The Lawletter Vol 43 No 7
Suzanne Bailey—Senior Attorney, National Legal Research Group
The Equal Pay Act ("EPA") provides as follows:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to . . . (iv) a differential based on any other factor other than sex[ .]
29 U.S.C. § 206(d)(1) (emphasis added).
The Ninth Circuit Court of Appeals has stated that "[t]he [EPA] stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex." Rizo v. Yovino, 887 F.3d 453, 456 (9th Cir. 2018) (en banc), pet. for cert. filed (Aug. 30, 2018), pet. for cert. docketed (Sept. 4, 2018). The Act "'creates a type of strict liability' for employers who pay men and women different wages for the same work: once a plaintiff demonstrates a wage disparity, she is not required to prove discriminatory intent." Id. at 459 (citation omitted). The employer can avoid liability, however, by establishing one of the four affirmative defenses enumerated in the Act. In Rizo, the Ninth Circuit considered, en banc, whether prior salary was "a differential based on any other factor other than sex" within the meaning of the EPA that would permit an employer to escape liability for paying disparate wages to a female employee.