Employers can assert as an affirmative defense to a claim under the Equal Pay Act (EPA) that a pay differential is “based on any other factor other than sex.” In Rizo v. Yovino (9th Circuit, April 27, 2017), the employer-county presented evidence that it legitimately based its pay structure on a factor other than gender, arguing that its use of an employee’s most recent prior salary was such a factor.
The Ninth Circuit found its earlier EPA case, Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), “controlling”; under Kouba, prior salary can qualify as a “factor other than sex,” provided that the employer shows that prior salary “effectuated some business policy” and the employer used prior salary “reasonably” in light of its stated purpose and other practices.
The county offered multiple business reasons for its use of prior salary.
