Aileen Rizo v. Jim Yovino
950 F. 3d 1217 (2020)
Rule of Law:
Under the Equal Pay Act, an employer cannot justify a wage differential between male and female employees by relying on prior pay or salary history, as the "factor other than sex" affirmative defense is limited strictly to job-related factors.
Facts:
- Aileen Rizo was hired by the Fresno County Office of Education as a math consultant in October 2009.
- Rizo possessed two master's degrees and nearly a decade of experience in math education when hired.
- The County determined new employee salaries using Standard Operating Procedure 1440, which calculated starting wages by taking the employee's prior salary and adding 5%.
- Based on her previous earnings, Rizo was placed at Step 1 of the salary schedule, earning approximately $62,000.
- In 2012, Rizo discovered that a newly hired male math consultant was placed at Step 9, starting at approximately $79,000, significantly higher than her current salary.
- Rizo learned she was the only female math consultant and was paid less than all her male colleagues, despite having more education and experience than some of them.
- The County admitted to the pay disparity but claimed it was the result of the neutral application of the SOP 1440 policy based on salary history.
- Rizo disputed that prior pay was a valid justification for the wage gap given her equal work.
Procedural Posture:
- Rizo filed a complaint against the Superintendent in Fresno County Superior Court alleging violations of the Equal Pay Act and sex discrimination.
- The County removed the case to the United States District Court for the Eastern District of California.
- The County moved for summary judgment, arguing its policy based on prior pay was a valid "factor other than sex."
- The District Court denied the County's motion for summary judgment but certified the legal question for interlocutory appeal.
- A three-judge panel of the Ninth Circuit reversed the District Court, holding that prior pay could be a valid defense under existing circuit precedent (Kouba).
- The Ninth Circuit granted Rizo's petition for a rehearing en banc.
- The Supreme Court vacated an initial en banc opinion due to the death of the authorship judge prior to publication and remanded the case.
- The Ninth Circuit resubmitted the case for decision by the en banc court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an employee's prior rate of pay qualify as a "factor other than sex" under the Equal Pay Act that allows an employer to justify paying a female employee less than male employees performing substantially equal work?
Opinions:
Majority - Judge Christen
No. The catch-all affirmative defense in the Equal Pay Act, "any other factor other than sex," is limited strictly to job-related factors and does not include an employee's prior pay. Using statutory construction canons like noscitur a sociis and ejusdem generis, the court determined that because the three specific exceptions in the Act (seniority, merit, productivity) are job-related, the general catch-all exception must also be job-related. The court overruled its previous decision in Kouba v. Allstate, holding that allowing prior pay as a defense would perpetuate historical sex discrimination and defeat the remedial purpose of the Act. Therefore, prior pay, whether considered alone or in combination with other factors, cannot serve as a defense to a prima facie EPA claim.
Concurring - Judge McKeown
No. While prior salary alone is insufficient to justify unequal pay, the majority errs by categorically barring any consideration of prior pay in combination with other factors. The concurrence agrees that relying solely on prior pay perpetuates discrimination but argues that employers should be permitted to consider salary history as part of a mixed-motive analysis involving other legitimate factors like experience and education. This position aligns with the EEOC's guidance and the approach of other circuits, whereas the majority's absolute ban creates a circuit split and ignores practical business realities.
Concurring - Judge Callahan
No. Although the result in this specific case is correct because the County relied exclusively on prior pay, the majority creates an unnecessary and overly broad rule by holding prior pay can never be a factor. The concurrence argues that the Supreme Court has interpreted the fourth exception broadly and that prior pay is not inherently discriminatory. Employers should be allowed to use prior pay as one component of a multi-factor compensation system if they can prove it does not perpetuate gender discrimination.
Analysis:
This en banc decision establishes a bright-line rule in the Ninth Circuit that fundamentally restricts available defenses in Equal Pay Act litigation. By explicitly overruling Kouba and holding that prior pay is never a permissible "factor other than sex," the court prioritizes the eradication of historical wage gaps over employer flexibility in setting wages. This decision deepens a circuit split, as the Ninth Circuit now stands alone in adopting a per se rule excluding prior pay entirely, while other circuits (such as the Seventh and Eighth) allow it under certain conditions. This ruling places a heavier burden on employers to demonstrate that wage differentials are based solely on specific, job-related characteristics of the current position.
Unlock the full brief for Aileen Rizo v. Jim Yovino