On July 2, 2020, the U.S. Supreme Court denied certiorari in Yovino v. Rizo. As such, it will not decide the issue of whether employers can use salary history to justify paying men and women differently for similar work under the Equal Pay Act (EPA). In doing so, it left intact a 9th U.S. Circuit Court of Appeals decision that “because prior pay may carry with it the effects of sex-based pay discrimination, and because sex-based pay discrimination was the precise target of the EPA, an employer may not rely on prior pay to meet its burden of showing that sex played no part in its pay decision.”
This case goes back to 2014 when a California teacher filed suit against California’s Fresno County alleging that the country paid male teachers more than female teachers for the same work. The employer filed for summary judgment, which was denied by the federal district court. However, in 2017, a 9th Circuit three-judge panel vacated and remanded that order, ruling that salary history alone could be used to set pay. But about a year later, the same court found that “prior salary alone or in combination with other factors cannot justify a wage differential.” The Supreme Court then vacated that ruling. In February of this year, the 9th Circuit affirmed its earlier ruling, holding that an employee’s prior rate of pay is not a “factor other than sex” that could allow an employer to pay a woman less than a man if they performed the same work. In denying certiorari, the Supreme Court allowed the 9th Circuit’s ruling to stand.
Hire Image understands the intricacies of salary history bans and stays informed on, and compliant with, the ever-increasing changing laws. For up-to-date information on salary history bans and how they may affect your workplace, please visit our Resource Guides or contact us to find out how we can help.