The Use of Salary History Still Up in the Air in the Ninth Circuit

Although last year, the Ninth Circuit joined the Tenth and Eleventh circuits in holding that the Equal Pay Act precludes employers from relying solely on prior salary to justify pay differences, the Seventh and Eighth Circuits still hold that such reliance does not by itself violate the Equal Pay Act (EPA). The Supreme Court on February 25, 2019, however, issued an unsigned per curiam opinion vacating the Ninth Circuit en banc decision holding that prior salary cannot be relied upon to explain a pay differential between a man and a woman under the EPA.

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