Fighting for Women's Equality

ERA Files Amicus Brief in 9th Circuit Case on Equal Pay

May 23, 2017 | by

For Immediate Release
Tuesday, May 23, 2017

Sarah Christiano,, 415-575-2380


Equal Rights Advocates Files Amicus Brief in Ninth Circuit Case on Equal Pay
15 Organizations Sign on to a Brief Requesting a Panel Hearing or Rehearing En Banc of Rizo v. Yovino

Yesterday, Equal Rights Advocates (ERA) and 15 national women’s rights organizations filed an amicus brief requesting a panel rehearing or rehearing en banc of a decision of the Ninth Circuit Court of Appeals that involves an important question about the use of prior salary to justify wage differences under the Equal Pay Act.

The plaintiff in the case, Aileen Rizo, was employed as a math consultant for the Fresno County Office of Education when she discovered in 2012 that she was being paid $12,000 less each year than her male co-workers despite the fact that they had no additional duties or responsibilities, nor any additional relevant experience prior to the job. In fact, Ms. Rizo had more experience. The only justification set forth by her employer for the pay disparity is that Ms. Rizo made less than her male counterparts in her previous job and the County’s salary determination system is based entirely the prior salary of incoming employees.

The Equal Pay Act (“EPA”) makes it unlawful for an employer to pay an employee of one sex less than an employee of the opposite sex for equal work. As outlined in the brief filed yesterday, “[t]he question in this case is whether, under the Equal Pay Act, an employer can defend paying a woman less than a man for equal work, pursuant to the ‘factor other than sex’ affirmative defense, based solely on the fact that her prior salary was lower than his.”  The district court correctly held that, consistent with Ninth Circuit precedent, prior history alone cannot be used to justify a gender wage differential pursuant to that affirmative defense. In vacating the district court’s decision, the panel misinterpreted and improperly expanded the Court’s prior holding in Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982).” Hence, amici argue that the court should reconsider this important question of law.

“Prior salary does not exist in a vacuum. This case clearly illustrates the need to address the use of prior salary in setting pay in order to close gender wage gap, and ensure that women like Aileen are paid fairly for their work,” said ERA Senior Staff Attorney Jessica Stender.

As the brief argues: “Given the existence of a gender wage gap in virtually every occupation and industry, prior salary should only be accepted as a ‘factor other than sex’ if the wage difference can be explained or supported by some other factor. If the employer can show no other factor that correlated to the lower prior salary, then there is a strong likelihood, ‘indeed . . . the virtual certainty,’ that the pay differential is a result of past pay discrimination, making it a sex-based factor – precisely what is prohibited by the Equal Pay Act.”

Other Circuit Courts have held that an employer cannot rely on prior salary alone to justify a gender wage differential under the Equal Pay Act. Similarly, the Equal Employment Opportunities Commission, charged with enforcing federal anti-discrimination law, including the EPA, has taken the position that prior salary cannot, by itself, justify a compensation disparity under the Act.

“To allow an employer to justify paying a woman less than a man for performing equal work based only on the fact that she earned less in her prior job, would allow the exception to swallow up the rule and perpetuate the very problem that the EPA was intended to address, a result clearly not intended by Congress in passing the EPA,” said Stender.

The following organizations signed on to the brief: Equal Rights Advocates, 9to5, American Association of University Women, American Association of University Women – California Chapter, American Civil Liberties Union of Northern California & ACLU Women’s Rights Projects, Atlanta Women for Equality, California Women’s Law Center, Feminist Majority Foundation, Legal Aid at Work, Legal Voice, National Organization of Women (NOW) Foundation, National Partnership for Women and Families, National Women’s Law Center, Southwest Women’s Law Center, Women Employed, and Women’s Law Project. The Equal Pay Today! Campaign is a supporter of the Amici.


Equal Rights Advocates is a national civil rights organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls.


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