FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AILEEN RIZO,

Plaintiff-Appellee,

v.

JIM YOVINO, Fresno County

Superintendent of Schools, 

Erroneously Sued Herein as Fresno 

County Office of Education,

Defendant-Appellant.

No. 16-15372

D.C. No.

1:14-cv-00423-

MJS

OPINION

Appeal from the United States District Court

for the Eastern District of California

Michael J. Seng, Magistrate Judge, Presiding

Argued and Submitted En Banc December 12, 2017

San Francisco, California

Filed April 9, 2018

Before: Sidney R. Thomas, Chief Judge, and Stephen 

Reinhardt*, M. Margaret McKeown, William A. Fletcher, 

Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, 

 * Prior to his death, Judge Reinhardt fully participated in this case 

and authored this opinion. The majority opinion and all concurrences 

were final, and voting was completed by the en banc court prior to his 

death.
2 RIZO V. YOVINO

Consuelo M. Callahan, Mary H. Murguia, Morgan Christen 

and Paul J. Watford, Circuit Judges.

Opinion by Judge Reinhardt;

Concurrence by Judge McKeown;

Concurrence by Judge Callahan;

Concurrence by Judge Watford

SUMMARY**

Employment Discrimination

Affirming the district court’s denial of summary 

judgment to the defendant on a claim under the Equal Pay 

Act, the en banc court held that prior salary alone or in 

combination with other factors cannot justify a wage 

differential between male and female employees.

Overruling Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th 

Cir. 1982), the en banc court held that an employee’s prior 

salary does not constitute a “factor other than sex” upon 

which a wage differential may be based under the statutory 

“catchall” exception set forth in 29 U.S.C. § 206(d)(1). The 

en banc court concluded that “any other factor other than 

sex” is limited to legitimate, job-related factors such as a 

prospective employee’s experience, educational 

background, ability, or prior job performance. By relying on 

prior salary, the defendant therefore failed as a matter of law 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
RIZO V. YOVINO 3

to set forth an affirmative defense. The en banc court 

remanded the case to the district court.

Concurring, Judge McKeown, joined by Judge Murguia, 

wrote that she agreed with most of the majority opinion, 

particularly its observation that past salary can reflect 

historical sex discrimination. She wrote that the majority, 

however, went too far in holding that any consideration of 

prior pay is impermissible under the Equal Pay Act, even 

when it is assessed with other job-related factors.

Concurring, Judge Callahan, joined by Judge Tallman, 

wrote that in holding that prior salary can never be 

considered, the majority failed to follow Supreme Court 

precedent, unnecessarily ignored the realities of business, 

and, in doing so, might hinder rather than promote equal pay 

for equal work.

Concurring in the judgment, Judge Watford wrote that in 

his view, past pay can constitute a “factor other than sex,” 

but only if an employee’s past pay is not itself a reflection of 

sex discrimination.

COUNSEL

Shay Dvoretsky (argued), Jones Day, Washington, D.C.; 

Michael G. Woods and Timothy J. Buchanan, McCormick 

Barstow Sheppard Wayte & Carruth LLP, Fresno, 

California; for Defendant-Appellant.

Daniel M. Siegel (argued) and Kevin Brunner, Siegel & Yee,

Oakland, California, for Plaintiff-Appellee.
4 RIZO V. YOVINO

Jessica Stender (argued), Equal Rights Advocates, San 

Francisco, California, for Amici Curiae Equal Rights 

Advocates; 9to5, National Association of Working Women; 

American Association of University Women; American 

Association of University Women—California Chapter;

ACLU of Northern California and ACLU Women’s Rights 

Project; Atlanta Women for Equality; California Women’s 

Law Center; Feminist Majority Foundation; Legal Aid at 

Work; Legal Voice; National Organization for Women 

(NOW) Foundation; National Partnership for Women and 

Families; National Women’s Law Center; Southwest 

Women’s Law Center; Women Employed; and Women’s 

Law Project.

Barbara L. Sloan (argued), Attorney; Margo Pave and 

Elizabeth E. Theran, Assistant General Counsel; Jennifer S. 

Goldstein, Associate General Counsel; James L. Lee, 

Deputy General Counsel; P. David Lopez, General Counsel; 

Office of the General Counsel, Washington, D.C.; as and for 

Amicus Curiae Equal Employment Opportunity 

Commission.

Laurence S. Zakson, Aaron G. Lawrence, and Marianne 

Reinhold, Reich Adell & Cvitan APLC, Los Angeles, 

California, for Amici Curiae Make-Up Artists and Hair 

Stylists Guild, Local 706 of the International Alliance of 

Theatrical State Employees, Moving Picture Technicians, 

Artists and Allied Crafts of the United States, its Territories 

and Canada, AFL-CIO, CLC; Costume Designers Guild,

Local 892 of the International Alliance of Theatrical Stage 

Employees, Moving Picture Technicians, Artists and Allied 

Crafts of the United States, its Territories and Canada, AFLCIO, CLC; and Orange County Managers Association.
RIZO V. YOVINO 5

Rae T. Vann and Danny E. Petrella, Washington, D.C., for 

Amicus Curiae Center for Workplace Compliance.

OPINION

REINHARDT, Circuit Judge:

The Equal Pay Act stands for a principle as simple as it 

is just: men and women should receive equal pay for equal 

work regardless of sex. The question before us is also 

simple: can an employer justify a wage differential between 

male and female employees by relying on prior salary? 

Based on the text, history, and purpose of the Equal Pay Act, 

the answer is clear: No. Congress recognized in 1963 that 

the Equal Pay Act was long overdue: “Justice and fairplay 

speak so eloquently [on] behalf of the equal pay for women 

bill that it seems unnecessary to belabor the point. We can 

only marvel that it has taken us so long to recognize the fact 

that equity and economic soundness support this 

legislation.”1 Salaries speak louder than words, however. 

Although the Act has prohibited sex-based wage 

discrimination for more than fifty years, the financial 

exploitation of working women embodied by the gender pay 

gap continues to be an embarrassing reality of our economy.

Prior to this decision, our law was unclear whether an 

employer could consider prior salary, either alone or in 

combination with other factors, when setting its employees’ 

salaries. We took this case en banc in order to clarify the 

law, and we now hold that prior salary alone or in 

combination with other factors cannot justify a wage 

differential. To hold otherwise—to allow employers to 

 1 109 Cong. Rec. 8916 (1963) (statement of Sen. Hart).
6 RIZO V. YOVINO

capitalize on the persistence of the wage gap and perpetuate 

that gap ad infinitum—would be contrary to the text and 

history of the Equal Pay Act, and would vitiate the very 

purpose for which the Act stands.

Fresno County Office of Education (“the County”)2 does 

not dispute that it pays Aileen Rizo (“Rizo”) less than 

comparable male employees for the same work. However, 

it argues that this wage differential is lawful under the Equal 

Pay Act. In relevant part, the Act provides,

No employer having employees subject to 

any provisions of this section shall 

discriminate, within any establishment in 

which such employees are employed, 

between employees on the basis of sex by 

paying wages to employees in such 

establishment at a rate less than the rate at 

which he pays wages to employees of the 

opposite sex in such establishment for equal 

work on jobs the performance of which 

requires equal skill, effort, and responsibility, 

and which are performed under similar 

working conditions, except where such 

payment is made pursuant to (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.

 2 The defendant is Jim Yovino, the Superintendent of the Fresno 

County Office of Education. Because he is sued in his official capacity, 

we refer to the defendant as the County.
RIZO V. YOVINO 7

29 U.S.C. § 206(d)(1) (emphasis added). The County 

contends that that the wage differential is based on the fourth 

exception—the catchall exception: a “factor other than sex.” 

It argues that an employee’s prior salary can constitute a 

“factor other than sex” within the meaning of the catchall 

exception. However, this would allow the County to defend 

a sex-based salary differential on the basis of the very sexbased salary differentials the Equal Pay Act was designed to 

cure. Because we conclude that prior salary does not 

constitute a “factor other than sex,” the County fails as a 

matter of law to set forth an affirmative defense. We affirm 

the district court’s denial of summary judgment to the 

County and remand for proceedings consistent with this 

opinion.3

Background

Aileen Rizo was hired as a math consultant by the Fresno 

County Office of Education in October 2009. Previously, 

she was employed in Maricopa County, Arizona as a middle 

and high school math teacher. In her prior position, Rizo 

earned an annual salary of $50,630 for 206 working days. 

She also received an educational stipend of $1,200 per year 

for her master’s degrees in educational technology and 

mathematics education.

Rizo’s new salary upon joining the County was 

determined in accordance with the County’s Standard 

 3 We leave to the district court the question whether Rizo is entitled 

to summary judgment on her Equal Pay Act claim. See Albino v. Baca, 

747 F.3d 1162, 1176 (9th Cir. 2014) (en banc) (“We have long 

recognized that, where the party moving for summary judgment has had 

a full and fair opportunity to prove its case, but has not succeeded in 

doing so, a court may enter summary judgment sua sponte for the 

nonmoving party.”).
8 RIZO V. YOVINO

Operating Procedure 1440 (“SOP 1440”), informally 

adopted in 1998 and formally adopted in 2004. The 

County’s hiring schedule consists of 10 stepped salary 

levels, each level containing 10 salary steps within it. SOP 

1440 dictates that a new hire’s salary is to be determined by 

taking the hired individual’s prior salary, adding 5%, and 

placing the new employee on the corresponding step of the 

salary schedule. Unlike the County’s previous hiring 

schedule, SOP 1440 does not rely on experience to set an 

employee’s initial salary. SOP 1440 dictated that Rizo be 

placed at step 1 of level 1 of the hiring schedule, 

corresponding to a salary of $62,133 for 196 days of work 

plus a master’s degree stipend of $600.

During a lunch with colleagues in 2012, Rizo learned 

that her male colleagues had been subsequently hired as 

math consultants at higher salary steps. In August 2012, she 

filed a complaint about the pay disparity with the County, 

which responded that all salaries had been set in accordance 

with SOP 1440. The County claimed to have reviewed 

salary-step placements of male and female management 

employees for the past 25 years (so including before the 

policy was even informally adopted), finding that SOP 1440 

placed more women at higher compensation steps than 

males. Rizo disputes this analysis and claims that the data 

show men were placed at a higher average salary step.

Rizo sued Jim Yovino in his official capacity as the 

Superintendent of the Fresno County Office of Education in 

February 2014. She claimed a violation of the Equal Pay 

Act, 29 U.S.C. § 206(d); sex discrimination under Title VII 

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 

(“Title VII”); sex discrimination under California 

Government Code § 12940(a); and failure to prevent 

discrimination under California Government Code 
RIZO V. YOVINO 9

§ 12940(k). Rizo v. Yovino, No. 1:14-cv-0423-MJS, 

2015 WL 9260587, at *1 (E.D. Cal. Dec. 18, 2015), vacated, 

854 F.3d 1161 (9th Cir.), reh’g en banc granted, 869 F.3d 

1004 (9th Cir. 2017).

In June 2015, the County moved for summary judgment. 

It asserted that, although Rizo was paid less than her male 

counterparts for the same work, the discrepancy was based 

on Rizo’s prior salary. The County contended that her prior 

salary was a permissible affirmative defense to her 

concededly lower salary than her male counterparts under 

the fourth, catchall clause, a “factor other than sex.” Rizo, 

2015 WL 9260587, at *7. The district court denied summary 

judgment, reasoning that SOP 1440 “necessarily and 

unavoidably conflicts with the EPA” because “a pay 

structure based exclusively on prior wages is so inherently 

fraught with the risk—indeed, here, the virtual certainty—

that it will perpetuate a discriminatory wage disparity 

between men and women that it cannot stand.” Id. at *9. It 

certified the legal question for interlocutory appeal, 

recognizing that denying summary judgment for the County 

“effectively resolves the issue of liability on Plaintiff’s 

claims in her favor.” Id. at *12.4

This Court granted the County’s petition for permission 

to file an interlocutory appeal. The three-judge panel 

vacated the denial of summary judgment and remanded. 

Rizo v. Yovino, 854 F.3d 1161, 1167 (9th Cir.), reh’g en banc 

granted, 869 F.3d 1004 (9th Cir. 2017). The panel 

concluded that Kouba v. Allstate Insurance Co., 691 F.2d 

 4 The certified question was “whether, as a matter of law under the 

EPA, 29 U.S.C. § 206(d), an employer subject to the EPA may rely on 

prior salary alone when setting an employee’s starting salary.” Id. at 

*13.
10 RIZO V. YOVINO

873 (9th Cir. 1982) was controlling and that it permits prior 

salary alone to constitute a “factor other than sex” under the 

Equal Pay Act. In Kouba, the employer considered prior 

salary along with other factors, “including ‘ability, 

education, [and] experience,’” in setting employees’ 

salaries. Rizo, 854 F.3d at 1166 (quoting Kouba, 691 F.2d 

at 874). The panel concluded, however, that because Kouba

“did not attribute any significance to Allstate’s use of these 

other factors,” that case permits consideration of prior salary 

alone, as long as use of that factor “was reasonable and 

effectuated some business policy.” Id. Because it believed 

it was compelled to follow Kouba, the panel directed the 

district court on remand to consider the reasonableness of the 

County’s proffered business reasons for its reliance on prior 

salary.

We granted the petition for rehearing en banc in order to 

clarify the law, including the vitality and effect of Kouba.

Standard of Review

We review the district court’s denial of summary 

judgment de novo. Diaz v. Eagle Produce Ltd. P’ship, 

521 F.3d 1201, 1207 (9th Cir. 2008). Summary judgment is 

available only when there are no genuine disputes of 

material fact and the movant is entitled to judgment as a 

matter of law. Id.

Discussion

Congress enacted the Equal Pay Act in 1963 to put an 

end to the “serious and endemic problem of employment 

discrimination in private industry” and to carry out a broad 

mandate of equal pay for equal work regardless of sex. 

Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). 

It set forth a simple structure to carry out this simple 
RIZO V. YOVINO 11

principle. See 29 U.S.C. § 206(d)(1). A plaintiff must show 

that her employer has paid male and female employees 

different wages for substantially equal work. Not all 

differentials in pay for equal work violate the Equal Pay Act, 

however. The Act includes four statutory exceptions—“(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”—

which operate as affirmative defenses. Id.; Corning, 

417 U.S. at 196; Maxwell v. City of Tucson, 803 F.2d 444, 

446 (9th Cir. 1986). “[A]n employer [must] submit evidence 

from which a reasonable factfinder could conclude not 

simply that the employer’s proffered reasons could explain 

the wage disparity, but that the proffered reasons do in fact

explain the wage disparity.” EEOC v. Md. Ins. Admin., 

879 F.3d 114, 121 (4th Cir. 2018) (first citing Stanziale v. 

Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000); and then 

citing Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 

(10th Cir. 2006)); see also 29 U.S.C. § 206(d)(1) (exempting 

from liability wage differentials only where payment of 

which was “made pursuant to” an enumerated exception 

(emphasis added)).

The Equal Pay Act “creates a type of strict liability” for 

employers who pay men and women different wages for the 

same work: once a plaintiff demonstrates a wage disparity, 

she is not required to prove discriminatory intent. Maxwell, 

803 F.2d at 446 (quoting Strecker v. Grand Forks Cty. Social 

Serv. Bd., 640 F.2d 96, 99 n.1 (8th Cir. 1980) (en banc)). 

The County and Amicus Center for Workplace Compliance

contend that the Supreme Court in Washington County v.

Gunther, 452 U.S. 161 (1981), infused into Equal Pay Act 

law Title VII’s disparate treatment analysis. This is clearly 

wrong. In Ledbetter v. Goodyear Tire & Rubber Co., Inc., 

the Supreme Court stated, “the EPA does not require . . .
12 RIZO V. YOVINO

proof of intentional discrimination.” 550 U.S. 618, 641 

(2007).5 More recently, the Fourth Circuit reaffirmed that 

“[a]n EPA plaintiff need not prove that the employer acted 

with discriminatory intent to obtain a remedy under the 

statute.” Md. Ins. Admin., 879 F.3d at 120 (collecting cases). 

Accordingly, pretext as it is understood in the Title VII 

context plays no role in Equal Pay Act claims.6

Here, the County does not dispute that Rizo established 

a prima facie case and that none of the three specific 

statutory exceptions applies. The County urges instead that 

the fourth catchall exception, “any other factor other than 

sex,” includes an employee’s prior salary and applies when 

her starting salary is based on her prior salary. It 

acknowledges that if it is wrong, it has no defense to Rizo’s 

Equal Pay Act claim.

The question in this case is the meaning of the catchall 

exception. This is purely a question of law. We conclude, 

unhesitatingly, that “any other factor other than sex” is 

limited to legitimate, job-related factors such as a 

prospective employee’s experience, educational 

background, ability, or prior job performance. It is 

inconceivable that Congress, in an Act the primary purpose 

of which was to eliminate long-existing “endemic” sexbased wage disparities, would create an exception for basing 

new hires’ salaries on those very disparities—disparities that 

 5 Superseded on other grounds by statute, Lilly Ledbetter Fair Pay 

Act of 2009, Pub. L. No. 111-2, 123 Stat. 5.

6 Because the issue in this case is one of law, we do not have 

occasion to address the burden-shifting framework applicable to Equal 

Pay Act as opposed to Title VII claims. Maryland Insurance 

Administration, however, sets forth the standards to apply when there are 

factual, rather than legal, disputes. Id. at 120-21, 120 n.6, 120 n.7.
RIZO V. YOVINO 13

Congress declared are not only related to sex but caused by 

sex. To accept the County’s argument would be to 

perpetuate rather than eliminate the pervasive discrimination 

at which the Act was aimed. As explained later in this 

opinion, the language, legislative history, and purpose of the 

Act make it clear that Congress was not so benighted. Prior 

salary, whether considered alone or with other factors, is not

job related and thus does not fall within an exception to the 

Act that allows employers to pay disparate wages. 

Reflecting the very essence of the Act, we hold that by 

relying on prior salary, the County fails as a matter of law to 

set forth an affirmative defense.

A.

Allowing an employer to justify a wage differential 

between men and women on the basis of prior salary is 

wholly inconsistent with the provisions of the Equal Pay 

Act.7 As the Supreme Court has emphasized, “[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, 417 U.S. at 208. The 

remedial purpose of the Act is clear: to put an end to 

historical wage discrimination against women. 

Representative Florence Dwyer said in support of the bill: 

“The issue here is really a very simple one—the elimination

of one of the most persistent and obnoxious forms of 

discrimination which is still practiced in this enlightened 

 7 This case arose in the context of initial wage-setting. By failing to 

address compensation for employees seeking promotions or changes in 

status within the same organization, we do not imply that the Equal Pay 

Act is inapplicable to these situations.
14 RIZO V. YOVINO

society.”8 Representative Harold Donohue in his comments 

on the bill stressed a similar point: “[T]his measure 

represents the correction of basic injustice being visited 

upon women in many fields of endeavor . . . .”9 In other 

words, the Equal Pay Act was not intended to be a passive 

measure but a proactive one designed to correct salary 

structures based on the “outmoded belief” that women 

should be paid less than men. See Corning, 417 U.S. at 195 

(quoting S. Rep. No. 88-176, at 1 (1963)).

In light of the clear intent and purpose of the Equal Pay 

Act, it is equally clear that we cannot construe the catchall 

exception as justifying setting employees’ starting salaries 

on the basis of their prior pay. At the time of the passage of 

the Act, an employee’s prior pay would have reflected a 

discriminatory marketplace that valued the equal work of 

one sex over the other. Congress simply could not have 

intended to allow employers to rely on these discriminatory 

wages as a justification for continuing to perpetuate wage 

differentials.

Today we express a general rule and do not attempt to 

resolve its applications under all circumstances. We do not 

decide, for example, whether or under what circumstances, 

past salary may play a role in the course of an individualized 

salary negotiation. We prefer to reserve all questions 

relating to individualized negotiations for decision in 

subsequent cases. Our opinion should in no way be taken as 

barring or posing any obstacle to whatever resolution future 

 8 109 Cong. Rec. 9200 (1963) (statement of Rep. Dwyer) (emphasis 

added).

9 Id. at 9212 (statement of Rep. Donohue) (emphasis added).
RIZO V. YOVINO 15

panels may reach regarding questions relating to such 

negotiations.10

B.

Basic principles of statutory interpretation also establish 

that prior salary is not a permissible “factor other than sex” 

within the meaning of the Equal Pay Act. The County 

maintains that the catchall exception unambiguously 

provides that any facially neutral factor constitutes an 

affirmative defense to liability under the Equal Pay Act. It 

is incorrect. The Supreme Court in Corning did not find the 

Act clear on its face. Rather, that decision applied an 

analytical framework similar to the one we use here by 

looking to the history of the legislative process of the Equal 

Pay Act as well as the context in which the Act was adopted. 

417 U.S. at 198–203. Following a similar method of 

analysis, it is clear that when the catchall exception is read 

in light of its surrounding context and legislative history, a 

legitimate “factor other than sex” must be job related and 

that prior salary cannot justify paying one gender less if 

equal work is performed.

1.

The Act “establishes four exceptions—three specific and 

one a general catchall provision.” Corning, 417 U.S. at 196. 

Where, as here, a statute contains a catchall term at the end 

of a list, we rely on the related principles of noscitur a sociis

and ejusdem generis to “cabin the contextual meaning” of 

the term, and to “avoid ascribing to [that term] a meaning so 

 10 Accordingly, Judge McKeown’s and Judge Callahan’s complaints 

regarding our opinion’s effect upon the setting of pay on an 

individualized basis are meritless.
16 RIZO V. YOVINO

broad that it is inconsistent with its accompanying words, 

thus giving unintended breadth to the Acts of Congress.” 

Yates v. United States, 135 S. Ct. 1074, 1085-86 (2015) 

(plurality opinion) (quoting Gustafson v. Alloyd Co., 

513 U.S. 561, 575 (1995)); id. at 1089 (Alito, J., concurring 

in judgment) (applying noscitur a sociis and ejusdem 

generis).

The canon noscitur a sociis—“a word is known by the 

company it keeps”—provides that words grouped together 

should be given related meaning. Id. at 1085 (plurality 

opinion). Here, the catchall phrase is grouped with three 

specific exceptions based on systems of seniority, merit, and 

productivity. These specific systems share more in common 

than mere gender neutrality; all three relate to job 

qualifications, performance, and/or experience. It follows 

that the more general exception should be limited to 

legitimate, job-related reasons as well.

A related canon, ejusdem generis, likewise supports our 

interpretation of the catchall term. We apply this canon 

when interpreting general terms at the end of a list of more 

specific ones. Id. at 1086. In such a case, “the general words 

are construed to embrace only objects similar in nature to 

those objects enumerated by the preceding specific words.” 

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 114–

15 (2001) (quoting 2A Norman J. Singer, Sutherland on 

Statutes and Statutory Construction § 47.17 (1991)). The 

inclusion of the word “other” before the general provision in 

the Equal Pay Act makes its meaning all the more clear: 

“[T]he principle of ejusdem generis . . . implies the addition 

of similar after the word other.” Antonin Scalia & Bryan A. 

Garner, Reading Law: The Interpretation of Legal Texts 199

(2012). Here, we read the statutory exceptions as: “(i) a 

seniority system, (ii) a merit system, (iii) a system which 
RIZO V. YOVINO 17

measures earnings by quantity or quality of production; or 

(iv) a differential based on any other [similar] factor other 

than sex.” 29 U.S.C. § 206(d)(1). A similar factor would 

have to be one similar to the other legitimate, job-related 

reasons.

The presence of the word “any”—which the County 

contends indicates the expansive reach of the fourth statutory 

exception—does not counsel against our interpretation. In 

Circuit City Stores, for example, the Supreme Court 

interpreted § 1 of the Federal Arbitration Act, which lists 

“seamen, railroad employees, or any other class of workers 

engaged in foreign or interstate commerce” to include only 

transportation workers, not workers in literally any industry. 

532 U.S. at 109, 114-15 (emphasis added) (quoting 9 U.S.C. 

§ 1); see also, e.g., In re Indian Gaming Related Cases, 

331 F.3d 1094, 1113-14 (9th Cir. 2003) (adopting district 

court’s use of ejusdem generis to interpret the phrase “any 

other purposes specified by the legislature” as being limited 

to purposes directly related to gaming).

2.

Although “the authoritative statement is the statutory 

text,” the legislative history of the Equal Pay Act further 

supports our interpretation that the catchall exception is 

limited to job-related factors. See Exxon Mobil Corp. v. 

Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). “[T]he 

way in which Congress arrived at the statutory language” 

can provide “a better understanding of the [statutory] 

phrase” in question than “trying to reconcile or establish 

preferences between the conflicting interpretations of the 

Act by individual legislators or the committee reports.” 

Corning, 417 U.S. at 198. In Corning, the Supreme Court 

relied heavily on the history of the legislative process in 

interpreting the term “similar working conditions,” a factor 
18 RIZO V. YOVINO

in determining whether employees perform “equal work” 

under the Equal Pay Act. Id. at 199-201. The Court 

explained that “[a]s originally introduced,” the Equal Pay 

bills considered in the House and Senate “required equal pay 

for ‘equal work on jobs the performance of which requires 

equal skills’” and included “only two exceptions—for

differentials ‘made pursuant to a seniority or merit increase 

system which does not discriminate on the basis of sex.’” Id.

at 199; S. 882, 88th Cong. § 4 (1963); S. 910, 88th Cong. 

§ 4(a) (1963); H.R. 3861, 88th Cong. § 4(a) (1963); H.R. 

4269, 88th Cong. § 4(a) (1963). Industry representatives 

during the House and Senate hearings were “highly critical 

of the Act’s definition of equal work and of its exemptions.” 

Corning, 417 U.S. at 199. The Corning Court compared the 

original language in the House and Senate bills to that in the 

final Act and thought “it plain that in amending the bill’s 

definition of equal work to its present form, the Congress 

acted in direct response to these pleas” for a more definite 

standard for equal work based on bona fide job evaluation 

plans. Id. at 200. The Court then used that context to 

interpret “similar working conditions.” Id. at 200-01.

We, too, look to the history of the legislative process and 

draw a similar conclusion that the inclusion of the catchall 

provision in the final bill was in direct response to the 

entreaties of industry witnesses. Industry representatives 

testified at the congressional subcommittee hearings that the 

two exceptions in the bills that had been introduced in the 

House and Senate were too specific and under inclusive, and 

“evidence[d] . . . a lack of understanding of industrial 

reality.” Equal Pay Act: Hearings Before the H. Special 

Subcomm. on Labor of the H. Comm. on Educ. & Labor on 

H.R. 3861, 4269, and Related Bills, 88th Cong. 135 (1963) 

[hereinafter House Hearing] (statement of the American 

Retail Federation). The witnesses were concerned that 
RIZO V. YOVINO 19

companies would no longer be able to rely on the wide 

variety of factors used across industries to measure the value 

of a particular job. Accordingly, the witnesses proposed a 

series of job-related exceptions in addition to the two 

original exceptions that had covered only seniority and merit 

systems.

Chief among those was an exception for job 

classification programs. The Vice President of OwensIllinois Glass Co. testified: “Job classification and wage 

incentive programs are so widely accepted . . . in American 

industry that there seems little need to set forth a lengthy list 

of reasons why they should be excepted from the present 

bill.” Id. at 101 (statement of W. Boyd Owen, Vice 

President of Personnel Administration, Owens-Illinois Glass 

Co.). Bona fide job classification programs were necessarily 

job related because they were used to “establish relative job 

worth” in diverse industries, “each [of which] has its own 

peculiarities and its own customs.” Id. at 238 (statement of 

E.G. Hester, Director of Industrial Relations Research, 

Corning Glass Works). Using factors like skill and 

responsibility, these classification programs were “a 

yardstick against which [employers] can measure work 

performance and consequently pay.” Id. at 146 (statement 

of John G. Wayman, Partner, Reed, Smith, Shaw & 

McClay). The Owens-Illinois Glass representative, Mr. 

Owen, explained that his proposed exceptions based on job 

classification and wage incentive programs would “merely 

parallel” the existing exceptions for seniority and merit 

systems, id. at 101, both of which were themselves job 

related.

Most of the other exceptions urged by industry witnesses 

were also job related. Mr. Owen, for example, explained that 

there are “countless reasons for wage variations . . . which 
20 RIZO V. YOVINO

are not discriminatory in nature,” including differences in 

“the shift or time of day worked, in the regularity of 

performing duties, [and] in training.” Id. at 100. The 

statement of the American Retail Federation likewise 

explained: “It is a wholly justifiable fact that in retailing 

there are many situations where there are differentials in 

wage scales based on experience, hours worked (day or 

evening), job hazards, physical requirements, and the like.” 

Id. at 135.

We think it plain that the catchall exception was added 

to the final Equal Pay Act in direct response to these 

employers’ concerns that their legitimate, job-related means 

of setting pay would not be covered under the two exceptions 

already included in the bill.11 Following the hearings, 

Representative Edith Green introduced H.R. 6060, which 

added the exceptions for “a differential based on any other 

factor other than sex” as well as “a system which measures 

earnings by quantity or quality of production.” H.R. 6060, 

88th Cong. § 2(d)(1) (1963). In its report discussing H.R. 

6060, the House Committee explained that “a bona fide job 

classification program that does not discriminate on the basis 

of sex will serve as a valid defense to a charge of 

discrimination.” H.R. Rep. No. 88-309, at 3 (1963), as 

 11 While the third exception under the Equal Pay Act—“a system 

which measures earnings by quantity or quality of production”—is not 

at issue in this case, we note that this exception was also added following 

the hearings and that the exception roughly corresponds to the “wage 

incentive programs” discussed by the Owens-Illinois Glass 

representative. See House Hearing at 99, 101 (statement of W. Boyd 

Owen, Vice President, Owens-Illinois Glass Co.); Equal Pay Act of 

1963: Hearings Before the S. Subcomm. on Labor of the S. Comm. on 

Labor & Pub. Welfare on S. 882 and S. 910, 88th Cong. 138 (1963) 

(statement of W. Boyd Owen, Vice President of Personnel 

Administration, Owens-Illinois Glass Co.).
RIZO V. YOVINO 21

reprinted in 1963 U.S.C.C.A.N. 687, 689. The Committee 

also provided an illustrative list of other factors in addition 

to job classification programs which would be covered under 

the fourth exception, the catchall provision: “[A]mong other 

things, shift differentials, restrictions on or differences based 

on time of day worked, hours of work, lifting or moving 

heavy objects, differences based on experience, training, or 

ability would also be excluded.” Id. In the end, 

Representative Robert Griffin, author of the LandrumGriffin Act, the landmark labor-relations legislation, put it 

best. Describing the catchall exception, he said, “Roman 

numeral iv is a broad principle, and those preceding it are 

really examples.”12

The Senate Committee Report likewise confirms that 

Congress intended the catchall exception to cover factors 

other than sex only insofar as they were job related. 

Following the hearings, Senator Patrick McNamara 

introduced S. 1409, which removed reference to seniority 

and merit systems and instead included just one statutory 

exception that was virtually identical to the Act’s catchall 

exception. S. 1409, 88th Cong. § 2(d)(1) (1963). That 

exception read, “except where such a wage differential is 

based on any factor or factors other than sex.” Id. In its 

report, the Senate Committee provided illustrative examples 

of what this general exception would cover: “seniority 

systems . . . based on tenure,” “merit system[s],” “piecework 

system[s] which measure[] either the quantity or quality of 

production or performance,” and “[w]ithout question,” 

“other valid classification programs . . . .” S. Rep. No. 88-

176, at 4 (1963). Ultimately, the House version of the bill 

prevailed, with the House passing H.R. 6060 on May 23, 

1963, see 109 Cong. Rec. 9217, and the Senate agreeing by 

 12 109 Cong. Rec. 9203 (1963) (statement of Rep. Griffin).
22 RIZO V. YOVINO

a voice vote to the House amendments on May 28, 1963, see 

id. at 9761-62. In other words, the Senate contemplated 

from the start that the factors ultimately exempted by the 

House bill would be covered by a catchall provision identical 

in substance to the fourth exception and that it would cover 

only job-related factors.

Contrary to the County’s assertion, Washington County 

v. Gunther, 452 U.S. 161 (1981), supports the concept of a 

catchall provision limited to job-related factors. The Court 

commented in Gunther that “courts and administrative 

agencies are not permitted to ‘substitute their judgment for 

the judgment of the employer . . . who [has] established and 

applied a bona fide job rating system . . . .’”13 The predicate 

for this dictum is that the employer must both establish a 

bona fide work-related system and apply it in good faith. 

The Court went on to reiterate its earlier conclusion in 

Corning that “the Equal Pay bill [was] amended . . . to add 

the fourth affirmative defense because of a concern that bona 

fide job-evaluation systems used by American businesses 

would otherwise be disrupted.” Id. at 170 n.11 (citing 

Corning, 417 U.S. at 199-201). In sum, so long as the 

employer proves that it is using a bona fide job classification 

system or otherwise relying on bona fide job-related factors 

to set pay, courts will not second guess the merits of the 

particular method used. Courts have followed the Gunther

mandate. They have not held, for example, that it would be 

more appropriate to value educational background over 

years of experience when setting salaries or that job training 

should outweigh demonstrated ability to do the job. Gunther 

thus implicitly endorsed the bargain struck in the Equal Pay 

 13 452 U.S. at 171 (alterations in the original) (quoting 109 Cong. 

Rec. 9209 (1963) (statement of Rep. Goodell)).
RIZO V. YOVINO 23

Act: employers may continue to use their legitimate, jobrelated means of setting pay but may not use sex directly or 

indirectly as a basis for establishing employees’ wages.14

3.

We are not the only federal court of appeals to construe 

the catchall exception as limited to job-related factors.15 The 

Eleventh Circuit, for example, has concluded that “the 

‘factor other than sex’ exception applies when the disparity 

results from unique characteristics of the same job; from an 

individual’s experience, training, or ability . . .”—in other 

words, job-related reasons.16 Glenn, 841 F.2d at 1571. 

 14 When there is a factual dispute over whether the Equal Pay Act 

was violated, courts have established a procedure for resolving such 

disputes which differs somewhat from the Title VII format. See supra

note 6; see also Md. Ins. Admin., 879 F.3d at 120.

15 See Riser v. QEP Energy, 776 F.3d 1191, 1198 (10th Cir. 2015); 

Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 526 (2d Cir. 1992); 

EEOC v. J.C. Penney Co., 843 F.2d 249, 253 (6th Cir. 1988); Glenn v. 

General Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988). But see

Taylor v. White, 321 F.3d 710, 717-18 (8th Cir. 2003) (“[W]e are 

reluctant to establish any per se limitations to the ‘factor other than sex’ 

exception . . . .”); Covington v. S. Ill. Univ., 816 F.2d 317, 321-22 (7th 

Cir. 1987).

16 Although the Eleventh Circuit also listed “special exigent 

circumstances connected with the business,” it did so in reference to “red 

circle rates.” Glenn, 841 F.2d at 1571 (quoting H.R. Rep. No. 88-309, 

at 3). Red circle rates, a term from the War Labor Board, refers to 

“unusual, higher than normal wage rates” paid when “an 

employer . . . must reduce help in a skilled job” so that skilled employees 

are “available when they are again needed for their former jobs.” H.R. 

Rep. No. 88-309, at 3. In other words, these rates are paid based on the 

skills and experience of the particular employee who is temporarily 
24 RIZO V. YOVINO

Although some courts occasionally use “job-related” and 

terminology like “business-related” or “legitimate business 

reason[s]” interchangeably, we believe that it is neither 

helpful nor advisable to do so. Terms like “business-related” 

have been used loosely in a number of cases to refer to 

factors that are in fact job related. For example, in Aldrich, 

the Second Circuit used interchangeably the terms “jobrelatedness requirement,” “legitimate business-related 

differences in work responsibilities and qualifications for the 

particular positions,” and “legitimate business-related 

considerations” to describe “the proper legal standard for the 

factor-other-than-sex defense.” 963 F.2d at 525, 527. 

Remanding the case to the district court, however, the 

Second Circuit was clear in its instructions: the employer 

could justify the wage differential “only if the employer 

proves that the [factor relied on] is job-related.” Id. at 527 

(emphasis added).17

 

transferred to a position requiring fewer skills and normally paying less. 

In short, red circle rates are indeed job related.

17 We have been able to find only one circumstance in which the use 

of the term “business-related” does not refer to a factor that is in fact job 

related. In EEOC v. J.C. Penney Co., the Sixth Circuit concluded that a 

health benefits plan that provided spousal coverage only if the employee 

was the “head of household” (i.e. the higher earner) was justified by the 

“legitimate business reason” of “minimizing or controlling cost.” 

843 F.2d 249, 253 (7th Cir. 1988); see also Wambheim v. J.C. Penney 

Co., 705 F.2d 1492, 1495 (9th Cir. 1983) (same). The EEOC approved 

the system grudgingly, requiring that any such defense be “closely 

scrutinized” because it “bears no relationship to the requirements of the 

job or to the individual’s performance on the job.” 29 C.F.R. § 1620.21 

(2017). In fact, a head-of-household benefits system appears to be in 

considerable tension with City of Los Angeles, Department of Water & 

Power v. Manhart, 435 U.S. 702 (1978). See infra.
RIZO V. YOVINO 25

Including “business-related” as a legitimate basis for 

exceptions under the catchall provision would permit the use 

of far too many improper justifications for avoiding the 

strictures of the Act. Not every reason that makes economic 

sense—in other words, that is business related—constitutes 

an acceptable factor other than sex. To the contrary, using 

the word “business” risks conflating a legitimate factor other 

than sex with any cost-saving mechanism. The Supreme 

Court and Congress have repeatedly rejected such an 

interpretation of the fourth exception.

In Corning, the Supreme Court readily dismissed the 

notion that an employer may pay women less under the 

catchall exception because women cost less to employ, thus 

saving the employer money. The Court explained that the 

“market forces theory”—that women will be willing to 

accept lower salaries because they will not find higher 

salaries elsewhere—did not constitute a factor other than sex 

even though such a method of setting salaries could have 

saved the company a considerable amount and so would 

have constituted a good “business” reason. Corning, 

417 U.S. at 205. The Court explained that “Congress 

declared it to be the policy of the Act to correct” the “unfair 

employer exploitation of this source of cheap labor.” Id. at 

206 (quoting Hodgson v. Corning Glass Works, 474 F.2d 

226, 234 (2d Cir. 1973)). “That the company took advantage 

of such a situation may be understandable as a matter of 

economics, but its differential nevertheless became illegal 

once Congress enacted into law the principle of equal pay 

for equal work.” Id. at 205.

Congress and the Supreme Court have also rejected the 

notion that an employer may pay women less under the 

catchall exception because women cost more to employ. In 

City of Los Angeles, Department of Water & Power v. 
26 RIZO V. YOVINO

Manhart, the Supreme Court considered whether the 

Department’s practice of requiring female employees—who 

on average lived longer than male employees—to make 

larger contributions from their paychecks to its pension fund 

than male employees was a discriminatory employment 

practice. 435 U.S. at 704-05.18 In deciding that this alleged 

cost difference was not a permissible factor other than sex, 

the Court explained that Congress had rejected an 

amendment to the Equal Pay Act “that would have expressly 

authorized a wage differential tied to the ‘ascertainable and 

specific added cost resulting from employment of the 

opposite sex.’” Id. at 717 n.32 (quoting 109 Cong. Rec. 9217 

(statement of Rep. Findley)). Acknowledging that the 

legislative history is inconclusive as to whether a costjustification exception could constitute a factor other than 

sex, the Court noted that “[i]t is difficult to find language in 

the statute supporting even this limited defense.” Id. The 

Court also emphasized that the Wage and Hour 

Administrator, then charged with enforcing the Act, had 

interpreted that “a wage differential based on differences in 

the average costs of employing men and women is not based 

on a factor other than sex.’” Id. at 714 n.26 (quoting 

29 C.F.R. § 800.151 (1977)). The Equal Employment 

Opportunity Commission, the agency now charged with 

enforcing the Equal Pay Act, continues to interpret the Act 

this way. See 29 C.F.R. § 1620.22 (2017). Thus, although 

the catchall exception applies to a wide variety of job-related 

factors, it does not encompass reasons that are simply good 

 18 Because the plaintiffs alleged a violation of Title VII based on 

unequal wages for equal work, the Equal Pay Act’s affirmative defenses, 

including the catchall exception, applied through the Bennett 

Amendment to Title VII. Id. at 707, 712 n.22 (citing 42 U.S.C. § 2000e2(h)).
RIZO V. YOVINO 27

for business. We use “job-related” rather than “businessrelated” to clarify the scope of the exception.

4.

Prior salary does not fit within the catchall exception 

because it is not a legitimate measure of work experience, 

ability, performance, or any other job-related quality. It may 

bear a rough relationship to legitimate factors other than sex, 

such as training, education, ability, or experience, but the 

relationship is attenuated. More important, it may well 

operate to perpetuate the wage disparities prohibited under 

the Act. Rather than use a second-rate surrogate that likely 

masks continuing inequities, the employer must instead 

point directly to the underlying factors for which prior salary 

is a rough proxy, at best, if it is to prove its wage differential 

is justified under the catchall exception.

C.

We took this case en banc to clarify our law and the 

effect of Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th 

Cir. 1982). In Kouba, we concluded that “the Equal Pay Act 

does not impose a strict prohibition against the use of prior 

salary.” Id. at 878. Here, the district court recognized that 

its holding that prior salary alone cannot justify a wage 

differential potentially conflicted with Kouba, in which the 

salary structure was based on multiple factors including prior 

salary. Rizo, 2015 WL 9260587, at *12. The three-judge 

panel concluded that our decision in Kouba permits an 

employer to “maintain a pay differential based on prior 

salary . . . only if it showed that the factor ‘effectuate[s] 

some business policy’ and that the employer ‘use[s] the 

factor reasonably in light of the employer’s stated purpose 

as well as its other practices.’” Rizo, 854 F.3d at 1161, 1165 

(alterations in original) (quoting Kouba, 691 F.2d at 878). 
28 RIZO V. YOVINO

The panel explained that Kouba “did not attribute any 

significance to [the employer’s] use of [] other factors”—

ability, education, and experience—in addition to prior 

salary in setting employees’ initial salaries. Id. at 1166. At 

the same time, Kouba directed the district court on remand 

to consider the extent to which “the employer also uses other 

available predictors of the new employee’s performance.” 

Kouba, 691 F.2d at 878.

Because Kouba, however construed, is inconsistent with 

the rule that we have announced in this opinion, it must be 

overruled. First, a factor other than sex must be one that is 

job related, rather than one that “effectuates some business 

policy.” Second, it is impermissible to rely on prior salary 

to set initial wages. Prior salary is not job related and it 

perpetuates the very gender-based assumptions about the 

value of work that the Equal Pay Act was designed to end. 

This is true whether prior salary is the sole factor or one of 

several factors considered in establishing employees’ wages. 

Although some federal courts of appeals allow reliance on 

prior salary along with other factors while barring reliance 

on prior salary alone, see, e.g., Glenn, 841 F.2d at 1571 & 

n.9, this is a distinction without reason: we cannot reconcile 

this distinction with the text or purpose of the Equal Pay Act. 

Although Judges McKeown and Callahan correctly 

acknowledge in their concurrences that basing initial salary 

on an employee’s prior salary alone violates the Equal Pay 

Act, neither offers a rational explanation for their 

incompatible conclusion that relying on prior salary in 

addition to one or more other factors somehow is consistent 

with the Act. Declining to explain the inconsistency of their 

positions, they simply rely on those who came before—the 

EEOC and other courts of appeals, which also fail to explain 

how what is impermissible alone somehow becomes 

permissible when joined with other factors. For obvious 
RIZO V. YOVINO 29

reasons, we cannot agree. Reliance on past wages simply 

perpetuates the past pervasive discrimination that the Equal 

Pay Act seeks to eradicate. Therefore, we readily reach the 

conclusion that past salary may not be used as a factor in 

initial wage setting, alone or in conjunction with less 

invidious factors.

Conclusion

Unfortunately, over fifty years after the passage of the 

Equal Pay Act, the wage gap between men and women is not 

some inert historical relic of bygone assumptions and sexbased oppression. Although it may have improved since the 

passage of the Equal Pay Act, the gap persists today: women 

continue to receive lower earnings than men “across 

industries, occupations, and education levels.”19 

“Collectively, the gender wage gap costs women in the U.S. 

over $840 billion a year.”20 If money talks, the message to 

women costs more than “just” billions: women are told they 

are not worth as much as men. Allowing prior salary to 

justify a wage differential perpetuates this message, 

entrenching in salary systems an obvious means of 

 19 Equal Rights Advocates Amicus Br. at 12 (footnotes omitted) 

(first citing Nat’l P’ship for Women & Families, America’s Women and 

the Wage Gap 2 (2017), http://www.nationalpartnership.org/researchlibrary/workplace-fairness/fair-pay/americas-women-and-the-wagegap.pdf; and then citing Francine D. Blau & Lawrence M. Kahn, The 

Wage Gap: Extent, Trends, and Explanations, (Nat’l Bureau of Econ. 

Research, Working Paper No. 21913, 2016), http://www.nber.org/paper

s/w21913.pdf).

20 Id. at 11 (citing Nat’l P’ship for Women & Families, supra note 

19, at 1).
30 RIZO V. YOVINO

discrimination—the very discrimination that the Act was 

designed to prohibit and rectify.

AFFIRMED AND REMANDED.

McKEOWN, Circuit Judge, with whom MURGUIA, Circuit 

Judge, joins, concurring:

For decade after decade, gender discrimination has been 

baked into our pay scales, with the result that women still 

earn only 80 percent of what men make. Unfortunately, 

women employed in certain sectors face an even larger gap. 

This disparity is exacerbated when a woman is paid less than 

a man for a comparable job solely because she earned less at 

her last job. The Equal Pay Act prohibits precisely this kind 

of “piling on,” where women can never overcome the 

historical inequality.

I agree with most of the majority opinion—particularly 

its observation that past salary can reflect historical sex 

discrimination. But the majority goes too far in holding that 

any consideration of prior pay is “impermissible” under the 

Equal Pay Act, even when it is assessed with other jobrelated factors such as experience, education, past 

performance and training. In my view, prior salary alone is 

not a defense to unequal pay for equal work. If an 

employer’s only justification for paying men and women 

unequally is that the men had higher prior salaries, odds are 

that the one-and-only “factor” causing the difference is sex. 

However, employers do not necessarily violate the Equal 

Pay Act when they consider prior salary among other factors 

when setting initial wages. To the extent salary is considered 

with other factors, the burden is on the employer to show that 
RIZO V. YOVINO 31

any pay differential is based on a valid job-related factor 

other than sex.

To be sure, the majority correctly decides the only issue 

squarely before the court: whether the Fresno County Office 

of Education was permitted to base Aileen Rizo’s starting 

salary solely on her prior salary. The answer is no. But 

regrettably, the majority goes further and effectively bars 

any consideration of prior salary in setting a new salary. Not 

only does Rizo’s case not present this issue, but this 

approach is unsupported by the statute, is unrealistic, and 

may work to women’s disadvantage.

Rizo’s case is an easy one. After she was hired as a math 

consultant, she learned that male colleagues in the same job 

were being hired at a higher salary. The only rationale 

offered by the County was that Rizo’s salary was lower at a 

prior job. In effect, the County “was still taking advantage 

of the availability of female labor to fill its [position] at a 

differentially low wage rate not justified by any factor other 

than sex”—a practice long held unlawful. See Corning 

Glass Works v. Brennan, 417 U.S. 188, 208 (1974); Glenn v. 

Gen. Motors Corp., 841 F.2d 1567, 1570 (11th Cir. 1988) 

(“[T]he argument that supply and demand dictates that 

women qua women may be paid less is exactly the kind of 

evil that the [Equal Pay] Act was designed to eliminate, and 

has been rejected.”); Drum v. Leeson Elec. Corp., 565 F.3d 

1071, 1073 (8th Cir. 2009) (It is “prohibited” to rely on the 

“‘market force theory’ to justify lower wages for female 

employees simply because the market might bear such 

wages.”).

This scenario provides a textbook violation of the “equal 

pay for equal work” mantra of the Equal Pay Act. Prior 

salary level created the only differential between Rizo and 

her male colleagues. The County did not, for example, 
32 RIZO V. YOVINO

consider Rizo’s two advanced degrees or her prior 

experience in setting her initial salary. This historical 

imbalance entrenched unequal pay for equal work based on 

sex—end of story. The County cannot mount a defense on 

past salary alone.

Congress enacted the Equal Pay Act to root out historical 

sex discrimination, declaring it the “policy” of the Act “to 

correct the conditions” of “wage differentials based on sex.” 

Pub. L. No. 88-38, 77 Stat. 56 (1963). At the signing 

ceremony, President John F. Kennedy called the Act “a first 

step” in “achiev[ing] full equality of economic 

opportunity—for the average woman worker earns only 

60 percent of the average wage for men.” President John F. 

Kennedy, Remarks Upon Signing the Equal Pay Act (June 

10, 1963), http://www.presidency.ucsb.edu/ws/?pid=9267. 

The unqualified goal of the statute was to “eliminate wage 

discrimination based upon sex.” H.R. REP. NO. 88-309, at 1 

(1963). Sadly, that gap remains today—with the median 

salary of a female employee being only 80 percent of that of 

a male. See NAT’L P’SHIP FOR WOMEN & FAMILIES,

AMERICA’S WOMEN AND THE WAGE GAP 1 (2017), 

https://goo.gl/SLEcd8.

Given the stated goal of the Equal Pay Act to erase the 

gender wage gap, it beggars belief that Congress intended 

for historical pay discrepancies like Rizo’s to justify pay 

inequity. See Corning, 417 U.S. at 195 (“Congress’ purpose 

in enacting the Equal Pay Act was to remedy . . . [an] 

endemic problem of employment discrimination . . . based 

on an ancient but outmoded belief that a man . . . should be 

paid more than a woman even though his duties are the 

same.”). Congress recently noted that the existence of 

gender-based pay disparities “has been spread and 

perpetuated” since the passage of the Act and “many women 
RIZO V. YOVINO 33

continue to earn significantly lower than men for equal 

work.” H.R. REP. No. 110-783, at 1–2 (2008). “In many 

instances, the pay disparities can only be due to continued 

intentional discrimination or the lingering effects of past 

discrimination.” Id. (emphasis added). Because past pay 

can reflect the very discrimination Congress sought to 

eradicate in the statute, allowing employers to defend 

unequal pay for equal work on that basis alone risks 

perpetuating unlawful inequity. C.f. Ledbetter v. Goodyear 

Tire & Rubber Co., 550 U.S. 618, 647 (2007) (Ginsburg, J., 

dissenting), dissenting position adopted by legislative action

(Jan. 29, 2009) (“Paychecks perpetuating past 

discrimination . . . are actionable . . . because they 

discriminate anew each time they issue.”). That danger is 

best avoided by construing the Equal Pay Act “to fulfill the 

underlying purposes which Congress sought to achieve” and 

rejecting prior salary as its own “factor other than sex” 

defense. Corning, 417 U.S. at 208.

Yet I differ with the majority in one key respect. Merely 

because prior pay is unavailable as a standalone defense does 

not mean that employers may never use past pay as a factor 

in setting initial wages.1 Using prior salary along with valid 

job-related factors such as education, past performance and 

training may provide a lawful benchmark for starting salary 

in appropriate cases.2 This interpretation of the statute still 

 1 Contrary to the majority’s assertion, it is wholly consistent to 

forbid employers from baldly asserting prior salary as a defense—

without determining whether it accurately measures experience, 

education, training or other lawful factors—and to permit consideration 

of prior salary along with those valid factors.

2 As Congress observed, “there are many factors which may be used 

to measure the relationships between jobs and which establish a valid 

basis for a difference in pay.” H.R. REP. NO. 88-309, at 3 (1963). But 
34 RIZO V. YOVINO

places the burden on the employer to justify that salary is 

determined on the basis of “any other factor other than sex.”

My views align with those of the Equal Employment 

Opportunity Commission (“EEOC”), the agency charged 

with administering the Act, and most of our sister circuits 

that have addressed the question. The EEOC’s Compliance 

Manual states:

[A]n employer may consider prior salary as 

part of a mix of factors—as, for example, 

where the employer also considers education 

and experience and concludes that the 

employee’s prior salary accurately reflects 

ability, based on job-related qualifications. 

But because “prior salaries of job candidates 

can reflect sex-based compensation 

discrimination,” “[p]rior salary cannot, by 

itself, justify a compensation disparity.”

EEOC Amicus Br. 7 (quoting EEOC Compliance Manual, 

Compensation Discrimination § 10-IV.F.2.g (Dec. 5, 2000), 

available at https://www.eeoc.gov/policy/docs/compensatio

n.html).

The Tenth and Eleventh Circuits reached the same 

conclusion, holding that prior pay alone cannot justify a 

compensation disparity. See Riser v. QEP Energy, 776 F.3d

1191, 1199 (10th Cir. 2015) (an employer may decide to pay 

an elevated salary to an applicant who rejects a lower offer, 

but the Act “precludes an employer from relying solely upon 

a prior salary to justify pay disparity”); Irby v. Bittick, 

 

“wage differentials based solely on the sex of the employee are an unfair 

labor standard.” Id. at 2–3 (emphasis added).
RIZO V. YOVINO 35

44 F.3d 949, 955 (11th Cir. 1995) (“This court has not held 

that prior salary can never be used by an employer to 

establish pay, just that such a justification cannot solely carry 

the affirmative defense.”). The Eighth Circuit has adopted a 

similar approach, permitting the use of prior salary as a 

defense, but “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 based solely on 

sex. Drum, 565 F.3d at 1073. The Second Circuit likewise 

allows the prior-salary defense, but places the burden on an 

employer to prove that a “bona fide business-related reason 

exists” for a wage differential—i.e., one that is “rooted in 

legitimate business-related differences in work 

responsibilities and qualifications for the particular positions 

at issue.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 

520, 525–26 (1992).

Only the Seventh Circuit has veered far off course, 

holding that prior salary is always a “factor other than sex.” 

See Wernsing v. Dep’t of Human Servs., State of Illinois, 

427 F.3d 466, 468–70 (2005). But its conclusion—that a 

“factor other than sex” need not be “related to the 

requirements of the particular position” or even “business 

related”—contravenes the Act’s purpose of ensuring women 

and men earn equal pay for equal work. Id. at 470. After 

all, inherent in the Act is an understanding that compensation 

should mirror one’s “skill, effort, and responsibility.” See 

Corning, 417 U.S. at 195 (quoting 29 U.S.C. § 206(d)(1));

see also Glenn, 841 F.2d at 1571. Because we know that 

historical sex discrimination persists, it cannot be that prior 

salary always reflects a factor other than sex.

I fear, however, that the majority makes the same 

categorical error as the Seventh Circuit, but in the opposite 

direction: it announces that prior salary is never a “factor 
36 RIZO V. YOVINO

other than sex.” By forbidding consideration of prior salary 

altogether, the majority extends the scope of the statute and 

risks imposing Equal Pay Act liability on employers for 

using prior salary as any part of the calculus in making wagesetting decisions. That, too, is a drastic holding, particularly 

because companies and institutions often consider prior 

salary in making offers to lure away top talent from their 

competitors or to attract employees with specific skills. In 

unpacking what goes into the calculation, it may well be that 

salary accurately gauges a prospective employee’s “skill, 

effort, and responsibility,” as the Equal Pay Act envisions—

in addition to her education, training, and past 

performance—and a new employer wants to exceed that 

benchmark. The Equal Pay Act should not be an 

impediment for employees seeking a brighter future and a 

higher salary at a new job. See generally ORLY LOBEL, 

TALENT WANTS TO BE FREE 49–75 (Yale Univ. Press 2013) 

(concluding that employee mobility between competitors 

promotes innovation and job growth); Cade Metz, Tech 

Giants Are Paying Huge Salaries for Scarce A.I. Talent, 

N.Y. TIMES, Oct. 23, 2017, at B1 (noting that employers pay 

a premium to hire top engineering talent).

On that front, states have begun passing statutes that 

prohibit employers from asking employees about their prior 

salaries.3 California’s statute just went into effect. See Cal. 

Labor Code § 432.3. Those laws represent creative efforts 

to narrow the gender wage gap. But they also provide 

important exemptions for employees who wish to disclose 

 3 A bill has been introduced in Congress to enact a federal 

prohibition on “requiring” or “requesting” that prospective employees 

disclose previous wages or salary history. See H.R. 2418, 115th Cong. 

(2017). Like its state counterparts, this bill does not seek to outlaw salary 

negotiations initiated by an employee.
RIZO V. YOVINO 37

prior salaries as part of a salary negotiation. See, e.g., Cal. 

Labor Code § 432.3(g). Although the majority professes 

that its decision does not relate to negotiated salaries, the 

principle of the majority’s holding may reach beyond these 

state statutes by making it a violation of federal 

antidiscrimination law to consider prior salary, even when 

an employee chooses to provide it as a bargaining chip for 

higher wages. I am concerned about chilling such voluntary 

discussions. Indeed, the result may disadvantage rather than 

advantage women.

To avoid those consequences, the majority endeavors to 

limit its decision by announcing that it “express[es] a general 

rule and do[es] not attempt to resolve its applications under 

all circumstances.” The majority disclaims, for example, 

deciding “whether or under what circumstances, past salary 

may play a role in the course of an individualized salary 

negotiation.” See Maj. Op. at 14. The majority’s disclaimer 

hardly cushions the practical effect of its “general rule.” 

Because the majority makes it “impermissible to rely on 

prior salary to set initial wages” under the Act, it has left 

little daylight for arguing that negotiated starting salaries 

should be treated differently than established pay scales. See

Maj. Op. at 28. In the real world, an employer “rel[ies] on 

prior salary to set initial wages” when it takes the prior salary 

offered voluntarily by an employee in negotiations and sets 

a starting salary above those past wages, even if there is an 

established pay scale.

The more limited holding adopted by our sister circuits 

better accords with common sense and the statutory text. 

The Equal Pay Act provides an affirmative defense for “any

other factor other than sex.” See 29 U.S.C. § 206(d)(1) 

(emphasis added). The majority opinion recognizes that 

“legitimate, job-related factors such as a prospective 
38 RIZO V. YOVINO

employee’s experience, educational background, ability, or 

prior job performance” operate as affirmative defenses. But 

the majority nonetheless renders those valid, job-related 

factors nugatory when an employer also considers prior 

salary. That is a puzzling outcome.

For these reasons, I concur in the result, but not the 

majority’s rationale.

CALLAHAN, Circuit Judge, with whom TALLMAN, 

Circuit Judge, joins, concurring:

We all agree that men and women should receive equal 

pay for equal work regardless of gender. Indeed, we agree 

that the purpose of the Equal Pay Act of 1963 was to change 

“should receive equal pay” to “must receive equal pay.” 

However, I write separately because in holding that prior 

salary can never be considered, the majority fails to follow 

Supreme Court precedent, unnecessarily ignores the realities 

of business and, in doing so, may hinder rather than promote 

equal pay for equal work.

The factual fallacies of the majority opinion are, first, 

that prior salary is not generally job-related, and second, that 

prior salary inherently reflects wage discrepancies based on 

gender. In fact, prior salary is a prominent consideration for 

both a job applicant and the potential employer. The 

applicant presumably seeks a job that will pay her more and 

the potential employer recognizes that it will have to pay her 

more if it wants to hire her. Of course, a prior salary might 

reflect a wage discrepancy based on gender, but this does not 

justify the majority’s absolute position.
RIZO V. YOVINO 39

Prior salary serves, in combination with other factors, to 

allow employers to set a competitive salary that will entice 

potential employees to take the job. The majority’s approach 

ignores these economic incentives and appears to demand a 

lockstep pay system such as is often used in government 

service.1 We allow private industry more flexibility. In the 

private sector, basing initial salary upon previous salary, plus 

other factors such as experience and education, encourages 

hard work and rewards applicants who have stellar 

credentials. The majority opinion stifles these economic 

incentives with a flat prohibition on ever considering prior 

salary, no matter how enlightened or non-discriminatory it 

may have been.

Second, the assumption that prior salary inherently 

reflects gender bias is not true. The majority opinion 

completely ignores economic disparity in pay for the same 

jobs performed in different parts of the country, where costs 

of living are lower and demand for available jobs may 

exceed the supply of available and highly competitive 

positions. While there is no question that prior salary in 

some instances may well reflect gender discrimination, this 

is not always the case. Historically, differences in prior 

salaries may simply reflect the differing costs of living in 

various parts of the country. And the flat prohibition ignores 

the fact that when the prior salary was set there may well 

have been more qualified job seekers than there were 

available jobs to fill.

 1 See United States Office of Personnel Management, 

https://www.opm.gov/policy-data-oversight/pay-leave/pay-systems/fed

eral-wage-system/ (last visited Feb. 21, 2018).
40 RIZO V. YOVINO

I

As required by the Equal Pay Act, Rizo, at least for the 

purposes of a motion for summary judgment, made a prima 

facie case of pay discrimination by showing that (1) she 

performed substantially equal work to that of her male 

colleagues; (2) the work conditions were basically the same; 

and (3) the male employees were paid more. See Riser v. 

QEP Energy, 776 F.3d 1191, 1196 (10th Cir. 2015).

The County does not contest the prima facie case but 

argues that Rizo’s salary was exempt from Equal Pay Act 

coverage under the fourth exception in 29 U.S.C. 

§ 206(d)(1). Subsection (d)(1) reads:

No employer having employees subject to 

any provisions of this section shall 

discriminate, within any establishment in 

which such employees are employed, 

between employees on the basis of sex by 

paying wages to employees in such 

establishment at a rate less than the rate at 

which he pays wages to employees of the 

opposite sex in such establishment for equal 

work on jobs the performance of which 

requires equal skill, effort, and responsibility, 

and which are performed under similar 

working conditions, except where such 

payment is made pursuant to (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.
RIZO V. YOVINO 41

We agree that this suit turns on our interpretation of the 

fourth exception in 29 U.S.C. § 206(d)(1): “a differential 

based on any other factor other than sex.”

II

“The 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 v. 

Brennan, 417 U.S. 188, 208 (1974). The majority struggles 

mightily and unnecessarily to couple the fourth exception—

despite its clear language—so closely with the other three 

exceptions that it loses independent meaning.2 In doing so, 

the majority conveniently overlooks the differences within 

the three specific exceptions. While merit systems and 

measuring earnings by quantity and quality of production are 

specifically job-related, that is not true of seniority systems. 

Indeed, at the time of the passage of the Equal Pay Act, if 

not today, seniority systems accounted for a fair amount of 

pay inequality.3 Furthermore, the majority’s insistence that 

 2 The majority invokes the old chestnuts of statutory interpretation, 

noscitur a sociis and ejusdem generis, but they are not very helpful. The 

Supreme Court in Corning Glass, 417 U.S. at 196, recognized that the 

Equal Pay Act “establishes four exceptions—three specific and one 

general catchall provision.” It follows that noscitur a sociis—“a word is 

known by the company it keeps”—does not aid our interpretation of the 

statute because the catchall provision is intended to contrast with the 

specific exceptions, not reflect them. For the same reason, ejusdem 

generis is of little assistance as the “catchall provision” is not intended 

to be similar to the specific exceptions.

3 For example, one-quarter of the complaints filed in the year after 

the passage of the Equal Pay Act concerned complaints by women that 

they were excluded from jobs because of seniority rules or because men 

were preferred over women after layoffs. Vicki Lens, Supreme Court 
42 RIZO V. YOVINO

the fourth exception is limited to specific job-related 

qualities is contrary to the Supreme Court’s statement that 

the fourth exception “was designed differently, to confine 

the application of the Act to wage differentials attributable 

to sex discrimination.” Washington Cty. v. Gunther, 

452 U.S. 161, 170 (1981).4 Thus, the Equal Pay Act’s fourth 

 

Narratives on Equality and Gender Discrimination in Employment: 

1971–2002, 10 Cardozo Women’s L.J. 501, 507 (2004).

4 The paragraph from which this quote is taken reads in full:

More importantly, incorporation of the fourth 

affirmative defense could have significant 

consequences for Title VII litigation. Title VII’s 

prohibition of discriminatory employment practices 

was intended to be broadly inclusive, proscribing “not 

only overt discrimination but also practices that are 

fair in form, but discriminatory in operation.” Griggs 

v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 

853, 28 L.Ed.2d 158 (1971). The structure of Title VII 

litigation, including presumptions, burdens of proof, 

and defenses, has been designed to reflect this 

approach. The fourth affirmative defense of the Equal 

Pay Act, however, was designed differently, to confine 

the application of the Act to wage differentials 

attributable to sex discrimination. H.R. Rep. No. 309, 

88th Cong., 1st Sess., 3 (1963), U.S.Code Cong. & 

Admin.News 1963, p. 687. Equal Pay Act litigation, 

therefore, has been structured to permit employers to 

defend against charges of discrimination where their 

pay differentials are based on a bona fide use of “other 

factors other than sex.” Under the Equal Pay Act, the 

courts and administrative agencies are not permitted to 

“substitute their judgment for the judgment of the 

employer ... who [has] established and applied a bona 

fide job rating system,” so long as it does not 

discriminate on the basis of sex. 109 Cong.Rec. 9209 

(1963) (statement of Rep. Goodell, principal exponent 

of the Act). Although we do not decide in this case 
RIZO V. YOVINO 43

exception for any “differential based on any other factor 

other than sex” allows for reasonable business reasons that 

extend beyond the narrow definition of job-related.

More importantly, the limitation of “any other factor 

other than sex” to specific job-related qualities is contrary to 

the Supreme Court’s approach in Washington County. The 

Court explained that Equal Pay Act litigation “has been 

structured to permit employers to defend against charges of 

discrimination where their pay differentials are based on a 

bona fide use of ‘other factors other than sex.’” 452 U.S. at 

170. The Court went on to hold that courts and 

administrative agencies were not permitted to substitute their 

judgment for the judgment of the employer “so long as it 

does not discriminate on the basis of sex.” Id. at 171. Thus, 

we are directed not to look to whether a differential is 

specifically job-related, but whether regardless of its “jobrelatedness,” it is attributable to sex discrimination.5

 

how sex-based wage discrimination litigation under 

Title VII should be structured to accommodate the 

fourth affirmative defense of the Equal Pay Act, see n. 

8, supra, we consider it clear that the Bennett 

Amendment, under this interpretation, is not rendered 

superfluous.

Washington Cty., 452 U.S. at 170–71 (footnote omitted).

5 This conclusion is further supported by a footnote in the Court’s 

decision, which states:

The legislative history of the Equal Pay Act was 

examined by this Court in Corning Glass Works v. 

Brennan, 417 U.S. 188, 198-201, 94 S. Ct. 2223, 

2229-2231, 41 L. Ed.2d 1 (1974). The Court observed 

that earlier versions of the Equal Pay bill were 
44 RIZO V. YOVINO

III

I agree that based on the history of pay discrimination 

and the broad purpose of the Equal Pay Act, prior salary by 

itself is not inherently a “factor other than sex.” As the 

Eleventh Circuit noted, “if prior salary alone were a 

justification, the exception would swallow up the rule and 

inequality in pay among genders would be perpetuated.” 

Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995). However, 

the Eleventh Circuit continued:

an Equal Pay Act defendant may successfully 

raise the affirmative defense of “any other 

factor other than sex” if he proves that he 

relied on prior salary and experience in 

setting a “new” employee’s salary. While an 

employer may not overcome the burden of 

proof on the affirmative defense of relying on 

 

amended to define equal work and to add the fourth 

affirmative defense because of a concern that bona fide 

job-evaluation systems used by American businesses 

would otherwise be disrupted. Id., at 199-201, 94 S. 

Ct., at 2230-2231. This concern is evident in the 

remarks of many legislators. Representative Griffin, 

for example, explained that the fourth affirmative 

defense is a “broad principle,” which “makes clear and 

explicitly states that a differential based on any factor 

or factors other than sex would not violate this 

legislation.” 109 Cong.Rec. 9203 (1963). See also id., 

at 9196 (remarks of Rep. Frelinghuysen); id., at 

9197-9198 (remarks of Rep. Griffin); ibid., (remarks 

of Rep. Thompson); id., at 9198 (remarks of Rep. 

Goodell); id., at 9202 (remarks of Rep. Kelly); id., at 

9209 (remarks of Rep. Goodell); id., at 9217 (remarks 

of Reps. Pucinski and Thompson).

Washington Cty., 452 U.S. at 170 n.11.
RIZO V. YOVINO 45

“any other factor other than sex” by resting 

on prior pay alone, as the district court 

correctly found, there is no prohibition on 

utilizing prior pay as part of a mixed-motive, 

such as prior pay and more experience. This 

court has not held that prior salary can never 

be used by an employer to establish pay, just 

that such a justification cannot solely carry 

the affirmative defense.

Id.

Many of our sister circuits are in accord. The Tenth 

Circuit has held that “an individual’s former salary can be 

considered in determining whether pay disparity is based on 

a factor other than sex,” but that “the EPA ‘precludes an 

employer from relying solely upon a prior salary to justify 

pay disparity.’” Riser, 776 F.3d at 1199 (citing Angove v. 

Williams–Sonoma, Inc., 70 Fed. Appx. 500, 508 (10th Cir. 

2003) (unpublished)). The Second and Sixth Circuits are 

basically in agreement. See Aldrich v. Randolph Cent. Sch. 

Dist., 963 F.2d 520, 525 (2d Cir. 1992) (recognizing “that 

job classification systems may qualify under the factor-other 

than-sex defense only when they are based on legitimate 

business-related considerations”); EEOC v. J.C. Penney Co. 

Inc., 843 F.2d 249, 253 (6th Cir. 1988) (holding that “the 

legitimate business record standard is the appropriate 

benchmark against which to measure the ‘factor other than 

sex’”).6

 6 The Seventh and Eighth Circuits prefer an even broader definition 

for “factor other than sex.” Covington v. S. Ill. Univ., 816 F.2d 317, 321–

22 (7th Cir. 1987) (holding that the EPA does not preclude “an employer 

from carrying out a policy which, although not based on employee 
46 RIZO V. YOVINO

This approach reflects that the fourth exception was 

intended to be, and is, broad. Thus, while a pay system that 

relied exclusively on prior salary is conclusively presumed 

to be gender based—to perpetuate gender based inequality—

a pay system that uses prior pay as one of several factors 

deserves to be considered on its own merits. When a 

plaintiff makes a prima facie case of pay inequality based on 

gender, the burden of showing that the difference is not 

based on gender shifts to the employer. In other words, the 

prima facie case creates a presumption that the pay 

inequality arising from the employer’s pay system is gender 

based and hence is not a “factor other than sex.” In Corning 

Glass, the Supreme Court explained that the Equal Pay Act’s

structure and history also suggest that once 

the Secretary has carried his burden of 

showing that the employer pays workers of 

one sex more than workers of the opposite 

sex for equal work, the burden shifts to the 

employer to show that the differential is 

justified under one of the Act’s four 

exceptions.

Corning Glass, 417 U.S. at 196; see also Maxwell v. City of 

Tucson, 803 F.2d 444, 445–46 (9th Cir. 1986) (stating that 

once the plaintiff establishes a prima facie case, “the burden 

shifts to the employer to show that the wage disparity is 

permitted by one of the four statutory exceptions to the Equal 

 

performance, has in no way been shown to undermine the goals of the 

EPA”); Taylor v. White, 312 F.3d 710, 720 (8th Cir. 2003) (stating that 

“a case-by-case analysis of reliance on prior salary or salary retention 

policies with careful attention to alleged gender-based practices 

preserves the business freedoms Congress intended to protect when it 

adopted the catch-all ‘factor other than sex’ affirmative defense”).
RIZO V. YOVINO 47

Pay Act”). There is no justification for holding that an 

employer could, as a matter of law, justify the differential 

under one of the first three exceptions, but not the fourth 

exception. Accordingly, I differ from the majority in that I 

think, as do the majority of our sister circuits, that when 

salary is established based on a multi-factor salary system 

that includes prior salary, the presumption that the system is 

based on gender is rebuttable.7

This is also the position of the EEOC, the agency 

charged with enforcing the EPA. In its amicus brief, the 

EEOC states that in its view because prior salaries “can 

reflect sex-based compensation discrimination,” a prior 

salary “cannot by itself justify a compensation disparity,” 

but “an employer may consider prior salary as part of a mix 

of factors.”8 That seems a reasonable approach to a multifaceted decision to formulate a rate of pay.

 7 I agree with the majority that the market force theory for paying 

women less was discredited by the Supreme Court in Corning Glass, 

417 U.S. at 205, and that the notion that an employer may pay women 

less because women allegedly cost more to employ than men was 

discredited in City of Los Angeles, Department of Water & Power v. 

Manhart, 435 U.S. 702 (1978). See Majority Opinion at 25–27.

8 In EEOC Notice Number 915.002 (Oct. 29, 1997), “Enforcement 

Guidance on Sex Discrimination in the Compensation of Sports Coaches 

in Educational Institutions,” the EEOC advised:

Thus, if the employer asserts prior salary as a factor 

other than sex, evidence should be obtained as to 

whether the employer: 1) consulted with the 

employee’s previous employer to determine the basis 

for the employee’s starting and final salaries; 

2) determined that the prior salary was an accurate 

indication of the employee’s ability based on 

education, experience, or other relevant factors; and 
48 RIZO V. YOVINO

In sum, I note that “prior pay” is not inherently a 

reflection of gender discrimination. Differences in prior pay 

may well be based on other factors such as the cost of living 

in different parts of our country. Also, it is possible, and we 

hope in this day probable, that the prior employer had 

adjusted its pay system to be gender neutral. Nonetheless, 

consistent with the intent of the EPA, I agree that where prior 

pay is the exclusive determinant of pay, the employer cannot 

carry its burden of showing that it is a “factor other than 

sex.”9 However, neither Congress’s intent, nor the language 

of the Equal Pay Act, nor logic, requires, or justifies, the 

conclusion that a pay system that includes prior pay as one 

of several ingredients can never be a “factor other than sex,” 

and thus fails to come within the fourth exception to the 

Equal Pay Act.

IV

In this case, the County based pay only on prior salary, 

and accordingly the district court properly denied it 

 3) considered the prior salary, but did not rely solely 

on it in setting the employee's current salary.

9 We read the EPA to place the burden on the employer to 

demonstrate that the pay differential falls within the fourth exception; 

that it is indeed not based on gender. An employer cannot meet this 

burden where the pay system is based solely on prior pay because by 

blindly accepting the prior pay, it cannot rebut the presumption that using 

the prior pay perpetuates the inequality of pay based on gender that the 

EPA seeks to correct. If, instead, as suggested by the EEOC’s Notice 

Number 915.002, an employer not only looked to prior pay but also 

researched whether the applicant’s prior pay reflected gender based 

inequality, and made adjustments if it did, the employer would no longer 

be relying exclusively on prior pay. Thus, in such a situation, an 

employer might be able to overcome the presumption and show that its 

pay system was a “factor other than sex.”
RIZO V. YOVINO 49

summary judgment. Nonetheless, the majority 

unnecessarily, incorrectly, and contrary to Supreme Court 

precedent, insists that prior salary can never be a factor in a 

pay system that falls within the fourth exception to the Equal 

Pay Act. Accordingly, I concur separately because 

following the Supreme Court’s guidance, I agree with the 

Tenth and Eleventh Circuits, as well as the EEOC, the 

agency charged with enforcing the EPA, that prior pay may 

be a component of a pay system that comes within the fourth 

exception recognized in 29 U.S.C. § 206(d)(1). A defense 

to a pay discrimination claim will lie if the employer meets 

its burden of showing that its system does not perpetuate or 

create a pay differential based on sex. We should not have 

reached out to hold otherwise, particularly as there was no 

need to do so.10

For these reasons, I concur in the result, but not the 

majority’s rationale.

WATFORD, Circuit Judge, concurring in the judgment:

I agree with the result the majority reaches, but I arrive 

there through a somewhat different reading of the statute.

The Equal Pay Act prohibits employers from 

discriminating “on the basis of sex” by paying female 

 10 The majority’s assertion that it expresses a “general rule” and does 

not “attempt to resolve its application under all circumstances” (Majority 

Opinion at 14) is at odds with its conclusion that past salary cannot be 

considered “alone or in conjunction with less invidious factors.” 

Majority Opinion at 29. As Judge McKeown notes in her separate 

concurrence, the “disclaimer hardly cushions the practical effect of its 

‘general rule.’” McKeown Concurrence at 37.
50 RIZO V. YOVINO

employees less than their male counterparts for doing the 

same work. 29 U.S.C. § 206(d)(1). The Act allows an 

employer to justify such a pay disparity by proving, as an 

affirmative defense, that the disparity is based on a “factor 

other than sex.” Id.; see Corning Glass Works v. Brennan, 

417 U.S. 188, 196 (1974). In my view, past pay can 

constitute a “factor other than sex,” but only if an 

employee’s past pay is not itself a reflection of sex 

discrimination. If past pay does reflect sex discrimination, 

an employer cannot rely on it to justify a pay disparity, 

whether the employer considers past pay alone or in 

combination with other factors. I agree with the majority 

that holding otherwise would permit employers to perpetuate 

the very form of sex discrimination the Act was intended to 

outlaw.

This reading of § 206(d)(1) aligns with the Supreme 

Court’s interpretation of the same provision in Corning 

Glass. There, Corning Glass had for many years paid female 

day-shift inspectors less than male night-shift inspectors, 

even though both sets of inspectors performed the same 

work. The company argued that this pay disparity was 

simply the result of prevailing market forces, which allowed 

men to demand and receive higher wages than women. The 

Court rejected that argument and held that the disparity 

nonetheless violated the Act’s requirement of “equal pay for 

equal work.” 417 U.S. at 205.

The Court also rejected the company’s attempt to defend 

its new pay system, which eliminated the pay disparity going 

forward. Beginning in January 1969, all newly hired 

inspectors would be paid the same wage regardless of shift. 

The company set the new, uniform wage at an hourly rate 

above what the day-shift inspectors had been earning but 

below what the night-shift inspectors made. Existing 
RIZO V. YOVINO 51

employees would be paid the new, uniform wage as well, 

unless they had been earning more beforehand. That meant 

existing day-shift inspectors got a raise (to the new, uniform 

wage), but existing night-shift inspectors got to retain their 

previous, higher wage. Id. at 194, 208–09 & n.29. The 

Supreme Court held that the resulting pay disparity between 

female day-shift and male night-shift inspectors’ wages was 

illegal: Although the disparity was attributable to a “neutral 

factor other than sex”—namely, past pay—the employer 

could not avail itself of the affirmative defense because an 

employee’s past pay in this instance reflected sex 

discrimination. Id. at 209–10. Holding otherwise, the Court 

noted, would “perpetuate the effects of the company’s prior 

illegal practice of paying women less than men for equal 

work.” Id.

I think the same analysis should govern even when an 

employer’s prior pay practices are not overtly 

discriminatory, as they were in Corning Glass. If an 

employer seeks to justify paying women less than men by 

relying on past pay, it bears the burden of proving that its 

female employees’ past pay is not tainted by sex 

discrimination, including discriminatory pay differentials 

attributable to prevailing market forces. See id. at 205. 

Unfortunately, even today, in most instances that will be 

exceedingly difficult to do. Despite progress in closing the 

wage gap, gender pay disparities persist in virtually every 

sector of the American economy, with women today earning 

on average only about 82% of what men make, even after 

controlling for education, work experience, and other 

factors. See Francine D. Blau & Lawrence M. Kahn, The 

Gender Wage Gap: Extent, Trends, and Explanations, 55 

J. Econ. Literature 789, 797–800 (2017). It therefore 

remains highly likely that a woman’s past pay will reflect, at 

least in part, some form of sex discrimination. As a result, 
52 RIZO V. YOVINO

an employer will rarely be able to justify a gender pay 

disparity by relying on the fact that a female employee made 

less than her male counterparts at her prior job.

The employer in this case failed to prove that Aileen 

Rizo’s past pay is not tainted by sex discrimination. Her 

prior salary thus cannot be deemed a “factor other than sex.” 

For that reason, I agree that the district court properly denied 

the County’s motion for summary judgment.