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Prior salary can be used to justify paying women less than men under certain circumstances, said a federal appeals court, in vacating a lower court order denying a defendant employer’s motion for summary judgment in an Equal Pay Act case.
The case was filed by Aileen Rizo, who was hired in 2009 as a math consultant for the Fresno County, California, schools and given a starting salary of $62,733 per year, which ranked as Step 1, Level 1 under the county’s salary schedule, according to the April 27 ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Aileen Rizo v. Jim Yovino, Fresno County Superintendent of Schools.
Ms. Rizo learned in July 2012 that a recently hired male math consultant had started on Step 9 of Level 1 and that the other math consultants, all of whom were male, were paid more than she was, according to the ruling.
She filed suit in U.S. District Court in Fresno under the Equal Pay Act, Title VII of the Civil Rights Act of 1964 and state law. The District Court refused to grant the county summary judgment dismissing the case, and the county appealed.
A unanimous three-judge panel of the 9th Circuit vacated the District Court’s order denying the county’s motion for summary judgment and remanded the case for further proceedings.
The Equal Pay Act states that among the factors permitting wage disparity is that a differential is based “on any other factor other than sex,” said the ruling. The defendant sought to establish this was the case by showing its pay structure was based on employees’ prior salaries, the ruling said.
The ruling cited the 9th Circuit’s own 1982 ruling in Kouba v. Allstate Ins. Co., which held “prior salary alone can be considered a ‘factor other than sex.’”
It is “up to the employer to persuade the trier of act that its stated ‘factor other than sex’ actually caused the salary differential, that the stated factor ‘effectuate(s)some business policy,’ and that the employer used the factor ‘reasonably in light of (its) stated purpose as well as its other practices,” said the panel, citing the Kouba ruling.
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