Equal Pay in NH – In the previous Equal Pay Act blog, we discussed that, once an employee establishes a prima facie case of discrimination under the Act, an employer can only escape liability by proving that the pay differential in question is justified by (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any factor other than sex. The “factor other than sex” affirmative defense is known as the “catchall exception.”
“Factor Other Than Sex” Defense
Employers have argued that the “factor other than sex” defense should allow them to rely on employees’ prior salaries in order to justify paying employees of one sex more than employees of the opposite sex for performing substantially work. In April of this year, however, in the case of Rizo v. Yovino, the Ninth Circuit Court of Appeals ruled that “[b]asic principles of statutory interpretation…establish that prior salary is not a permissible ‘factor other than sex’ within the meaning of the Equal Pay Act.” The Court held that the language of the Equal Pay Act dictates that the “factor other than sex” defense must be limited to job-related factors. “Prior salary does not fit within the catchall exception because it is not a legitimate measure of work experience, ability, performance, or any other job-related quality,” the Court reasoned.
The Court further explained that the purpose of the Equal Pay Act would be undermined if employers could justify pay differentials between men and women on the basis of prior salaries. “Prior salary,” said the Court, “perpetuates the very gender-based assumptions about the value of work that the Equal Pay Act was designed to end.”
If you believe you are being subjected to discrimination on the basis of sex in the workplace, you should contact an experienced employment discrimination lawyer such as Benjamin King, Esquire, at Douglas, Leonard & Garvey, P.C. Attorney King can be reached at 603-224-1988 or fill out our online contact form.