54 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP prior salaries is not a violation of the EPA unless sex discrimination led to the lower prior wages.427 The Eighth Circuit has also followed this line of reasoning.428 Other Circuits have held differently. For example, in Irby v. Bittick,429 the Eleventh Circuit held that “[w]hile 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.”430 The Tenth Circuit has also held that prior salary cannot stand alone as a defense to an EPA claim. In Angove v. Williams-Sonoma, Inc.,431 a male retail employee argued that the district court had 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.432 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.433 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.434 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.”435 This is because “the EPA only precludes an employer from relying solely upon a prior salary to justify pay disparity.”436 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.,437 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 427 Id. at 909. See also Korty v. Ind. Univ. Health, Inc., No. 4:21-cv-33-PPS, 2022 WL 17830485, at *4 (N.D. Ind. Dec. 21, 2022) (“The Court acknowledges that ‘basing pay on prior wages could be discriminatory if sex discrimination led to the lower prior wages.’ But [plaintiff] has not made that showing at all—nowhere has she shown that [comparator’s] previous salary was inflated based upon his sex.”) (internal citations omitted) (quoting Lauderdale v. Ill. Dep't of Human Servs., 876 F.3d 904, 908 (7th Cir. 2017)). 428 See Taylor v. White, 321 F.3d 710 (8th Cir. 2003). In Taylor, a female civilian employee of the Army alleged that her pay at a lower pay grade than her male peers was a violation of the EPA. Id. at 713. The Army sought summary judgment, arguing that the pay disparity was the result of its non-statutory salary retention policy that was intended to retain skilled workers and protect workers’ salaries. Id. at 716. The employee argued that, as a matter of law, an employer should not be allowed to rely on prior salary or a salary retention policy as a defense under the EPA because those factors would permit the perpetuation of unequal pay structures. Id. The Eighth Circuit examined the Circuit split and, in particular, adopted the reasoning of the Ninth (before Rizo) and Seventh Circuits in Kouba and Covington, respectively, over that of the Eleventh Circuit. Id. at 718-19. The Eighth Circuit concluded: “we believe a case-by case analysis of reliance on prior salary or salary retention policies with careful attention to alleged genderbased practices preserves the business freedoms Congress intended to protect when it adopted the catch-all ‘factor other than sex’ affirmative defense. To conduct a reasonableness inquiry into the actions of the employer or to limit the application of a salary retention policy to only exigent circumstances would, we believe, unnecessarily narrow the meaning of the phrase ‘factor other than sex.’” Id. at 720. 429 Irby v. Bittick, 44 F.3d 949 (11th Cir. 1995). 430 Id. at 955 (citing Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1571 n.9 (11th Cir. 1988)). 431 Angove v. Williams-Sonoma, Inc., 70 F. App’x 500 (10th Cir. 2003). 432 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. 433 Angove, 70 F. App’x at 508. 434 Id. 435 Id. 436 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). 437 Boyer v. U.S., 159 Fed. Cl. 387 (Ct. Fed. Cl. 2022).
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