44 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP impermissibly applied a “market factor” theory to evaluate his claim, arguing that it is impermissible to justify a wage disparity solely upon the “going market rate” for employees of a certain gender.356 The Tenth Circuit held that this theory only arises where an employer purports to rely on the “going rate” for employees based on their gender.357 Although setting an employee’s salary based solely on what the market would pay male versus female employees would clearly violate the EPA, there was no evidence to suggest that is what happened.358 The Tenth Circuit concluded that “where an employer sets a new employee's salary based upon that employee's previous salary and the qualifications and experience the new employee brings, the defendant has successfully invoked the Act's affirmative defense.”359 This is because “the EPA only precludes an employer from relying solely upon a prior salary to justify pay disparity.”360 This issue also divides the district courts. Many have declined to follow the reasoning of the Ninth Circuit in Rizo. For example, in Boyer v. U.S.,361 a female clinical pharmacist at a VA hospital brought wage discrimination claims against her employer, alleging that a male coworker in the same position, who had less experience, was hired after her with a higher starting pay rate. The employer argued that the regulations that govern federal pay determinations were a “factor other than sex” that explained the pay disparity.362 The court first examined the split among the circuits regarding the use of prior salary to set starting salary, summarizing it as follows: “the circuits are split between prior salary alone being an acceptable factor other than sex (Fourth and Seventh), prior salary being an acceptable factor when combined with other factors (Eighth, Tenth, and Eleventh), and prior salary never being an acceptable factor to consider (Ninth).”363 The court held that it would not follow the lead of the Ninth Circuit and had no need to resolve the circuit split: “the Court does not need to conclusively decide whether prior salary alone is a factor other than sex in order to rule on Plaintiff's motion. At this juncture, the Court only needs to determine, which it easily does, that it is not going to follow the Ninth Circuit's decision in Rizo.”364 This was because the court found that the employer had relied on factors other than prior salary to set the comparator’s starting salary; namely, pharmaceutical skills and education. The court then went on to consider federal government regulations, noting that federal employees are started at the minimum salary step of the appropriate grade under the GS system unless an upward departure is required because the candidate has some unusually high or unique qualifications, or if the government has a special need, or if the candidate’s existing pay is unusually high. The court construed this language as meaning that federal regulations allowed existing or prior pay to be used to determine starting pay. “As was discussed above, the Court presumes Congress meant what it said in permitting federal GS pay rate determinations based on a candidate's ‘existing pay or unusually high or unique qualifications’: under the GS system, existing or prior pay alone may be used in determining pay above the minimum rate of the appropriate grade.”365 The court would not assume that Congress “essentially 356 Id. at 507. The employee relied on prior Eleventh Circuit and Supreme Court precedent, Mulhall v. Advance Security, Inc., 19 F.3d 586, 596 n.22 (11th Cir. 1994) and Corning Glass Works v. Brennan, 417 U.S. 188 (1974). In Corning Glass Works, the Supreme Court rejected an argument that an employer's higher wage rate for men on the night shift was permissible, holding that: “The differential arose simply because men would not work at the low rates paid women inspectors, and it reflected a job market in which [employer] could pay women less than men for the same work. That the company took advantage of such a situation may be understandable as a matter of economics, but its differential nevertheless became illegal once Congress enacted into law the principle of equal pay for equal work.” 417 U.S. at 204-05. 357 Angove, 70 F. App’x at 508. 358 Id. 359 Id. 360 Id. (emphasis in original). The Sixth Circuit has also adopted the reasoning of the Eleventh and Tenth Circuits. See Perkins v. Rock-Tenn Servs., Inc., 700 F. App’x 452, (6th Cir. 2017); 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). 361 Boyer v. U.S., 159 Fed. Cl. 387 (Ct. Fed. Cl. 2022). 362 Id. at 390. 363 Id. at 403. 364 Id at 405. 365 Id. at 408-09.
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