FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

A I L E E N RI Z O , Plaintiff-Appellee ,

v.

J I M Y O VI

NO , 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 Rem and from

the United States Suprem e Court

Resubm itted En Banc September 24, 2019 * San Francisco, California Filed February 27, 2020 Before: Sidney R. Thom as, Chief Judge, and M. Margaret McKeown, William

A. Fletcher, Richard A. Paez, Marsha S. Berzon, Richard C. Tallm an, Consuelo M. Callahan, Carlos T. Bea, Mary H. Murguia, Morgan B. Christen, and Paul J. W atford, Circuit Judges.

* The panel unanim o usly concluded t h i s case was suitable for decision without oral argum ent. SeeFed. R. App. P. 34(a)(2).RIZ O V

. Y O VI N O 2 Opinion by Judge Christen;

Concurrence by Judge McKeown; Concurrence by Judge CallahanRIZ O V

. Y O VI N O 3

SUMMARY * *

E mployment Discrimination / Equal Pay Act

Affirming, on rem and f rom the Suprem e Court, the district court’s order denying defendant’s m otion for
summ ary judgm ent on claim s under the Equal Pay A ct, the en banc court held that plainti ff’s prior rate o f pay was not a “factor o ther than sex” that allowed defendant to pay h er less than m ale em

ployees who perform ed the sam e work, and only job-related f

actors m ay serve as affirm ative defenses to E qual Pay Act claim s.
The en banc court’s previous opinion was vacated by the Suprem e Court on a procedural issue concerning the death o f the author of the m ajority opinion. O n rem and, the e n banc
c o urt affirm ed the district court’s denial of summ ary judgm ent. Agreeing w ith other cir c u i t s, the en banc court held that the scope of the “factor o ther than sex” affirm ative defense is lim ited. Based on the text and purpose of the Equal Pay Act, the e n b anc court held that this defense
com prises only j ob-related factors. The en banc court held that prior pay does not qualify as a job-related factor that can defeat a prim a facie Equal Pay Act claim

. The en banc court overruled Kouba v. Allstate Ins. Co. , 6 9 1 F. 2 d 873 (9th Cir. 1982 ) , which held that p rior p ay could qualify as an affirm ative defense if the em ployer consider e d prior pay in
com bination with other factors and used i t r e a sonably to effectuate a business policy.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.RIZ O V

. Y O VI N O 4 Concurring, Judge McKeown, joined by Judges Tallm an and Murguia, wrote that prior salary alone is n ot a defense to unequal p ay for equal work, but em ployers do not necessarily violate the Equal Pay Act when they consider p ri o r salary
am ong other factors when setting initial wages. Accordingly, Judge McKeown concurred in the result but not i n the
m ajority’s rationale.

Concurrin g, Judge Callahan, joined by Judges Tallm an and Bea, disagreed with the m ajority’s holding that prior p ay can never b e considered as a f actor in d eterm ining pay under the Equal Pay Act.

C OUNSEL Shay Dvoretsky (argued) and Jeffrey R. Johnson, Jones Day, W ashington, D.C.; Michael G. W oods an d Tim othy J. Buchanan, McCorm ick Barstow Sheppard W ayte & Carruth LLP, Fresno, California; for Defendant-Appellant.

Daniel M. Siegel ( ar gu e d ) and Kevin Brunner, Siegel Yee Brunner & Mehta, Oak l and, California, for PlaintiffAppellee.

Jessica Stender (argued) and Jennifer A

. Reisch, Equal Rights Advocates, San Francisco, Ca lifornia; Marianne Reinhold, Laurence S. Zakson, and Aaron G. Lawrence, Reich Adell & Cvitan, L os Angeles, California; for Am ici Curiae E qual Rights Advocates; 9to5, National Associatio n of W orking W om en; Am erican Association o f Unive r sity W om en; Am erican Association of University W om en—California Chapter; A CLU of Northern California and ACLU W o m en’s Rights Project; Atlanta W om en for Equality; Cali fo rn iaRIZ O V

. Y O VI N O 5

W om en’s Law Center; Fem inist Majority Foundation; Legal Aid at W ork; L egal V oice; N ational Organization for W om en (NOW) Foundation; National Partnership for W om en and Families; N ational W om en’s Law Center; Southwest W om en’s Law Cent e r ; W om en Em ployed; and W o m en’s Law Project; Make-Up Artists and Hair Stylists Guild, Local 7 0 6 o f the International Alliance of Theatrical St ate Em p loyees, Moving Picture Technicians, Artists and Al l i e d Crafts of the United States, its Territories and C anada, AFLCIO, CLC; C ostume Designers Guild, Local 892 of the International Al l i ance of Theatrical Stage Em ployees, Moving Picture T echnicians, Artists and Allied C rafts of the United States, its Territories and C anada , AFL-CIO, CLC; Orange C ounty M an agers Association; Clearinghouse on W ome n ’ s Issues; Gender Justice; KWH Law Center for So c ial Justice and Change; and National Asian Pacific Am erican W om e n ’s Forum ; National Council o f Jewish W om en.
Barbara L. Sloan (ar g u ed), Attorney; Margo Pave and Elizabeth E

. Theran, Assistant General Counsel; Jennifer S. Goldstein, Associate G eneral Counsel; Jam es L. Lee, D eputy General C ounsel; P. David Lopez, General Coun s e l ; Office of the General Counsel, W ashington, D .C.; as and for Am icus Curiae Equal Em

ploym ent Opportunity Comm ission.

Rae T. Vann an d Danny E. Petrella, W ashington, D.C., for Am icus Curiae Center for W orkplace Com p liance.RIZ O V

. Y O VI N O 6

OPINION CHRISTEN, Circuit Judge:

In 1963, Congress e n a c t ed the E q ual P ay Act with a m andate as sim

ple as it was profound: equal pay for equal work. The question we consider t o d ay is whether Aileen Rizo’s prior rate of pay is a “factor other than sex” that allows Fresno County’s Office o f Educat i on to pay her less than
m ale em ployees who perform the sam e work. 2 9 U. S. C. § 206(d)(1)(iv). W e conclude it is not.
Congress enacted the Equal Pay Act (EPA) to com bat p ay dispar i t i e s caused by sex discrim ination, but it allowed
em p l o ye r s to justify different pay for em ployees o f the opposite sex based on three enum erated affirm ative d efenses,
or “any o th e r fa ctor other than sex.” Id. (em phasis added). Contrary to Fresno County’s argum ent, we conclu d e that only job-related factors m ay serve as affirm ative defenses to EPA claim s.
The express purpose o f the Act was t o er a d i cate the practice o f paying wom en less sim pl y b e c ause they are wom en. Allowing em

ployers to escape liability by relying on em ployees’ prior pay w ould defeat the purpose o f the Act and perpetuate the very discrim ination the EPA aim s to elim inate. Accordingly, we hold that an e m p l o yee’s prior p ay cannot
serve as an affirm ative defense to a prim a facie showing o f an EPA violation.
I. Background

The Fresno County Office of Education hired Aileen Rizo
as a m ath consultant in October 2009. She held two m aster’sRIZ O V

. Y O VI N O 7 degrees when she was hired: one in educ ational technology and one in m athem atics education. She began teaching
m iddle and high school m ath in 1996. Her em ploym ent experience i n c l u d e d three years as head of the m ath departm ent for an online school and designer of the school’s
m ath curriculum

. Rizo worked at this position while earning her f irst m aster’s degree. S he taught middle school m ath for six m ore years, and then she was hired by Fresno County.

The C ounty set its n ew em p loyees’ salaries according to
a p ay schedule governed by Standard Operating Procedure 1440 (SOP 1440). The schedule d esignated 12 salary levels. Each level corresponded to differ e nt j ob classifications and had up to 10 steps. T o calculate a new em ployee’s pay , th e County started with the em ployee’s prior wages, increased the wages by 5%, and placed the em ployee at the corresponding step on its p ay schedule. Rizo’s p rior
em ployer paid her $ 50 ,630 for 2 06 days of work, p lus an additional $1,200 because she h ad a m aster’s degree. Based
on her prior wages , the County placed Rizo at S tep 1, Level 1 on its pay sc h e du le

. Her starting wage at Fresno C ounty
was $ 62,133 for 196 days of wo rk, plus an additional $600 for holding a m aster’s degree.

While having lunch with colleagues in 2012, Rizo learned that a newly hired m ale m ath consultant had been placed at Level 1, Step 9. That put the new consultant’s starting pay at $79,088, significantly m ore than Rizo was paid after working three years for the County. Rizo realized that she was the only fem ale m ath consultant at Fresno County, and that all o f her ma l e colleagues were paid m ore than she was, even though she had m o re education and experience. She exp r e s s e d concern about this pay disparity to the Hum an Resources departm ent, and an adm inistrator gave her a copyRIZ O V

. Y O VI N O 8

of SOP 1440. The adm inistrator assured Rizo that the policy
was applied across the board, regardless of the em plo y e e ’s
sex.

In February 2014, Rizo filed a com p laint in Fresno County Superior Court against the Superintendent of Fresno County’s Office of Education. 1 Th e com plaint alleged that the County violated the Equal Pay Act, 29 U. S. C. § 206(d), and included claim s for sex discrim ination under Title VII o f the Civil Rights Act of 1 964, 42 U.S.C. § 2000e et seq. ; sex discrim ination un der California’s Fair Em ploym ent and Housing Act, § 12940(a); and fa i lure to prevent d iscrim ination under California’s Fair Em ploym ent an d Housing Act, § 12940(k).

Fre s n o County rem oved the com plaint to the United States Distri c t Court for the Eastern District of California,
and in June 2 015 it m oved for summ ary judgm ent. Th e County’s m otion did not contest that Rizo was paid less than her m ale counterparts o r th at Rizo established a prim a facie EPA violation. I n s te a d, the C ounty argued that Rizo’s p ay was th e result of SOP 1440, and that this pay policy, which
wa s b a sed solely on its em ployees’ prior pay, w as a “factor other than sex” that defeated Rizo’s EPA claim

.
In the d istrict court, both parties argued that Kouba v. Allstate Insurance Co. , 691 F.2d 873 (9 th C ir. 1982), supporte d their positions. Kouba considered whether an em ployee’s prior pay, in com bination with other factors, justified a pay differential b e tween two workers of the

1 Because Yovino is sued in his o fficial capacity a s Sup e ri ntendent,
we refer to the appellant as “ Fresno County” or “the County” throughout this opinion.RIZ O V

. Y O VI N O 9

o p posite sex. Id. at 8 75. W e held that the EPA “does n o t im pose a strict prohibition against the use of prior salary,” so long as em

p lo y ers co n s id er p rior pay “reasonably” to advance “an acceptable business reason.” Id. at 876–77, 878. The district court concluded that Kouba did not resol v e whether the pay disparity in Rizo’s case violated the EPA because the differential resulted solely from Rizo’s p rior rate of p ay, not from her prior pay in com bination with other factors. See Rizo v. Yovino , No. 1:14-cv-0423- M J S, 2 015 U.S. Dist. LEXIS 163849, at * 21–2 2 ( E. D. Cal. Dec. 4, 2015). The court held th at “a pay structure based exclusively on p rior wages is so inherently fraught w ith the risk—indeed, here, the virtual certainty—that it will p e r p etuate a discrim inatory wage disparity between m en and wom en that it cannot stand,
even if m otivated by a legitim ate non-discrimin ato ry b u siness purpose.” Id. at *26. The court concluded that the County’s “SOP 1440 nece s s arily and unavoidably conflicts w ith” the EPA, and it denied the C ounty’s m o tion for summary judgm ent. Id.

The district court certified its o rd er f or interlocutory appeal p ursuant to 28 U.S.C. § 1292(b). A three-judge panel reversed and h eld that the district court was bound b y Kouba

. S ee Rizo v. Yovino , 854 F.3d 1161 (9th C ir. 2017), re h’ g e n banc granted, 869 F.3d 1004 (9th Cir. 2017). A m ajority o f the a c t i ve m em

bers of our court voted to hear the County’s appeal en banc, see Rizo v. Yovino , 8 6 9 F. 3d 1 0 04 (9th Cir. 2 017), and the en banc court issued an opinion on April 9, 2018. See Rizo v. Yovino , 887 F .3d 453 (9th Cir. 2 0 18). The Sup r e m e Court subsequently vacated our decision on aRIZ O V

. Y O VI N O 10 procedural issue. 2 T h e p arties subm itted supplem ental briefing after the case was rem anded from the Suprem e Court, and w e reconsidered the County ’ s appeal. W e have jurisdiction p ursuant to 28 U .S.C. § 1292(b), and we affi rm the district court’s order denying the County’s m o tion for
summ ary judgm ent.

II. Standard of Review

W e review the district court’s or d e r denying summ ary j u d gme nt de novo

. See Evon v. Law Offices of Sidney Mickell , 688 F.3d 1015, 1023 (9th Cir. 2012). “W e adopt the
sam e stan d ard used by the district court and ‘view the evidence in the light m ost favorable to the nonm oving party, determ ine whether there are any genuine issues of m aterial fact, and decide whether th e district court correctly applied the relev ant substantive law.’” Booth v. United States , 914 F.3d 1199, 1 2 0 3 (9th C ir. 2019) (quoting Animal Legal Def. Fund v. U.S. F

ood & Drug Ad

mi n. , 836 F.3d 987, 989 (9th Cir. 2016)).

III. Discussion

W e took this case en banc to reconsider Kouba ’s rule that prior pay can qualify as an affi rmat i v e defense to an EPA

2 The author of the majority opinion, Judge Stephen Reinhardt, died eleven days before the en b anc opinion issued. Fresno County p etitioned for certiorari on th e m erits and also argued the o pinion should not have been issued after Judge Reinhardt died. See Pet. for W rit of Cert., Yovino
v. Rizo , 139 S. Ct. 7 0 6 (2 0 1 9) (per curiam) (No. 18-272). T he S uprem e Court granted the petition and held that it wa s e rro r to issue the opinion after Judge Reinhardt’s death. Yovino , 1 39 S. Ct. at 710. On rem and from the Suprem e Court, another judge w as selected at random to participate o n the en banc panel.RIZ O V

. Y O VI N O 11

claim if the em

ployer considers p rior p ay in com bination with other factors and uses it reasonably to e ffectuate a business p o licy. On appeal, the County contends that its p o l i c y of setting em ployees’ wages based on their prior p ay is prem ised
on a factor o ther than sex. Therefore, the County argues, its
use of prior pay is a valid affirm ative defe n se

. Th e C ounty concedes that it has no other defense to Rizo’s claim

. Rizo responds that the use of prior pay to set prospective wages, b y its nature, would perpetuate the gender-based p ay gap indefinitely. She argues that because Congress aim ed to elim inate deeply rooted pay d iscrim ination between m ale and fe male em

ployees who perform the sam e work, em ployer s are not allowed to rely on prior pay to justify wage disparities for em p loyees of the opposite sex. W e agree with Rizo.

The Equal Pay Act was enacted as an am endm ent to the Fair Labor Standards Act. See Corni ng Gla ss Works v. Brennan , 417 U.S. 1 8 8 , 1 90 (1974). In Corning Glass , the Suprem e Court observed, “Congress’ purpose in enacting the Equal Pay Act wa s to rem edy what was perceived to be a serious and endem ic problem of em ploym ent discrim ination i n private industry.” Id. at 1 95. The EPA was descr i be d a s “a very sim

ple piece of legislation” e s t ablishing that “equal work will be rewarded by equal wages.” S. Rep. No. 8 8-176, at 1 (1963); Equal Pay Act of 1 963, S. Comm. on Labor , 88th Con g. 12 (1963) (statem ent of Sen. Clifford P. Case). The EPA provides:

No em ployer

. . . shall discrimi n at e

. . . between em

plo y e e s on the basis of sex by p ay i n g wages to em

p loyees

. . . at a rate l e s s than the rate at wh i c h h e pays w ages to
em p l o yees of the opposite sex

. . . for equalRIZ O V

. Y O VI N O 12

work on jobs the perform ance of whic h requires equal skill, effort, and responsibility, and which are p e rform ed under sim ilar working conditions . . . .

29 U.S.C. § 206(d)(1). The statute identifies four exceptions to its equal-pay m andate:
except where such paym ent is m ade pursuant to (i) a seniority system ; ( i i ) a m erit system ; (ii i ) a system which m easures earnings by quantity or quality of p roduction; or (iv) a differential b ased o n any oth e r factor other than sex. . . .”

Id. (em p hasis added).

The EPA’ s four exceptions o perate as affirm ative defenses. Corning Glass , 417 U .S. at 196–97; Kouba , 691 F.2d at 875. A s th e Sup r em e Court has explained, the Act’s structure is straightforward. Corning G lass , 417 U.S. at 195. An em

ployee bears the burden o f establishing a p rim a facie case of wage discrim ination by showing that “the
em ployer pays different wages to em ployees of the opposite
sex f o r substantially equal work.” Maxwell v. C ity of Tucson , 803 F.2d 444, 446 (9th Cir. 1986). If the plaintiff puts forth
a prim a facie case of an E PA v iolation, “the burden shifts to the em ployer to show that the differential i s j u s tified under
one o f the Act’s four exceptions.” Corning Glass , 417 U.S. at 196. To counter a prim a fac i e c a se , an em ployer m ust p ro v e “n o t sim

p ly th at the em

ployer’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, 1 21 (4th Ci r

. 2018) (em p hasis inRIZ O V

. Y O VI N O 13 original) (ci t i ng Stanziale v. Jargowsky , 200 F.3d 101, 107–08 (3d Cir. 2000)); s ee also Mickelson v. N.Y. Life Ins. Co. , 460 F.3d 1304, 1312 (10th Cir. 2006).

A wage differential arose in Corning Glass because m ale
em ployees were not willing to work for the low wa g es paid to w om en. Corning Glass rejected what was later called the “m arket force theory,” h o lding that the EPA did not p erm it Corning Glass to pay wom en less simply because they were willing to work for less. See 417 U. S. at 205. The Court explained that although it m ay have been “understandable as a m atter of econom ics” that the com pany took advantage o f these m arket conditions, “its [wage] d ifferential nevertheless becam e illegal once Congress enacted into law the principle of equal pay for equal work.” Id.

Unlike Title VII, the EPA does not require p ro o f of discrim inatory i ntent. See L edbetter v. Goodyear Tire & Rubber Co. , 550 U.S. 618, 6 40 (2007) (stating that “the EPA and Title V II are no t th e s am e,” in part because “the EPA does not require

. . . proof of intentional discrim ination”), sup e rs eded b

y statute , Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2, 1 2 3 Stat. 5 (2009); Maxwell , 803 F .2d at 446 (observing the EPA “creates a type of strict liability” and “no intent to discrim inate n eed be shown”). For that reason, the fam iliar three-step McDonnell Douglas fram ework that app l i e s to Title VII claim s is n ot used in EPA cases. See Corning Gla s s , 417 U.S. at 195–96; see also 6 Larson on Em p’t Discrim ination § 108.10 (20 1 9 ) ( “Note that the McDonnell [Douglas ]-Burdine burden-shift i ng fram ework does not apply to Equal Pay Act discrim ination claim s, since there is no need for the EPA plaintiff to show discrim inatory ani mu s.”); 1 Sex-Based E m p’t Discrim ination § 7 :1 (Oct.RIZ O V

. Y O VI N O 14 2019) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973)).

The EEOC’s am icus brief observes that som e o f our p rior
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 t e s t applies to EPA claim s. W e agree that our case law has confused this point. Likely b ecause o f dicta in our previous cases, 3 the district court suggested that Rizo would bear the burden of showing pretext if the C ounty dem onstrated that a factor o ther than sex accounted for Rizo’s pay. Th i s i s not correct. T o clear up any confusion, we r e i t e r ate that EPA claim s do not require proof of discrim inatory intent. See Maxwell , 803 F.2d at 446; see also Ledbetter , 550 U.S. at 6 40. EPA claim s have just two steps: (1) the plaintiff bears the burden to establish a prim a facie showing of a sex-based wage different i a l ; (2) if the plaintiff is successful, the burden shift s t o the em ployer to show an affirm ative 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 t he burden o f dem o nstrating
a m aterial factual dispute regarding pret e x t i n order to survive summ ary judgm ent); see also Maxwell , 803 F.2d at 446.

4 Accord Md. Ins. Admin. , 879 F .3d at 120 n.6 (“The EPA burdenshifting f ram ework is distinct from t he M cDonnell Douglas burd enshifting fram ework that we apply when reviewing claim s brought under Title VII.”); Taylor v. White , 321 F.3d 710, 716 (8th Cir. 2003) ( t he EPA’s “analytical fram ework differs from the [McDonnell D o ug las ] burden shifting analysis”); Stanziale , 200 F.3d at 107 (“[C]laim s based upon the Equal Pay Act do not follow the three-step burden-shifting fram ework o f [McDonnell Do ug las ]; r ather, they follow a two-step burden-shifting paradigm .” (int e rn al citation omitted)); see also Buntin v. Breathitt Cty. Bd. of Educ. , 1 34 F.3d 796, 799 & n.6 (6th Cir. 1998); McMillan v. Mass. SPCA , 140 F.3d 2 8 8 , 2 9 8 (1st Cir. 1998). But see Wernsing v. Dep’t ofRIZ O V

. Y O VI N O 15

A

. This appeal requires that we co n sider the scope of the EPA’s fourth exception. T he County contends that the fourth exception allows any factor that is not sex itself to serve as an affirm ative defense. W e conclude otherwise. As we recognized in Kouba , and as the S econd, F ourth, Sixth, Tenth, and E leventh Circuits have ruled, the scope o f the fo urth exception is lim ited. Se e Ko ub a , 6 91 F.2d at 8 7 6; see also M d

. I ns. Admin. , 879 F.3d at 122–23; Riser v. QEP Energy , 77 6 F. 3 d 1191, 1198 (10th Cir. 2015); Aldrich v. Randolph Cent. Sch. Dist. , 963 F.2d 520, 5 25 (2d Cir

. 1992); Glenn v. G en

. Mo tors Corp. , 841 F.2d 1567, 1570–71 (11th Cir. 1988); EEOC v. J.C. Penney Co., Inc. , 8 43 F.2d 249, 253 (6th Cir. 1988) (“[T]he ‘factor o ther than sex’ d efense does not include lit e ra l l y an

y other factor

. . . . ”). Based on the text and purpose of the Act, we conclude that th e fourth affirm ative defense com

prises only job-related factors, not sex.

To define the scope o f th e EPA’s fourth exception, we begin w ith the language of the statute and apply fam iliar prin c i p l es of statutory construction. Congress first defined the protection afforded by the statute in job-related term s—equal pay for “equal work o n jobs the perform ance o f which requires equal skill, effort, and respons i b i l ity, and which are perform ed under simi l ar w orking conditions.” 29 U.S.C. § 206(d)(1). It then specifically enum erated three

Human Servs. , 427 F.3d 466, 469 (7th Cir. 2005); Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1 9 9 5 ) (applying the M cDonnell Douglas fram ework to an EPA c l a i m and r equiring “the plaintiff m ust r ebut the explanation [for the differential] by showing with affirm ative ev id e nce that it is pretextual or offered as a post-ev ent justification for a gender-based differential.”).RIZ O V

. Y O VI N O 16 exceptions to th e prohibition of sex-based distinctions for such work , b ut described the fourth generally as “any other factor other than sex.” The fo urth exception is often shortened to “any factor o ther than sex,” but h e r e we are called upon to define its precise contours and we e xam ine every w ord: “ any o ther factor other than sex.” Id. § 206(d)(1)(iv) (em

phasis added). Giving m eaning t o e a ch word by its context, th e p hr a se “any other factor o ther than sex” requires that the fourth exception b e read in relati o n t o the three exceptions that prec e de it, as well as in relation to the “equal w ork” principle to which it is an exceptio n

. See Antonin Scali a & Bryan A. Garner, Reading L aw: The Interpretation ofLegal Texts 56 (2012); see also W illiam N

. Eskridge Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution 113 (2016). If any factor other than s e x c ould defeat an EPA claim , the first “other” in the phrase “any o ther facto r o ther than sex” would be rendered
m eaningless, as would the three enum erated exceptions. See No rm an J. S inger & Sham bie Singer, 2A Sutherla n d Statutory Construction § 46:6 (7th ed.) (“It is an elem entary rule of construction that effect m ust be g i v e n , if p o ssible, to every word, clause and sentence of a statute.”). Because the three enum erated exceptions are all job-relat e d , and the elem ents of the “equal work” principle are job-related, Congress’ use of the p hrase “any other factor other than sex” (em phasis added) signals that the fourth exception is also lim ited to job-related factors.

O th er w ell-settled ru les o f statu to ry c o n struction rein f

o rce the conclusion th at the fourth affirm ative defense includes factors of the sam e type as the ones Congress specifi cally identified. The first is the noscitur a sociis canon—a word is kno wn b y the com

pany it keeps. See Sutherland, § 47:16 (“[A] word is g iven m ore precise content by the neighboringRIZ O V

. Y O VI N O 17

words with which it is associated.”). This rule p rovides that words grouped together should be given si m ilar or related meaning to avoid “giving unintended breadth to the Ac t s 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, th e first three
e x c e p t i o n s

— s e n i o r i t y s y s t e m s , m e r i t s y s t e m s , a n d productivity system s—relate to job experience, job qualification s, and job perform ance. Because the enum erated exceptions are all job-related, the m o re general exception that follows them refers t o job-related factors too. 5 See, e.g. , Eskridge at 77. Relatedly, the EPA’s list of specific exceptions is followed b y a general exception and this calls for application of the ejusdem generis canon. See Epic Sys. C orp. v. Lewis , 138 S. Ct. 1612, 1625 (2018) (“[W ]he r e

. . . a m ore g eneral term follows m ore specific term s in a list, the general term is usually understood to ‘em brace only objects sim ilar in nature to those objects enum erated by the preceding specific words.’”) (qu o t i n g C

ircuit City Stores, Inc. v. Adams , 53 2 U. S. 105, 1 15 (2001)). The ejusdem generis canon p rovides that the EPA’s three specific exceptions cabin the scope o f the general excepti o n

. S ee Sutherland, § 47:17. “The principle of ejusdem generis essentially

. . . im plies the addition of similar after the w ord other .” Scalia & Garner at 199 (em phasis in original). Thus, “any other factor other than sex” im plicitly refers to “ any o ther similar factor other than sex.” See Circuit City , 5 32 U.S. at 1 14–15 (holding that the phrase “any other class o f workers engaged in

. . . comm erce,” following the specific examp l es of seam en and

5 Contrary to our concurring colleague’s assertion, seniority system s reward job experience and are plainly job-related.RIZ O V

. Y O VI N O 18

railroad em

ployees, includes only “transportation workers,” because construing it t o include all other workers “fails to gi v e independent effect to the statute’s enum eration 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 im plied by the three enum erated exceptions and “ask what c ategory would com e into the reasonable person’s m ind.” Scalia & Garner at 2 08; see a lso Eskridge at 7 8. Here, the obvious category is j o b

- relatedness. Because all of the enum erated exceptions are job-related, the g eneral exception that follows—“any other f

actor other than sex”—is lim ited to jobrelated factors.

B.

As the Suprem e Court did in Corning Glass , we also look to the EPA’s histo ry and purpose. 417 U.S. at 195. Both confirm the scope of the Act’s fourth exception.

The Suprem e Court em

p hasized in Corning G lass that the EPA was intended to address “the fact that the wage structure of ‘m any segm ents of Am erican industry [had] been b ased on an ancient but outm o ded belief that a m an, because of his role in soci e ty, should be paid m ore than a wom an even though his duties ar e the sam e.’” Id. (quoting S. Rep. No. 8 8-176, at 1). The problem o f w age d iscrim inatio n wa s “overwhelm ingly apparent” to Congress when it passed the EPA in 1963. S. Rep. No. 88-176, at 3. C ongress heard testim ony that wom en in the w orkplace were no l on ger a novelty. One in three workers w ere w om en, y e t sex-based wage discrim ination rem ained overt and widely accepted. President’s Comm ’n on the St atu s of W om en, AmericanRIZ O V

. Y O VI N O 19

Women , at 27 (1963). 6 Am o ng other things, C on g ress considered a survey o f 1 ,900 em ployers th at s ho wed one in three u sed entirely separate pay scales for fem ale em ployees who perform ed sim ilar jobs to m ale em ployees. 7 Congress also considered that, in 1963, Am erican wom en could expect to earn only about 6 0 % o f the wages paid to their m ale 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 exam ples that it anticipated would qualify as except i o n s to the equal p ay m andate, and all w ere job related: shift differentials, differences b ased o n tim e of day wo rked, hours of work, lifting o r m o ving heavy objects, and d ifferences based on experience, training, or ab i lity. H.R. Rep. No. 88-309, at 3 (1963); see al

s o 109 Cong. Rec. 8683 (1963) (statem ent o f Rep. Adam P owell) (rejecting “[t]he paym ent of wages on a basis other than th at o f the job perform ed”); id. at 8694 (statem ent of Rep. Edith Green) (speaking against a p roposal to allow h igh e r wages for heads of household with m ore dependents, because “[t]his [Act] is based on m erit, on work

6 A v a i l a b l e a t h t t p s : / / w w w

. d o l

. g o v / w b / A m e r i c a n % 20W om en%20Report.pdf; see also Staff of H. Comm

. o n Educ. & L abor, 88th Cong., L egis. Hist. of the Equal Pay Act of 1963 4, 27 (Com m

. Print 1963); Equal Pay Act of 1963: Hearings on S. 882 and S. 910 Before the S u b c omm. o n Labor of the S. Comm. on Labor & Pub. Welfare , 8 8 th Cong. 13–14 (1963) ( statem ent of Sen. Maurine B. Neuberger); id. at 16 (statem ent of W . W illard W irtz, Sec’y of Labor).

7 See 1 09 Co n g. Rec. 8688 (1963) (statem ent of Rep. Edith Green); Equal Pay Act of 19 63 : Hearings on S. 882 and S. 910 Before the Subcomm. on L abor of th e S. Comm. on L abor & Pub. Welfare , 88th Cong. 14 (1963) (statem ent of Sen. Maurine B. Neuberger).RIZ O V

. Y O VI N O 20 that is perform ed, rather than on other factors”). The equalpay-for-equal-work m andate would m ean little if em p loyers
were free to justify paying an em ployee of one sex less than
an em ployee 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 essenti a l elem ent o f context that gives m eaning to words.”); see also Dig. Realty Tr., Inc. v. Somers , 138 S. Ct. 7 67, 7 77 (2018) (explaining that the relevant statute’s “purpose and design corroborate

. . . com prehension” of a specific provision).

C

. Other circuits agree that only job-related factors provide affirm ative defenses to E PA claim s. In Aldrich v. Randolph Ce n tral S

chool District , the S econd Circuit reasoned, “[w]ithout a job-relatedness require me nt, the factor-otherthan-sex defense wo u l d provide a gaping loophole in the statute through which m any pretex ts f o r d iscrimination would be sanctioned.” 9 6 3 F. 2 d at 525; see also Tomka v. Seiler Corp. , 66 F.3d 1295, 1312 (2d Cir. 1995), abrogated on other ground s b y Burlington Indus., Inc. v. Ellerth , 524 U.S. 742 (1998)).

The Fourth and Te nth Circuits followed the S econd Circuit ’ s l e a d

. Both have ruled that pay classification
s ys tem s m

ust be rooted in legitim ate differences i n responsibilities or quali fi cations for specific jobs. See Md. I n s

. Admin. , 879 F.3d at 123 (“[W ] hile MIA uses a faciall y gender-neutral com

pensation system , MIA still m ust present evidence that the job-related distinctions underlying the salary p lan

. . . in fact m o tivated MIA to place the claim ants and the com

parators on different steps of the pay scale at different starting salaries.” (first em phasis added)); Riser ,RIZ O V

. Y O VI N O 21

776 F.3d at 1198; see als o Ba lmer v. HCA, Inc. , 423 F.3d 606, 612 (6th Cir. 2005), abrogated on other grounds b y Fox v. Vice , 563 U.S. 826 (2011).

On l y the Seventh Circuit has h eld that the scope of th e fourth exception “em

braces an alm ost lim itless num ber o f factors, so long as they d o not involve sex.” F a llon v. Illinois , 882 F.2d 1206, 1211 ( 7 th Ci r

. 1989). The Seventh Ci r cuit h as not required that those f actors be related “t o th e requirem ents of the particular position in question.” Id. The Seventh Circuit’s opinion is an outlier, and we cannot reconcile it with either well-settl ed rules of statutory construction or the “broadly re m e dial” p urpose of the EPA. See Corning Glass , 417 U.S. at 208.

The Eighth Ci r c uit has not established a b right-line rule defining factors other than sex. It requires a case- b y-case analysis o f the proffered factor to “preserve[] the business freedom s Congress i ntended to protect.” Taylor v. White , 321 F.3d 710, 720 (8th Cir. 2003). W e are not persuaded to follow this approach b ec ause “business freedom s” is broad enough to accomm odate ci r c ums tances that run afoul of the Suprem e Court ’ s adm onition in Corning Glass that m arket forces cannot justify unequal pay for comparable work.

A significant m ajority of the circuit courts agree that the scope of the EPA’s fourth exception is not unlim ited. Rather, the text of the Act and canons of construction, and the E PA’s history and clear purpose, all point to the conclusion that the fourth exception is lim ited to job-related factors only.RIZ O V

. Y O VI N O 22

D

. Having determ ined that the fourth affirm ative defense
encom passes only job-related factors other than sex, we next consider whether prior pay qualifies as a job-related factor that can defeat a prim a facie EPA claim

. The answer to this question is com

pelled by the EPA’ s n arrow focus on the purest form o f sex-based wage discrim ination and the statute’s two-step f

ram ework. Prior pay—pay received f or a different job—is necessarily not a factor related to the job for whi ch an EPA plaintiff m ust dem onstrate unequal pay for equal work.

In 1963, Congress not only knew that wages earned by Am erica’s workforce were infused with the l e gacy of sex discrim ination, that legacy m otivated Congress to act. See, e.g. , S. Rep. No. 88-176, at 2–3. The Assistant Secretary of Labor testified th at wo m en o n average earned only about 59% of what their ma l e c olleagues earned, 8 but Congress recognized that Am erica’s pay gap was n ot entirely attributable to sex-based wage discrim ination. The gap was also due to circum stances that caused wom en to be less prepared to enter the w orkforce, such as fewer opportunities for training, education, skills d evelopm ent , and experience. See Ko u b a , 6 91 F.2d at 876. Though Congress knew the
cause of Am erica’s earn i n g s gap was m ulti-factorial, it kept

8 Equal Pay Act of 1 963: H earings on S. 882 and S. 910 B efore the Subcomm. on L abor of th e S. Comm. on L abor & Pub. Welfare , 88th Cong. 68 (1963) ( statem ent of E sther Peterson, Assistant Sec’y of L abor).RIZ O V

. Y O VI N O 23

its solution sim

ple. 9 The EPA did n o t raise wom en’s wages nor create rem edial education or training opportunities. The Ac t ’ s l i mited goal was to elim inate only the purest form o f sex-based wage discrim ination: paying wom en less because they are wom en.
The precise and focused goal of the EPA is evidenced by the exceptions built into it that expressly allow em ployers to pay different wages to emp l o y e e s of the opposite sex if the differences are caused by job-related factors othe r than sex. H.R. Rep. No. 88-309, at 3. As the Suprem e Court explained in County of Washington v. Gunther , the EPA’s fourth exception was intended “to confine the application of the A ct to w age differentials attribu t able to sex discrim ination.” 452 U .S. 161, 170 (1981). The EPA’s lim ited aim at just o ne of the m any causes of the wage gap reinforces our conclusion that allowing prior pay to serve as an affirm ative defense would underm ine th e Ac t’s prom ise of equal pay for equal work. Our interpretation, that only job-related factors com e within the “any other factor” rubric and do not include prior pay, is consistent with the S uprem e Court’s guid an c e in Corning Glass that “[t]he Equal P ay Act is broadly rem edial,
and it should be construed and applied so as to fulfill the
und er lying purposes which Congress sought to achieve.” 417 U.S. at 208.

The County argues that Rizo presum es the u s e of past wages perpetuates h istoric p ay discrim ination, and that Rizo im perm issibly shifts the burden to the County to disprove the influence of wage discrim inat i o n on her prior pay. The

9 Equal Pay Act of 1 963: H earings on S. 882 and S. 910 B efore the Subcomm. on L abor of th e S. Comm. on L abor & Pub. Welfare , 88th Cong. 68 (1963) (statem ent of Esther Peterson, Assistant Sec’y of L abor).RIZ O V

. Y O VI N O 24 County’s argum ent reflect s i ts confusion about the E PA’s burden-shifting fram ewo rk, which we have now clarified. W e agree the E PA does not require em ployers to prove that the wages paid to their em ployees at prior jobs were unaffected by wage discrim ination. But if call e d up on to defend against a pr i ma facie showing, the EPA requires
em ployers to d em onstrate that o nly jo b-related factors, not sex, caused any wa g e disparities that exist between
em ployees of the o pposite sex who perform equal work. Accordingly, what the County considers t o be an im perm issible shift is actually the burden-shift requ ired by the EPA’s two

- s t ep fram ework. After Rizo established a prim a facie showing, the County had the burden of proving that “sex provide[d] no p art of the basis f or the wage differential.” Balmer , 4 23 F.3d at 612 (quoting Timmer v. Mich. Dep’t of Commerce , 104 F.3d 833, 844 (6th Cir. 1997)) (em phasis in original); se e a lso Md. Ins. A dmin. , 879 F.3d at 121 (citing Stanziale , 200 F.3d at 107–08); Mickelson , 460 F.3d at 1312.

W e do not pre s ume that any particular em ployee’s p rior wages were depressed as a result of sex discrim ination. B ut the history of pervasive wage discrim ination in the Am erican workforce prevents prior pay from satisfying the em ployer’s burden t o s h o w that sex p layed no role in wage disparities between em

p loyees of the opposite sex. And allowing p rior pay to se rve as an affirm ative defense would frustrate the EPA’ s p urpose as w ell as its language and structure by perpetuating sex-based wage disparities.

W e acknowledge that prior pay could be viewed as a proxy fo r job-related factors such as education, skills, o r experience related to an em ployee’s prior job, and that prior pay can be afunction of f

actors related to an em

ployee’s p riorRIZ O V

. Y O VI N O 25 job. But prior pay itself is not a factor related to the work an em ployee is currently perform in g , nor is it probative o f whether sex p layed any role in establishing an em ployee’s pay. Here, the County has not explained why o r how p rior pay is indicative of Rizo’s ability to perform the job she was hired to d o. An em

ployer m ay counter a prim a facie EPA claim b y pointing to legitim ate job-related factors, if they exist. Accordingly, using the heuristic of an em ployee’s p rior pay, rather than r e l y ing on job-related factors actually associated with an em

pl oyee’s p resent position, does not suffice to defeat an EPA claim

.
We agree with Rizo and the EEOC that settin g wa ge s based on prior pay risks perpetuating the history o f sex-based wage discrim ination. T h e Suprem e Co urt recognized as m uch in Corn i ng Glass

. There, the Court held that a sexbased p ay disparity vio l at e d the EPA. 417 U.S. at 209–10. After Corning Glass adm inistered a uniform wage increase to the m en and wom en who wo rked p ursuant to its p rior discrim inatory pay structure, Corning Glass argued that the continuing wa g e d ifferential w as due to a “factor other than sex” because it resulted f rom the prior disparity in the
em ployees’ b ase wages. Id

. Th e Court ruled that Corning Glass’s across-the-board wag e i n crease did not rem edy the EPA violation, it m erely perpetuated the differential. Id. Hopefully, we have m oved past the days when em p loyers
m aintain ed separate pay scales that explicitly condoned paying wom en less than m en for com parable work, but the wag e g ap that so concerned Congress in 1 963 h as only narrowed, not closed. The wage g ap persists across nearly all occupations and industries, regardless of education,RIZ O V

. Y O VI N O 26 experience, or job title. 1 0 In 2017, w om en on average earned 82% of m en’s earnings. See U .S. Bureau of Labor Statistics, Rep. 1075, Highlights of Women’ s Ea rn ings in 2017 , 1–2 (Aug. 2018). 1 1 These d ifferences are even m ore pronounced
am ong w om en of color. Id. at 3–4. 1 2 W om en of all races and ethnicities earn less than m en of the sam e group, id. at 4, and
econom ic literature suggests that eve n a ft er accounting for certain obs ervable characteristics—such as education and experience—an unexplained disparity largely persists. See, e.g. , Francine D. Blau & Lawrence M. Kahn, The Gend e r Wage Gap: Extent, Trends, and Explanations , 55 J. Econ. Literature 789, 790, 852–55 (2017).

To the extent the present-day pay g ap i s the p roduct o f historic w age discrim ination based o n s ex—rather than differe nt p ay due to unequal qualifications, effort, productivity, regional cost of living, or other factors other than sex—the gap is a continuation of the very discrim ination Congress sought to end. In Kouba , we cautioned that the use

10 See U.S. Census Bure au, Women’s E arnings Lower in Most Occupations (May 22, 2018), https://w w w .census.gov/library/stories/ 2 0 1 8 / 0 5 / g e n d e r
- p ay
- g ap
- i n
- f i n an c e
- s a l e s.html ; see a l

so I n st

. f o r Wo m en ’ s Pol’y Res., The G ender Wage Gap b y Occupation 2018 and by Race a n d Ethnicity (April 2, 2019) (citing U.S. Bureau of Labor Statistics, Current Populatio n S

urvey (2018)), https://iwpr.org/wp-content/uploads/2019/ 04/C480_The-Gender-W age-Gap-by-Occupation-2018-1.pdf.

1 1 h t t p s : / / w w w

. b l s

. g o v / o p u b / r e p o r t s / w o m e n s
- e a r n i n g s / 2 0 1 7 / pdf/hom e.pdf.

12 See also Nat’l W om en’s L. Ctr., The Wage Gap: The Wh o , H o w, Why, an d Wh at to Do (Sept. 2019) (citing U .S. Census Bureau, Current Population Survey , 2019 Ann. Soc. & Econ. Supp., Table PINC-05), htt p s: / / n w l c.o rg/ r eso urces/

t h e
- w ag e- g a

p
- t h e-wh o
- h o w - wh

y - an d

- wh at

- t o
do/.RIZ O V

. Y O VI N O 27

of p rior pay to defend against equal-pay v iolations “can easily be used to capitalize on the unfairly low salaries historically paid to wom en.” 691 F.2d at 876. Other circuits have m ade the sam e observation. See, e.g. , Taylor , 321 F.3d at 718 (cautioning th at p r i o r pay m ay be used as “a m eans to perpetuate historically lower wages”); Irby v. Bittick, 4 4 F.3d 949, 955 (11th Cir. 1 995) (stating that allowing prior pay as
an affirm ative defense “would swallow up the rule and inequality in p ay am ong genders would be perpetuated.”). W e agree with Kouba ’s early w arning, and with the observations of our sister circuits.

The E PA’s fo urth exception allows em p loyers to justify wage disparities between em p lo y ees o f th e o p p o site sex based
on any job-re l at e d factor other than sex. Because prior p ay m ay carry w ith it the effects of sex-based pay discrim ination, and becau s e s e x-based p ay discrim ination was the p recise target of the EPA, an em

ployer may not rely on prior pay to
m eet its burden of showing that sex played no part in its p ay decision. For purposes of the fourth exception, we conclude that the wage a s s o c iated w ith an em ployee’s prior job does not qualify as a factor other than sex that can defeat a prim a facie EPA claim

.
E.

Hav i ng reconsidered Kouba , we are persuaded that i t
m ust be overruled. Kouba recognized that allowing prior p ay to serve as an affirm ativ e d e f ense to an EPA claim could perpetuate wage discrim ination, but it ultim ately held that the EPA “does not im

pose a strict prohibition against the use of prior salary,” so long as em p loyers conside r e d p r ior p ay reasonably to adv anc e an acceptable business reason. 691 F.2d at 8 76–77, 878. Kouba ’s holding that prior p ay i nRIZ O V

. Y O VI N O 28

c o m bination with other factors m ay serve as an affirm at i v e defense is inconsistent with the EPA’s te x t, purpose, and burden-shifting fram ework for the sam e reas o ns the use o f prior pay alone is inconsistent with the EPA’s text, purpose, and burden-shifting fram ework. At best, requiring the use o f other factors in com

bination with prior p ay waters d own the influence of whatever historic wage discrim ination rem ains.

K o u ba ’s consideratio n o f wh eth er th e em p lo y er u sed p rio r p ay reasonably is also in tension with the EPA’s s tr i ct liability fram ework, in which intent to discrim inate plays no role. 6 9 1 F. 2 d at 876. As the EEOC’s brief diplom atically puts it, our case law “could be read to blur the line” between the McDonnell D ouglas three-s t e p t est for Title VII claim s and the two-step test applicable to the EPA. See Kou b a , 691 F. 2 d at 8 76, 878; Maxwell , 8 03 F.2d at 446; Stanley , 178 F.3d at 1076. Havi n g recognized these errors, w e have an obligation to correct our case law. Finally, Kouba ’s rel i an ce on “business reasons” and “business policy,” 691 F.2d at 876, p rovides little guidance to dis tr i ct courts, and cannot be squared with the Suprem e Court’s rej ection of the m arket force theory. See Corning Glass , 417 U .S. at 205. “Business reasons” is a category so capacious that it can accomm o d ate factors entirely unrelated to the work em

ployees actually perform

. The phrase sweeps in wh at Corning G lass described as business decisions that “m ay b e understandable as a m atter of econom ics,” but which nonetheless “becam e illegal once Congress enacted into law the principle of equal pay for equal work.” Id. For these reasons, we n arrow our definition o f th e scope of the fourth exception to job-related factors other than sex and clarify thatRIZ O V

. Y O VI N O 29 prior p ay, alone or in com bination with other factors, is not one of them

. 1 3
Despite o ur concurring colleagues’ agreem ent that p rior pay alone cannot serve as an affirm ative defense t o a p rim a facie EPA claim , they abruptly shift gears wh e n i t com es to consideration of prior pay in com bination with other factors. For the concurring m em

bers of our panel, prior pay—a f actor t h e y a g r e e r i s k s p e r p e t u a t i n g b a k e d

- i n s e x discrim ination—becom es palatable if i t is considered along with other factors. Yet they never explain why this is so.

Som e case law from other circuits suggests that p rior p ay m ay serve as an affirm ative d e fe n s e if it is considered in
com bination w ith other f

actors, but these cases uniform ly rely
on those other factors to excuse wage d ifferentials. See, e.g. , Irby , 44 F.3d at 9 5 5 , 9 57 (allowing “prior salary and experience” as an affirm ative defense, but relying o n the coe mp l o y e e ’ s “[u ]n i que , l o n g
- t e rm e xp e r i e n c e a s an investigator” to justify a pay d ifference under the EPA’s “any other factor other than s e x ” exception); Balmer , 423 F.3d at 612–13 (allowing cons ideration of prior pay along with prior relevant w ork experience because “[a] wage differential based o n education or experience is a factor other than sex for purposes of the Equal P ay Act” an d “ most importantly , the

13 Som e circuits have nominally adopted Kouba ’s “business-related” rule, but even these circuits clearly examine the specific requirem ents o f the job at issue. See Aldrich , 963 F.2d at 525 (explaining that the fourth affirm ative defense im

poses a “job-relatedness requirem ent” and t hat
em ployers m

ust prove t

hat the p ay differential is “rooted i n legitim ate business-related differences in work responsibilities and qualifications f or the p articular positions at i ssue ” ( em

phasis added)); se e a l

so Md. Ins. Admin. , 879 F.3d at 1 23 (following Aldrich ); Riser , 776 F.3d at 1198 (sam e).RIZ O V

. Y O VI N O 30

ultim ate d ecision m aker at [ the em ploye r ] determ ined that [the m ale em

ployee] had greater relevant industry experience than Plaintiff.” (em

phasis added)); see also Riser , 7 76 F.3d at 1199 (approving an E PA defense b ased on an em ployee’s p rior salary, qualifications, and experience). None of the s e cases suggests that the use of p rior pay is acceptable, so long as it is sufficiently diluted by other considerations. Citing these cases, our concurring colleagues insist th at pri o r pay is a valid affirm ative defense if considered with other f actors. But they o verlook that using the proxy o f p rior pay, rather than relying on the factors actually related to the job being perform ed, adds nothing to the em ployer’s defense because any legitim ate job-related factors can them selves defeat a prim a facie EPA showing. Nor is it corr e ct to say that we d eepen a circuit sp l it

. Only the Seventh Circuit has conclusively relied o n p rior p ay as an affirm ative defense to
a prim a facie EPA claim

. 1 4 Wernsing , 427 F.3d at 469. Following Kouba , the Si x th, Tenth, and Eleventh Circuits articulated rules purporting to allow prior pay to serve as an affirm ative defense if considered with other factors, but they have substantively relied o n the “other factors” to justify the challenged pay differentials. 1 5

14 The F ourth Circuit has suggested it m ay share this v i e w , but only in dicta. See Spencer v. Virginia S tate Univ. , 9 19 F.3d 199, 206 (4th Cir. 2019).

15 O ur concurring colleagues im ply that the EEOC advocates a rule that allows consideration of prior pay along with other factors. They rely
on a statem ent from the EEOC Com pliance M anu al that prior pay m ay succeed as an affirm ative d efense when “other factors [are ] a l s o considered.” See U.S. Equal Em p’t O pp ortunity Comm ’n, Com pliance Manual § 10-IV(F)(2)(g) (2000). This m erely reflects th e EEOC’s understandin g of current case law. See id. § 10-II. S etting aside theRIZ O V

. Y O VI N O 31

Our holding prevents em

plo y ers f ro m relying on prior p ay to d efeat E PA c l a i m s, b ut the EPA does not prevent
em ployers from considering prior pay for other purposes. For
exam p le, it is not unusual for em ployers an d p r ospective
em ployees to discuss prior pay in the course of n e go t i at ing job o ffers, and the E P A does not prohibit th i s p r a ctice. 1 6 Certainly, our opinion does not prohibit this practice. B ut whatever factors an em

ployer considers, if called upo n t o defend against a prim a facie showing of sex-based wage discrim ination, the em

ployer m ust dem onstrate that any wage different i a l was in fact justified b y job-related factors other than sex. Prior pay, alone or in co mbination with other factors, cannot serve as a defense.

The concurring m em

bers o f our panel r e p e atedly incant that our o pinion prohibits any consideration of prior pay. B ut this is just not so. The disconnect appears to b e the result o f overlooking the d ifference b etween considering prior p ay when setting a salary

— which the E PA does n o t address,
m uch less prohibit—and rely i ng o n prior pay to defend an EPA violation

. Our statem ent that “prior pay, alone or in
com bination with other factors, is not [a job-related factor]”

Suprem e Court’s direction that the Com pliance Manual is not entitled to deference, Ledbetter , 550 U .S. at 6 42 n.11, the Com pliance Manual’s sole
s up p o rt fo r this statem ent is its citation to our opinion in Kouba and the Eleventh Circuit’s decision in Irby

. EEOC Com pl iance Manual § 1 0

- IV(F)(2)(g)

. But the EEOC urged us to take this ca se en banc to reconsider Kouba , which we did, and for t he r easons we explain here, w e conclude that neither K

o u b a nor Irby can be reconciled w i th S uprem e Court precedent.

16 In this way, the EPA is less stringent than California’s p ay privacy law, which does not allow em p loyers to inquire about prior pay. S ee Cal. Lab. Code § 432.3.RIZ O V

. Y O VI N O 32

addresses the use of prior pay as an affirm ative defen s e , not the consideration of prior pay t o m ake a com p etitive job offer, to n egotiate higher pay, or to set a salary. And there is
no basis for concern that our opinion will prevent em p loyers from considering prior pay when emp loyees disclose it.

W e recognize there m ay seem to be tensio n b etween allowing em

ployers to consider p rior salary in setting wages on the o ne hand, and requiring that they defend an EPA claim without relying on prior pay on the other. But this is inherent in the term s o f the EPA itself. The statute places no lim it on the factors an em

p loyer m ay consi d e r i n setting em ployees’ wages, but it places on emp loyers the burden o f dem onstrating that sex played no role in causing wage differentials. To m eet thi s burden, em ployers m ay rely on any bona fide job-related fa c t o r other than sex. But relying
on the heuris t i c o f p rior pay, rather than the actual factors associated with em

ployees’ current work, risks perpetuating historic sex discrim ination.

F. Applying the ru le that only job-related f actors qualify under the EPA’s fourth affirm ative defense and that prior p ay is not one of them , resolution of Ri z o ’s case is
s traightforwar d. The district court ruled that Rizo satisfie d her prim a facie burden. Fresno County relied o n Rizo’s p rior pay to j u s t i fy paying her less than m ale colleagues who perform ed the sam e work. For the reasons we have explained, Rizo’s prior wages do not qualify as “any oth er factor other than sex,” and the County cannot use this f actor to d efeat Rizo’s p rim a facie case. The County cites no other
reason for paying Rizo less. W e therefore affirm the district court’s o rder denying F resno County’s m otion for summ aryRIZ O V

. Y O VI N O 33 judgm ent and rem and for further proceedings consistent with this opinion.

AFFIRMED.

McKEOW

N, C ircuit Judge, with wh o m Judge TALLMAN and Judge MURGUIA, Circuit Judges, join, concurring:

The m ajority em

b races a rule not adopted by any o th er circuit—prior salary m ay never b e u sed, even in com bination with other factors, as a d efense under the Equal P ay Act. The circuits that have considered this im portant issue have either outright rejected the m ajority’s approach or declined to adopt it. I see no reason to deepen the circuit split. What ’s m ore, the m ajority’s position is at odds with the view of the E qual Em p l o ym e nt O p p o r

t un ity C o m

missio n (“E E O C ” ), th e ag en cy charged with adm inistering the Act. And, perhaps m ost tr o ubling, the m ajority fails to account for the realities o f today’s d ynam ic workfor c e, choosing instead to view the workplace in a vacuum

. In doing so, it betrays the prom ise o f equal pay for equal work and disadvantages workers regardless of gender identity.

I agr e e with m

uch of the m ajority o pinion—particularly the ob servation that past salary can reflect historical sex d is c r i mi nat i on

. Fo r de c a de after de c a d e , g e n d e r discrim ination has been baked into our pay scales, with the resul t th at wom en still earn only 8 0 p ercent of what m en m ake. As the ma

j ority notes, this pay gap is “even m ore pronounced am ong wom en of color.” Unfortunately, wom en em ployed in certain sectors face an even larger gap. This disparity is exacerba t e d when a wom an is paid less than aRIZ O V

. Y O VI N O 34

man for a com

parable job solely because she earned less at her last job. The Equal Pay Act prohibits precisely this kind of “piling on,” whereby wom en can never overcom e the historical inequality.

I welc ome the day when this would n o longer be so because wom en have achieved parity in the workplace. But the m ajority goes too far in h o lding that any consideration o f prior pay is “inconsistent” with the Equal Pay A ct, even when it is assessed alongside other job-re l ated f actors such as experience, education, past perform ance, and training. This declaration m ay in fact disadvantage job applicants, whether fem ale, m ale, or non-binary. For this reason, I concur in the result b ut n ot in the m ajority’s rationale. In my view, p rior salary alone i s n o t a defense to unequal pay for equal work. I f an em ployer’s o nly justification for paying m en an d
wom en unequally is that th e m e n had higher prior salaries, odds are that the one-and-only “factor” causing the difference is sex. However, e m

ployers do n ot necessarily violate the Equal Pay Act when th e y consider prior salary am ong other factors when setting initial w ages. As always, the em ployer has the burden to show that any pay differential is based on a valid factor other than sex.

To be sure, the m ajority corre c t l y decides the only issue squarely before the court: whether the Fresno County Office of Education was p erm itted to base Ai l een Rizo’s starting
s al ary solely o n her prior salary. The answer is n o. B ut regrettably, the m ajority goes further and effectively bars any consideration of prior salary in setting a salary. Not only d oe s Rizo’s case not present this issue, but this approach is unsup p o rt ed b y the statute, is unrealistic, and m ay work to applicants’ disadvantage.RIZ O V

. Y O VI N O 35

Rizo’s case is an easy one. A fter she was hired as a m ath consultant, she learned th at male colleagues in the sam e 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 o f the availability of fem ale labor to fill it s [p o s i t ion] at a differentially low wage rate not justified by any factor other than sex”—a practice long he ld un lawful. Corning Glass Works v. Brennan , 4 1 7 U.S. 188, 208 (1974); see G lenn v. Gen. Motors Corp. , 841 F.2d 1567, 1570 (11th Cir

. 1 9 88 ) (“[T]he argum ent th at supply and dem and dictates that
wom en qua wome n may be paid less is exactly the kind o f evil that the [Equal Pay] Act was designed to elim inate, and has been rejected.”); Drum v. Le eson Elec. Corp. , 565 F.3d 1071, 1073 (8th Cir. 2009) (It is “prohib i t e d ” t o rely on the “‘market force theory’ to justify lower wages for fem ale
em ployees sim

ply because the m arket m ight be ar s u ch wages”).

This scenario provides a textbook violation of the “equal pay for equal work” m antra o f the Equal Pay Act. Prior salary level created the only differential between Rizo and her
m ale colleagues. In setting her initial wage, the Co unty did not, for exam

ple, consider Rizo’s two advanced d egrees o r her prior experience. This historical im balanc e e ntrenched unequal pay for equal work based on sex—end of story. The County cannot m ount a defense on past salary alone.
Congress enacted the Equal Pay Act to root out h istorical
sex discrim ination, declaring it the “polic y ” o f the Act “to correct the conditions” of “wage differentials based on sex.” Pub. L. No

. 8 8-38, 77 Stat. 56 (1963). At the signing
cerem ony, President John F. Kennedy called the A ct “a first
s t e p ” i n “ a c h i e v [ i n g ] f u l l e qu a l i t y o f e c o n o m i cRIZ O V

. Y O VI N O 36 opportunity—for the average wom an wo rker earns only 60 percent of the average wage for m en.” President John F. Kennedy, Rem arks Upon Signing the Equal Pay A ct (June 10, 1963), http://www.presidency.ucsb.edu/ws/? pid=9267. The unqua li fi ed g oal of the statute was to “elim inate wage discrim ination based upon sex.” H.R. Rep. No. 88-309, at 1 (1963). S adly, that gap rem ains today. See Nat’l P’ship For W om en & Fam ilies, Am erica’s W om en And The W age Gap 1 (2017), https://goo.gl/SLEcd8.

Giv en the stated goal of the Equal Pay Act to erase the gender w age gap, it b eggars belief that Congress intended for historical pay discrepancies like Rizo’s to justify p ay inequity. See Corning , 417 U.S. at 195 (“Congress’ purpose in enacting the Equal Pay Act was to r e me dy

. . . [an] endem ic problem of em

p loym ent d iscrim ination

. . . based on an ancient but outm oded belief that a m an

. . . should be paid
m ore than a wom an e v e n though his duties are the sam e.”). Congress recently n o te d that the existence of gender-based pay disparities “h as been spread and p erpetuated” since the passage of the Act and “m any wom en continue to e arn significantly lower than m en for equal work.” H.R. Rep. No. 110-7 83, at 1–2 (2008). “In m any instances, the p ay disparities can only be d ue to continued intentional discrim ination or th e lingerin g effects o f p ast d iscrim in a tion. ” Id. (em p hasis added). Because past p ay can reflect the very discrim ination Congress sought to er a di cate in the statute, allowing em

ployers 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 a ctio n (Jan

. 2 9 , 2 0 0 9 ) ( “P ay ch eck s perpetuating p as t discrim ination

. . . are actionable

. . . because the y discrim inate anew each tim e they issue.”). That d an ger isRIZ O V

. Y O VI N O 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 o th e r than sex” defense. Corning , 417 U.S. at 208.

Yet I differ with the m ajority in one key respect. Merely because prior pay is unavailable as a standalone defense does not m ean th at e m

ployers should be barred from using past pay as a factor in setting an initial salary. Contrary t o th e m ajority’s assertion, it is wholly consistent to fo r b id
em ployers from baldly asserti n g prior salary as a d ef en s e— w ith o ut d etermin in g wh eth e r i t a c c u rat e ly m easu

res e xp e r i ence, education, training or other lawful factors not based on sex—but to perm it consideration of pri o r salary along with those v alid factors. U sing prior salary along with valid job-related factors such as education, past perform ance and train ing m ay provide a lawful benchm ark for starting salary in appropriate cases. But “wage differentials based

s ole l y o n the sex o f the em ployee are an unfair labor standard.” H.R. Rep. N o. 8 8- 3 0 9 , at 3 (em phasis added). This interpretation of the statute still places the burden on the
em pl oyer to justify that salary is d eterm ined on the basis o f “any other factor other than sex.” 29 U.S.C. § 206(d)(1). And,
as Congress observed, “there are m any factors which m ay be
u sed to m easure the relationships between jobs and which establish a v alid basis f

or a difference in p ay.” H.R. Rep. No. 88-309, at 3 (1963).
My views align with those of the EEOC and m ost of our sister circuits that have addressed the question. The EEOC’s Com pliance Manual states:
[A]n emp l oyer m ay consider prior salary as part o f a mix of factors—as, for exam ple,RIZ O V

. Y O VI N O 38

where the em

ployer also considers education and exp e rience and concludes that the
em ployee’s p rior salary accurately reflects ability, based on job-related qua l i f ications. But because “prior salaries of job can d i d ates
c a n r e f l e c t s e x - b a s e d c o m p e n s a t i o n discrim ination,” “[p]rior s a lary cannot, by itself, justify a compensation disparity.”

EEOC C o m

pliance M anual, Com

pensation Discrim ination § 1 0

- I V

. F

. 2

. g ( D e c

. 5 , 2 0 0 0 ) , a v a i l a b l e a t https://www.eeoc.gov/policy/docs/co m pensation.htm l. The EEOC’s pragm atic approa c h a c counts for realities in the workplace while preserving the p rom ise of equal pay for equal w ork. Because m any job-related fa c tors, such as education and experience, are not gender-based and

“ a p p l i c a n t s r a r e l y h a v e ‘ i d e n t i c a l e d u c a t i o n a n d experience’... [i]f an em

ployer sincerely weighs such factors with prior salary, there is no reason to think the resulting p ay decisions would perpetuate the gender pay gap.”

The Tenth and El e venth C ircuits reached the sam e conclusion, holding that p r i o r p ay alone cannot justify a com pensation disparity. See Riser v. QEP Energy , 776 F.3d 1191, 1199 (10th Cir. 2015) (an em p loyer m ay decide to p ay an elevat e d salary to an applicant who rejects a lower o ffer, but the Act “precludes an em p loyer from relying solely upon a prior salary to justify pay d is p arity”); Irby v. Bittick, 44 F.3d 9 49, 955 (11th Ci r

. 1 995) (“This court has not held that prior salary can never be used by an em ployer to establish pay, just that such a justification cannot solely carry the affirm ative defense.”). The Eighth Circ u i t adopted a sim ilar approach, perm itting the use of prior s al ary as a defense, but “carefully exam in[ing] the record to ensure thatRIZ O V

. Y O VI N O 39

an em ployer does not rely on the prohib i t e d ‘ m arket force theory’ to justify lower wages” for wom en b a sed solely on sex. Drum , 565 F.3d at 1073. The Second Circuit li k ewise all ows the prior-salary defense, but p laces the burden on an em ployer to prove that a “bona fide business-rela t e d r e ason exists” for a wage differential— i.e. , o ne th at is “rooted in l e g i t i m a t e b u s i n e s s
- r e l a t e d d i f f e r e n c e s i n w o r k responsibilities and qualifications for the particular positions at issue.” A ldrich v. Randolph Cent. Sch. Dist. , 963 F .2d 520, 525–26 (1992). T he m o re nuanced holding adopted by our sister circuits better accord s wi th comm on sense and the statutory text. The Equal Pay Ac t provides an affirm ative defens e fo r “ any other factor o ther than sex.” 29 U.S.C. § 206(d)(1) (emphasis added).
Meanwhile, the F ourth and Seventh Circuits have veered off course, holding that p rior salary is always a “factor other than sex.” S

ee Spencer v. V

irginia State Univ. , 919 F.3d 199, 206 (4th Cir. 2019); Wernsin g v. Dep’t of Human Servs., State o f Ill. , 427 F.3d 466, 468–70 (7th Cir. 2 0 05). But this conclusion—that a “factor other than s ex” need not be “relat e d t o the requirem ents o f the particular position” o r even “business-related”—contravenes the Act’s purpose o f ensuring wom en and m en earn equal pay for equal work. Wernsing , 427 F.3 d

. at 4 7 0

. After all, inherent in the A ct is
an understanding that com pens at ion should m irror one’s “skill, effort, and responsibility. ” See Corning , 417 U.S. at 195 ( qu o t in g 29 U.S.C. § 206(d)(1)); see also Glenn , 841 F.2d at 1571. Be cause we k now that historical sex discrim ination persists, it cannot be that prior sa l ary always reflects a factor other than sex. I fe ar , however, that the
m ajority m akes the sam e categorical error as the Fourth and Seventh Circuits, but in the o pposite direction: it announces that prior salary is never a “factor other than s e x

. ” ByRIZ O V

. Y O VI N O 40 forbidding consideration o f p rior salary altogether, the
m ajority extends the sc o p e of the statute and risks im posing Equal Pay Act liability on em ployers for using prior salary as any part o f the calculus in m aking wage-setting d ec i sions. That, too, is a drastic holding, particularly because com panies and institutions often consider prior salary i n mak ing o ffers to lure away top talent from thei r com petitors or to attract
em ployees with specific skills. In unpacking what goes into the calculation, it m ay we ll b e that past salary accurately gauges a prospe c t ive em ployee’s “skill, effort, and responsibility,” as the Equal Pay Act envisions—in addition to her education, training, and past p erform ance—and a new em ployer wants to exceed that benchm ark.

The Equal Pay Act s h o u ld not be an im p edim ent for
em p l o ye e s seeking a brighter future and a higher salary at a new job. See generally Orly Lobel, Talent W ants to Be Free 49–75 (Yale Univ. Pr e ss 2013) (concluding that em ployee
m obility between com

p e t i tors prom otes innovation and job growth); Cade Metz, Tech Giants A re Paying Huge Salaries for S carce A.I. Talent , N.Y. Tim e s , Oc t. 23, 2017, at B1 (noting that em

ployers pay a prem ium to hire top engineering talent).

On that front, states and cities have begun pass ing statutes 1 that prohibit em ploy e r s from asking em ployees

1 See, e.g. , Cal. L abor 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).RIZ O V

. Y O VI N O 41

about their prior salaries. 2 T hese laws represent c r e at i ve efforts to narrow the gender wage g ap. But they also provide im portant exem

ptions for em

ployee s wh o wish to disclose prior salaries as part o f a salary negotiation. Se e, e

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

The m ajority’s holding m ay reach beyond the s e state statutes b y m aking it a violation of federal antidiscrim ination law to consider prior salary, even when an em ployee chooses to provide this inform ation as a b argaining chip for higher
wa g e s. I am concerned about chilling such voluntary discussions. The m ajority handcuffs em ployers from relying
on past salary inform ation—but in doing so, equally shackles
wom en from using prior salary i n their favor. Indeed, the result m ay disadvantage rather than advantage wom en.

To avoid th ese consequences, the m ajority endeavors to l i m i t its decision by announcing that neither its holding n o r the E qual Pay Act p re v e nts em ployers from “consider[ing] prior pay for other purpose s

. ” But the m ajority’s vague disclaim er hardly dilutes the p ractical effects of the holding’s broad sweep. In the sam e breath, the m ajority states that its holding both “prevents emp loyers from relying on prior pay to defeat E PA claim s” and th at it does not reach the “discuss[ion of] prior pay in the course of neg o tiating job offers.” But an Equal Pay Act claim could include violations arising from n e g o tiated salaries. And, because the m ajority bars the u se of prior salary to set initial wages under the Act,

2 A bill was introduced in Congress to enact a federal prohibition o n “requiring” or “requesting” that prospective em ployees disclose previous wages or salary history. See H .R. 2418, 115th Cong. (2 0 1 7 ). Li ke its state counterparts, t

his bill d oes n ot seek to o ut l aw salary negotiations initiated by an em

ployee.RIZ O V

. Y O VI N O 42

i t h a s left little daylight for arguing that negotiated starting
s alaries should be treated differently. In the real world, an em ployer m ight consider prior salary—disclosed voluntarily by an em ployee during negotiations—to offer a pay bum p above that prior salary. Perm itting prior pay in setting salary but not as an affirm ative defense to the Equal Pay Act results in an indefensible contradiction. The “tension” h ighlighted by the m ajority i s p r e cisely the reason that prior pay cannot be relegated to the dust bin.

Th e ma j ority states that other circuits m erely “suggest[] that p r i or p ay m ay serve as an affirm ative defense if it is considered in com

bination with other factors.” But our sister circuits do m

uch m ore. They affirm atively perm it the use o f prior salary in wage setting so long as it is considered in tandem with a perm issible job-related f actor, a far cry from concluding that watered down discrim ination is acceptable. See Irby , 44 F.3d at 9 54 (“This court has not held that p rio r salary can never be used by an em ployer to establish pay, just that such a justification cannot solely carry the affirm ative defense.”) (em

phasis added); R iser , 776 F.3d at 1 1 9 8–99 (holding that the EPA precludes an em pl o y er from relying solely upon a p rior salary f or justification of a pay disparity). The m ajority also avoid s g rappling with the EEOC’s guidance, which perm its em p loyers to consider prior salary,
so long as it is considered as part of a m ix of perm issible factors such as education or experience.

I agree with the m a

jority that the three-step McDonnell Douglas test does n o t apply to E q ual Pay Act claim s. However, n either C

orning nor the f

acts of this case com

pel the ma j ority to go so f

ar as to conclude that em ployers m ay not rely o n prior pay in com bination with other factors as an affirm ative defense.RIZ O V

. Y O VI N O 43

The m ajority’ s ru l e does not just function as a one-way ratchet to protect wom en from d iscrim ination. Instead, based
on a my op i c view o f the w orkplace, it creates a regim e that prevents all em

ployees from seeking fair com pe n sation, regardless of gender. This is particularly true wh e n an em ployee’s total salary includes incentive, perform ance, o r comm ission-based pay. Im agine a stockbroker who receives 50 percent of his salary as a bonus for stellar perform ance, o r a m anager who, ov e r fi ve y ears, receives periodic raises b as e d o n her extraordinary contributions and perform ance. In both situations, past pay serves a s a surrogate for achievem ent and helps the em ployees quantify their w orth to potential em

ployers. E x cluding reliance on salary when it is considered with other job-related factors m akes no sense.

The m aj o r ity recognizes that legitim ate, job-related factors such as a prospective em ployee’s “education, s kills,
or experience” o p e rate as affirm ative defenses. But the
m ajority nonetheless renders those valid, job- r e lated factors nugatory when an em

ployer also considers prior salary. That is a puzzling o ut c o m e that does not square w ith the statute,
comm on sense, the contem por ary workplace, the E E OC, o r other circuits. For these reasons, I concur only in the result.

CALLAHAN, Circuit Judge, wi th whom TALLMAN and BEA, Circuit Judges, join, concurring:

W e all agree that m en and wom en 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 equalRIZ O V

. Y O VI N O 44 pay” to “m

ust receive equal pay.” Ho we v e r, I write separately because in holding that “wages associated with an em ployee’s p rior job” can n ever be considered as a f actor in determ ining pay under 29 U.S.C. § 206(d)(1)(iv), the
m ajority f

ails to appreciate Suprem e Court preced ent and creates an am orphous and unneces sary new standard for interpreting that subsection, wh ic h ignores the realities and dynam ic nature of business. In doing so, th e ma j ority m ay hinder rather than prom ote equal pay for equal work.

I

As required by the Equal Pay Act, Rizo m ad e a p rim a facie case of pay discrim ination by showing that (1) she perform ed substantially equal work to that of her m ale colleagues; (2) the w ork conditions w ere basically the sam e; and (3) th e m a l e em

ployees were paid m ore. See Riser v. QEP Energy , 776 F.3d 1191, 1196 (10th Cir. 2015).

The County does not contest the p rim a facie c a s e but argues that Rizo’s salary w as exem pt from Equal Pay A ct coverage under the fourth exception in 29 U.S.C. § 206(d)(1). Subsection (d)(1) reads:

No em p loyer having em

ployees subject to any provisions of this section shall discrim inat e, within any establishm ent in which such
em ployees are em

p loyed, between em

ployees
on the basis of sex by paying wages to
em ployees in such establishm ent at a rate less than the rate at which he p ay s wa ges to
em ployees of the opposite sex in such establishm ent for equal work on jobs the p erform ance of which requires equal ski l l ,RIZ O V

. Y O VI N O 45

e f fort, and responsibility, and which ar e perform ed under sim ilar working conditions, except where such paym ent is m ade pursuant to (i) a s e n i ority system ; (ii) a m erit system ; (iii) a system wh i ch m easures earnings by quantity or quality of p roduction; or (iv) a differential based on any other factor other than sex.

W e agree that this suit turns on our i nt e r p r e tation o f 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 rem edial and it should be construed and applied so as to fulfill the underlying purposes which C ongress sought to achieve.” Corning Glass Works v. Brennan , 4 17 U.S. 188, 208 (1974). The m ajority struggles
m i g h t i l y a n d u nn e c e s s ar i l y t o c o up l e t h e f o u r t h exception—despite its clear langu age—so closely with the other three exceptions that it loses independent m eaning.

The m ajority suggests that th e 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 inc ludes “a seniority system ” but excludes “prior salary.” Indeed, the sole p urpose of the m ajo ri ty’s parsing of the statute appears to be to ex c l ud e “prior salary” from its
comm on sense inclusion in subsection (iv ) —“a differential based on any other factor other than sex.”

In its approach, the m ajority conveniently overlo o ks the differences within the three specific exceptions. While m eritRIZ O V

. Y O VI N O 46
system s and m easuring earnings by quant ity and quality o f production are specific al ly job-related, that is not true o f seniority system s, which are often unrelated to perform ance. Indeed, at the tim e o f the passage of the E qual Pay Act, if not today, seniority system s accounted f or a fair am ount of p ay inequality. 1

The m ajority’s insistence that the fourth excep t i o n is l i mited to its narrow definition of “job-related” is ther e fo r e flawed b ecause the term “job-related” is a poor descriptor o f the prior thr e e e x c eptions. And the m ajority’s reliance on noscitur a sociis and ejusdem gen er is to define the fourth exception as encom

passing o nly “job-related” factors is also incorrect. The Suprem e Court has called the fourth exception
a “general catchall provisi o n,” Corning Glass , 417 U.S. at 196, that “was designed differently, to confine the application of the A ct to wage differenti als attributable to sex discrim ination,” W

a shington County v. Gunther , 452 U.S. 161, 170 (1981). The canons of statutory interpretation that the m ajority em

ploys are of no u se where a catchall provision is m eant to contrast with specific exceptions, not reflect them

. The Gunther Court explai ned that Equal Pay Act litigation “has been s tru c tured to perm it em ployers to defend against charges of discrim ination where their p ay differentia l s are based on a bona fide use of ‘othe r fa c t o rs other than sex.’” Id

. The Court cautioned that courts and admi n istrative agencies “were not perm itted to substitute their judgm ent for

1 For exam

ple, one-quarter o f the com plaints filed in the year after the passage of the Equal Pay Act concerned com plaints by wom en who were excluded f

rom jobs because of seniori ty rules or because m en were preferred over wom en aft e r layoffs. Vicki Lens, Supreme Court Narratives on E

quali t y and Gender Discrimination in Employment: 1971–2002 , 10 Cardozo W o m en’s L.J. 501, 507 (2004).RIZ O V

. Y O VI N O 47

the judgm ent of the em

ployer

. . . so l o n g a s it does not discrim inate on the basis of sex.” Id

. at 1 71. Thus , the standard is not whether a factor is “job-related,” but whether
r e gardless of its “job-relatedness,” the factor prom ote s o r perpetuates gender discrim ination.

Th i s conclusion is further supported by a footnote i n Gunther , which states:

The legislative h i s t ory of the Equal Pay A ct
was exam ined by this Court in Corning Glass Works v. Brennan , 4 17 U.S. 188, 198–201 (1974). The Court observed that e ar lier
ver s i o n s of the E qual Pay b ill were am ended t o define equal work and to add the fo urth affirm ative defense because of a concern that bona fide job-evaluation system s u sed by Am erican businesses would o therwise be disrupted. Id. , at 1 9 9 –201. This concern is evident in the rem arks o f m any legislators. Rep r e s e nt ativ e Grif

f in , f o r ex am p le, exp lain e d that the fourth affirm ative d efense is a “broad principle,” which “m akes clear and explicitly states that a differential based on any factor o r fac t o r s other than sex would not violate this legislation.” 109 Cong. Rec. 9203 (1963).

Id . at 170 n.11 (parallel citations om itted).

III

I agree that, based on the history of pay d i scrim ination
an d th e broad purpose of the Equal P ay Act, prior salary b y itself does n ot qua l i fy a s a “factor o ther than sex.” As theRIZ O V

. Y O VI N O 48

Eleventh Circuit has noted, “if prior s a l ary alone were a justification, the exception would swallow up the rul e and inequality in pay am ong genders would be perpetuated.” Irby

v. Bi t t i c k, 44 F.3d 949, 955 (11th Cir. 1995). However, the Eleventh Circuit continued:

an Equal Pay Act defendant m ay successfully
r a is e the affirm ative defense of “any othe r factor other th an sex” if he p roves that he relied on p rior salary and experience in setting
a “new” em

plo y ee’s salary. Wh ile an em ployer m ay not overcom e th e burden o f proof on the affirm ative defense of relying on “any other factor other than sex” by resting on prior p ay alone, as the district court correctly found, there is no prohibition on utilizing prior pay as part of a m i x ed-m otive, such as prior p ay and m ore experience. This court has not held that prior salary can never be used by an em

ployer to establish pay, just that such a justification cannot solely carry the affirm ative defense.

Id

. Indeed, our Court has previously suggested that prior p ay m ay b e considered am o ng “other available predictors of the
new em ployee’s perform ance.” Kouba v

. Allstate Ins. Co. , 691 F.2d 8 73, 878 (9th Ci r

. 1 982). And there is g eneral agreem ent in our sister circuits that there is “no prohibition
on utilizing prior pay as part of a mixed- mo t ive.” Irby , 4 4 F.3d at 9 55. The T enth Circuit has held that “ an i n d ividual’s form er salary can be considered in determ inin g whether pay disparity is based on a factor other than sex,” butRIZ O V

. Y O VI N O 49

that “the EPA ‘precludes an e mp loyer from relying solely upon a prior salary to justify p ay disparity.’” Riser , 776 F.3d at 1199 (citing Angove v. Williams–So n o ma, Inc. , 70 Fed. App’x. 5 00, 508 (10th Cir. 2003) (unpublished)). The Sixth Circuit is basically in agreem ent. See EEOC v. J.C. Penney Co

. Inc. , 843 F.2d 249, 253 (6th Cir. 1988) (holding that “the legitim ate business reason standard is the appropriate benchm ark against which to m easure the ‘factor other than sex’ defense”). The Fourth, Seventh, and Eighth Circui ts pre fe r even broader d efinitions for “factor other than sex.” See Sp e ncer v. V

irginia State University , 919 F.3d 199, 206–07 (4th Cir. 2019) (concluding that a p rogram whereby faculty are paid 9/12ths o f their previous adm inistrator salary provided a “non-sex-based explana tion for the p ay disparity”); Covington v. S

. Ill. Univ. , 8 16 F.2d 317, 321–22 (7th Cir. 1987) (holding that the E PA does not preclude “an
em ployer from carrying out a policy which, although not based on em

ployee perform ance, has in no way been shown t o underm ine the goals of the EPA”); Taylor v. White , 321 F.3d 710, 720 ( 8 th C ir. 2003) (stating that “a case-bycase analysis o f r e l i ance on prior salary or salary retention pol i c ies w ith careful attention to alleged gender-based practices p reserves the b usiness freedom s Congress intended to protect when it adopted the catch-all ‘factor other than sex’ affirm ative defense”).
Contrary to the m ajority’s suggestion, the Second Circuit has not adopted its narrow d e finition of “job-related.” In Aldrich v. Randolph Central School District , 963 F.2d 520 , 525 (2d C ir. 1992), the Second Circuit d i d s tate that “[w]ithout a j ob-relatedness requirem ent, the factor-otherthan-sex defense w ould provide a gaping loophole i n the statute throu gh wh ich m any p retexts for discrim ination would be sanctioned,” but it further held that “an em ployer bears theRIZ O V

. Y O VI N O 50

b ur den of proving that a b ona fide business-related rea s o n exists for using the g e n de r -neutral factor that results in a wage differential in order to establish th e factor-other-thansex defense. ” I

d. at 526. In T

omka v. S eiler Corp. , 66 F.3d 1295, 1312 (2d C ir. 1995), a b rogated on other gro u nds by Burlington Indus. Inc. v. Ellerth , 524 U.S. 7 4 2 (1998), the Second Circuit, addressing a claim that higher salary resulted from a m ale em

ployee’s o ver ten y ears of experience, stated that while the experience m ight explain the discrepancy, the
em ployer “has the b ur d en o f p ersuasion to show both that it based [ the m ale em

ployee’s] h igher salary on this factor and that experience is a job-related qualification for the position in question.” Id

. In holding that the e mp l o yer has the b urden, the court im

plicitly recognized that prior salary c an be job related and thus can com e within the fourth exception. See a lso Bel

f i v

. Prendergast , 191 F.3d 129, 136 (2d Cir. 1999) (noting that “to successfully establish the ‘factor other than sex’ defense, an em

p loyer m u st also dem onstrate that it h ad a legitim ate business reason for im plem enting the gender-neutral factor that brought about the wage differential”).

IV

There is no need for the m ajority’s approach to the fourth exception, which the Suprem e C ourt h as noted was intended to be broad. Rather, while a pay system that relies
e x c l u sively on prior salary is conclusively presum ed to be gender-based—to p erpetuate g e n d e r-b ased in eq u ality

— a p ay systemthat uses prior pay as one of several factors deserves to b e considered on its own m erits. When a plaintiff m akes
a prim a facie case of p ay inequality based o n g e n d e r, the burden of showing that the difference is not based on gender shifts to the em

plo y e r. In other words, the prim a facie caseRIZ O V

. Y O VI N O 51

creates a presum

ption that the pay inequality arising from the
em ployer’s pay system is gender

- b a se d and hence is not a “factor o ther than sex.” In Corning Glass , the Suprem e Court explained that the Equal Pay Act’s

structure and histo ry a lso suggest that once the Se c retary has carried his burden o f showing th at the em

ployer pays workers o f
one sex m o re than w orkers of the opposite sex for equal w ork, the bur d en shifts to the
em p loyer to show that the differential is justified under one of the Act’s four exceptions.
Corning Glass , 417 U.S. at 1 96; see also Maxwell v. C ity of Tucson , 8 0 3 F.2d 444, 445

–46 (9th Cir. 1986) (stating that
once the plaintiff establishes a p rim a facie case, “the burden of persuasion shifts to the em ployer to show that the wage disparity is perm itted by one o f the f our statutory exceptions to the Equal Pay Act”).

Th e r e i s no need or justification f or h olding that an em ployer could, as a m atter of law, justify a diffe rential in
s alary under o ne o f the first three exceptions, b ut n o t th e fourth exception. Accordingly, I agree with our sister circuits, that when salary is established b ased on a multifactor salary system that includes prior s a lary, the presum ption that the system is based o n g ender is rebuttable. 2

2 I agree with th e m aj o rity that the m arket force theory f o r paying
wom en less was discredited by the Sup re m e Court in Corning Glass , 417 U.S. at 2 05, and that the notion that an em ployer m ay p ay wom en less because wom en allegedly cost m ore to em p loy than m en was discredited in City of Los Angeles
, D epartment of Water & Power v. Manhart ,RIZ O V

. Y O VI N O 52 Critically, as n o t e d , the b urden is on the em ployer to show that the use of prior salary as part of a m ulti-factor salary system does not reflect, perpetuate, o r in any way encourage gender discrim ination.

This is also the position of the EEOC, the agency charged with enforcing the EPA. In its am icus brief, the EEOC states that in its v iew because prior salaries “can reflect sex-based
com pensation discrim ination,” a prior salary “cannot by itself justify a com

pensation disparity,” but “an em plo ye r m ay consider prior salary as p art of a m ix of factors.” 3 Th i s approac h to a m

ulti-factor form

ula for pay accords with the p urpose of the Equal Pay Act and the Suprem e Co urt ’s approach to the Equal Pay Act, as w ell as a comm on sense reading of its language. To im p ose obligations on em

p loyers that conflict with guidance from the agency adm inistering the statute, as the m ajority opinion does, is to sow confusion.

435 U.S. 702 (1978).

3 In EEOC Notice Num

ber 915.002 (Oct. 29, 1997), “Enforce m ent Guidance on Sex Discrim ination in t he Com pensation of Sports Coaches in Educational Institutions,” the EEOC advised:
Thus, if the em

p loyer a s serts prior salary as a factor other than sex, evidence s h o u l d be obtained as to whether the em

ployer: 1) consulted with the
em ployee’s previous em

ployer to determ ine the basis for the em

ployee’s starting and fi nal salaries; 2) determ ined that the prior salary was an accurate indication of the em

p loyee’s ability based on education, experience, or other r elevant f actors; and 3) considered the prior salary, but d i d not rely solely on it in setting the em p loyee’s current salary.RIZ O V

. Y O VI N O 53

In reality, “prior pay” is not inherent l y a reflection o f gender discrim ination. Ce rtainly our history of gender di s c r i m ination fully supports a presum ption that the use o f prior pay perpetuates discrim ination. But differences in p rior pay m ay also be based on other factors such as differences in the costs of living and in available resources in various p arts of the country. Moreover, I agree with the m ajority in hoping that we are pro g r e ssing “past the days when em p loyers
m aintain separate pay scales,” Majority at 25, and that it will becom e the n orm that a prior em ployer will have adjusted its pay system to b e gender neutral. Nonetheless, consistent with the intent of the EPA, I agree th at wh e r e p rior pay is the
e x c l u sive determ inant o f pay, the em ployer cannot carry its burden of showing that it is a “ factor other than sex.” 4 However, neither C ongress’s intent nor the language of the Equal Pay Act requires, o r justifies, the conclusion that a p ay system that inclu d e s pr ior pay as one of several considerations can never constitute a “factor other than sex.”

4 W e read the EPA to place the burden on th e e m p l oyer to dem o nstrate t

hat the pay differential falls within the fourth exception; t hat i t i s indeed not based on gender. An em ployer cannot m eet this burd e n where t he p ay sy s tem is based solely on prior pay because by blindly accepting the prior pay, it cannot rebut the p re s um p t i o n 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 Num ber 915.002, an em

ployer not o nly loo k ed to prior pay but also researched whether the applicant’s prior pay reflect e d g e nder-based inequality, and
m ade adjustm e nt s if it did, t he em ployer would no longer be relying exclusively on prior pay. Thus, in such a situation, an em ployer might be able to overcom e the presum ption and show that its pay sys te m wa s a “factor other than sex.”RIZ O V

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V

In this case, the County based pay on l y on prior salary, and accordingly the district court p roperly denied it summ ary judgm ent. Nonetheless, the m ajority goes beyond wh at is necessary to resolve this appeal and m istakenly p r o c l a im s that prior salary can never b e considered as com ing within the fourth exception to the Equal P ay Act. I strongly disagree. Following the Sup r e me Court’s guidance, I agree with our sister circuit courts, as well as the EEOC, the agency charged wi th e n forcing the EPA, that prior pay m ay be a com ponent of a pay system that com es within the fourth exce ption recognized in 2 9 U .S.C. § 206(d)(1). However, the em ployer has the burden of overc o m i ng the p resum ption of gender discrim ination and showing that its pay form ula does not perpetuate o r create a pay differential based on sex. W e can and should require that m en and wom en receive equal pay for equal work, b ut we can do so without m aking what is in reality a presumption an absolute rule.

For these rea s ons, I concur in the result, but n ot the
m ajority’s rationale.