good morning your honour's and may it please the court i'm shy for at ski with jones day with the court's permission i'd like to reserve eight minutes for rebuttal the equal pay act provides an employer with an affirmative defense if a pay differential is based on any other other than sex the any factor other than sex defense means what it says any factor is sufficient so long as it isn't sex work pretext for sex here prior pay the basis for s o p fourteen forty is applied as a cover for sex discrimination by your client or just by society generally by other employers by my client this was about why that's the only thing that would count as being apply protection if it was your client could this is not a class action this is an individual equal pay act let's say that we had a situation i was in corning right where the i mean just imagine that i'm starting a new company and i want to raid the workforce of the established monopolist and they as it turns out have a work workforce that sort of set up like corning where men and women are doing the same job but they have a completely segregated pay scale right if i go in and i read let's say one hundred of their employees and i just say hey everyone's going to twenty percent raise come up come work for me and i'm going to base your starting salary on the cellar you had before right and it turns out that that pay scale at the prior employer was completely discriminatory i soon i can't just rely on starting pay alone can i or do you say that as you can if you try to watch for if i'm understanding your hypothetical correctly the new employer in that situation knows that the previous employer was discriminating in its pay scale and in that situation which is very different from our case i think in that situation the employer would have a much harder time showing that the policy of using prior pay was applied neutral it would be a much much stronger evidence there that in fact while the employer said that it was applying this as a general policy of using prior pay in fact the motive was ok for a nation and the facts of corning are instructing instruct there because in corning what the supreme court recognized and this is that to a five of the opinion right is that the basis for the prior pay scale was that it was considered quote demeaning that's a quote from court's opinion for men to work night shifts and therefore men on the basis of sex right and on the basis of that stereotype you had to be compensated it was clear in that case the employer itself had set up the prior so you're correct there isn't even trying to posit a situation where it's not the employer itself that's done that at some  employer but let's say that your client didn't know but once all the new employees got on board you said wow turns out all the women are getting paid less than all the men that seems odd but hey i apply this gender neutral factor to determine starting pay you would say in that scenario even though it's clear that the disparity has resulted that no liability two answers to that is why for one is yes because the e p a does not prohibit all disparities it prohibits disparities but provides a defense for any factor that's not based on sex second i'd like to contrast that hypothetical with the facts of this case where in fact s o p fourteen forty led to varying results at different times it led to disparities both ways for example at the time that ms rizzo was hired another female employee was hired into the same math consultant position at a step eight when ms rizzo was a step one and at the same time a male was hired into that same position at step seven and so just even at that one snapshot in time this is a policy that didn't lead to the sorts of the spirit cross the board that your honour's hypothetical was positing it le to different results at different times and was applied neutrally you simply want us to change our case law council we've we've recognized that any doesn't mean any and if we were to construe it that way as the seventh circuit does the exception could swallow the rule and certainly the purpose of the act well there are you are going for a change in our case i think i'm arguing for a tweak in your case law i think big tweak right no because i think that what cooper recognized who got a number of things right right and that's consistent with the rule that we're advocating as well prior prior pay could be a good read the statute as not and as christian was saying so that any other factor not a back differential based on any other factor other than sex doesn't mean it has to be read in context and therefore has to be essentially job related and workplace related and some in some sense and yours so you're as i understand your argument is that's not true cooper did say that judge berg's on and i think well i think the later cases from this court stanley and maxwell make clear that what cooper was really talking about was using the reasonableness requirement as a way to assess pretext and that this isn't the statute it's not just for treatment statute is that it's not a statute about people's frames of mind in making decisions well i think that when you look at the any factor other than sex defense that is asking what was the basis for the disparity which does actually get intentional discrimination  because if it was based on sex in the discrimination was intentional they were more of that intent isn't required counsel and what they were the overall mandate wouldn't you agree the overall mandate is equal pay for equal work and therefore from advances that amount to how to e quate the work right the overall mandate is equal pay for equal work so long as aid and to ensure that any disparities that the statute does contemplate that there may still be disparities are not based on sex with the based on sex language that does get at the reason for the disparity and the supreme court has made clear in several instances that this is not a disparate impact statute in other words the plaintiffs theory here is really that the use of prior pay is disparate impact women because of general labor market pay disparities the supreme court in gunther however contrasted the e p a with title seven which the supreme court had interpreted in gregg's to authorize disparate impact claims in smith versus city of jackson the supreme court contrasted the e p a with the reasonable factor other than age defense in the a d f a and the supreme court said in that case that under the e p a the fact that congress provided that employers could use only reasonable factors in defending a suit under the a t a i is instructive when contrasted with the e p a which allows any other factor quote reasonable or unreasonable and quote that's the supreme court's characterization in smith of the in light smith and in light of the language of the statute i think the real inquiry and again the court this court's recognized it in maxwell and stanley the question is whether prior pay is being used as a pretext for sex discrimination and certainly one way that an employer might choose to show that prior pay is not being used for textually is by showing that it's driven by be reasonable business considerations and is used reasonably that i need what we are you a g the employer is not necessarily rick wired in all circumstances to prove the reasonableness of the practice with the employer is required to prove is that the practice is not pretextual an employer may however choose to prove lack of pre by showing the reasonableness of the practice and in this case in fact consistent with cuba which has been the governing law the circuit of the circuit f c o e has in fact put forward explanations for the reasonableness of the practice i have a question about how this something like this would work out say you have two people that have the same the same qualifications but their prior employment was from san francisco and the other was from california and so the locality pay bumps the san francisco person even though the job was essentially the same how would your role work out so that this so that you wouldn't that you wouldn't have to overly qualified people making different man why i think you would have to similarly qualified people making different money in the equal pay act doesn't prohibit that disparity in your hypothetical judge callahan  because clearly the locality difference would be a factor other than sex and in fact again if you look at the facts of this case ms rizzo came from arizona which indisputably has a lower cost of living than fresno  there is no evidence in this record there's no allegation that her prior pay was set in a discriminatory manner by her previous employer in her deposition she specifically said she did know that her prior pay had been set in a discriminatory manner by her previous employer in all likelihood the reason for her the difference between her prior pay and her current pay is in fact consistent with your honor's hypothetical look how the differences differences in cost of living at the end they're all living in the same place right then so how would that person ever catch up the if the employer didn't have a prior pay system the employer would of course be free to equalize those salaries but i think the key point is the equal pay act in your honour's hypothetical doesn't require catching up it doesn't require equal salaries because locality differences the fact that one person had a lower prior salary due to a lower cost of living is a factor other than sex just under the plain language of the statute what about the fact that then with the particular job in the particular workplace and you want to reinvest catchall as outside that system entirely a couple of responses to that just burns on one is that the particular catchall is a broad one it says a differential based on any other factor other than sex and so the word any i think is very significant in that statute and the supreme court in serving the legislative history of this statute has recognize that congress put in a broad general exclusion that's the same legislative history language that this court quoted in cuba second in response to your particular question about context again the particular the prior pay thought was not at the core because it's it's about saving money but it's not about as judge callahan was saying anything related to the job or the workplace or the but you just situation of the person at the time they're working they're judge it is about more than saving money it is about a judicious use of taxpayer dollars but it's also about having an objective system and about attracting people to accept their offers from this employer in response to the corning glass point as i was explaining to judge watch for  the supreme court in corning glass did not reject the notion that employers can take into account the market for a particular job the what was critical in corning glass was that there was a record showing that the reason for the disparity there was that women were paid less because there were they were women because of a stereotype that led men to think it was beneath them to do a certain kind of work and therefore that required the employer to pay more for that kind of work there is no such evidence in this case there is no such evidence with respect to the market for math consultants in arizona which is where ms rizzo came from there is no such evidence in terms of any evidence by her that her prior pay pay was set in a discriminatory manner there is no such evidence in the studies relied on by the plaintiffs and her miki which show a macro level disparity in pay but don't purport to show that the cause of that pay is narrowed down to discrimination certainly not in the relevant geographic market and not in the relevant job market and so although up one judge greer's on question yes the used and generous point that is if you've got three factors and then there's a fourth factor it should somehow resemble or interpret what they mean by the fourth but are broader question i have is the basic purpose of the statute is to correct a imbalances in the market based on gender and it's seems to me counterintuitive and honor i think you correctly said that the statute is designed to root out a disparities that are based on gender but with with the understanding that this is built into the salary structures at the i would disagree with the premise of your question is that at this point f c o e is feeding in the very same salary structures that congress was targeting in one thousand nine hundred sixty three in one thousand sixty so you think they've been entirely corrected i don't know whether they've been entirely across at the best indication we have is that in the fifty years that we've got fifty years on we've closed about a third of the pay gap right that's what we've got in this record i don't know exactly what congress is worried about the fact that the equal pay act it's really a very modest objective equal pay for equal work absolutely i ask you do you think i mean just for that one question was miss rizzo getting equal pay for equal work she was not getting the same as other men and other women doing the same work because of the neutral application of this prior pay policy so both i and it's a new neutral application i think going back to your question which i think i probably interrupted forgive me the but why it we have we had congressional findings this is precisely the problem they were worried about and so to get back to judge flitters question why isn't this what you call neutral and we know from congress and from corning we should be aware of neutrality  in this particular area why isn't it just a perpetuation of exactly what congress is trying to root out because we don't know that the prior pay that's at issue in this case was discriminatory but in the morning the question the question is whether we should interpret the statute given congress's understanding at the time as building in this kind of an exception or instead through the application of ordinary rules of statutory construction as having a more limited exception and that's where you're looking at is as in terms of whether this particular decision was made based on a sec space salary background but that's not the question the question was what did congress me when it passed the statute once in allowing this and i think that the the our interpretation that we're advocating is consistent with what congress intended and consistent with pervasive discrimination and in the face of a specific record like the one that was issued in corning glass it would be exceedingly difficult maybe impossible for an employer to show that using prior pay was not in fact a pretext for sex because just about a congressional finding at that time was that just about every salary in the marketplace was one that was infected by gender discrimination whatever the state of the studies is affected by s that simply perpetuating discrimination in violation of this clear this is no judge reinhart i think if you look at the studies today the ones relied on by point defend her miki would your family if you're telling time because under the it's under the other side's view that at some point there would be some new social science study that presumably employers need to monitor that's not true if one simply says this author factor others and sex  production because has to do with something that the different workplace not this one judge bears on if there weren't fact a situation in which the entire pay gap were adequate it if we were to hypothesize that i at that point i think has to relate to the workplace and the job though the employer in this case has shown that it does the employer has put forward justifications the problem with the district court's opinion in this case is that contrary to quba it didn't even give the employer the opportunity to present those defenses can i ask you you sound like you're willing to concede that if prior pay is in fact infected with gender discrimination that you can't then just rely solely on prior pay it seems like you're willing to go that far right well what i would say is that if prior pay is infected by gender discrimination that would be some evidence that the employer is only using prior pay as a pretext for describing i don't i don't agree with your use of the word pretext there but let's just put that aside and why you didn't get to finish your answer as to why you think the evidence that's in the record now why doesn't it support the view that in fact the pay for math instructors or teachers of the sort in general is infected with gender discrimination discrimination why not some of the studies like the bureau of labor statistics study don't purport to show causation at all they simply show disparities other studies actually try to isolate the cause of the disparities and some of the disparities are due to clearly nondiscriminatory factors whether it's time out of the place whether it's work life balance choices made by different employees there is no study that has definitively shown that any part of the current wage gap is in fact attributable to discrimination we don't we don't have any studies that basically hold equal all other factors experience you know skill and the like and say that nonetheless there's this remaining disparity that the only explanation seems to be gender we don't have any studies that say that your honor i think that the closest the social scientists come is to isolate some small part of the wage gap that has that has that is unexplained but the social scientists have not gone so far as to definitively show that that unexplained part of the wage gap is necessarily due to discrimination did you just clarify for me how would you answer one of the earlier questions you said that we needed to tweak the frame change that's were sitting on bank we could change the analysis judge paez let me give you two alternative positions i think that the correct reading of the equal pay act is that it permits a defense for any other factor other than sex prior pay can be such a factor if the employer invokes prior pay as the reason for the disparity the employer also needs to show that the use of prior pay is not a pretext for sex discrimination one way that the employer might show that is by showing the reasonableness of the practice but contrary to it is not essential in all circumstances that the employee employer show the reasonableness of the practice second and as a fallback i do think that under the cooper standard if court keeps the reasonableness requirement the district court's judgment should be reversed because we can show and in fact have put evidence in the record showing the reasonableness of this particular practice and at a minimum ought to have an opportunity to present that good morning may please the court my name is dan siegel i represent eileen rizzo i would submit that as judge fletcher pointed out the purpose of this law was to remedy a longstanding problem in american society that congress recognized who had passed the equal pay act and as the supreme court said in corning it's creating facia case under the equal pay act simply requires showing that an employer is paying women less money than men for work that requires the same skills and duties and that's that's what the law requires and i can hear that the way the laws of vaal that doesn't mean in the aggregate it means a woman and a man another is and is that right you have to show it averages or anything like that you don't have to show averages you have to show the effect of the policy to demonstrate that there's a violation of the act and i think the way i understand the act is it doesn't require a plaintiff to show pretext pretext is a title seven concept here the burden is on the employer who has been essentially shown to discriminate by paying women less money for work that requires equal skills and equal effort to justify that well and what if an employer serve that geographical hypothetical that i gave previously that if it was women they were to look for women and men from areas that were got lower wages and would that be a violation of the equal pay act the fair salary because they have lower salaries and then if i salary was a factor that they considered then they can pay them less than people that come from say san francisco or seattle or but but if they're doing it for men and women is that that there's a clear business motivation there but and i think that was the jest of can they have that business model and not be in violation of the equal pay act i believe that the court in glen accurately summarized the justification for unequal pay and pointed out that under the fourth defense which is what we're talking about that something akin to what exists in the first three defenses merit pay piecework pay seniority pay which involves a system of differentiating among individuals is the kind of analysis which has to be applied to the fourth exception and the courts have been in my view almost uniform in rejecting the market forces analysis as a justification so judge callahan i think in your example that the idea that you would hire people from lower income areas or lower standard of income and living areas and pay them less is a pretty  clear act of reliance on market forces and therefore would not be consistent with what the courts have recognized as the fourth defense to an e p a violation council had it how does your position differ from the s position about what how prior pay can be used i don't believe it does i think the e e o c and we have looked at the cases have looked at cases for example such as irby which rejects the idea that prior salary alone can be a basis for unequal pay but says you can look at prior salary if you have an individual life situation right where you're hiring someone to be an investigator for the sheriff's department and the man who applies for the job or in this case two men showed that they had substantially greater experience then the woman who i mean what that means is you can look at it as a prior salary add other things are ok but just prior salary alone isn't that's not what you're saying i'm not certainly not saying you're saying is salary may be a way in which you learn of something else about the person but you have to rely on the something else you have to rely on something else and i agree with you that irby that the way it comes up is that the employer says to this employee who they're trying to hire because of the person will match your prior salary if you come to work for us and you know in a sense the due salary is only secondarily based upon the prior salary it is primarily based upon the experience and  know one of the issues that we discussed coming here today is whether to advocate for a position that said that any reliance on prior salary would violate the equal pay act and that was kind of  the inference that could be drawn from the panel decision but then looking to cases like and and jovi are ngo and irby where prior salary was part of a calculation that primarily that's your argument because glenn says the following and i'm just on page one evan is fifteen seventy one legislative history indicates that the factors other than sex exceptional applies when the disparity results from unique characteristic of the same job from an individual experience that would say that you can't hire people based on their past so i'm arguing against a rule which says that an employer can rely on prior salary alone they could say all the things relating to what his partner salary have to do with the ability to perform the job i don't think it has anything to do with the ability to perform the job judge reinhart and i wouldn't argue that i would simply say that if you look at a case like irby where i believe judge preside points out that that really wasn't the rationale but that they paid the individual based upon his prior pay all reflects something specific about them they're very productive they are valued by their employer and so on i think it seems to me that you that you can rely on that what the salary represents but not the salary you don't just translate the salary into another salary but you can say well this person obviously was very productive so i'm going to give them more money because they're productive but not necessarily the same amount of money just money based on productive i don't i it seems to me that that recognition of that connection brings you back to but you have to go back to what the underlying what it's a proxy for  translate the salary otherwise i think you have a completely inconsistent position again i agree with you i i mean what happens is these cases arise in different ways right so that the plaintiff an her complaint because the male received a higher salary that was in fact his prior salary in theory could have been higher than his prior salary but he received that increase and that was found to be lawful because the court was convinced that the reason wasn't gender based or a proxy for historic gender discrimination but that's a thought but then you're also walking away from the notion that any any other factor other than sex has a character it has a and it's not about whether it is or isn't based on prior discrimination it's about whether that factor is south of the kind of factor congress meant three years and that's a statutory interpretation question and doesn't depend on shifting history i agree i completely into where you don't agree but i'm sorry if i'm not clear i mean i believe that mind when you tell us what your position is as to whether in the hiring people and we're talking about hiring people the employer may rely on the past salary they have i think the key word in your question judge right height is rely in the cases where i can imagine that prior salary is considered the new salary is not based on the old salary per se but is justified by some additional rationalization all right finally going to additional factors like experience education whatever they are i'm not asking you about t maybe they rely on the past now i think that's our case and we say no because they have time to look and i can ask for your response to your opponent's assertion that in fact the evidence in the record before us does not show that they paired pay disparities that exist let's say with respect to teachers generally or more math instructors that the that the data do not show that that's attributable to gender discrimination what's your response to is twofold first of all that's contrary to what congress decided when it passed the equal pay act and it decided correctly in my view that there was a history of pay disparities that were based upon gender discrimination ok let's say that i don't agree with you on that just tell me with an empirical level what do the studies that we have in the records show us as to how much of the disparity is in fact attributable to gender discrimination or you know you could factor out years in the workforce you could factor out whether people went to good schools or not so good schools but in a very gross manner fact including all of those differentiations among individuals and people in arizona versus people in fresno and so on the bottom line women in teaching make about a thousand dollars less than men and teach after you control for all the other factors so you're saying after you build into your sample all of the other factors what does that mean it means that the b l s analysis is based upon taking all the women who are in the teaching profession and all the men in the teaching profession in each group with the differences among them as your question implies whether it's experience or education and so on and without attempting to factor those considerations out simply says this group makes more money than that group and that seems inconsistent  with or allowing that to continue seems inconsistent regardless of geography or regardless of geography but what you're saying well certainly those statistics meld individuals from every geographic area assumption and as judge saying said in his opinion when you allow prior salary alone to determine who gets paid what the idea that you're simply perpetuating societal  discrimination stands out and prior salary is in fact a proxy for gender bias and contrary to what my opponent says we don't have to show pretext we don't have to show intent this is not a title seven case where there's been a response to a prima facia case where the employer has said well it wasn't because of sex it was because of some other reason and we have to show pretext that is an evil intent we don't have to show that we have a factor which is in my mind about the purest proxy possible for gender can't cry or south can i ask let me just tell you how i'm thinking about how the analysis would run and then you tell me if i'm getting something wrong ok it seems to me you've easily made out a primal fashion case by showing the pay disparity that existed the employer then comes forward and says hey basically i have a non gender discriminatory reason for why that disparity exists namely that we're lying across the board we play an equal demand to women relying on paid prior pay alone that seems to me on its face at least to be to fall within that fourth exception right because on its face it doesn't say anything about discriminating on the basis of sex it's as long as it's applied across the board so it seems to me if the record stood right there you would lose but i certainly think you have an opportunity at that point to say well no although that factor looks on its face to be gender neutral in fact it is just a reflection of underlying gender discrimination right and it seems to me that we have to have some basis for concluding that the prior pay in the particular industry sector that your client is involved in is in fact infected with gender discrimination in some fashion right so that's why i guess i was asking what the studies show because your opponent says those studies don't show anything about the prior pay being infected by gender discrimination they just show right disparity in general so that's i'm trying to does get you to zero in on that so it seems to me that you could simply ignore the fact that congress passed the equal pay act and that it passed it for the reasons that appear in the legislative history and that the supreme court relied upon in corning and you could perhaps make that argument but that's not where we are we are in a world where congress has spoken the supreme court has spoken and we have an ongoing statistical analysis  analytical framework well i think it would be a very simple trial we would simply show that this rizzo was being paid less for equal equal work the defense  want one more question fine but we we have to go to amicus are going to argue if we if you i guess under the seventh circuit approach looks like you'd have a tougher time because the stated is acceptable one to qualify for the exemption here i mean it seems like we're having to decide whether or not we should apply on some other business reason  to make sure there's no masking of discrimination or whether it should be the sole factor or i guess the other option of you can't consider it at all which i'm not quite sure you were making that in your  plied the you have to show some other business reason it's not masking it discrimination what would you point to in the record or what argument would you make to prove your case again we presented to the lower court studies which demonstrate the historic and current pay disparity those studies were not rebutted by the defendant in the record so the record that is before you and was before judge saying is a record of ongoing historic disparity with only the justifications that the fresno county office of education put forward which  you know in one case are precisely market forces we can pay women less because we can pay them less because they work for less that was one of their justification to were that it was objective and not subjective and you could say the same about a rule that said no women need apply but i'm certain you're going to therefore if two years from now there was a new study done in there was no gap if wage differential any more the case would come out otherwise if we could no longer demonstrate that prior salary was a proxy for sex bias i guess we'd be in another world and it probably wouldn't be two years from now might be thirty years from now and perhaps at some point there will not be gender bias in the workplace but thank you council will hear from  may please the court justice tender on behalf of the miki chair i equal rights advocates and fifty other national organizations of expertise in gender discrimination and the gender wage gap because reliance on prior salary is inherently based on gender due to the pervasive wage gap that continues to this day prior salary cannot justify away to friends on the equal pay act and this question affirmed the district court's ruling there's a pervasive wage gap in virtually every industry an occupation in this country twenty sixteen u s census bureau data show that women overall earn eighty point five cents to every dollar earned by men and for women of color this is even worse oppose their worst pocket in which this wasn't true there was a  whatever this position was if you went back you could demonstrate there was no wage gap because the case came out differently than i think if you if we ever reached a point of pure of trial i would say it's absurd that i mean maybe nurses or doctors or i don't know what  you have to prove it up as to the particular subgroup that you're talking about yeah i think it you would have to prove that it within that specific industry or occupation if you could show no gender wage gap now and really kind of a can show that there truly is no pay differential between women and men in that particular industry or occupation than they would of satisfy their front of defense on that can i ask you so your it seems undisputed that there is in fact  differential as you said and across many sectors of society but do do we need something more than that in terms of studies that actually control for all the other factors that might contribute to the disparity so that we can say that in fact the disparity that remains is attributable to gender alone or do you say no that doesn't matter it's just it's enough that there's a correlation well i think the studies that have been done most recently the twenty sixteen study where they actually do control for factors such as education age occupation race unionization stat there's many factors that they've controlled for there is still an unexplained differential of approximately thirty eight percent and that is attributed by people who look at it as as as related to discrimination given that there is no other explanation for it and which w said that you can look at three factors plus the fourth factor which had to be similar to the other three meaning job related and in that bill because it said job related it meant not what your former pay was and congress said you can look for me you know i have to look at form and you can look at job experience you can look at education you can look at anything that is related to the job but former pay is not related to your ability to perform the job if congress said that and the limited that factor because all the things that are legitimate th a form of pay such as your experience your ability to do the job all those things simply pointed to but not the fact that there was former pay a lower rate because it was discrimination then what difference does it make at that point why form a pay is used if it was prohibited by the statute that said the fourth category sure if congress had said that that the factor that sex has to be actually job related i would agree that higher salary would merely can reflect some legitimate non sex based job related qualification  it doesn't have anything to do with your job well if an employer is claiming that they're looking at prior salary because it's a means to kind of evaluate some kind of job related qualification as this probably has as a proxy sure a prior pay as a proxy for how they performed in an earlier job exactly the point of the questions that we're trying to get all of the factors that went into that are allowed under the equal pay act as long as that work related what's not allowed in the way to strip out the history of gender discrimination it seems to be to me is to to not allow and not perpetuate that element that is right the discrimination the fact again last time exactly if there was a legitimate job related qualifications such as additional experience or education or whatever qualification the applicant had or the employee had than the prior salary is irrelevant they can base their legitimate defense on one of these true non sex based factors related to the job if we adopt your rule if we rule in your favor don't we have to overrule our own precedent isn't internally inconsistent i would say yes because prior salary is inherently sex based it can never justify a pay differential under the equal pay act to rely on it without any other factor to show that it truly reflected a job related qualification to justify unequal pay for equal work i disagree i don't understand what you're saying to rely on it without any other factor it seems to me to rely on whether you water it down by considering other factors or not it's  problematic or it's not so we would never say that we can pay up and people are going to pay an employee less based upon his skin color whether at the employer looks at other factors or not clearly would not allow that right you're right why would this be any different you're right your honor they cannot under our position they cannot rely on prior salary at all they need to set forth a non sex based factor and for they exist the reason we talk about the existence of a pervasive gender wage gap higher salaries i'm having a little sad it's problems because what i'm hearing people say is when the judges tell him well are you really saying that and after you already really said it then you say well i'm really not saying that i mean i heard you first say that you can't solely rely on prior salary but then when judge kristen or others have come back and said paul can you rely on salary at all at all and will say well not with other factors but then but then when you realize that the position is there saying don't say you can ron and all then you retreat and i've heard that so i am trying to decide what your position really is to pose as they can vision our position is you can an employer can never rely on prior salary to justify a pay differential of equal pay act and therefore a cool bit is wrong yes to the extent that it allows an employer to rely on it yes i think there's a difference between considering it looking at it but to the extent partially cause any portion of a wage differential it is an unlawful an unlawful factor that does not satisfy their front end and if you if it too big then why can you even look at it here i'm hearing two different things going on here well a lot of employers and in this case the specific case that they use prior salary for a reason such as attracting an applicant they know they'll get an automatic raise if an employer wants to begin their precise salary analysis by saying ok the first step is we look at their prior salary and add five percent that incentivizes them to come to us our position is you can look at it think about it but if that's going to bring a woman pay below a man's for equal work to be in compliance with the act they're going to bring her pay up to be equal to his so if they want to look at it think about it consider it that's kind of there's no there's no prohibition on what they do in their analysis but what they're actually setting pay on has to be on some legitimate non sex based factor the prior salary cannot have caused the pay differential thank you council here from morning your honour's barbara sloan for the e e o c i'd like to start something different i like to start by noting that section three of the existing decision had some very important information it that what we hope doesn't get lost in the bank prior section three talks about the burdens of proof and the standards of proof and that's an issue that has caused great confusion among  igants and courts in this circuit and elsewhere in section three of that panel decision clarified that we think that was very helpful so we hope that we urge the court to include something similar in this decision as agree with all the issues with respect to the plain language the way that the defendant would interpret the statute would make the first three categories of surplusage because they would be included within the any other factor other than sex why why put them in the first place and the canons of construction suggest that those three factors should be should inform the interpretation of any other factor and that would mean that it should be work related congress and itself said what those factors ought to be but they were thinking about things like shift differentials and lifting or moving heavy objects one that is not a proper factor to be considered under the statute it doesn't matter whether it's so or along with others well i'm not sure that we would take the position that prior salary haven't taken a position yet ok what i'm asking you the logical question if that's not a permissible position to take and to discern truth then it wouldn't be permissible to take it as one of two factors one of three  think that that the congress's intent obviously was to eliminate the pay gap but i'm not sure that goes as far as to say that part of pay is a proxy for sex well i just i'm just really struggling not only with the consistency of your position but also with work whether our own case is going to be internally inconsistent whether kubel is going to be inconsistent if we rule in your favor so could you really hone in on this on cuba on on how it is that we could rule the to rely on this factor higher pay alone isn't permissible but it's ok to rely on if other factors are considered also i am at a loss i don't think i would use the word rely your honor i think if the court can i think consider was that was a that this there's this statute doesn't limit and employers needs and if the employer thinks that prior salary kerry correctly reflects the individual's ability you're essentially saying that a jewel motiv kind of analysis if you say it's because of the the his prior salary and because he's very well educated and but but probing further really the seller had nothing to with it then it isn't the salary and it's just seems a very different very interesting position to say that it's ok to utter the words but they can't mean anything that's essentially what you're saying i e that it can't make the difference your honor can't be the cause of the disparity if but if the employer for example says i really need this person i'm not going to be able to get him if i don't match their prior salary and it's a cost that's the reason that's not based on  salary which means you didn't make the prime of his you case that is to say the person is paid a lot of money is when the person isn't paid as much as her male contemporaries who are doing the same job well you need to pay or the higher salary of the community but the truth is you need to pay the higher sourly th matches the salary of a fellow employee is the one where you really need to pay the really high salary that there's not coming in to sue so your example doesn't doesn't actually address the real world situation i'm sorry aren't i i don't understand  what you are it's like well you're positing that it's a legitimate factor when the employer says listen you're being paid a hundred thousand dollars and over to attract you i need to pay you one hundred twenty five thousand dollars i get that but if that person is coming in because you needed to pay one hundred twenty five thousand dollars and your of your behind your primacy is i'm paying you more than i would otherwise pay that person is then going to be very well paid but if the other people in the office are paid one hundred fifty thousand dollars well i understand all you need to do is pay one hundred twenty five but if you're saying we're on able to attract really high quality employees because we need to be able to pay above what we would ordinarily pay that's not your example you're right that person is not the person who's getting paid one hundred fifty thousand is not going to sue i'm i want to kind of understand your position because i feel like you're getting pulled pushed and pulled a little bit on this and so going through your brief i understood your position to be prior pay alone cannot justify a comp and station disparity under the equal pay act because the practice perpetuates the gender pay gap that continues to exist in the field of education as well as elsewhere you understood that and then i also understood the brief said in our view an employer asserting this defense must show that the factor is related to job requirements or otherwise is beneficial to employees employers business am i still stating your position i think that right from your brief oh dear i forgot it ok and then i took from your brief an employer normally may consider prior salary as part of a mix of factors as for example where the employer also considers reflects sex based discrimination however prior salary cannot by itself justify a compensation disparity ok so i'm tracking what you think i think that's correct and then even in brief fourteen where prior salary was only one of several factors used in setting pay this court required proof that the company you use of prior salary was reasonable and then you also say i'm like the burden shifting proof scheme and title seven case once an e p a plaintiff makes a prime if they should case the burden of persuasion shifts to the employer to prove that the wage disparity is permitted by one of the four statutory exceptions correct as that so i don't see your position as being exactly the same as anyone else getting up here that but i'm not arguing with that i just want to understand your position i think that's that may be accurate your honor th position yes in the compliance manual i can't quote you if an employer that that the hypothetical that i had before about if an employer decided ok for business reasons we want to pay people class so we're going to we're going to recruit people from areas where they're making less and that's we're going to recruit men and women and they hire men and women from areas like texas arizona lodi like i said or whatever and then and so if the salary is if if the evidence shows that they're just trying as a business model to pay people last and they're doing it for both men and women is that a violation of the equal pay act well i think you put your finger on it your honor earlier when you said how would that ever get caught up that's the problem i think prior salary once you consider it you end up in a box where you can never know if the men and women were both getting paid last it wasn't a question of gender there they just they were recruiting people from areas that were making less money because they wanted and then they gave them all five percent and then they were given and i'm not then there so there's not a disparity between the men and the women after that they're just there's no equal pay act problem ok i just wanted to understand that but then if there was an equal pay act between a man and the women after that if i could just pick up on the exchange that judge callahan was just having with the sloan our situation is precisely the one that judge callahan posited where there is a prior pay power policy that leads to some men being paid more than women and it leads to some women being paid more than men that demonstrates that the use of prior pay in this case is not sex based it is it is a factor other than sex the way to determine that as i think judge white furred was positing to mr siegel is the question is whether prior pay is being used as a proxy for sex if it is then the pay differential at issue is one based on sex and the fourth let me try to unpack that question because i think there are a number of points in there the purpose of the statute is to root out discriminatory pay not just wage inequality but wage inequality that is due to sex that is why the statute is written the way it does the legislative history confirms that this is not just as a question when you say it could be due to sex but not in the mind of the employer the employer can say well i'm i'm not out here discriminate isn't just for treatment strachan so when it says for example a differential based on any other factor and sex you're reading that as if it says because of but based on it could be based on sex even though because  speaking it's a sex related factor even though the in the mind is the employer it's not that's not his purpose and you seem to be reading it as requiring a discriminatory motive at that factor that's a factor and the reason that i am reading it that way is that the supreme court has said that this is not a disparate impact statute so so it now so if you have a factor that on its face is neutral but reliance on it hypothetically has a disparate impact on a protected class that's actionable in certain ways under title seven or the eighty day or more of a defense another it's to say it's not  an impact statute means that you have to pay you have to make out your case in a different way which she did but now you have an affirmative defense and the question is whether that affirmative defense requires just proving a band motive by the employer which is what you're assuming well i think what the affirmative defense requires is for the employer to show that it based its decision on something other than sex now that may i ask you a procedural question yesterday  bank court were to adopt the district court's legal determination which i know shorthand to say that prior salary alone can never be a factor other than sex with that to unpacking at a few levels one is i was arguing what i think the premise of the statute which is to root out discrimination second the legislative history is written broadly third job related even if you read that into the statute job related can also be understood to mean business related and in this case the employer has offered several reasons why this policy is in fact business related and is not discriminatory  i think that the key passage of the corning case is instructive here this is a tool for of corning what the supreme court there was asking was whether a wage disparity was in fact intended to serve as compensation for night work or rather constituted an added payment based upon sex and so in that case once the employer came forward and said here is the non sex based factor for the disparity the court took a close look and said well but is it really on sex is that what you're doing or is what you're doing a business related reason you know it's dealing with a simple question here maybe this will help unpack when dealing with an initial hiring the problems with eliminate that very pervasive result and your honor i would just point you to how i read the statutory language which is congress created this defense for any factor other than sex and therefore the question becomes is the particular practice employed by the employer a factor other than sacks i realize i'm over my time if i may just add one other point in response to judge why for example your question about the state of the record the only study that the plaintiff actually submitted in the summary judgment proceedings below was the bureau of labor statistics data that does not even purport to show causation it simply shows a disparity it doesn't show any disparity specific to ms rizzo's employment to teachers in arizona to her position or to teachers in california there are of course all sorts of competing social science studies mr mentioned some of them the center for workplace compliance brief contained some other competing studies alternately it's congress's job or the job of state legislatures to assess those studies and determine whether they wish to amend the statute in the case of congress or to add additional provisions in the case of state law but the congress that kept the statute that congress actually enacted here refers on