9th Circuit says prior pay isn't 'legitimate factor other than sex'

On February 27, 2020, the U.S. 9th Circuit Court of Appeals issued its second decision in the ongoing saga of Rizo v. Yovino. The question presented in the case is whether pay history alone or coupled with other factors is a legitimate nondiscriminatory justification under the Equal Pay Act (EPA) for a difference in pay between male and female employees doing substantially equal work.

Case history

The 9th Circuit has addressed Aileen Rizo's claims twice—first in 2018 and again in 2020. Both times, the court of appeals ruled in favor of Rizo. The 2018 decision was appealed to the U.S. Supreme Court, which sent it back to the 9th Circuit without a ruling because one of appellate court judges passed away before the decision was issued.

Rizo was hired as a math consultant by the Fresno County Office of Education. The county had a simple formula for determining an employee's starting pay: adding five percent to the new hire's previous salary. No other factors were taken into account. Rizo filed an EPA complaint against the county after learning that male colleagues who were hired as math consultants after she was were paid more.