Rizo v. Yovino, No. 16-15372 (9th Cir. 2020)
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On remand from the Supreme Court, the Ninth Circuit affirmed the district court's order denying defendant's motion for summary judgment on plaintiff's claims under the Equal Pay Act (EPA). The en banc court held that plaintiff's prior rate of pay was not a "factor other than sex" that allows Fresno County's Office of Education to pay her less than male employees who perform the same work. The en banc court also held that only job-related factors may serve as affirmative defenses to EPA claims.
The en banc court wrote that the express purpose of the Act was to eradicate the practice of paying women less simply because they are women, and that allowing employers to escape liability by relying on employees' prior pay would defeat the purpose of the Act and perpetuate the very discrimination the EPA aims to eliminate. Therefore, the en banc court held that an employee's prior pay cannot serve as an affirmative defense to a prima facie showing of an EPA violation. The en banc court overruled Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), which held that prior pay could qualify as an affirmative defense if the employer considered prior pay in combination with other factors and used it reasonably to effectuate a business policy.
Court Description: Employment Discrimination / Equal Pay Act. Affirming, on remand from the Supreme Court, the district court’s order denying defendant’s motion for summary judgment on claims under the Equal Pay Act, the en banc court held that plaintiff’s prior rate of pay was not a “factor other than sex” that allowed defendant to pay her less than male employees who performed the same work, and only job-related factors may serve as affirmative defenses to Equal Pay Act claims. The en banc court’s previous opinion was vacated by the Supreme Court on a procedural issue concerning the death of the author of the majority opinion. On remand, the en banc court affirmed the district court’s denial of summary judgment. Agreeing with other circuits, the en banc court held that the scope of the “factor other than sex” affirmative defense is limited. Based on the text and purpose of the Equal Pay Act, the en banc court held that this defense comprises only job-related factors. The en banc court held that prior pay does not qualify as a job-related factor that can defeat a prima facie Equal Pay Act claim. The en banc court overruled Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), which held that prior pay could qualify as an affirmative defense if the employer considered prior pay in combination with other factors and used it reasonably to effectuate a business policy. 4 RIZO V. YOVINO Concurring, Judge McKeown, joined by Judges Tallman and Murguia, wrote that prior salary alone is not a defense to unequal pay for equal work, but employers do not necessarily violate the Equal Pay Act when they consider prior salary among other factors when setting initial wages. Accordingly, Judge McKeown concurred in the result but not in the majority’s rationale. Concurring, Judge Callahan, joined by Judges Tallman and Bea, disagreed with the majority’s holding that prior pay can never be considered as a factor in determining pay under the Equal Pay Act.
This opinion or order relates to an opinion or order originally issued on April 27, 2017.