2020) (post-remanden bancdecision);Wernsing v. Department of Human Services,427 F.3d 466, 467 (7th Cir. 2005);Lauderdale v. Ill. Dep’t of Hum. Servs., 876 F.3d 904, 908 (7th Cir. 2017);Spencer v. Virginia State University, 919 F.3d 199, 202-03 (4th Cir. 2019);Taylor v. White, 321 F.3d 710, 714-15 (8th Cir. 2003);Price v. N. States Power Co., 664 F.3d 1186, 1193-94 (8th Cir. 2011).6Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992);Beck-Wilson v. Principi, 441 F.3d 353, 365 (6th Cir. 2006).7Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015);Irby v. Bittick,44 F.3d 949, 955 (11th Cir. 1995).8SeeDenise M. Visconti,Keeping Compliant with Expanding State and Local Equal Pay Laws, Littler ASAP (Aug. 19, 2019).
Disagreeing with both the Ninth and Seventh Circuits, other courts have concluded that while employers may consider prior salary as part of a mix of factors, they cannot consider prior salary alone. See Riser v. QEP Energy, 776 F.3d 1191 (10th Cir. 2015); Drum v. Leeson Elec. Corp., 565 F.3d 1071 (8th Cir. 2009); Irby v. Bittick, 44 F.3d 949 (11th Cir. 1995); Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520 (2d Cir. 1992). Given the confusion among the federal courts, this may be an issue destined for the Supreme Court.
Watch for further updates soon.[1] Cf. Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015), quoting Angove v. Williams-Sonoma, Inc., 70 F. App’x 500, 508 (10th Cir.2003) (unpublished) (holding that the Equal Pay Act “precludes an employer from relying solely upon a prior salary to justify pay disparity.”) and Irby v. Bittick, 44 F.3d 949 (11th Cir. 1995), quoting Glenn v. General Motors Corp., 841 F.2d 1567, 1571 & n. 9; (“We have consistently held that ‘prior salary alone cannot justify pay disparity’ under the EPA.”) with Wernsing v. Department of Human Servs, 427 F.3d 466, 471 (7th Cir. 2005) (holding that relying on differences in prior salary, absent any evidence of discrimination, is permitted) and Taylor v. White , 321 F.3d 710, 720 (8th Cir. 2003) (“we believe a case-by case analysis of reliance on prior salary or salary retention policies with careful attention to alleged gender-based practices preserves the business freedoms Congress intended to protect when it adopted the catch-all “factor other than sex” affirmative defense.”)
For example, the Eleventh Circuit has held that prior salary alone does not establish an affirmative defense, but that prior salary in combination with other “factors other than sex” (i.e. prior salary and experience) can establish an affirmative defense against federal Equal Pay Act claims. See Irby v. Bittick (11th Cir. 1995). On the other hand, the Seventh Circuit has held that prior salary is always a “factor other than sex.”
The Eleventh Circuit reversed and remanded to allow Plaintiff’s case to proceed to trial, finding that, although Manheim had stated factors other than sex to explain the pay disparity, the employer’s burden to establish an affirmative defense after a plaintiff has established a case under the Equal Pay Act is a “heavy one,” and the employer must show “the factor of sex provided no basis for the wage differential.”Id. at 1362.Plaintiff established a prima facie case, i.e. that her employer paid “different wages to employees of opposite sexes for equal work on jobs requiring equal skill, effort, and responsibility, and which [we]re performed under similar working conditions.”Id. (quoting Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995)).Although Manheim identified nondiscriminatory reasons for the disparity, the Court held that a jury could find that Manheim had failed to satisfy its “heavy burden” of showing that sex provided no basis for the disparity and could find that prior salary and experience alone did not explain the disparate pay overtime once Plaintiff had established herself as an effective arbitration manager.
This differs from courts in the Tenth and Eleventh Circuits, which hold that the EPA bars employers from using salary history as the sole justification for a pay disparity. See Angove v. Williams-Sonoma, Inc., 70 Fed. Appx. 500, 502 (10th Cir. 2003); Irby v. Bittick, 44 F.3d 949, 952 (11th Cir. 1995). With the growing focus on equal pay laws, this circuit split could ultimately reach the U.S. Supreme Court for resolution.Practical Guidance for Employers Given this legal landscape, it is recommended that employers eliminate salary history inquiries from their hiring and salary negotiation processes—particularly if the employer recruits nationwide.
SeeId. at n. 2.3691 F.2d 873 (9th Cir. 1982)4Cf. Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015), quoting Angove v. Williams-Sonoma, Inc., 70 F. App’x 500, 508 (10th Cir.2003) (unpublished) (holding that the Equal Pay Act “precludes an employer from relying solely upon a prior salary to justify pay disparity.”) and Irby v. Bittick, 44 F.3d 949 (11th Cir. 1995), quoting Glennv. General Motors Corp., 841 F.2d 1567, 1571 & n. 9; (“We have consistently held that ‘prior salary alone cannot justify pay disparity’ under the EPA.”) with Wernsing v. Department of Human Servs, 427 F.3d 466, 471 (7th Cir. 2005) (holding that relying on differences in prior salary, absent any evidence of discrimination, is permitted) and Taylor v. White , 321 F.3d 710, 720 (8th Cir. 2003) (“we believe a case-by case analysis of reliance on prior salary or salary retention policies with careful attention to alleged gender-based practices preserves the business freedoms Congress intended to protect when it adopted the catch-all “factor other than sex” affirmative defense.”