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

On Remand from the United States Supreme Court

Resubmitted En Banc September 24, 2019*

San Francisco, California

Filed February 27, 2020

Before: Sidney R. Thomas, Chief Judge, and M. Margaret

McKeown, William A. Fletcher, Richard A. Paez, Marsha

S. Berzon, Richard C. Tallman, Consuelo M. Callahan,

Carlos T. Bea, Mary H. Murguia, Morgan B. Christen,

and Paul J. Watford, Circuit Judges.

*The panel unanimously concluded this case was suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 RIZO V. YOVINO

Opinion by Judge Christen;

Concurrence by Judge McKeown;

Concurrence by Judge Callahan
RIZO V. YOVINO 3

SUMMARY**

Employment Discrimination / Equal Pay Act

Affirming, on remand from the Supreme Court, the

district court’s order denying defendant’s motion for

summary judgment on claims under the Equal Pay Act, the en

banc court held that plaintiff’s prior rate of pay was not a

“factor other than sex” that allowed defendant to pay her less

than male employees who performed the same work, and only

job-related factors may serve as affirmative defenses to Equal

Pay Act claims.

The en banc court’s previous opinion was vacated by the

Supreme Court on a procedural issue concerning the death of

the author of the majority opinion. On remand, the en banc

court affirmed the district court’s denial of summary

judgment. Agreeing with other circuits, the en banc court

held that the scope of the “factor other than sex” affirmative

defense is limited. Based on the text and purpose of the

Equal Pay Act, the en banc court held that this defense

comprises only job-related factors. The en banc court held

that prior pay does not qualify as a job-related factor that can

defeat a prima facie Equal Pay Act claim. The en banc court

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

1982), which held that prior pay could qualify as an

affirmative defense if the employer considered prior pay in

combination with other factors and used it reasonably to

effectuate a business policy.

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

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

Concurring, Judge McKeown, joined by Judges Tallman

and Murguia, wrote that prior salary alone is not a defense to

unequal pay for equal work, but employers do not necessarily

violate the Equal Pay Act when they consider prior salary

among other factors when setting initial wages. Accordingly,

Judge McKeown concurred in the result but not in the

majority’s rationale.

Concurring, Judge Callahan, joined by Judges Tallman

and Bea, disagreed with the majority’s holding that prior pay

can never be considered as a factor in determining pay under

the Equal Pay Act.

COUNSEL

Shay Dvoretsky (argued) and Jeffrey R. Johnson, 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

Brunner & Mehta, Oakland, California, for PlaintiffAppellee.

Jessica Stender (argued) and Jennifer A. Reisch, Equal Rights

Advocates, San Francisco, California; Marianne Reinhold,

Laurence S. Zakson, and Aaron G. Lawrence, Reich Adell &

Cvitan, Los Angeles, 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
RIZO V. YOVINO 5

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; 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, AFLCIO, 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, AFL-CIO, CLC;

Orange County Managers Association; Clearinghouse on

Women’s Issues; Gender Justice; KWH Law Center for

Social Justice and Change; and National Asian Pacific

American Women’s Forum; National Council of Jewish

Women.

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.

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

Amicus Curiae Center for Workplace Compliance.
6 RIZO V. YOVINO

OPINION

CHRISTEN, Circuit Judge:

In 1963, Congress enacted the Equal Pay Act with a

mandate as simple as it was profound: equal pay for equal

work. The question we consider today is whether Aileen

Rizo’s prior rate of pay is a “factor other than sex” that allows

Fresno County’s Office of Education to pay her less than

male employees who perform the same work. 29 U.S.C.

§ 206(d)(1)(iv). We conclude it is not.

Congress enacted the Equal Pay Act (EPA) to combat pay

disparities caused by sex discrimination, but it allowed

employers to justify different pay for employees of the

opposite sex based on three enumerated affirmative defenses,

or “any other factor other than sex.” Id. (emphasis added). 

Contrary to Fresno County’s argument, we conclude that only

job-related factors may serve as affirmative defenses to EPA

claims.

The express purpose of the Act was to eradicate the

practice of paying women less simply because they are

women. Allowing employers to escape liability by relying on

employees’ prior pay would defeat the purpose of the Act and

perpetuate the very discrimination the EPA aims to eliminate. 

Accordingly, we hold that an employee’s prior pay cannot

serve as an affirmative defense to a prima facie showing of an

EPA violation. 

I. Background

The Fresno County Office of Education hired Aileen Rizo

as a math consultant in October 2009. She held two master’s
RIZO V. YOVINO 7

degrees when she was hired: one in educational technology

and one in mathematics education. She began teaching

middle and high school math in 1996. Her employment

experience included three years as head of the math

department for an online school and designer of the school’s

math curriculum. Rizo worked at this position while earning

her first master’s degree. She taught middle school math for

six more years, and then she was hired by Fresno County. 

The County set its new employees’ salaries according to

a pay schedule governed by Standard Operating Procedure

1440 (SOP 1440). The schedule designated 12 salary levels. 

Each level corresponded to different job classifications and

had up to 10 steps. To calculate a new employee’s pay, the

County started with the employee’s prior wages, increased

the wages by 5%, and placed the employee at the

corresponding step on its pay schedule. Rizo’s prior

employer paid her $50,630 for 206 days of work, plus an

additional $1,200 because she had a master’s degree. Based

on her prior wages, the County placed Rizo at Step 1, Level

1 on its pay schedule. Her starting wage at Fresno County

was $62,133 for 196 days of work, plus an additional $600

for holding a master’s degree.

While having lunch with colleagues in 2012, Rizo learned

that a newly hired male math consultant had been placed at

Level 1, Step 9. That put the new consultant’s starting pay at

$79,088, significantly more than Rizo was paid after working

three years for the County. Rizo realized that she was the

only female math consultant at Fresno County, and that all of

her male colleagues were paid more than she was, even

though she had more education and experience. She

expressed concern about this pay disparity to the Human

Resources department, and an administrator gave her a copy
8 RIZO V. YOVINO

of SOP 1440. The administrator assured Rizo that the policy

was applied across the board, regardless of the employee’s

sex.

In February 2014, Rizo filed a complaint in Fresno

County Superior Court against the Superintendent of Fresno

County’s Office of Education.1 The complaint alleged that

the County violated the Equal Pay Act, 29 U.S.C. § 206(d),

and included claims for sex discrimination under Title VII of

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

discrimination under California’s Fair Employment and

Housing Act, § 12940(a); and failure to prevent

discrimination under California’s Fair Employment and

Housing Act, § 12940(k).

Fresno County removed the complaint to the United

States District Court for the Eastern District of California,

and in June 2015 it moved for summary judgment. The

County’s motion did not contest that Rizo was paid less than

her male counterparts or that Rizo established a prima facie

EPA violation. Instead, the County argued that Rizo’s pay

was the result of SOP 1440, and that this pay policy, which

was based solely on its employees’ prior pay, was a “factor

other than sex” that defeated Rizo’s EPA claim.

In the district court, both parties argued that Kouba v.

Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982),

supported their positions. Kouba considered whether an

employee’s prior pay, in combination with other factors,

justified a pay differential between two workers of the

1 Because Yovino is sued in his official capacity as Superintendent,

we refer to the appellant as “Fresno County” or “the County” throughout

this opinion.
RIZO V. YOVINO 9

opposite sex. Id. at 875. We held that the EPA “does not

impose a strict prohibition against the use of prior salary,” so

long as employers consider prior pay “reasonably” to advance

“an acceptable business reason.” Id. at 876–77, 878. The

district court concluded that Kouba did not resolve whether

the pay disparity in Rizo’s case violated the EPA because the

differential resulted solely from Rizo’s prior rate of pay, not

from her prior pay in combination with other factors. See

Rizo v. Yovino, No. 1:14-cv-0423-MJS, 2015 U.S. Dist.

LEXIS 163849, at *21–22 (E.D. Cal. Dec. 4, 2015). The

court held that “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,

even if motivated by a legitimate non-discriminatory business

purpose.” Id. at *26. The court concluded that the County’s

“SOP 1440 necessarily and unavoidably conflicts with” the

EPA, and it denied the County’s motion for summary

judgment. Id.

The district court certified its order for interlocutory

appeal pursuant to 28 U.S.C. § 1292(b). A three-judge panel

reversed and held that the district court was bound by Kouba. 

See Rizo v. Yovino, 854 F.3d 1161 (9th Cir. 2017), reh’g en

banc granted, 869 F.3d 1004 (9th Cir. 2017). A majority of

the active members of our court voted to hear the County’s

appeal en banc, see Rizo v. Yovino, 869 F.3d 1004 (9th Cir.

2017), and the en banc court issued an opinion on April 9,

2018. See Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018). The

Supreme Court subsequently vacated our decision on a
10 RIZO V. YOVINO

procedural issue.2 The parties submitted supplemental

briefing after the case was remanded from the Supreme

Court, and we reconsidered the County’s appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1292(b), and we affirm

the district court’s order denying the County’s motion for

summary judgment.

II. Standard of Review

We review the district court’s order denying summary

judgment de novo. See Evon v. Law Offices of Sidney

Mickell, 688 F.3d 1015, 1023 (9th Cir. 2012). “We adopt the

same standard used by the district court and ‘view the

evidence in the light most favorable to the nonmoving party,

determine whether there are any genuine issues of material

fact, and decide whether the district court correctly applied

the relevant substantive law.’” Booth v. United States,

914 F.3d 1199, 1203 (9th Cir. 2019) (quoting Animal Legal

Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989

(9th Cir. 2016)).

III. Discussion

We took this case en banc to reconsider Kouba’s rule that

prior pay can qualify as an affirmative defense to an EPA

2

 The author of the majority opinion, Judge Stephen Reinhardt, died

eleven days before the en banc opinion issued. Fresno County petitioned

for certiorari on the merits and also argued the opinion should not have

been issued after Judge Reinhardt died. See Pet. for Writ of Cert., Yovino

v. Rizo, 139 S. Ct. 706 (2019) (per curiam) (No. 18-272). The Supreme

Court granted the petition and held that it was error to issue the opinion

after Judge Reinhardt’s death. Yovino, 139 S. Ct. at 710. On remand from

the Supreme Court, another judge was selected at randomto participate on

the en banc panel. 
RIZO V. YOVINO 11

claimif the employer considers prior pay in combination with

other factors and uses it reasonably to effectuate a business

policy. On appeal, the County contends that its policy of

setting employees’ wages based on their prior pay is premised

on a factor other than sex. Therefore, the County argues, its

use of prior pay is a valid affirmative defense. The County

concedes that it has no other defense to Rizo’s claim.

Rizo responds that the use of prior pay to set prospective

wages, by its nature, would perpetuate the gender-based pay

gap indefinitely. She argues that because Congress aimed to

eliminate deeply rooted pay discrimination between male and

female employees who perform the same work, employers

are not allowed to rely on prior pay to justify wage disparities

for employees of the opposite sex. We agree with Rizo.

The Equal Pay Act was enacted as an amendment to the

Fair Labor Standards Act. See Corning Glass Works v.

Brennan, 417 U.S. 188, 190 (1974). In Corning Glass, the

Supreme Court observed, “Congress’ purpose in enacting the

Equal Pay Act was to remedy what was perceived to be a

serious and endemic problem of employment discrimination

in private industry.” Id. at 195. The EPA was described as

“a very simple piece of legislation” establishing that “equal

work will be rewarded by equal wages.” S. Rep. No. 88-176,

at 1 (1963); Equal Pay Act of 1963, S. Comm. on Labor, 88th

Cong. 12 (1963) (statement of Sen. Clifford P. Case). The

EPA provides:

No employer . . . shall discriminate . . .

between employees on the basis of sex by

paying wages to employees . . . at a rate less

than the rate at which he pays wages to

employees of the opposite sex . . . for equal
12 RIZO V. YOVINO

work on jobs the performance of which

requires equal skill, effort, and responsibility,

and which are performed under similar

working conditions . . . .

29 U.S.C. § 206(d)(1). The statute identifies four exceptions

to its equal-pay mandate:

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 . . . .”

Id. (emphasis added).

The EPA’s four exceptions operate as affirmative

defenses. Corning Glass, 417 U.S. at 196–97; Kouba,

691 F.2d at 875. As the Supreme Court has explained, the

Act’s structure is straightforward. Corning Glass, 417 U.S.

at 195. An employee bears the burden of establishing a prima

facie case of wage discrimination by showing that “the

employer pays different wages to employees of the opposite

sex for substantially equal work.” Maxwell v. City of Tucson,

803 F.2d 444, 446 (9th Cir. 1986). If the plaintiff puts forth

a prima facie case of an EPA violation, “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. To counter a prima facie case, an employer must

prove “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) (emphasis in
RIZO V. YOVINO 13

original) (citing Stanziale v. Jargowsky, 200 F.3d 101,

107–08 (3d Cir. 2000)); see also Mickelson v. N.Y. Life Ins.

Co., 460 F.3d 1304, 1312 (10th Cir. 2006).

A wage differential arose in Corning Glass because male

employees were not willing to work for the low wages paid

to women. Corning Glass rejected what was later called the

“market force theory,” holding that the EPA did not permit

Corning Glass to pay women less simply because they were

willing to work for less. See 417 U.S. at 205. The Court

explained that although it may have been “understandable as

a matter of economics” that the company took advantage of

these market conditions, “its [wage] differential nevertheless

became illegal once Congress enacted into law the principle

of equal pay for equal work.” Id.

Unlike Title VII, the EPA does not require proof of

discriminatory intent. See Ledbetter v. Goodyear Tire &

Rubber Co., 550 U.S. 618, 640 (2007) (stating that “the EPA

and Title VII are not the same,” in part because “the EPA

does not require . . . proof of intentional discrimination”),

superseded by statute, Lilly Ledbetter Fair Pay Act, Pub. L.

No. 111-2, 123 Stat. 5 (2009); Maxwell, 803 F.2d at 446

(observing the EPA “creates a type of strict liability” and “no

intent to discriminate need be shown”). For that reason, the

familiar three-step McDonnell Douglas framework that

applies to Title VII claims is not used in EPA cases. See

Corning Glass, 417 U.S. at 195–96; see also 6 Larson on

Emp’t Discrimination § 108.10 (2019) (“Note that the

McDonnell [Douglas]-Burdine burden-shifting framework

does not apply to Equal Pay Act discrimination claims, since

there is no need for the EPA plaintiff to show discriminatory

animus.”); 1 Sex-Based Emp’t Discrimination § 7:1 (Oct.
14 RIZO V. YOVINO

2019) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973)).

The EEOC’s amicus brief observes that some of our prior

case law “could be read to blur the line between Title VII and

the EPA” by incorrectly suggesting that the third step of the

McDonnell-Douglas test applies to EPA claims. We agree

that our case law has confused this point. Likely because of

dicta in our previous cases,3

the district court suggested that

Rizo would bear the burden of showing pretext if the County

demonstrated that a factor other than sex accounted for Rizo’s

pay. This is not correct. To clear up any confusion, we

reiterate that EPA claims do not require proof of

discriminatory intent. See Maxwell, 803 F.2d at 446; see also

Ledbetter, 550 U.S. at 640. EPA claims have just two steps:

(1) the plaintiff bears the burden to establish a prima facie

showing of a sex-based wage differential; (2) if the plaintiff

is successful, the burden shifts to the employer to show an

affirmative defense. No showing of pretext is required.4

3

See, e.g., Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1076 (9th Cir.

1999) (suggesting that the EPA plaintiff bore the burden of demonstrating

a material factual dispute regarding pretext in order to survive summary

judgment); see also Maxwell, 803 F.2d at 446.

4 Accord Md. Ins. Admin., 879 F.3d at 120 n.6 (“The EPA burdenshifting framework is distinct from the McDonnell Douglas burdenshifting framework that we apply when reviewing claims brought under

Title VII.”); Taylor v. White, 321 F.3d 710, 716 (8th Cir. 2003) (the EPA’s

“analytical framework differs from the [McDonnell Douglas] burden

shifting analysis”); Stanziale, 200 F.3d at 107 (“[C]laims based upon the

Equal Pay Act do not follow the three-step burden-shifting framework of

[McDonnell Douglas]; rather, they follow a two-step burden-shifting

paradigm.” (internal citation omitted)); see also Buntin v. Breathitt Cty.

Bd. of Educ., 134 F.3d 796, 799 & n.6 (6th Cir. 1998); McMillan v. Mass.

SPCA, 140 F.3d 288, 298 (1st Cir. 1998). But see Wernsing v. Dep’t of
RIZO V. YOVINO 15

A.

This appeal requires that we consider the scope of the

EPA’s fourth exception. The County contends that the fourth

exception allows any factor that is not sex itself to serve as an

affirmative defense. We conclude otherwise. As we

recognized in Kouba, and as the Second, Fourth, Sixth, Tenth,

and Eleventh Circuits have ruled, the scope of the fourth

exception is limited. See Kouba, 691 F.2d at 876; see also

Md. Ins. Admin., 879 F.3d at 122–23; Riser v. QEP Energy,

776 F.3d 1191, 1198 (10th Cir. 2015); Aldrich v. Randolph

Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992); Glenn v.

Gen. Motors Corp., 841 F.2d 1567, 1570–71 (11th Cir. 1988);

EEOC v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir.

1988) (“[T]he ‘factor other than sex’ defense does not include

literally any other factor . . . .”). Based on the text and

purpose of the Act, we conclude that the fourth affirmative

defense comprises only job-related factors, not sex.

To define the scope of the EPA’s fourth exception, we

begin with the language of the statute and apply familiar

principles of statutory construction. Congress first defined

the protection afforded by the statute in job-related

terms—equal pay for “equal work on jobs the performance of

which requires equal skill, effort, and responsibility, and

which are performed under similar working conditions.” 

29 U.S.C. § 206(d)(1). It then specifically enumerated three

Human Servs., 427 F.3d 466, 469 (7th Cir. 2005); Irby v. Bittick, 44 F.3d

949, 954 (11th Cir. 1995) (applying the McDonnell Douglas framework

to an EPA claim and requiring “the plaintiff must rebut the explanation

[for the differential] by showing with affirmative evidence that it is

pretextual or offered as a post-event justification for a gender-based

differential.”).
16 RIZO V. YOVINO

exceptions to the prohibition of sex-based distinctions for

such work, but described the fourth generally as “any other

factor other than sex.” The fourth exception is often

shortened to “any factor other than sex,” but here we are

called upon to define its precise contours and we examine

every word: “any other factor other than sex.” Id.

§ 206(d)(1)(iv) (emphasis added). Giving meaning to each

word by its context, the phrase “any other factor other than

sex” requires that the fourth exception be read in relation to

the three exceptions that precede it, as well as in relation to

the “equal work” principle to which it is an exception. See

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 56 (2012); see also William N.

Eskridge Jr., Interpreting Law: A Primer on How to Read

Statutes and the Constitution 113 (2016). If any factor other

than sex could defeat an EPA claim, the first “other” in the

phrase “any other factor other than sex” would be rendered

meaningless, as would the three enumerated exceptions. See

Norman J. Singer & Shambie Singer, 2A Sutherland

Statutory Construction § 46:6 (7th ed.) (“It is an elementary

rule of construction that effect must be given, if possible, to

every word, clause and sentence of a statute.”). Because the

three enumerated exceptions are all job-related, and the

elements of the “equal work” principle are job-related,

Congress’ use of the phrase “any other factor other than sex”

(emphasis added) signals that the fourth exception is also

limited to job-related factors.

Other well-settledrules ofstatutory construction reinforce

the conclusion that the fourth affirmative defense includes

factors of the same type as the ones Congress specifically

identified. The first is the noscitur a sociis canon—a word is

known by the company it keeps. See Sutherland, § 47:16

(“[A] word is given more precise content by the neighboring
RIZO V. YOVINO 17

words with which it is associated.”). This rule provides that

words grouped together should be given similar or related

meaning to avoid “giving unintended breadth to the Acts of

Congress.” See, e.g., Yates v. United States, 135 S. Ct. 1074,

1085 (2015) (plurality opinion) (quoting Gustafson v. Alloyd

Co., 513 U.S. 561, 575 (1995)). In the EPA, the first three

exceptions—seniority systems, merit systems, and

productivity systems—relate to job experience, job

qualifications, and job performance. Because the enumerated

exceptions are all job-related, the more general exception that

follows them refers to job-related factors too.5

See, e.g.,

Eskridge at 77.

Relatedly, the EPA’s list of specific exceptions is

followed by a general exception and this calls for application

of the ejusdem generis canon. See Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612, 1625 (2018) (“[W]here . . . a more general

term follows more specific terms in a list, the general term is

usually understood to ‘embrace only objects similar in nature

to those objects enumerated by the preceding specific

words.’”) (quoting Circuit City Stores, Inc. v. Adams,

532 U.S. 105, 115 (2001)). The ejusdem generis canon

provides that the EPA’s three specific exceptions cabin the

scope of the general exception. See Sutherland, § 47:17. 

“The principle of ejusdem generis essentially . . . implies the

addition of similar after the word other.” Scalia & Garner at

199 (emphasis in original). Thus, “any other factor other than

sex” implicitly refers to “any other similar factor other than

sex.” See Circuit City, 532 U.S. at 114–15 (holding that the

phrase “any other class of workers engaged in . . .

commerce,” following the specific examples of seamen and

5 Contrary to our concurring colleague’s assertion, seniority systems

reward job experience and are plainly job-related.
18 RIZO V. YOVINO

railroad employees, includes only “transportation workers,”

because construing it to include all other workers “fails to

give independent effect to the statute’s enumeration of the

specific categories of workers” that precede it).

Applying the ejusdem generis canon to the EPA’s fourth

exception, we consider the scope of the category implied by

the three enumerated exceptions and “ask what category

would come into the reasonable person’s mind.” Scalia &

Garner at 208; see also Eskridge at 78. Here, the obvious

category is job-relatedness. Because all of the enumerated

exceptions are job-related, the general exception that

follows—“any other factor other than sex”—is limited to jobrelated factors.

B.

As the Supreme Court did in Corning Glass, we also look

to the EPA’s history and purpose. 417 U.S. at 195. Both

confirm the scope of the Act’s fourth exception.

The Supreme Court emphasized in Corning Glassthat the

EPA was intended to address “the fact that the wage structure

of ‘many segments of American industry [had] been based on

an ancient but outmoded belief that a man, because of his role

in society, should be paid more than a woman even though

his duties are the same.’” Id. (quoting S. Rep. No. 88-176,

at 1). The problem of wage discrimination was

“overwhelmingly apparent” to Congress when it passed the

EPA in 1963. S. Rep. No. 88-176, at 3. Congress heard

testimony that women in the workplace were no longer a

novelty. One in three workers were women, yet sex-based

wage discrimination remained overt and widely accepted. 

President’s Comm’n on the Status of Women, American
RIZO V. YOVINO 19

Women, at 27 (1963).6 Among other things, Congress

considered a survey of 1,900 employers that showed one in

three used entirely separate pay scales for female employees

who performed similar jobs to male employees.7 Congress

also considered that, in 1963, American women could expect

to earn only about 60% of the wages paid to their male

colleagues. Id.

The County’s suggestion that the EPA’s legislative

history supports an expansive reading of the fourth exception

is unavailing. The House Report provided several examples

that it anticipated would qualify as exceptions to the equal

pay mandate, and all were job related: shift differentials,

differences based on time of day worked, hours of work,

lifting or moving heavy objects, and differences based on

experience, training, or ability. H.R. Rep. No. 88-309, at 3

(1963); see also 109 Cong. Rec. 8683 (1963) (statement of

Rep. Adam Powell) (rejecting “[t]he payment of wages on a

basis other than that of the job performed”); id. at 8694

(statement of Rep. Edith Green) (speaking against a proposal

to allow higher wages for heads of household with more

dependents, because “[t]his [Act] is based on merit, on work

6 Available at https://www.dol.gov/wb/American%

20Women%20Report.pdf; see also Staff of H. Comm. on Educ. & Labor,

88th Cong., Legis. Hist. of the Equal Pay Act of 1963 4, 27 (Comm. Print

1963); Equal Pay Act of 1963: Hearings on S. 882 and S. 910 Before the

Subcomm. on Labor of the S. Comm. on Labor & Pub. Welfare, 88th

Cong. 13–14 (1963) (statement of Sen. Maurine B. Neuberger); id. at 16

(statement of W. Willard Wirtz, Sec’y of Labor).

7

See 109 Cong. Rec. 8688 (1963) (statement of Rep. Edith Green);

Equal Pay Act of 1963: Hearings on S. 882 and S. 910 Before the

Subcomm. on Labor of the S. Comm. on Labor & Pub. Welfare, 88th

Cong. 14 (1963) (statement of Sen. Maurine B. Neuberger).
20 RIZO V. YOVINO

that is performed, rather than on other factors”). The equalpay-for-equal-work mandate would mean little if employers

were free to justify paying an employee of one sex less than

an employee of the opposite sex for reasons unrelated to their

jobs. See, e.g., Scalia & Garner at 20 (“The evident purpose

of what a text seeks to achieve is an essential element of

context that gives meaning to words.”); see also Dig. Realty

Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018) (explaining

that the relevant statute’s “purpose and design corroborate . . .

comprehension” of a specific provision).

C.

Other circuits agree that only job-related factors provide

affirmative defenses to EPA claims. In Aldrich v. Randolph

Central School District, the Second Circuit reasoned,

“[w]ithout a job-relatedness requirement, the factor-otherthan-sex defense would provide a gaping loophole in the

statute through which many pretexts for discrimination would

be sanctioned.” 963 F.2d at 525; see also Tomka v. Seiler

Corp., 66 F.3d 1295, 1312 (2d Cir. 1995), abrogated on other

grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742

(1998)).

The Fourth and Tenth Circuits followed the Second

Circuit’s lead. Both have ruled that pay classification

systems must be rooted in legitimate differences in

responsibilities or qualifications for specific jobs. See Md.

Ins. Admin., 879 F.3d at 123 (“[W]hile MIA uses a facially

gender-neutral compensation system, MIA still must present

evidence that the job-related distinctions underlying the

salary plan . . . in fact motivated MIA to place the claimants

and the comparators on different steps of the pay scale at

different starting salaries.” (first emphasis added)); Riser,
RIZO V. YOVINO 21

776 F.3d at 1198; see also Balmer v. HCA, Inc., 423 F.3d

606, 612 (6th Cir. 2005), abrogated on other grounds by Fox

v. Vice, 563 U.S. 826 (2011).

Only the Seventh Circuit has held that the scope of the

fourth exception “embraces an almost limitless number of

factors, so long as they do not involve sex.” Fallon v.

Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989). The Seventh

Circuit has not required that those factors be related “to the

requirements of the particular position in question.” Id. The

Seventh Circuit’s opinion is an outlier, and we cannot

reconcile it with either well-settled rules of statutory

construction or the “broadly remedial” purpose of the EPA. 

See Corning Glass, 417 U.S. at 208.

The Eighth Circuit has not established a bright-line rule

defining factors other than sex. It requires a case-by-case

analysis of the proffered factor to “preserve[] the business

freedoms Congress intended to protect.” Taylor v. White,

321 F.3d 710, 720 (8th Cir. 2003). We are not persuaded to

follow this approach because “business freedoms” is broad

enough to accommodate circumstances that run afoul of the

Supreme Court’s admonition in Corning Glass that market

forces cannot justify unequal pay for comparable work.

A significant majority of the circuit courts agree that the

scope of the EPA’s fourth exception is not unlimited. Rather,

the text of the Act and canons of construction, and the EPA’s

history and clear purpose, all point to the conclusion that the

fourth exception is limited to job-related factors only.
22 RIZO V. YOVINO

D.

Having determined that the fourth affirmative defense

encompasses only job-related factors other than sex, we next

consider whether prior pay qualifies as a job-related factor

that can defeat a prima facie EPA claim. The answer to this

question is compelled by the EPA’s narrow focus on the

purest form of sex-based wage discrimination and the

statute’s two-step framework. Prior pay—pay received for a

different job—is necessarily not a factor related to the job for

which an EPA plaintiff must demonstrate unequal pay for

equal work.

In 1963, Congress not only knew that wages earned by

America’s workforce were infused with the legacy of sex

discrimination, that legacy motivated Congress to act. See,

e.g., S. Rep. No. 88-176, at 2–3. The Assistant Secretary of

Labor testified that women on average earned only about

59% of what their male colleagues earned,8but Congress

recognized that America’s pay gap was not entirely

attributable to sex-based wage discrimination. The gap was

also due to circumstances that caused women to be less

prepared to enter the workforce, such as fewer opportunities

for training, education, skills development, and experience. 

See Kouba, 691 F.2d at 876. Though Congress knew the

cause of America’s earnings gap was multi-factorial, it kept

8 Equal Pay Act of 1963: Hearings on S. 882 and S. 910 Before the

Subcomm. on Labor of the S. Comm. on Labor & Pub. Welfare, 88th

Cong. 68 (1963) (statement of Esther Peterson, Assistant Sec’y of Labor).
RIZO V. YOVINO 23

its solution simple.9 The EPA did not raise women’s wages

nor create remedial education or training opportunities. The

Act’s limited goal was to eliminate only the purest form of

sex-based wage discrimination: paying women less because

they are women.

The precise and focused goal of the EPA is evidenced by

the exceptions built into it that expressly allow employers to

pay different wages to employees of the opposite sex if the

differences are caused by job-related factors other than sex. 

H.R. Rep. No. 88-309, at 3. As the Supreme Court explained

in County of Washington v. Gunther, the EPA’s fourth

exception was intended “to confine the application of the Act

to wage differentials attributable to sex discrimination.” 

452 U.S. 161, 170 (1981). The EPA’s limited aim at just one

of the many causes of the wage gap reinforces our conclusion

that allowing prior pay to serve as an affirmative defense

would undermine the Act’s promise of equal pay for equal

work. Our interpretation, that only job-related factors come

within the “any other factor” rubric and do not include prior

pay, is consistent with the Supreme Court’s guidance in

Corning Glass that “[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.” 

417 U.S. at 208.

The County argues that Rizo presumes the use of past

wages perpetuates historic pay discrimination, and that Rizo

impermissibly shifts the burden to the County to disprove the

influence of wage discrimination on her prior pay. The

9 Equal Pay Act of 1963: Hearings on S. 882 and S. 910 Before the

Subcomm. on Labor of the S. Comm. on Labor & Pub. Welfare, 88th

Cong. 68 (1963) (statement of Esther Peterson, Assistant Sec’y of Labor).
24 RIZO V. YOVINO

County’s argument reflects its confusion about the EPA’s

burden-shifting framework, which we have now clarified. 

We agree the EPA does not require employers to prove that

the wages paid to their employees at prior jobs were

unaffected by wage discrimination. But if called upon to

defend against a prima facie showing, the EPA requires

employers to demonstrate that only job-related factors, not

sex, caused any wage disparities that exist between

employees of the opposite sex who perform equal work. 

Accordingly, what the County considers to be an

impermissible shift is actually the burden-shift required by

the EPA’s two-step framework. After Rizo established a

prima facie showing, the County had the burden of proving

that “sex provide[d] no part of the basis for the wage

differential.” Balmer, 423 F.3d at 612 (quoting Timmer v.

Mich. Dep’t of Commerce, 104 F.3d 833, 844 (6th Cir. 1997))

(emphasis in original); see also Md. Ins. Admin., 879 F.3d

at 121 (citing Stanziale, 200 F.3d at 107–08); Mickelson,

460 F.3d at 1312.

We do not presume that any particular employee’s prior

wages were depressed as a result of sex discrimination. But

the history of pervasive wage discrimination in the American

workforce prevents prior pay from satisfying the employer’s

burden to show that sex played no role in wage disparities

between employees of the opposite sex. And allowing prior

pay to serve as an affirmative defense would frustrate the

EPA’s purpose as well as its language and structure by

perpetuating sex-based wage disparities.

We acknowledge that prior pay could be viewed as a

proxy for job-related factors such as education, skills, or

experience related to an employee’s prior job, and that prior

pay can be a function of factors related to an employee’s prior
RIZO V. YOVINO 25

job. But prior pay itself is not a factor related to the work an

employee is currently performing, nor is it probative of

whether sex played any role in establishing an employee’s

pay. Here, the County has not explained why or how prior

pay is indicative of Rizo’s ability to perform the job she was

hired to do. An employer may counter a prima facie EPA

claim by pointing to legitimate job-related factors, if they

exist. Accordingly, using the heuristic of an employee’s prior

pay, rather than relying on job-related factors actually

associated with an employee’s present position, does not

suffice to defeat an EPA claim.

We agree with Rizo and the EEOC that setting wages

based on prior pay risks perpetuating the history of sex-based

wage discrimination. The Supreme Court recognized as

much in Corning Glass. There, the Court held that a sexbased pay disparity violated the EPA. 417 U.S. at 209–10. 

After Corning Glass administered a uniform wage increase to

the men and women who worked pursuant to its prior

discriminatory pay structure, Corning Glass argued that the

continuing wage differential was due to a “factor other than

sex” because it resulted from the prior disparity in the

employees’ base wages. Id. The Court ruled that Corning

Glass’s across-the-board wage increase did not remedy the

EPA violation, it merely perpetuated the differential. Id.

Hopefully, we have moved past the days when employers

maintained separate pay scales that explicitly condoned

paying women less than men for comparable work, but the

wage gap that so concerned Congress in 1963 has only

narrowed, not closed. The wage gap persists across nearly all

occupations and industries, regardless of education,
26 RIZO V. YOVINO

experience, or job title.10In 2017, women on average earned

82% of men’s earnings. See U.S. Bureau of Labor Statistics,

Rep. 1075, Highlights of Women’s Earnings in 2017, 1–2

(Aug. 2018).11 These differences are even more pronounced

among women of color. Id. at 3–4.12 Women of all races and

ethnicities earn less than men of the same group, id. at 4, and

economic literature suggests that even after accounting for

certain observable characteristics—such as education and

experience—an unexplained disparity largely persists. See,

e.g., Francine D. Blau & Lawrence M. Kahn, The Gender

Wage Gap: Extent, Trends, and Explanations, 55 J. Econ.

Literature 789, 790, 852–55 (2017).

To the extent the present-day pay gap is the product of

historic wage discrimination based on sex—rather than

different pay due to unequal qualifications, effort,

productivity, regional cost of living, or other factors other

than sex—the gap is a continuation of the very discrimination

Congress sought to end. In Kouba, we cautioned that the use

10 See U.S. Census Bureau, Women’s Earnings Lower in Most

Occupations (May 22, 2018), https://www.census.gov/library/stories/

2018/05/gender-pay-gap-in-finance-sales.html;see also Inst. forWomen’s

Pol’y Res., The Gender Wage Gap by Occupation 2018 and by Race and

Ethnicity (April 2, 2019) (citing U.S. Bureau of Labor Statistics, Current

Population Survey (2018)), https://iwpr.org/wp-content/uploads/2019/

04/C480_The-Gender-Wage-Gap-by-Occupation-2018-1.pdf.

11

https://www.bls.gov/opub/reports/womens-earnings/2017/

pdf/home.pdf.

12 See also Nat’l Women’s L. Ctr., The Wage Gap: The Who, How,

Why, and What to Do (Sept. 2019) (citing U.S. Census Bureau, Current

Population Survey, 2019 Ann. Soc. & Econ. Supp., Table PINC-05),

https://nwlc.org/resources/the-wage-gap-the-who-how-why-and-what-todo/.
RIZO V. YOVINO 27

of prior pay to defend against equal-pay violations “can easily

be used to capitalize on the unfairly low salaries historically

paid to women.” 691 F.2d at 876. Other circuits have made

the same observation. See, e.g., Taylor, 321 F.3d at 718

(cautioning that prior pay may be used as “a means to

perpetuate historically lower wages”); Irby v. Bittick, 44 F.3d

949, 955 (11th Cir. 1995) (stating that allowing prior pay as

an affirmative defense “would swallow up the rule and

inequality in pay among genders would be perpetuated.”). 

We agree with Kouba’s early warning, and with the

observations of our sister circuits.

The EPA’s fourth exception allows employers to justify

wage disparities between employees ofthe opposite sex based

on any job-related factor other than sex. Because prior pay

may carry with it the effects of sex-based pay discrimination,

and because sex-based pay discrimination was the precise

target of the EPA, an employer may not rely on prior pay to

meet its burden of showing that sex played no part in its pay

decision. For purposes of the fourth exception, we conclude

that the wage associated with an employee’s prior job does

not qualify as a factor other than sex that can defeat a prima

facie EPA claim.

E.

Having reconsidered Kouba, we are persuaded that it

must be overruled. Kouba recognized that allowing prior pay

to serve as an affirmative defense to an EPA claim could

perpetuate wage discrimination, but it ultimately held that the

EPA “does not impose a strict prohibition against the use of

prior salary,” so long as employers considered prior pay

reasonably to advance an acceptable business reason. 

691 F.2d at 876–77, 878. Kouba’s holding that prior pay in
28 RIZO V. YOVINO

combination with other factors may serve as an affirmative

defense is inconsistent with the EPA’s text, purpose, and

burden-shifting framework for the same reasons the use of

prior pay alone is inconsistent with the EPA’s text, purpose,

and burden-shifting framework. At best, requiring the use of

other factors in combination with prior pay waters down the

influence of whatever historic wage discrimination remains.

Kouba’s consideration ofwhether the employer used prior

pay reasonably is also in tension with the EPA’s strict

liability framework, in which intent to discriminate plays no

role. 691 F.2d at 876. As the EEOC’s brief diplomatically

puts it, our case law “could be read to blur the line” between

the McDonnell Douglas three-step test for Title VII claims

and the two-step test applicable to the EPA. See Kouba,

691 F.2d at 876, 878; Maxwell, 803 F.2d at 446; Stanley,

178 F.3d at 1076. Having recognized these errors, we have

an obligation to correct our case law.

Finally, Kouba’s reliance on “business reasons” and

“business policy,” 691 F.2d at 876, provides little guidance to

district courts, and cannot be squared with the Supreme

Court’s rejection of the market force theory. See Corning

Glass, 417 U.S. at 205. “Business reasons” is a category so

capacious that it can accommodate factors entirely unrelated

to the work employees actually perform. The phrase sweeps

in what Corning Glass described as business decisions that

“may be understandable as a matter of economics,” but which

nonetheless “became illegal once Congress enacted into law

the principle of equal pay for equal work.” Id. For these

reasons, we narrow our definition of the scope of the fourth

exception to job-related factors other than sex and clarify that
RIZO V. YOVINO 29

prior pay, alone or in combination with other factors, is not

one of them.

13

Despite our concurring colleagues’ agreement that prior

pay alone cannot serve as an affirmative defense to a prima

facie EPA claim, they abruptly shift gears when it comes to

consideration of prior pay in combination with other factors. 

For the concurring members of our panel, prior pay—a factor

they agree risks perpetuating baked-in sex

discrimination—becomes palatable if it is considered along

with other factors. Yet they never explain why this is so.

Some case law from other circuits suggests that prior pay

may serve as an affirmative defense if it is considered in

combination with other factors, but these cases uniformly rely

on those other factors to excuse wage differentials. See, e.g.,

Irby, 44 F.3d at 955, 957 (allowing “prior salary and

experience” as an affirmative defense, but relying on the coemployee’s “[u]nique, long-term experience as an

investigator” to justify a pay difference under the EPA’s “any

other factor other than sex” exception); Balmer, 423 F.3d

at 612–13 (allowing consideration of prior pay along with

prior relevant work experience because “[a] wage differential

based on education or experience is a factor other than sex for

purposes of the Equal Pay Act” and “most importantly, the

13 Some circuits have nominally adopted Kouba’s “business-related”

rule, but even these circuits clearly examine the specific requirements of

the job at issue. See Aldrich, 963 F.2d at 525 (explaining that the fourth

affirmative defense imposes a “job-relatedness requirement” and that

employers must prove that the pay differential is “rooted in legitimate

business-related differences in work responsibilities and qualifications for

the particular positions at issue” (emphasis added)); see also Md. Ins.

Admin., 879 F.3d at 123 (following Aldrich); Riser, 776 F.3d at 1198

(same).
30 RIZO V. YOVINO

ultimate decision maker at [the employer] determined that

[the male employee] had greater relevant industry experience

than Plaintiff.” (emphasis added)); see also Riser, 776 F.3d

at 1199 (approving an EPA defense based on an employee’s

prior salary, qualifications, and experience). None of these

cases suggests that the use of prior pay is acceptable, so long

as it is sufficiently diluted by other considerations.

Citing these cases, our concurring colleagues insist that

prior pay is a valid affirmative defense if considered with

other factors. But they overlook that using the proxy of prior

pay, rather than relying on the factors actually related to the

job being performed, adds nothing to the employer’s defense

because any legitimate job-related factors can themselves

defeat a prima facie EPA showing. Nor is it correct to say

that we deepen a circuit split. Only the Seventh Circuit has

conclusively relied on prior pay as an affirmative defense to

a prima facie EPA claim.

14 Wernsing, 427 F.3d at 469. 

Following Kouba, the Sixth, Tenth, and Eleventh Circuits

articulated rules purporting to allow prior pay to serve as an

affirmative defense if considered with other factors, but they

have substantively relied on the “other factors” to justify the

challenged pay differentials.15

14 The Fourth Circuit has suggested it may share this view, but only

in dicta. See Spencer v. Virginia State Univ., 919 F.3d 199, 206 (4th Cir.

2019).

15 Our concurring colleagues imply that the EEOC advocates a rule

that allows consideration of prior pay along with other factors. They rely

on a statement from the EEOC Compliance Manual that prior pay may

succeed as an affirmative defense when “other factors [are] also

considered.” See U.S. Equal Emp’t Opportunity Comm’n, Compliance

Manual § 10-IV(F)(2)(g) (2000). This merely reflects the EEOC’s

understanding of current case law. See id. § 10-II. Setting aside the
RIZO V. YOVINO 31

Our holding prevents employers fromrelying on prior pay

to defeat EPA claims, but the EPA does not prevent

employers fromconsidering prior pay for other purposes. For

example, it is not unusual for employers and prospective

employees to discuss prior pay in the course of negotiating

job offers, and the EPA does not prohibit this practice.16

Certainly, our opinion does not prohibit this practice. But

whatever factors an employer considers, if called upon to

defend against a prima facie showing of sex-based wage

discrimination, the employer must demonstrate that any wage

differential was in fact justified by job-related factors other

than sex. Prior pay, alone or in combination with other

factors, cannot serve as a defense.

The concurring members of our panel repeatedly incant

that our opinion prohibits any consideration of prior pay. But

this is just not so. The disconnect appears to be the result of

overlooking the difference between considering prior pay

when setting a salary—which the EPA does not address,

much less prohibit—and relying on prior pay to defend an

EPA violation. Our statement that “prior pay, alone or in

combination with other factors, is not [a job-related factor]”

Supreme Court’s direction that the Compliance Manual is not entitled to

deference, Ledbetter, 550 U.S. at 642 n.11, the Compliance Manual’s sole

support for this statement is its citation to our opinion in Kouba and the

Eleventh Circuit’s decision in Irby. EEOC Compliance Manual § 10-

IV(F)(2)(g). But the EEOC urged us to take this case en banc to

reconsider Kouba, which we did, and for the reasons we explain here, we

conclude that neither Kouba nor Irby can be reconciled with Supreme

Court precedent.

16 In this way, the EPA is less stringent than California’s pay privacy

law, which does not allow employers to inquire about prior pay. See Cal.

Lab. Code § 432.3.
32 RIZO V. YOVINO

addresses the use of prior pay as an affirmative defense, not

the consideration of prior pay to make a competitive job

offer, to negotiate higher pay, or to set a salary. And there is

no basis for concern that our opinion will prevent employers

from considering prior pay when employees disclose it.

We recognize there may seem to be tension between

allowing employers to consider prior salary in setting wages

on the one hand, and requiring that they defend an EPA claim

without relying on prior pay on the other. But this is inherent

in the terms of the EPA itself. The statute places no limit on

the factors an employer may consider in setting employees’

wages, but it places on employers the burden of

demonstrating that sex played no role in causing wage

differentials. To meet this burden, employers may rely on

any bona fide job-related factor other than sex. But relying

on the heuristic of prior pay, rather than the actual factors

associated with employees’ current work, risks perpetuating

historic sex discrimination.

F.

Applying the rule that only job-related factors qualify

under the EPA’s fourth affirmative defense and that prior pay

is not one of them, resolution of Rizo’s case is

straightforward. The district court ruled that Rizo satisfied

her prima facie burden. Fresno County relied on Rizo’s prior

pay to justify paying her less than male colleagues who

performed the same work. For the reasons we have

explained, Rizo’s prior wages do not qualify as “any other

factor other than sex,” and the County cannot use this factor

to defeat Rizo’s prima facie case. The County cites no other

reason for paying Rizo less. We therefore affirm the district

court’s order denying Fresno County’s motion for summary
RIZO V. YOVINO 33

judgment and remand for further proceedings consistent with

this opinion.

AFFIRMED.

McKEOWN, Circuit Judge, with whom Judge TALLMAN

and Judge MURGUIA, Circuit Judges, join, concurring:

The majority embraces a rule not adopted by any other

circuit—prior salary may never be used, even in combination

with other factors, as a defense under the Equal Pay Act. The

circuits that have considered this important issue have either

outright rejected the majority’s approach or declined to adopt

it. I see no reason to deepen the circuit split. What’s more,

the majority’s position is at odds with the view of the Equal

EmploymentOpportunityCommission (“EEOC”), the agency

charged with administering the Act. And, perhaps most

troubling, the majority fails to account for the realities of

today’s dynamic workforce, choosing instead to view the

workplace in a vacuum. In doing so, it betrays the promise of

equal pay for equal work and disadvantages workers

regardless of gender identity.

I agree with much of the majority opinion—particularly

the observation that past salary can reflect historical sex

discrimination. 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. As the majority notes, this pay gap is “even more

pronounced among women of color.” Unfortunately, women

employed in certain sectors face an even larger gap. This

disparity is exacerbated when a woman is paid less than a
34 RIZO V. YOVINO

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,” whereby women can never overcome the

historical inequality.

I welcome the day when this would no longer be so

because women have achieved parity in the workplace. But

the majority goes too far in holding that any consideration of

prior pay is “inconsistent” with the Equal Pay Act, even when

it is assessed alongside other job-related factors such as

experience, education, past performance, and training. This

declaration may in fact disadvantage job applicants, whether

female, male, or non-binary. For this reason, I concur in the

result but not in the majority’s rationale. 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. As always, the employer

has the burden to show that any pay differential is based on

a valid 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 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

applicants’ disadvantage.
RIZO V. YOVINO 35

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. Corning Glass

Works v. Brennan, 417 U.S. 188, 208 (1974); see 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. In setting her initial wage, the County did

not, for example, consider Rizo’s two advanced degrees or

her prior experience. 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
36 RIZO V. YOVINO

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. 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 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
RIZO V. YOVINO 37

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 should be barred from using past

pay as a factor in setting an initial salary. Contrary to the

majority’s assertion, it is wholly consistent to forbid

employers from baldly asserting prior salary as a

defense—without determining whetherit accuratelymeasures

experience, education, training or other lawful factors not

based on sex—but to permit consideration of prior salary

along with those valid factors. 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. But “wage differentials based

solely on the sex of the employee are an unfair labor

standard.” H.R. Rep. No. 88-309, at 3 (emphasis added). 

This interpretation of the statute still places the burden on the

employer to justify that salary is determined on the basis of

“any other factor other than sex.” 29 U.S.C. § 206(d)(1). And,

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).

My views align with those of the EEOC 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,
38 RIZO V. YOVINO

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 Compliance Manual, Compensation Discrimination

§ 10-IV.F.2.g (Dec. 5, 2000), available at

https://www.eeoc.gov/policy/docs/compensation.html. The

EEOC’s pragmatic approach accounts for realities in the

workplace while preserving the promise of equal pay for

equal work. Because many job-related factors, such as

education and experience, are not gender-based and

“applicants rarely have ‘identical education and

experience’... [i]f an employer sincerely weighs such factors

with prior salary, there is no reason to think the resulting pay

decisions would perpetuate the gender pay gap.”

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,

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 adopted a

similar approach, permitting the use of prior salary as a

defense, but “carefully examin[ing] the record to ensure that
RIZO V. YOVINO 39

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). The more nuanced 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.” 29 U.S.C.

§ 206(d)(1) (emphasis added).

Meanwhile, the Fourth and Seventh Circuits have veered

off course, holding that prior salary is always a “factor other

than sex.” See Spencer v. Virginia State Univ., 919 F.3d 199,

206 (4th Cir. 2019); Wernsing v. Dep’t of Human Servs.,

State of Ill., 427 F.3d 466, 468–70 (7th Cir. 2005). But this

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. 

Wernsing, 427 F.3d. 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 Fourth and

Seventh Circuits, but in the opposite direction: it announces

that prior salary is never a “factor other than sex.” By
40 RIZO V. YOVINO

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 wage-setting 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 past 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 and cities have begun passing

statutes1that prohibit employers from asking employees

1

See, e.g.,Cal. Labor Code § 432.3; Or. Rev. Stat. Ann. § 659A.357;

San Francisco Ordinance 142-17 (2017); Del. Code Ann. tit. 19, § 709B

(2017); Mass. Acts ch. 177 (2016); N.Y.C. Local Law No. 67 (2017).
RIZO V. YOVINO 41

about their prior salaries.2 These laws represent creative

efforts to narrow the gender wage gap. But they also provide

important exemptions for employees who wish to disclose

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

Labor Code § 432.3(g); Del. Code Ann. Tit. 19, § 709B(d).

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 this information as a bargaining chip for higher

wages. I am concerned about chilling such voluntary

discussions. The majority handcuffs employers from relying

on past salary information—but in doing so, equally shackles

women from using prior salary in their favor. Indeed, the

result may disadvantage rather than advantage women.

To avoid these consequences, the majority endeavors to

limit its decision by announcing that neither its holding nor

the Equal Pay Act prevents employers from “consider[ing]

prior pay for other purposes.” But the majority’s vague

disclaimer hardly dilutes the practical effects of the holding’s

broad sweep. In the same breath, the majority states that its

holding both “prevents employers from relying on prior pay

to defeat EPA claims” and that it does not reach the

“discuss[ion of] prior pay in the course of negotiating job

offers.” But an Equal Pay Act claim could include violations

arising from negotiated salaries. And, because the majority

bars the use of prior salary to set initial wages under the Act,

2 A bill was 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.
42 RIZO V. YOVINO

it has left little daylight for arguing that negotiated starting

salaries should be treated differently. In the real world, an

employer might consider prior salary—disclosed voluntarily

by an employee during negotiations—to offer a pay bump

above that prior salary. Permitting prior pay in setting salary

but not as an affirmative defense to the Equal Pay Act results

in an indefensible contradiction. The “tension” highlighted

by the majority is precisely the reason that prior pay cannot

be relegated to the dust bin.

The majority states that other circuits merely “suggest[]

that prior pay may serve as an affirmative defense if it is

considered in combination with other factors.” But our sister

circuits do much more. They affirmatively permit the use of

prior salary in wage setting so long as it is considered in

tandem with a permissible job-related factor, a far cry from

concluding that watered down discrimination is acceptable. 

See Irby, 44 F.3d at 954 (“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.”) (emphasis added); Riser, 776 F.3d at 1198–99

(holding that the EPA precludes an employer from relying

solely upon a prior salary for justification of a pay disparity). 

The majority also avoids grappling with the EEOC’s

guidance, which permits employers to consider prior salary,

so long as it is considered as part of a mix of permissible

factors such as education or experience.

I agree with the majority that the three-step McDonnell

Douglas test does not apply to Equal Pay Act claims. 

However, neither Corning nor the facts of this case compel

the majority to go so far as to conclude that employers may

not rely on prior pay in combination with other factors as an

affirmative defense.
RIZO V. YOVINO 43

The majority’s rule does not just function as a one-way

ratchet to protect women from discrimination. Instead, based

on a myopic view of the workplace, it creates a regime that

prevents all employees from seeking fair compensation,

regardless of gender. This is particularly true when an

employee’s total salary includes incentive, performance, or

commission-based pay. Imagine a stockbroker who receives

50 percent of his salary as a bonus for stellar performance, or

a manager who, over five years, receives periodic raises

based on her extraordinary contributions and performance.

In both situations, past pay serves as a surrogate for

achievement and helps the employees quantify their worth to

potential employers. Excluding reliance on salary when it is

considered with other job-related factors makes no sense.

The majority recognizes that legitimate, job-related

factors such as a prospective employee’s “education, skills,

or experience” 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 that does not square with the statute,

common sense, the contemporary workplace, the EEOC, or

other circuits.

For these reasons, I concur only in the result.

CALLAHAN, Circuit Judge, with whom TALLMAN and

BEA, Circuit Judges, join, concurring:

We all agree that men and women should receive equal

pay for equal work. Indeed, we agree that the purpose of the

Equal Pay Act of 1963 was to change “should receive equal
44 RIZO V. YOVINO

pay” to “must receive equal pay.” However, I write

separately because in holding that “wages associated with an

employee’s prior job” can never be considered as a factor in

determining pay under 29 U.S.C. § 206(d)(1)(iv), the

majority fails to appreciate Supreme Court precedent and

creates an amorphous and unnecessary new standard for

interpreting that subsection, which ignores the realities and

dynamic nature of business. In doing so, the majority may

hinder rather than promote equal pay for equal work.

I

As required by the Equal Pay Act, Rizo 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,
RIZO V. YOVINO 45

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.

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.

The majority suggests that the first three exceptions are

all “job-related.” This is not an unreasonable observation, but

it does not support creating a definition of “job-related” that

includes “a seniority system” but excludes “prior salary.” 

Indeed, the sole purpose of the majority’s parsing of the

statute appears to be to exclude “prior salary” from its

common sense inclusion in subsection (iv)—“a differential

based on any other factor other than sex.”

In its approach, the majority conveniently overlooks the

differences within the three specific exceptions. While merit
46 RIZO V. YOVINO

systems and measuring earnings by quantity and quality of

production are specifically job-related, that is not true of

seniority systems, which are often unrelated to performance. 

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.1

The majority’s insistence that the fourth exception is

limited to its narrow definition of “job-related” is therefore

flawed because the term “job-related” is a poor descriptor of

the prior three exceptions. And the majority’s reliance on

noscitur a sociis and ejusdem generis to define the fourth

exception as encompassing only “job-related” factors is also

incorrect. The Supreme Court has called the fourth exception

a “general catchall provision,” Corning Glass, 417 U.S. at

196, that “was designed differently, to confine the application

of the Act to wage differentials attributable to sex

discrimination,” Washington County v. Gunther, 452 U.S.

161, 170 (1981). The canons of statutory interpretation that

the majority employs are of no use where a catchall provision

is meant to contrast with specific exceptions, not reflect them. 

The Gunther 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.’” 

Id. The Court cautioned that courts and administrative

agencies “were not permitted to substitute their judgment for

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

passage of the Equal Pay Act concerned complaints by women who were

excluded from jobs because of seniority rules or because men were

preferred over women after layoffs. Vicki Lens, Supreme Court

Narratives on Equality and Gender Discrimination in Employment:

1971–2002, 10 Cardozo Women’s L.J. 501, 507 (2004).
RIZO V. YOVINO 47

the judgment of the employer . . . so long as it does not

discriminate on the basis of sex.” Id. at 171. Thus, the

standard is not whether a factor is “job-related,” but whether

regardless of its “job-relatedness,” the factor promotes or

perpetuates gender discrimination.

This conclusion is further supported by a footnote in

Gunther, 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

(1974). The Court observed that earlier

versions of the Equal Pay bill were 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. 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).

Id. at 170 n.11 (parallel citations omitted).

III

I agree that, based on the history of pay discrimination

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

itself does not qualify as a “factor other than sex.” As the
48 RIZO V. YOVINO

Eleventh Circuit has 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

“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.

Indeed, our Court has previously suggested that prior pay

may be considered among “other available predictors of the

new employee’s performance.” Kouba v. Allstate Ins. Co.,

691 F.2d 873, 878 (9th Cir. 1982). And there is general

agreement in our sister circuits that there is “no prohibition

on utilizing prior pay as part of a mixed-motive.” Irby,

44 F.3d at 955. 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
RIZO V. YOVINO 49

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.

App’x. 500, 508 (10th Cir. 2003) (unpublished)). The Sixth

Circuit is basically in agreement. See EEOC v. J.C. Penney

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

legitimate business reason standard is the appropriate

benchmark against which to measure the ‘factor other than

sex’ defense”). The Fourth, Seventh, and Eighth Circuits

prefer even broader definitions for “factor other than sex.” 

See Spencer v. Virginia State University, 919 F.3d 199,

206–07 (4th Cir. 2019) (concluding that a program whereby

faculty are paid 9/12ths of their previous administrator salary

provided a “non-sex-based explanation for the pay

disparity”); 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 performance, has in no way been shown

to undermine the goals of the EPA”); Taylor v. White,

321 F.3d 710, 720 (8th Cir. 2003) (stating that “a case-bycase 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”).

Contrary to the majority’s suggestion, the Second Circuit

has not adopted its narrow definition of “job-related.” In

Aldrich v. Randolph Central School District, 963 F.2d 520,

525 (2d Cir. 1992), the Second Circuit did state that

“[w]ithout a job-relatedness requirement, the factor-otherthan-sex defense would provide a gaping loophole in the

statute through whichmany pretexts for discrimination would

be sanctioned,” but it further held that “an employer bears the
50 RIZO V. YOVINO

burden of proving that a bona fide business-related reason

exists for using the gender-neutral factor that results in a

wage differential in order to establish the factor-other-thansex defense.” Id. at 526. In Tomka v. Seiler Corp., 66 F.3d

1295, 1312 (2d Cir. 1995), abrogated on other grounds by

Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998), the

Second Circuit, addressing a claim that higher salary resulted

from a male employee’s over ten years of experience, stated

that while the experience might explain the discrepancy, the

employer “has the burden of persuasion to show both that it

based [the male employee’s] higher salary on this factor and

that experience is a job-related qualification for the position

in question.” Id. In holding that the employer has the

burden, the court implicitly recognized that prior salary can

be job related and thus can come within the fourth exception. 

See also Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir.

1999) (noting that “to successfully establish the ‘factor other

than sex’ defense, an employer must also demonstrate that it

had a legitimate business reason for implementing the

gender-neutral factor that brought about the wage

differential”).

IV

There is no need for the majority’s approach to the fourth

exception, which the Supreme Court has noted was intended

to be broad. Rather, while a pay system that relies

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
RIZO V. YOVINO 51

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

of persuasion shifts to the employer to show that the wage

disparity is permitted by one of the four statutory exceptions

to the Equal Pay Act”).

There is no need or justification for holding that an

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

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

fourth exception. Accordingly, I agree with our sister

circuits, that when salary is established based on a multifactor salary system that includes prior salary, the

presumption that the system is based on gender is rebuttable.2

2

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,
52 RIZO V. YOVINO

Critically, as noted, the burden is on the employer to show

that the use of prior salary as part of a multi-factor salary

system does not reflect, perpetuate, or in any way encourage

gender discrimination.

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.”3 This

approach to a multi-factor formula for pay accords with the

purpose of the Equal Pay Act and the Supreme Court’s

approach to the Equal Pay Act, as well as a common sense

reading of its language. To impose obligations on employers

that conflict with guidance from the agency administering the

statute, as the majority opinion does, is to sow confusion.

435 U.S. 702 (1978).

3

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 3) considered

the prior salary, but did not rely solely on it in setting

the employee’s current salary.
RIZO V. YOVINO 53

In reality, “prior pay” is not inherently a reflection of

gender discrimination. Certainly our history of gender

discrimination fully supports a presumption that the use of

prior pay perpetuates discrimination. But differences in prior

pay may also be based on other factors such as differences in

the costs of living and in available resources in various parts

of the country. Moreover, I agree with the majority in hoping

that we are progressing “past the days when employers

maintain separate pay scales,” Majority at 25, and that it will

become the norm that a prior employer will have adjusted its

pay systemto 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.”4

However, neither Congress’s intent nor the language of the

Equal Pay Act requires, or justifies, the conclusion that a pay

system that includes prior pay as one of several

considerations can never constitute a “factor other than sex.”

4 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.”
54 RIZO V. YOVINO

V

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

and accordingly the district court properly denied it summary

judgment. Nonetheless, the majority goes beyond what is

necessary to resolve this appeal and mistakenly proclaims

that prior salary can never be considered as coming within the

fourth exception to the Equal Pay Act. I strongly disagree. 

Following the Supreme Court’s guidance, I agree with our

sister circuit courts, 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). However, the employer

has the burden of overcoming the presumption of gender

discrimination and showing that its pay formula does not

perpetuate or create a pay differential based on sex. We can

and should require that men and women receive equal pay for

equal work, but we can do so without making what is in

reality a presumption an absolute rule.

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

majority’s rationale.