©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 55 disparity.438 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).”439 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.”440 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.”441 The court would not assume that Congress “essentially acted contrary to the EPA's intent three years after its passage,” and would not invoke an interpretation that would “require the Court to read the two statutes as conflicting with one another.”442 Some district courts rejected the Ninth Circuit’s reasoning due to prior precedent in their circuit. This leaves open the possibility that the law could shift if and when it is considered by the Court of Appeals. For example, in Abe v. Virginia Department of Environmental Quality,443 the Eastern District of Virginia was presented with the following question: “Does using prior salary as a factor in setting an employee’s starting salary constitute a per se violation of the Equal Pay Act . . .?”444 In that case, four named plaintiffs and twenty opt-in plaintiffs argued that the court should adopt the reasoning of the Ninth Circuit in Rizo and hold that prior salary history can never constitute a “factor other than sex” under the EPA, either alone or in combination with other factors.445 The court declined, noting that the Fourth Circuit “has not delineated the precise circumstances under which an employer may rely on prior salary as an affirmative defense in an EPA case.”446 But also noting that, in Spencer v. Virginia State University, the Fourth Circuit “has clearly indicated that it does not prohibit an employer from doing so.”447 438 Id. at 390. 439 Id. at 403. 440 Id at 405. 441 Id. at 408-09. 442 Id. at 409. 443 Abe v. Va. Dep’t of Env’t Quality, No. 3:20-cv-270, 2021 WL 1250346 (E.D. Va. Apr. 5, 2021). 444 Id. at 1. In that case, four named plaintiffs and twenty opt-in plaintiffs alleged that their employer’s “past practice of using pay history to determine new hire’s salary perpetuates the gender wage gap and violates the EPA.” Id. 445 Id. at 2. 446 Id. 447 Id., at 2-3 (citing Spencer v. Va. State Univ., 919 F.3d 199, 202-03 (4th Cir. 2019) (emphasis in original). The court noted that Spencer involved a female sociology professor who alleged she had been discriminated against in terms of her compensation because she was paid less than two comparable male professors whose salary was set as a percentage of their previous salaries as administrators at the same university. The Fourth Circuit determined that the university’s decision to set starting salaries for those purported comparators in that way established that the alleged pay differential was due to a factor other than sex. The court in Abe interpreted this to mean that “at minimum, the Fourth Circuit does not prohibit employers from raising prior salary as an affirmative defense in an EPA case.” Id. at 3. The court further rejected plaintiffs’ argument that the employer should at least have to prove that its use of salary history is job-related, as they argued the Fourth Circuit held in another case, EEOC v. Maryland Ins. Admin., 879 F.3d 114 (4th Cir. 2018). The Abe court sidestepped the issue. It held that it was not necessary to resolve that question to decide the narrow issue before the Court; namely: “May [defendant] raise prior salary as an affirmative defense?” Abe, 2021 WL 1250346, at 4. Based on the Fourth Circuit’s decision in Spencer, the Court held that it could and denied Plaintiff’s motion to strike the
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