United States Court of Appeals 

for the Federal Circuit ______________________ 

LESLIE BOYER,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2022-1822

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:20-cv-00438-ZNS, Judge Zachary N. Somers.

______________________ 

Decided: March 26, 2024

______________________ 

LACHLAN W. SMITH, Wiggins Childs Pantazis Fisher & 

Goldfarb LLC, Birmingham, AL, argued for plaintiff-appellant. Also represented by JON C. GOLDFARB. 

 KARA WESTERCAMP, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY. 

 DEBRA D'AGOSTINO, The Federal Practice Group, 

Washington, DC, for amici curiae A Better Balance, American Medical Women’s Association, California Women 

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2 BOYER v. US

Lawyers, California Women’s Law Center, Center for 

Women’s Health & Human Rights, Suffolk University, Chicago Foundation for Women, Clearinghouse on Women’s 

Issues, Desiree Alliance, Equal Rights Advocates, Faith Action for All, Feminist Majority Foundation, Hadassah, the 

Women’s Zionist Organization of America, Human Rights 

Campaign, If/When/How: Lawyering for Reproductive Justice, In Our Own Voice: National Black Women’s Reproductive Justice Agenda, In the Public Interest, Indiana 

Community Action Poverty Institute, International Action 

Network for Gender Equity & Law, Lawyers Club of San 

Diego, Legal Aid at Work, Legal Momentum, the Women's 

Legal Defense and Education Fund, NARAL Pro-Choice 

America, National Asian Pacific American Women’s Forum, National Association of Women Lawyers, National 

Coalition on Black Civic Participation, National Consumers League, National Crittenton, National Employment 

Lawyers Association, National Health Care for the Homeless Council, National LGBTQ Task Force, National 

Women’s Law Center, National Womens Political Caucus, 

Queen’s Bench Bar Association of the San Francisco Bay 

Area, Religious Coalition for Reproductive Choice, Reproaction, Service Employees International Union, Shriver 

Center on Poverty Law, SisterReach, Washington Lawyers’ 

Committee for Civil Rights and Urban Affairs, Women Employed, Women Lawyers On Guard Inc., Women’s Bar Association of the District of Columbia, Women’s Bar 

Association of the State of New York, Women’s Institute for 

Freedom of the Press, Women’s Law Center of Maryland, 

Women’s Law Project, Women’s Media Center. Also represented by JANEI AU; GAYLYNN BURROUGHS, SUNU CHANDY,

PHOEBE WOLFE, National Women’s Law Center, Washington, DC. 

 ______________________ 

Before DYK, CHEN, and STOLL, Circuit Judges. 

DYK, Circuit Judge. 

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BOYER v. US 3

Dr. Leslie Boyer brought suit against the United 

States, claiming a violation of the Equal Pay Act (“EPA”), 

29 U.S.C. § 206(d)(1), because the government set her pay 

unequally compared to a male comparator. The Court of 

Federal Claims (“Claims Court”) granted summary judgment to the United States on the ground that, under the 

EPA, an employer may consider a “factor other than sex,” 

that “Congress permitted the [Veteran’s Administration] to 

use existing or prior pay alone [as a factor other than sex] 

in determining pay rates for new appointees,” and prior 

pay accounted for the differential in this case. J.A. 36. We 

conclude that the EPA applies equally to the United States 

as to other employers and that mere reliance on prior compensation standing alone is not an affirmative defense to a 

prima facie case under the EPA, unless the employer can 

demonstrate that the prior pay itself was not based on sex. 

We reverse the grant of summary judgment to the United 

States and remand for further proceedings consistent with 

this opinion. 

BACKGROUND 

I 

Dr. Boyer was employed by the Veterans Affairs Medical Center of Birmingham, Alabama (“BVAMC”) as a clinical pharmacist in 2015. Six months later, BVAMC hired a 

male clinical pharmacist. Both Dr. Boyer and the male 

comparator were hired according to the federal hiring system, the General Schedule or “GS” system. The federal hiring system sets salary scales by locality, with each federal 

position assigned a grade. Within each grade, there are a 

series of steps with corresponding salary increases. To hire 

an employee over the minimum rate within a particular 

grade, the agency must make a showing that certain qualities justify that departure, including superior qualifications, special needs of the government, and prior 

compensation. 5 C.F.R. § 531.212.

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4 BOYER v. US

At the time of her hiring, Dr. Boyer was appointed as a 

clinical pharmacist at GS-12, Step 7 with a starting salary 

of $115,364. Although the minimum rate in this locality 

for GS-12 clinical pharmacists was $96,133 at Step 1, Dr. 

Boyer was appointed at Step 7 ($115,364) due, at least in 

part, because of her prior salary, which was $115,003. The 

male comparator was appointed at a GS-12, Step 10, with 

a starting salary of $126,223. His prior salary was 

$130,000. 

There are alleged other differences between the two. 

Dr. Boyer contends that she was more qualified than the 

male comparator, having had seven more years of experience after graduating with her doctorate in pharmacy in 

1999. She also contends that she had unique mental health 

work experience as compared to the male comparator. The 

government argues that the male comparator was more 

qualified in other ways, having a master’s degree in biological sciences in addition to his doctorate in pharmacy and 

different work experience. 

Three years after her hiring, Dr. Boyer discovered the 

pay discrepancy. She inquired about the differential with 

Human Resources and eventually, in 2018, filed an Equal 

Employment Opportunity (“EEO”) complaint, alleging 

wage discrimination. The EEO counselor created an investigative report in 2019 but did not issue any official conclusions or recommendations. Two months later, Dr. Boyer 

filed suit in the United States District Court for the Northern District of Alabama, alleging a violation of the EPA. 

Boyer v. Wilkie, No. 2:19-CV-00552 (N.D. Ala. transferred 

Feb. 13, 2020).1

1 The parties consented to the jurisdiction of a magistrate judge. ECF No. 11 (May 30, 2019).

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BOYER v. US 5

II

The Equal Pay Act codifies “the principle of equal pay 

for equal work regardless of sex.” Corning Glass Works v. 

Brennan, 417 U.S. 188, 190 (1974). The EPA provides that 

no employer that is subject to the Act shall discriminate 

between employees of the opposite sex for equal work that 

requires “equal skill, effort, and responsibility, and which 

are performed under similar working conditions.” 

29 U.S.C. § 206(d)(1). The EPA has four exceptions to this 

general principle, where a differential is made pursuant to 

“(i) a seniority system; (ii) a merit system; (iii) a system 

which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other 

than sex.” Id. 

Under the EPA, the plaintiff has the burden of establishing a prima facie case—showing that the employer pays 

employees of the opposite sex who perform substantially 

equal work unequally.2 Corning Glass Works, 417 U.S. at 

195. Once established, the burden of proof shifts to the employer to prove that the differential is made pursuant to 

one of the four affirmative defenses. Id. at 196–97; see 

Beck-Wilson v. Principi, 441 F.3d 353, 365 (6th Cir. 2006). 

If the employer successfully establishes that the differential was made pursuant to one of the four defenses, the 

2 The Claims Court noted that in Yant v. United 

States, the Federal Circuit affirmed the grant of summary 

judgment to the government when there was no showing 

that the salary differential was “either historically or presently based on sex.” 588 F.3d 1369, 1372 (Fed. Cir. 2009). 

This holding was recently overruled in Moore v. United 

States, which held that a prima facie case under the EPA 

does not require a showing that a pay differential is either 

historically or presently based on sex. 66 F.4th 991, 997 

(Fed. Cir. 2023) (en banc). 

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6 BOYER v. US

plaintiff may counter that the affirmative defense is merely 

pretextual. See, e.g., Ryduchowski v. Port Auth. of N.Y. & 

N.J., 203 F.3d 135, 142 (2d Cir. 2000) (citing Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir. 1999)). 

The government conceded that Dr. Boyer had established a prima facie case under the Equal Pay Act because 

Dr. Boyer and the male comparator performed work of similar skill, effort, and responsibility under similar working 

conditions for unequal pay. But the government argued 

that the pay differential was justified by a “factor other 

than sex,” namely Dr. Boyer’s prior salary. Dr. Boyer in 

turn contended that the BVAMC violated the EPA by relying on prior salary alone to set her and the male comparator’s disparate salaries. There is no contention that the 

government’s reliance on prior salary was pretextual. 

III

The Northern District of Alabama initially granted 

summary judgment to Dr. Boyer, finding that “the record 

establishes that prior salary alone was the reason for [the] 

salaries and ‘such a justification cannot solely carry the affirmative defense.’” Boyer v. Wilkie, No. 2:19-CV-00552, 

2019 WL 13268069, at *5 (N.D. Ala. Nov. 5, 2019) (quoting 

Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995)). Thereafter, the government filed a motion to dismiss, arguing that 

the district court lacked subject matter jurisdiction, and 

plaintiff filed a motion to transfer the case to the Court of 

Federal Claims (“Claims Court”). The magistrate judge vacated his ruling on summary judgment and transferred the 

case. 

Before the Claims Court, the parties cross-moved for 

summary judgment. The Claims Court concluded that the 

statute allowed consideration of factors other than sex and 

held that consideration of prior pay alone was a factor other 

than sex. In reaching this conclusion, the court relied on a 

pay-setting statute, 5 U.S.C. § 5333, which allows prior pay 

to be considered in hiring. The Claims Court concluded 

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BOYER v. US 7

that Congress provided as to federal employees that “existing pay alone, without regard to high or unique qualifications or other factors, is an appropriate reason to depart 

from the otherwise minimum rate of pay under the GS system.” J.A. 29. The Claims Court also relied on 38 U.S.C. 

§ 7408, containing similar language in a statute governing 

aspects of VA hiring. Because, in the Claims Court’s view, 

prior pay alone could establish an affirmative defense to a 

prima facie case under the EPA in the context of federal 

employees, the court granted summary judgment for the 

government and denied Dr. Boyer’s motion for summary 

judgment. This appeal followed. 

We have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

Summary judgment is appropriate if there is no genuine issue of material fact in dispute and the moving party 

is entitled to judgment as a matter of law. First Com. Corp. 

v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003); Rule 

56(a) of the Rules of the Court of Federal Claims (RCFC). 

We review the grant of summary judgment by the Claims 

Court de novo. Id.

I 

This case presents the question whether the rules concerning consideration of prior compensation should be different for federal employers as compared to employers 

outside the federal government in light of two federal statutes that together apply to most, but not all, federal employee hiring and that permit consideration of prior pay in 

hiring—5 U.S.C. § 5333 and 38 U.S.C. § 7408. These statutes do not apply to Dr. Boyer because she was hired pursuant to 38 U.S.C. § 7401(3), a statute that provides 

specifically for the hiring by the VA of certain health professionals (including pharmacists), though the VA Handbook governing such hiring states that “[a]uthorized 

officials may, after considering an individual’s existing pay, 

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8 BOYER v. US

higher or unique qualifications, or special needs of VA, appoint . . . VHA GS patient-care personnel at rates of pay 

above the minimum rate.” VA Handbook 5005, Part II, 

Chapter 3 (Dec. 6, 2007). The government argues that, unless one rule is held to be applicable to all federal employees, the different statutes would in practice “carve VA 

employees into distinct classes for the purpose of EPA 

claims.” Appellee Br. at 24 (quoting J.A. 34). We agree the 

EPA should apply equally to all federal employees. The 

question here is whether it applies differently to federal 

employees than to employees outside the federal government. 

II 

We first consider the standard applicable to employers 

other than the federal government and whether prior compensation in that context can justify a pay differential. 

A 

The EPA was enacted in 1963. The EPA prohibited 

wage discrimination on the basis of sex for work that requires “equal skill, effort, and responsibility, and which are 

performed under similar working conditions.” 29 U.S.C. 

§ 206(d)(1). As the Supreme Court long ago made clear, 

“[t]he Equal Pay Act is broadly remedial, and it should be 

construed and applied so as to fulfill the underlying purposes which Congress sought to achieve.” Corning Glass 

Works, 417 U.S. at 208. 

As noted, the EPA provides for four exceptions justifying a salary differential between employees of the opposite 

sex, when the differential is made pursuant to “(i) a seniority system; (ii) a merit system; (iii) a system which 

measures earnings by quantity or quality of production; or 

(iv) a differential based on any other factor other than sex.” 

Id. Here, we are concerned with the fourth exception and 

the question whether prior pay is a factor other than sex. 

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BOYER v. US 9

The courts of appeals have adopted three main approaches to the use of prior compensation as a “factor other 

than sex” defense to the EPA. 29 U.S.C. § 206(d)(1)(iv). 

The Fourth and the Seventh Circuits have held that prior 

pay is a factor other than sex and that, standing alone, it 

can justify differential treatment. They interpret the 

fourth “catchall” exception to include virtually any factor, 

so long as it is not sex. Wernsing v. Dep’t of Hum. Servs., 

State of Ill., 427 F.3d 466, 469 (7th Cir. 2005). Because, in 

the Seventh Circuit’s view, “markets are impersonal and 

have no intent,” setting wages based on what the market 

will bear cannot be discriminatory—so the EPA is not violated even when prior compensation is the only justification for a wage differential. Id.; see also Spencer v. Va. 

State Univ., 919 F.3d 199, 206 (4th Cir. 2019). 

The remaining circuits that have considered the question have rejected this approach, holding that consideration of prior pay standing alone cannot be a factor other 

than sex. One circuit, the Ninth, has held that prior pay 

can never justify unequal pay. Rizo v. Yovino, 950 F.3d 

1217, 1229 (9th Cir. 2020). The court found that the presence of the first “other” in the phrase “any other factor 

other than sex” limits the word “factor” to considerations 

that are job-related. Id. at 1229. The EPA “requires employers to demonstrate that only job-related factors, not 

sex” caused the wage disparities between employees of the 

opposite sex. Id. at 1228. In the Ninth Circuit’s view, “the 

history of pervasive wage discrimination in the American 

workforce prevents prior pay from satisfying the employer’s burden to show that sex played no role in wage disparities between employees of the opposite sex.” Id. 

Therefore, prior pay is excluded as a factor other than sex 

under 29 U.S.C.A. § 206(d)(1)(iv).3 

3 In Rizo, the Ninth Circuit describes the difference 

between using prior pay when justifying a wage 

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10 BOYER v. US

Three circuits have followed a middle ground, allowing 

consideration of prior pay while acknowledging that it may 

perpetuate existing discrimination, and have held that 

prior pay can be a factor other than sex only if it is considered together with at least one other permissible factor, for 

example experience or education. See, e.g., Balmer v. HCA, 

Inc., 423 F.3d 606, 612 (6th Cir. 2005), abrogated on other 

grounds by Fox v. Vice, 563 U.S. 826, 832 (2011) (“Consideration of a new employee’s prior salary is allowed as long 

as the employer does not rely solely on prior salary to justify a pay disparity.”); Glenn v. Gen. Motors Corp., 841 F.2d 

1567, 1570–71 (11th Cir. 1988); Irby v. Bittick, 44 F.3d 949, 

955–56 (11th Cir. 1995); Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1506 (11th Cir. 1988); Riser v. 

QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015).4 

The basic notion behind these cases is an employer has 

shown that a lower rate of prior pay is not serving as a 

differential under the EPA and relying on prior pay when 

setting an employee’s salary. 950 F.3d at 1231. Some find 

this not to be a meaningful distinction. See id. at 1234 

(McKeown, J., concurring) (“Permitting prior pay in setting 

salary but not as an affirmative defense to the Equal Pay 

Act results in an indefensible contradiction. The ‘tension’ 

highlighted by the majority is precisely the reason that 

prior pay cannot be relegated to the dust bin.”). 

4 The Eighth Circuit has permitted the use of prior 

salary only after “carefully examin[ing] the record to ensure that an employer does not rely on the prohibited ‘market force theory’ to justify lower wages” for women. Drum 

v. Leeson Elec. Corp., 565 F.3d 1071, 1073 (8th Cir. 2009)

(quoting Taylor v. White, 321 F.3d 710, 718 (8th Cir. 2003)). 

“In conducting this examination, this court’s concern is related solely to the issue of whether the prior salary is based 

on a factor other than sex.” Id.

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BOYER v. US 11

proxy for sex—and is thus “other than sex,” as required by 

the EPA—when there is a clearly identified other reason 

besides sex (such as less education or less experience). In 

those circumstances, those “business reasons . . . reasonably explain the utilization of prior salary.” Irby, 44 F.3d at 

955 (alteration in original) (quoting Price, 856 F.2d at 

1506). The concern about relying on prior pay standing 

alone in the case of female hires is that prior pay might be 

artificially reduced by prior sex discrimination such that 

the prior pay would be lower than that for the male comparator and its consideration would improperly justify a 

lower starting salary for an equally qualified female hire.5 

If there are other differences between the two that are truly 

considerations unrelated to sex (education, work experience, recommendations, etc.) that favor the male comparator, it is likely that these same differences could explain 

any prior pay gap as well. Under these circumstances, the 

employer can properly rely on educational, experience, or 

other legitimate, non-sex-based differences and prior pay 

together. 

B 

This middle ground approach recognizes that sex discrimination can be (but is not always) inherent in prior pay. 

As both the government and Boyer acknowledge, the concern with the use of prior compensation is that prior compensation itself may be lower because it reflects gender 

discrimination. The concern is well justified. As pointed 

out by amici and not contradicted by the government, “the 

gender wage gap has hardly narrowed over the last 15 

years.” Brief for National Women’s Law Center, et. al. as 

Amici Curiae Supporting Plaintiff-Appellant at 8, Boyer v. 

5 The concern about relying on prior pay generally 

arises only if it is used to justify a pay differential, i.e., 

where the male comparator’s prior pay is higher than the 

female hire’s prior pay. 

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12 BOYER v. US

United States (No. 22-1822) (citing Amanda Barroso & 

Anna Brown, Gender Pay Gap in U.S. Held Steady in 2020, 

Pew Research Ctr. (May 25, 2021), https://www.pewresearch.org/fact-tank/2021/05/25/gender-pay-gap-facts/). 

“[W]omen working full time, year round were paid just 84 

cents for every dollar paid to men in 2021.” Id. (citing Nat’l 

Women’s Law Ctr., NWLC Resources on Poverty, Income, 

and Health Insurance in 2021 (Sept. 13, 2022), 

https://nwlc.org/resource/nwlc-resources-on-poverty-income-and-health-insurance/); see also Jessica Semega & 

Melissa Kollar, Income in the United States: 2021, U.S. 

Census Bureau, Current Population Reports, at Table A-7 

(Sept. 2022), https://www.census.gov/content/dam/Census/library/publications/2022/demo/p60-276.pdf. When a 

pay disparity is the result of sex discrimination, using prior 

pay to set compensation necessarily perpetuates unjustified pay disparities.

The government does not dispute—as an empirical 

premise—that reliance on prior pay can perpetuate improper disparate treatment. It could hardly do otherwise. 

During the pendency of this appeal, the government finalized regulations prohibiting consideration of prior pay 

when setting salary for new employees. Advancing Pay Equity in Governmentwide Pay Systems, 89 Fed. Reg. 5737, 

5754–57 (Jan. 30, 2024) (to be codified at 5 C.F.R. pts. 531–

32, 534 & 930).6 In its rulemaking, the government conceded, among other things, that “[b]ecause salary history is 

not always a good proxy for worker value, experience, and 

expertise . . . setting pay based on a candidate’s salary history could perpetuate a pay rate that [is] inequitable.” Id.

at 5748. 

6 This regulation will only apply prospectively. Id.

at 5737. The rulemaking does not address the question of 

whether the EPA is violated by consideration of prior pay 

alone. 

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BOYER v. US 13

Thus, using prior compensation alone could undermine 

a core concern of the EPA—to eliminate gender discrimination in compensation. See also id. at 5752 (“21 states and 

22 localities have enacted laws prohibiting the use of salary 

history in setting pay.”). The empirical evidence discussed 

by the government in its proposed rulemaking, which proposal Dr. Boyer cited in a notice of supplemental authority,

reflects that when government actors have enacted bans on 

considering prior pay, they have seen increases in women’s 

salaries and decreases in the gap between men and 

women’s salaries—confirming that prior pay may operate 

as a proxy for sex. See Appellant’s Citation of Supplemental Authority, ECF No. 50 (referencing 88 Fed. Reg. 

30251 (May 11, 2023)); see also 88 Fed. Reg. at 30258. In 

the final rulemaking, the government acknowledged that

“[p]ay setting based on salary history may be inequitable, 

can perpetuate biases from job to job, and may contribute 

to a pay gap between the earnings of men and women.” 89 

Fed. Reg. at 5737. 

In light of these factual premises, relying on prior compensation alone as an affirmative defense to the EPA risks 

thwarting the Act’s most fundamental goal—equal pay for 

equal work. In short, these empirical premises recognize 

the simple fact that prior pay can be—and frequently is—

a proxy for the sex of the worker.7 When prior pay is a 

proxy for sex, it is not “other than sex”—it is intertwined 

with sex. The EPA prohibits reliance on prior pay unless 

(1) the prior pay itself is not based on sex, or (2) an additional permissible factor “other than sex” is present to assure a factfinder that the “other factor” of prior pay is 

indeed “other than sex” (i.e., not a proxy for sex).

7 It is significant that these factual points are not 

only undisputed by the government in its briefing and at 

oral argument, but affirmatively advanced by the government in the rulemaking. 

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14 BOYER v. US

C 

It follows that because it is undisputed that prior pay 

can perpetuate systemic gender discrimination, the best interpretation of the phrase “other factor other than sex” 

does not include prior pay alone (unless that prior pay itself 

can be shown to be not based on sex). We are in agreement 

with the Sixth, Tenth, and Eleventh Circuits with this one 

qualification. We think that this approach most conforms 

with the both the text and the underlying central purpose 

of the EPA.

This middle-ground approach also meets the EPA’s 

goal to accommodate legitimate business interests, particularly the requisite flexibility to hire and retain employees. 

See Washington Cnty. v. Gunther, 452 U.S. 161, 171 n.11 

(1981) (“[T]he fourth affirmative defense [was included] because of a concern that bona fide job-evaluation systems 

used by American businesses would otherwise be disrupted.”). Thus, this approach acknowledges that there 

may be legitimate reasons to consider prior salary, such as 

the ability to hire and retain skilled workers, but that prior 

salary without consideration of other factors can allow behavior to persist that is “antithetical to the language and 

purpose of the EPA.” Jennifer Safstrom, Salary History 

and Pay Parity: Assessing Prior Salary History as a “Factor 

Other Than Sex” in Equal Pay Act Litigation, 31 Yale J.L. 

& Feminism 135, 139 (2019). 

We also agree that, as many of our sister circuits have 

held, this exception (consideration of prior pay with other 

non-sex-based factors) is permissible only if that consideration was in fact the basis for the decision, but not if it is 

offered as an after the fact justification. See Drum v. 

Leeson Elec. Corp., 565 F.3d 1071 (8th Cir. 2009). In Drum, 

the court held that “merely . . . articulating a legitimate, 

non-discriminatory reason” will not allow an employer to 

“escape liability.” Id. at 1072 (quoting Simpson v. Merchants & Planters Bank, 441 F.3d 572, 579 (8th Cir. 2006)). 

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BOYER v. US 15

Instead, “the defendant must prove that the pay differential was based on a factor other than sex.” Id. (quoting 

Simpson, 441 F.3d at 579). Similarly, other circuits have 

explained that it is not enough that “the employer’s proffered reasons could explain the wage disparity.” Riser, 776 

F.3d at 1198 (quoting Mickelson v. N.Y. Life Ins. Co., 460 

F.3d 1304, 1312 (10th Cir. 2006)). It is necessary that “the 

proffered reasons do in fact explain the wage disparity.” Id.

(quoting Mickelson, 460 F.3d at 1312); see also U.S. Equal 

Emp. Opportunity Comm’n v. Md. Ins. Admin., 879 F.3d 

114, 121 (4th Cir. 2018). Because language of the EPA prohibits a disparity in pay among genders “‘except where 

such payment is made pursuant to’ one of the four . . . affirmative defenses,” it is not enough to provide a post hoc 

nondiscriminatory reason without evidence that the nondiscriminatory reason actually motivated the decision to 

set unequal pay. Mickelson, 460 F.3d at 1312 (emphasis 

added) (quoting 29 U.S.C. § 206(d)(1)). 

D 

In short, the central lesson is that the prior pay cannot 

be an “other factor other than sex” if the prior pay itself is 

the product of sex discrimination. In joining the other circuits and adopting this middle ground, we think one further qualification is required. It is necessary to leave room 

for an employer to otherwise establish that the prior pay is 

not based on sex. If the employer can establish that prior 

pay was not based on sex, the employer is relying on an 

“other factor other than sex” to justify the disparity. We 

leave for future cases to consider what evidentiary showing 

is needed to carry this burden.

Both the text of the EPA and precedent require the employer to carry the burden of establishing that the prior pay 

was not the product of gender discrimination. Consistent 

with the characterization as an affirmative defense, the 

Supreme Court, our court, and every circuit to expressly 

consider address the question have concluded that the 

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16 BOYER v. US

employer bears the burden of establishing the factual 

premises underlying the affirmative defense. See, e.g., 

Corning Glass Works, 417 U.S. at 196 (stating that once a 

prima facie case has been set out, “the burden shifts to the 

employer to show that the differential is justified under one 

of the Act’s four exceptions”); Moore v. United States, 66 

F.4th 991, 996 (Fed. Cir. 2023) (en banc); Soto v. Adams 

Elevator Equip. Co., 941 F.2d 543, 548 (7th Cir. 1991) (“If 

an EPA plaintiff establishes a prima facie case, the burden 

shifts to the defendant employer to provide evidence of any 

of the statutorily based affirmative defenses . . . .”).

Thus, the employer bears the burden to prove its affirmative defense that prior pay is a factor other than sex 

because it does not reflect sex discrimination. As we explained in Moore v. United States, once a prima facie case 

is established, “it becomes the employer’s burden to prove—

as an affirmative defense—that the pay differential has a 

permissible non-sex-based justification.” 66 F.4th at 996. 

That burden allocation follows from the plain text of 

the EPA. The EPA requires an employer to show both that 

the pay differential was justified by an “other factor” and

that such factor was “other than sex.” 29 U.S.C. 

§ 206(d)(1)(iv). Merely showing that an employer relied on 

prior pay—the alleged “other factor”—does not carry the 

full burden imposed by the statute. Id. Instead, the employer must also show that the prior pay was not based on 

sex—that it was, in fact, also “other than sex.” Id. As the 

party with the burden of proof, the employer is not entitled 

to simply assume that prior pay is unrelated to (or “other 

than”) sex. Without a showing that the prior pay is a “nonsex-based” justification, an employer cannot carry the affirmative defense. Moore, 66 F.4th at 996. This approach 

is simply a faithful application of the requirement that the 

employer must show both the existence of an alleged “other 

factor” and must—as a factual matter—show that it is 

“other than sex.”

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BOYER v. US 17

In summary, the employer can only rely on prior pay if 

either (1) the employer can demonstrate that prior pay is 

unaffected by sex-based pay differentials or (2) prior pay is 

considered together with other, non-sex-based factors. 

III 

The government does not dispute that other circuits 

have held in the context of employers other than the federal 

government that prior compensation alone in general cannot be the governing factor. Nor does the government or 

the Claims Court “suggest that other courts have incorrectly construed the EPA as precluding defendants’ reliance on existing or prior pay alone to justify pay 

differentials between employees of different sexes.” J.A. 30 

n.13. However, the government argues that a different 

rule should prevail with respect to federal government employees. 

A 

Initially, the EPA applied only to private employees 

and did not apply to federal employees (or state and local 

government employees). The federal government was apparently excluded as an employer simply because the EPA 

was an amendment to the Fair Labor Standards Act, and 

the government was excluded from coverage when the first 

Fair Labor Standards Act was passed in 1938. S. REP. NO. 

88-176, at 2 (1963). In the Fair Labor Standards Act of 

1938, the definition of “[e]mployer” did “not include the 

United States or any State or political subdivision of a 

State.” Fair Labor Standards Act of 1938, Pub. L. No. 75-

718, 52 Stat. 1060, 1060 § 3(d). There appears to have been 

no policy reason for the exclusion of federal government 

employees under the EPA’s initial coverage. 

In 1974, the EPA was amended to apply to federal employees. The 1974 Fair Labor Standards Amendments expanded the coverage of both the Fair Labor Standards Act 

and the Equal Pay Act to “individual[s] employed by the 

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18 BOYER v. US

Government of the United States.” 29 U.S.C. 

§ 203(e)(2)(A).8 Congress included no statutory restriction 

or language indicating that the FLSA—or the EPA—

should apply differently to government workers. Before us, 

the government has identified nothing in the text of the 

1974 Fair Labor Standards Amendments that indicates an 

intent to provide disparate treatment under the EPA for 

federal government workers. Instead, the plain text of the 

1974 Fair Labor Standards Amendments simply expands 

the ordinary operation of the FLSA—including the EPA—

to cover an additional class of workers: those employed by 

the federal government.

The legislative history of these amendments confirms

an intention to achieve equal treatment of government and 

private employers and employees. The Senate Committee 

on Labor and Public Welfare in the 1972 report on a previous version of the bill recognized that “[m]any arguments 

have been advanced for bringing public employees under 

the [Fair Labor Standards Act]. A major argument was 

and continues to be a moral one. Government should be 

willing to apply to itself any standard it deems necessary 

to apply to private employment.” S. REP. NO. 92-842, at 18 

(1972) (emphasis added). Again in 1974, in reporting the 

final version of the bill, the Senate Report stated the purpose of the bill was “to amend the Fair Labor Standards 

Act of 1938, as amended, to extend its protection to additional employees”—not to extend some lesser (or different) 

8 In 1966, the Fair Labor Standards Act was

amended to include some state government employees. 

The 1974 Amendments further expanded coverage to include virtually all federal and state government employees. 

H. REP. NO. 93-953, at 6 (“‘Public agency’ means the Government of the United States; the government of a State or 

political subdivision thereof . . . .”).

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BOYER v. US 19

set of protections to government employees. S. REP. NO. 93-

690, at 1 (1974) (emphasis added). While the original 

FLSA had been narrower in various ways—including by 

not protecting government employees—the “goal of the 

amendments embodied in” the 1974 legislation was “to continue the task initiated in 1961—and further implemented 

in 1966 and 1972—to extend the basic protection of the 

Fair Labor Standards Act to additional workers and to reduce to the extent practicable at this time the remaining 

exemptions” to coverage. Id. at 7. 

The purpose of the 1974 amendments was thus to fill 

“gaps” in the FLSA’s prior coverage, extending that to cover 

“additional workers” in government. Id. at 16 (“The Committee reviewed present coverage, as well as the gaps 

therein, and determined that a strong need exists for covering . . . additional workers . . . in government.”). Accordingly, “[t]he Committee intends that government apply to 

itself the same standards it applies to private employers.” 

Id. at 24. Prior House debate on a predecessor version of 

the bill echoed similar reasoning: 

Government, at whatever level, should not be exempt from provisions of the law which apply to private sector employers. Employees should not be 

subjected to discrimination because they happen to 

work for government rather than for a private sector employer. 

119 CONG. REC. 18,159 (1973) (statement of Rep. Barbara Jordan). Thus, both the text and legislative history of 

the EPA indicate that it should apply equally to government and private employers.

B 

However, the government relies on two statutes, 

5 U.S.C. § 5333 and 38 U.S.C. § 7408 as supporting a different conclusion. Section 5333 is entitled “Minimum rate 

for new appointments” and addresses the general payCase: 22-1822 Document: 54 Page: 19 Filed: 03/26/2024
20 BOYER v. US

setting authority for government employees. The statute 

authorizes a departure from the minimum rate of the appropriate grade for new appointments “under regulations 

prescribed by the Office of Personal Management which 

provide for such considerations as the existing pay” of the 

candidate, among other qualities. 5 U.S.C. § 5333. Similarly, 38 U.S.C. § 7408, a statute that addresses appointment of some employees within the Veteran’s Health 

Administration, authorizes a departure from the minimum 

pay rate of the appropriate grade for new appointments “after considering an individual’s existing pay, higher or 

unique qualifications, or the special needs of the Department.” While these statutes do not apply to Dr. Boyer, the 

VA Handbook, which does apply, contemplates consideration of prior pay, see VA Handbook 5005, Part II, Chapter 

3 (Dec. 6, 2007), and the government argues that the same 

rules must apply to all federal employees, a proposition 

with which we agree. 

In light of these statutes, the government contends 

that the middle ground that we have found generally applicable to employees outside the federal government 

should not apply to the federal workforce. In other words, 

that the federal pay-setting statutes should be read to 

cabin the EPA as it applies to the federal workforce. We do 

not agree. 

When, as here, “two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed 

congressional intention to the contrary, to regard each as 

effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974); 

Highland Falls-Ft. Montgomery Cent. Sch. Dist. v. United 

States, 48 F.3d 1166, 1171 (Fed. Cir. 1995); see also Van 

Dermark v. McDonough, 57 F.4th 1374, 1386 (Fed. Cir. 

2023). Thus, statutes that appear to be in conflict should 

be construed if possible to reconcile the two. United States 

v. Borden Co., 308 U.S. 188, 198 (1939); Morton, 417 U.S. 

at 551. Here, the Equal Pay Act and the government paysetting statutes are capable of co-existence. The payCase: 22-1822 Document: 54 Page: 20 Filed: 03/26/2024
BOYER v. US 21

setting statutes allow consideration of prior pay. The EPA 

allows consideration of prior pay if prior pay is not sexbased and also allows consideration of prior pay with another factor. This reconciliation renders the statutes not 

inconsistent and is fully consistent with the Congressional 

design.

First, as discussed earlier, the principle of the 1974 

amendments to the Fair Labor Standards Act, expanding 

the EPA to federal employees, is that the same rules ought 

to apply to both government and private employees. See S.

REP. NO. 93-690, at 24 (1974) (“The Committee intends that 

government apply to itself the same standards it applies to 

private employers.”); see also S. REP. NO. 92-842, at 18 

(1972) (“Many arguments have been advanced for bringing 

public employees under the [Fair Labor Standards Act]. A 

major argument was and continues to be a moral one. Government should be willing to apply to itself any standard it 

deems necessary to apply to private employment.”). The 

government offers no plausible reason as to why Congress 

would want to apply different standards to government 

and the private sector. It fails to demonstrate that Congress wished to apply differential standards. It would take 

fairly explicit statutory language to indicate that Congress 

intended to depart from this general principle. No such 

language appears in either 5 U.S.C. § 5333 (which was first 

enacted before the EPA applied to federal employees) or 

38 U.S.C. § 7408 (enacted after the EPA). The two statutes 

that the government relies on simply do not address issues 

relating to the EPA. 

Second, both pay-setting statutes are permissive, not 

mandatory. Both statutes include lists of factors that the 

government “may” consider when setting a new appointment’s salary above the minimum rate. See 5 U.S.C. 

§ 5333 (“[U]nder regulations prescribed by the Office of 

Personnel Management which provide for such considerations as the existing pay or unusually high or unique qualifications of the candidate, or a special need of the 

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22 BOYER v. US

Government for his services, the head of an agency may 

appoint . . . an individual to a position at such a rate above 

the minimum rate of the appropriate grade . . . .” (emphasis 

added)); 38 U.S.C. § 7408(b) (“The Secretary, after considering an individual’s existing pay, higher or unique qualifications, or the special needs of the Department, may

appoint the individual . . . at a rate of pay above the minimum rate . . . .” (emphasis added)). Prior pay, existing salary, and salary history are listed among the factors that 

“may” be used, but the statutes do not require that the government consider prior pay at all—much less do they require that that the government consider prior pay 

exclusively. See Biden v. Texas, 597 U.S. 785, 802 (2022)

(“The statute says ‘may.’ And ‘may’ does not just suggest 

discretion, it ‘clearly connotes’ it.”) (quoting Opati v. Republic of Sudan, 590 U.S. 418, 428 (2020)); see also Off. of 

Personnel Mgmt., Fact Sheet: Superior Qualifications and 

Special Needs Pay-Setting Authority, 

https://www.opm.gov/policy-data-oversight/pay-leave/payadministration/fact-sheets/superior-qualifications-andspecial-needs-pay-setting-authority/ (“Existing salary, recent salary history, or a competing salary offer is only one 

of a number of factors that may be used to determine an 

employee’s step rate.” (emphasis omitted)). Nor does the 

disjunctive use of “or” in 5 U.S.C § 5333 and 38 U.S.C. 

§ 7408 impose any such requirement. The presence of the 

word “or” does not convert broad discretion to consider a 

flexible list of factors into a command to consider each of 

the listed factors. 

Third, even though our reading of the EPA would, to a 

limited extent, cabin the discretion that federal employers 

would otherwise have under the pay-setting statute, no 

Congressional policy will be defeated by construing those 

statutes not to authorize actions that would be in violation 

of another statute. In particular, there is no indication that

Congress in enacting the pay-setting statutes considered 

the possibility that relying on prior compensation would 

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BOYER v. US 23

perpetuate discrimination. There is certainly no indication

there is any statutory policy embodied in the pay-setting 

statutes that would be undermined by applying EPA policies or barring consideration of prior pay standing alone

(where there is no showing that the prior pay is not based 

on sex). “Here[,] the basic purposes” of the government 

pay-setting statutes “can be fairly served by giving full effect” to the EPA. Radzanower v. Touche Ross & Co., 426 

U.S. 148, 155 (1976) (construing venue authorization statute not to apply to national banks in light of another venue 

statute specifically applicable to national banks). 

In short, the pay-setting statutes simply authorize taking into account certain considerations in hiring. They do 

not require such consideration. They are easily construed 

to only authorize consideration of prior pay if such consideration is not contrary to another statute, here the EPA. 

There is nothing in the pay-setting statutes that is remotely designed to allow agencies to engage in discriminatory practices in hiring. The Claims Court erred in holding 

that the government in hiring may consider prior pay 

standing alone as a factor other than sex, unless the government can also prove that the prior pay was not itself 

based on sex. 

IV

Dr. Boyer argues that we should reverse and require 

an award to Dr. Boyer without remanding for further proceedings. The Claims Court held that under Dr. Boyer’s 

legal theory (which we now adopt), genuine issues of material fact remained. We see no error in that determination.

Dr. Boyer asserts that the record indisputably shows 

that the BVAMC relied on prior pay alone when creating a 

wage disparity between herself and the male comparator. 

But there is evidence both ways as to whether prior pay 

alone was the deciding factor. 

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24 BOYER v. US

The selecting official, Monica Sfakianos, testified to the 

fact that she “boarded everybody exactly the same without 

regards to anything special other than their current pay 

stubs.” J.A. 260 (7:18–20). Other members of the Veterans 

Integrated Service Networks 7 Pharmacy Professional 

Standards Board gave similar testimony. See J.A. 279 

(4:15–17) (Kendra Brookshire testifying “at the end of the 

day pay stubs can basically trump what would be determined by the qualifying experience”); J.A. 271 (6:08–09) 

(Lisa Ambrose testifying that what a candidate is currently 

being paid is “the biggest factor that we always took into 

consideration”). 

But there is evidence that other factors went into the 

decision to set Dr. Boyer and the male comparator’s pay. 

When emailing with Dr. Boyer at the time of her hiring, the 

selecting official, Ms. Sfakianos, told Dr. Boyer that salary 

could be “based on education, residency, published articles” 

in addition to salary matching. J.A. 130. Similarly, in the 

same deposition where Dr. Ambrose acknowledged that 

pay stubs are “the biggest factor,” she also explained that 

salary setting was “an algorithm” that took several factors, 

including years of service and publications, into account. 

J.A. 269. 

If, on remand, the Claims Court determines that a bona 

fide business reason other than prior pay played a role in 

the differential, an important part of the Claims Court’s 

task will be to explain in detail how prior pay together with 

another bona fide business reason explains the differential. 

In other words, the Claims Court would need to find that 

the BVAMC actually relied on specific differences in experience or credentials that were material to the work being 

performed by Dr. Boyer and the male comparator. Alternatively, if, on remand, the Claims Court determines that 

BVAMC relied on prior pay alone, the government should 

be provided an opportunity to attempt to prove that the 

prior pay on which BVAMC relied was not itself based on 

sex. 

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BOYER v. US 25

Because the Claims Court erred in its construction of 

the EPA, and there are genuine disputes of material fact 

as to whether the BVAMC relied on prior pay alone to justify the pay differential between Dr. Boyer’s and the male 

comparator’s salaries, we reverse the grant of summary 

judgment and remand to the Claims Court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

COSTS

Costs to appellants.

 

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