Fighting for Women's Equality

On Eve of Equal Pay Day, Equal Rights Advocates Celebrates Victory for Fair Pay with En Banc Ninth Circuit Decision

April 9, 2018 | by
Monday, April 9, 2018
Delia Coleman, Dir. Strategic Communications,, 415.575.2396
On Eve of Equal Pay Day, Equal Rights Advocates Celebrates Victory for Fair Pay

Prior Salary Cannot Justify Gender Wage Disparities, En Banc Ninth Circuit Says

San Francisco – A federal appeals court ruled Monday that prior salary cannot be used to justify a wage gap between men and women under the federal Equal Pay Act, in a decision that fair pay and gender justice advocates are celebrating as a victory to uncover a key issue that has enshrined gender wage inequities.

“More than 50 years after the enactment of the Equal Pay Act, women continue to earn less than their male counterparts in virtually every industry and occupation in this country,” said Jessica Stender, Senior Counsel for Workplace Justice & Public Policy at Equal Rights Advocates. “In holding that prior salary cannot be used to justify a pay disparity under the Act, the Court has clarified that employers can only rely on legitimate, non sex-based factors to justify paying a woman less than a man for equal work. As the Court correctly held, to allow an employer to rely on prior salary to justify a pay disparity would allow the exception to effectively swallow up the rule and contravene the very purpose of the Act.”

“This decision is for all women,” said the plaintiff in the case, Aileen Rizo. “That is the reason I worked along with Equal Rights Advocates for the last few years helping to pass some of the strongest equity bills in the nation. Releasing women from low wages that have burdened us for decades provides an avenue of equality that’s now within reach.”

Ms. Rizo, a math consultant for the Fresno County Office of Education, discovered in 2012 she was being paid $12,000 less per year than her male co-workers doing the same job. She brought suit against her former employer, alleging gender-based pay discrimination in violation of the federal Equal Pay Act. In December 2016, the District Court denied the employer’s motion for summary judgment, holding that an employer cannot rely on prior salary alone to justify paying employees of the opposite sex differently for doing equal work. In May 2017, the Ninth Circuit Court of Appeals vacated the District Court’s order and sent the case back for further proceedings. ERA filed an amicus brief in support of Ms. Rizo’s petition for a rehearing en banc of the Ninth Circuit decision.

The decision by the Ninth Circuit comes at a particularly significant moment as fair pay advocates around the country rally to bring attention to the persistent wage gap the average American woman experiences. Equal Pay Day, on Tuesday, April 10, symbolizes how far into 2018 the average woman would need to work in order to catch up to what men earned in 2017. Based on ACS Census data, the average working woman is paid $.80 (cents) for every dollar earned by men. The pay gap is even worse for women of color: the gender wage gap for Black women is $.63; for Latina women the gap is $.54; for Native women, the gap is even larger, at $.49.

Learn more about Equal Pay Days throughout the year at:



Equal Rights Advocates ( ) is a national civil rights organization fighting gender discrimination in workplaces and education through litigation, public policy and advocacy, and partnerships with workers and students.  


Click here to read a San Francisco Chronicle article about this decision.

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