Employers may not use workers’ prior pay history to defend federal unequal gender-based pay claims, ruled the Ninth Circuit in Rizo v. Yovino. Although the Equal Pay Act (EPA) contains a catch-all provision allowing employers to defend pay differentials caused by “any other factor other than sex,” an en banc panel concluded that prior salary history does not fall under that exception.

Rizo v. Yovino raises questions for employers as to how they can defend against EPA claims. Employers under the Ninth Circuit’s jurisdictions should keep in mind that relying on the “any other factor other than sex” defense under the EPA will require them to articulate and document a job-related basis for any pay differential—e.g., experience, education, skills, training or other qualifications separate and apart from prior pay.