Wyatt Employment Law Report


Should Salary History be History? Circuit Court Holds Past Salary History Cannot Justify Unequal Pay

By Sharon L. Gold

In Rizo v. Yovino, the Ninth Circuit Court recently held that an employer cannot use an employee’s prior salary history as a ‘factor other than sex’ upon which a wage differential may be used under the Equal Pay Act.  The EPA prohibits employers from paying women less for the same job unless the difference is based on merit, seniority, quantity or quality of work or the catchall “any other factor other than sex.”  The court held that salary history was not a legitimate factor that was related to the job, and instead, employers should use factors such as experience, training, education or prior performance to set wages.  The en banc decision was unanimous.

This decision comes amid several states banning salary history as a permissible factor upon which to base pay.  According to the Department of Labor, women in the U.S. make on average 82 cents to a dollar of what men make in comparable jobs.  Proponents of banning the “salary history” question claim that Continue reading


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Where Wage Disparity Exits, Court Holds that Employers have Heavy Burden to Prove the Reason for Disparity

By Julie Laemmlewage increase

The Fourth Circuit recently issued a decision in EEOC v. Maryland Insurance Administration, No. 16-2408 (4th Cir. Jan. 5, 2018), joining the Third, Sixth and Tenth Circuits in finding that the statutory language of Section 206(d) of the Equal Pay Act (“EPA”) requires an employer to provide evidence that the employer’s affirmative defenses do in fact explain the wage disparity; it is not enough for the employer to possibly explain the wage disparity.

The Fourth Circuit denied summary judgment because there were fact issues for trial as to whether the salary difference between the male and female employees was due to factors other than gender.  The Court explained the parties’ respective evidentiary burdens as follows:

  • The employee must show that the employer paid different wages to an employee of the opposite sex for equal work on jobs requiring equal skill, effort and responsibility under similar working conditions.
  • The employee does not have to establish that males, as a class, receive higher wages than females as a class; rather, the employee must demonstrate that there is discrimination in pay against the employee with respect to only one employee of the opposite sex.
  • It is irrelevant to the employee’s initial burden that other employees of the opposite sex perform substantially identical work as the employee, but make less money than her.
  • If the employee meets the initial burden and proves that a disparity exists, the employer must prove that the disparity was justified by one of four affirmative defenses: a seniority system; a merit system; a pay system based on quantity or quality of output; or, a disparity based on any factor other than gender.
  • If an employer fails to establish one or more of these affirmative defenses, the employee will win summary judgment. In contrast, it is a heavy burden for the employer to establish one of the four affirmative defenses as a matter of law.

Take away for employers:  Several circuits require that employers explain the reason for the wage disparity in terms of concrete facts, not in terms of what may have caused the wage disparity.  Wage disparity claims are gaining steam and are in the news across the nation.  Employers are wise to review their wage practices now to ensure that wage disparity does not exist because once these claims are brought, the employers’ evidentiary burden will be heavy.


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Is It Time for an Internal Audit to See if Your Company’s Compensation is in Compliance with the Law? What We Can Learn From the U.S. Women’s Soccer Team Suit

By Sharon L. Gold

wage increaseThis month, five members of the U.S. Women’s National Soccer team filed a wage disparity complaint with the EEOC against the U.S. Soccer Federation.  The Women’s team alleges that despite the fact that they are doing equal work, they are not receiving equal pay as the Men’s National Soccer Team.  The Women’s team alleges their top-tier players earn between 38% and 72% of their male counterparts, although the Women’s Team is more successful.  One article noted that in 2015, they were paid far less for winning the tournament than the men were paid to lose their tournament.  The EEOC will investigate the complaint and then make a decision as to the validity of the women’s claims.

The EEOC has jurisdiction over claims alleging discrimination in pay under the Equal Pay Act of 1963, Title VII, ADEA, and ADA.  The EPA requires that men and women be given equal pay for equal work.  In order for jobs to be considered equal, they must be substantially equal.  In order to make this assessment, the EEOC looks to Continue reading


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President Obama’s Equal Pay Executive Orders to Impact Federal Contractors

By R. Joseph Stennis

In support of National Equal Pay Day, President Obama signed an executive order on April 8, 2014, that prohibits federal contractors from retaliating against workers who discuss their compensation with each other and/or in the workplace. According to White House officials, this executive order will not compel workers to discuss pay and/or require employers to publish employee compensation. Instead, it will serve as a “critical tool” to encourage pay transparency, so that workers have an additional mechanism in place for discovering violations of equal pay laws and are able to seek appropriate remedies. Whether retaliation against employees who discuss their pay on social media outlets such as Twitter or Facebook would also fall under the President’s order is uncertain, but more than likely would be protected under the contemplated executive order.

Additionally, President Obama will direct the Labor Department this week to create and issue regulations that will require federal contractors to submit to the Deparment data regarding their employees’ compensation. This data must include details regarding employee gender and race. The Labor Department will utilize the data to conduct more targeted enforcement against federal contractors with the expectation that companies will comply voluntarily with equal-pay laws — the Equal Pay Act of 1963 and the Lilly Ledbetter Fair Pay Act. It remains unclear at this point what such “targeted enforcement” will entail. However, it may result in more enforcement activity by the Department if it concludes a company is not being compliant.