defense because of a concern that
bona fide job-evaluation systems used by
American businesses would otherwise be
disrupted. Id., at 199–201. This concern is
evident in the remarks of many legislators.
Representative Griffin, for example, explained
that the fourth affirmative defense is a “broad
principle,” which “makes clear and explicitly
states that a differential based on any factor or
factors other than sex would not violate this
legislation.” 109 Cong. Rec. 9203 (1963).
Id. at 170 n.11 (parallel citations omitted).
III
I agree that, based on the history of pay discrimination
and the broad purpose of the Equal Pay Act, prior salary by
itself does not qualify as a “factor other than sex.” As the
48 RIZO V. YOVINO
Eleventh Circuit has noted, “if prior salary alone were a
justification, the exception would swallow up the rule and
inequality in pay among genders would be perpetuated.” Irby
v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995). However, the
Eleventh Circuit continued:
an Equal Pay Act defendant may successfully
raise the affirmative defense of “any other
factor other than sex” if he proves that he
relied on prior salary and experience in setting
a “new” employee’s salary. While an
employer may not overcome the burden of
proof on the affirmative defense of relying on
“any other factor other than sex” by resting on
prior pay alone, as the district court correctly
found, there is no prohibition on utilizing
prior pay as part of a mixed-motive, such as
prior pay and more experience. This court
has not held that prior salary can never be
used by an employer to establish pay, just that
such a justification cannot solely carry the
affirmative defense.
Id.
Indeed, our Court has previously suggested that prior pay
may be considered among “other available predictors of the
new employee’s performance.” Kouba v. Allstate Ins. Co.,
691 F.2d 873, 878 (9th Cir. 1982). And there is general
agreement in our sister circuits that there is “no prohibition
on utilizing prior pay as part of a mixed-motive.” Irby,
44 F.3d at 955. The Tenth Circuit has held that “an
individual’s former salary can be considered in determining
whether pay disparity is based on a factor other than sex,” but
RIZO V. YOVINO 49
that “the EPA ‘precludes an employer from relying solely
upon a prior salary to justify pay disparity.’” Riser, 776 F.3d
at 1199 (citing Angove v. Williams–Sonoma, Inc., 70 Fed.
App’x. 500, 508 (10th Cir. 2003) (unpublished)). The Sixth
Circuit is basically in agreement. See EEOC v. J.C. Penney
Co. Inc., 843 F.2d 249, 253 (6th Cir. 1988) (holding that “the
legitimate business reason standard is the appropriate
benchmark against which to measure the ‘factor other than
sex’ defense”). The Fourth, Seventh, and Eighth Circuits
prefer even broader definitions for “factor other than sex.”
See Spencer v. Virginia State University, 919 F.3d 199,
206–07 (4th Cir. 2019) (concluding that a program whereby
faculty are paid 9/12ths of their previous administrator salary
provided a “non-sex-based explanation for the pay
disparity”); Covington v. S. Ill. Univ., 816 F.2d 317, 321–22
(7th Cir. 1987) (holding that the EPA does not preclude “an
employer from carrying out a policy which, although not
based on employee performance, has in no way been shown
to undermine the goals of the EPA”); Taylor v. White,
321 F.3d 710, 720 (8th Cir. 2003) (stating that “a case-by-
case analysis of reliance on prior salary or salary retention
policies with careful attention to alleged gender-based
practices preserves the business freedoms Congress intended
to protect when it adopted the catch-all ‘factor other than sex’
affirmative defense”).
Contrary to the majority’s suggestion, the Second Circuit
has not adopted its narrow definition of “job-related.” In
Aldrich v. Randolph Central School District, 963 F.2d 520,
525 (2d Cir. 1992), the Second Circuit did state that
“[w]ithout a job-relatedness requirement, the factor-other-
than-sex defense would provide a gaping loophole in the
statute through which many pretexts for discrimination would
be sanctioned,” but it further held that “an employer bears the
50 RIZO V. YOVINO
burden of proving that a bona fide business-related reason
exists for using the gender-neutral factor that results in a
wage differential in order to establish the factor-other-than-
sex defense.” Id. at 526. In Tomka v. Seiler Corp., 66 F.3d
1295, 1312 (2d Cir. 1995), abrogated on other grounds by
Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998), the
Second Circuit, addressing a claim that higher salary resulted
from a male employee’s over ten years of experience, stated
that while the experience might explain the discrepancy, the
employer “has the burden of persuasion to show both that it
based [the male employee’s] higher salary on this factor and
that experience is a job-related qualification for the position
in question.” Id. In holding that the employer has the
burden, the court implicitly recognized that prior salary can
be job related and thus can come within the fourth exception.
See also Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir.
1999) (noting that “to successfully establish the ‘factor other
than sex’ defense, an employer must also demonstrate that it
had a legitimate business reason for implementing the
gender-neutral factor that brought about the wage
differential”).
IV
There is no need for the majority’s approach to the fourth
exception, which the Supreme Court has noted was intended
to be broad. Rather, while a pay system that relies
exclusively on prior salary is conclusively presumed to be
gender-based—to perpetuate gender-based inequality—a pay
system that uses prior pay as one of several factors deserves
to be considered on its own merits. When a plaintiff makes
a prima facie case of pay inequality based on gender, the
burden of showing that the difference is not based on gender
shifts to the employer. In other words, the prima facie case
RIZO V. YOVINO 51
creates a presumption that the pay inequality arising from the
employer’s pay system is gender-based and hence is not a
“factor other than sex.” In Corning Glass, the Supreme Court
explained that the Equal Pay Act’s
structure and history also suggest that once
the Secretary has carried his burden of
showing that the employer pays workers of
one sex more than workers of the opposite sex
for equal work, the burden shifts to the
employer to show that the differential is
justified under one of the Act’s four
exceptions.
Corning Glass, 417 U.S. at 196; see also Maxwell v. City of
Tucson, 803 F.2d 444, 445–46 (9th Cir. 1986) (stating that
once the plaintiff establishes a prima facie case, “the burden
of persuasion shifts to the employer to show that the wage
disparity is permitted by one of the four statutory exceptions
to the Equal Pay Act”).
There is no need or justification for holding that an
employer could, as a matter of law, justify a differential in
salary under one of the first three exceptions, but not the
fourth exception. Accordingly, I agree with our sister
circuits, that when salary is established based on a multi-
factor salary system that includes prior salary, the
presumption that the system is based on gender is rebuttable.2
2
I agree with the majority that the market force theory for paying
women less was discredited by the Supreme Court in Corning Glass,
417 U.S. at 205, and that the notion that an employer may pay women less
because women allegedly cost more to employ than men was discredited
in City of Los Angeles, Department of Water & Power v. Manhart,
52 RIZO V. YOVINO
Critically, as noted, the burden is on the employer to show
that the use of prior salary as part of a multi-factor salary
system does not reflect, perpetuate, or in any way encourage
gender discrimination.
This is also the position of the EEOC, the agency charged
with enforcing the EPA. In its amicus brief, the EEOC states
that in its view because prior salaries “can reflect sex-based
compensation discrimination,” a prior salary “cannot by itself
justify a compensation disparity,” but “an employer may
consider prior salary as part of a mix of factors.”3 This
approach to a multi-factor formula for pay accords with the
purpose of the Equal Pay Act and the Supreme Court’s
approach to the Equal Pay Act, as well as a common sense
reading of its language. To impose obligations on employers
that conflict with guidance from the agency administering the
statute, as the majority opinion does, is to sow confusion.
435 U.S. 702 (1978).
3
In EEOC Notice Number 915.002 (Oct. 29, 1997), “Enforcement
Guidance on Sex Discrimination in the Compensation of Sports Coaches
in Educational Institutions,” the EEOC advised:
Thus, if the employer asserts prior salary as a factor
other than sex, evidence should be obtained as to
whether the employer: 1) consulted with the
employee’s previous employer to determine the basis
for the employee’s starting and final salaries;
2) determined that the prior salary was an accurate
indication of the employee’s ability based on education,
experience, or other relevant factors; and 3) considered
the prior salary, but did not rely solely on it in setting
the employee’s current salary.
RIZO V. YOVINO 53
In reality, “prior pay” is not inherently a reflection of
gender discrimination. Certainly our history of gender
discrimination fully supports a presumption that the use of
prior pay perpetuates discrimination. But differences in prior
pay may also be based on other factors such as differences in
the costs of living and in available resources in various parts
of the country. Moreover, I agree with the majority in hoping
that we are progressing “past the days when employers
maintain separate pay scales,” Majority at 25, and that it will
become the norm that a prior employer will have adjusted its
pay system to be gender neutral. Nonetheless, consistent with
the intent of the EPA, I agree that where prior pay is the
exclusive determinant of pay, the employer cannot carry its
burden of showing that it is a “factor other than sex.”4
However, neither Congress’s intent nor the language of the
Equal Pay Act requires, or justifies, the conclusion that a pay
system that includes prior pay as one of several
considerations can never constitute a “factor other than sex.”
4
We read the EPA to place the burden on the employer to
demonstrate that the pay differential falls within the fourth exception; that
it is indeed not based on gender. An employer cannot meet this burden
where the pay system is based solely on prior pay because by blindly
accepting the prior pay, it cannot rebut the presumption that using the
prior pay perpetuates the inequality of pay based on gender that the EPA
seeks to correct. If, instead, as suggested by the EEOC’s Notice Number
915.002, an employer not only looked to prior pay but also researched
whether the applicant’s prior pay reflected gender-based inequality, and
made adjustments if it did, the employer would no longer be relying
exclusively on prior pay. Thus, in such a situation, an employer might be
able to overcome the presumption and show that its pay system was a
“factor other than sex.”
54 RIZO V. YOVINO
V
In this case, the County based pay only on prior salary,
and accordingly the district court properly denied it summary
judgment. Nonetheless, the majority goes beyond what is
necessary to resolve this appeal and mistakenly proclaims
that prior salary can never be considered as coming within the
fourth exception to the Equal Pay Act. I strongly disagree.
Following the Supreme Court’s guidance, I agree with our
sister circuit courts, as well as the EEOC, the agency charged
with enforcing the EPA, that prior pay may be a component
of a pay system that comes within the fourth exception
recognized in 29 U.S.C. § 206(d)(1). However, the employer
has the burden of overcoming the presumption of gender
discrimination and showing that its pay formula does not
perpetuate or create a pay differential based on sex. We can
and should require that men and women receive equal pay for
equal work, but we can do so without making what is in
reality a presumption an absolute rule.
For these reasons, I concur in the result, but not the
majority’s rationale.