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Employers Cannot Use Salary History to Defend Against Equal Pay Claims

Former Associate
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On April 9, 2018, the Ninth Circuit ruled en banc that an employee’s prior salary does not constitute a “factor other than sex” to justify wage disparities between male and female employees. “Other than sex” factors is limited to legitimate, job-related factors, including the candidate’s experience, educational background, ability, or prior job performance. The court explained that allowing past salary history to fall within the catch-all exception in the Equal Pay Act will allow an employer to “defend a sex-based salary differential on the basis of the very sex-based salary differentials the Equal Pay Act was designed to cure.” Accordingly, employers should not consider past salary history alone or in conjunction with other factors when defending against Equal Pay Claims.

The opinion is available here.