Don’t Use Prior Salary as Basis for Pay, Agency Says
By Jon Steingart
A woman who says her employer violated a federal gender pay disparity law may have an ally arguing alongside her in the Ninth Circuit: the Equal Employment Opportunity Commission.
The EEOC Nov. 27 asked the appeals court for permission to appear at the Dec. 12 oral argument in Aileen Rizo’s case (Rizo v. Yovino, 9th Cir., No. 16-15372, motion to present oral argument 11/27/17). Rizo, a math consultant for the Fresno County, Calif., school system, agreed to cede some of her time to the agency.
A three-judge panel in April dismissed Rizo’s claim that the school system violated the Equal Pay Act. It said Fresno County may be able to show that it based the consultant’s pay on business reasons that factor in her work experience and level of education, including her prior salary. The Equal Pay Act prohibits disparate pay for women and men who perform equal work unless the variation is attributable to a factor “other than sex.”
But allowing an employer to base someone’s pay on prior salary undermines the purpose of the law because it “institutionalizes” the gender pay disparity, the EEOC said. The commission urged the Ninth Circuit to join the Tenth and Eleventh circuits in holding that prior salary alone can’t be considered a factor other than sex.
The EEOC is the federal agency charged with administering the Equal Pay Act.
The use of worker salary history in setting pay has drawn condemnation from critics of the pay gap between women and men. They say that determining pay based on what someone earned previously carries pay inequities from one job to the next. Several state and local governments, including Oregon, California, New York City, and Philadelphia, have enacted laws banning salary history inquiries.
Michael Woods, an attorney with McCormick Barstow LLP in Fresno who represents the school system, declined to comment Nov. 29, citing the case’s pending status.
Barbara Sloan, an attorney in the EEOC office of the general counsel in Washington, represents the agency.
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