Discrimination based on an employee’s sex has been, and still is, illegal. Yet, it remains a serious problem in the workplace. Throughout history, women have been paid less than men for performing the same work. In 1963, Congress passed the Equal Pay Act (EPA), which specifically prohibits wage discrimination based on sex. The next year, Congress passed the Civil Rights Act of 1964. Title VII of the Civil Rights Act of 1964 also prohibits employment discrimination based on sex, as well as on other factors.

#MeToo Movement Triggers Interest in Sex Discrimination in the Workplace

The #MeToo movement has recently sparked a greater awareness of sex-based pay disparity in many industries. In an opinion filed in April, the U.S. Court of Appeals for the Ninth Circuit held that, under the EPA, a female employee’s prior salary alone, or in combination with other factors, cannot support a difference in pay between men and women for equal work. The case is Rizo v. Yovino.

Sex Discrimination Claims Start at the EEOC Office

The Equal Employment Opportunity Commission (EEOC) enforces claims under the EPA and Title VII. In order to pursue a claim under the EPA, an employee must first file a charge of discrimination with the EEOC. Strict deadlines apply to filing the charge. The lawyers at Kilgore & Kilgore handle a wide variety of employment discrimination claims. If you suffer from wage discrimination by your employer, click here to learn more about the EEOC process and how Kilgore & Kilgore can help you. EEOC – Kilgore & Kilgore.

Earnings and Sex Discrimination Defined Differently in the Statutes

Unlike Title VII, the EPA is narrowly aimed at prohibiting sex-based wage disparity. The Equal Pay Act makes it unlawful for an employer to discriminate between employees on the basis of sex by paying wages to employees…at a rate less than the rate at which [it] pays wages to employees of the opposite sex…for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.

Recoveries May Include Back Pay, Liquidated Damages and Attorney’s Fees

An employee who asserts a claim under the EPA must establish that even though she performs equal work to her male counterparts under similar conditions, her employer nevertheless pays different wages to men and women. An employee who prevails on an EPA claim can recover damages such as back pay for the difference in wages, liquidated damages, and attorney’s fees from her employer.

Some Wage Disparities Not Considered Sex Discrimination

The EPA, however, does allow an employer to pay different wages to men and women for equal work if the payment differential is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex.

Courts Are Still Divided on the Interpretation of the Laws Regarding Equal Pay for Equal Work

Many courts have examined the meaning of the catchall provision a differential based on any other factor other than sex. Many court have discussed whether or not a female employee’s prior salary could support a difference in pay between men and women for equal work.

The Rizo v. Yovino Case

Aileen Rizo, the plaintiff, was a math consultant in the Office of Education for Fresno County, California. When Rizo was hired, Fresno County calculated her salary, in part, based upon her prior salary in Arizona. During lunch, Rizo learned that the male math consultants in her office had been hired at higher salaries. Rizo subsequently filed a lawsuit against the Fresno County Superintendent of Schools for a violation of the EPA, sex discrimination under Title VII, and other violations of California law.

Appeals Court Affirms the Trial Court’s Decision and Sends the Case Back

The Ninth Circuit en banc affirmed the trial court’s denial of summary judgment to Fresno County and remanded the case. The Ninth Circuit rejected Fresno County’s affirmative defense that Rizo’s prior salary in Arizona was any other factor other than sex for the purpose of the statutory exception to the EPA. Instead, the Ninth Circuit held that the statutory exception, any other factor other than sex, is “limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.”

The Ninth Circuit determined that an employee’s prior salary could not be any other factor other than sex because an employee’s prior salary could have been tainted by the same sex-based discrimination that the EPA sought to prohibit. In addition, an employee’s prior salary is not a legitimate, job-related factor, according to the Ninth Circuit. Thus, prior salary is not included in the statutory exception and cannot be a basis for the payment of disparate wages to men and women for equal work. “Prior salary is not job related and it perpetuates the very gender-based assumptions about the value of work that the Equal Pay Act was designed to end,” the Ninth Circuit stated.

Sex Discrimination Occurs in Many Different Types of Situations

Perhaps you suffer from sex or wage discrimination in the workplace. If so, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free evaluation of the facts of your case.