Aileen Rizo v. Jim Yovino
854 F.3d 1161
9th Cir.2017Background
- Aileen Rizo, hired in 2009 by Fresno County as a management-level math consultant, discovered male colleagues were paid more for the same work.
- Fresno County set starting salaries under Standard Operating Procedure 1440: employees are placed on a step tied to their most recent prior salary plus a 5% increase; education stipends applied separately.
- Rizo’s prior Arizona teacher pay produced a starting salary at Level 1 Step 1 ($62,133) plus a $600 master’s stipend; some male hires started on much higher steps.
- Rizo sued under the Equal Pay Act, Title VII, and California FEHA; the County conceded unequal pay but invoked the Equal Pay Act affirmative defense that the differential was based on a “factor other than sex” (prior salary).
- The district court held that prior salary alone can never be a permissible “factor other than sex” because it perpetuates historical discrimination and denied summary judgment to the County.
- The Ninth Circuit granted interlocutory review, concluded Kouba controlled, vacated the district court’s order, and remanded for the district court to evaluate whether the County met Kouba’s requirements for using prior salary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior salary alone can qualify as a “factor other than sex” under the Equal Pay Act | Prior salary alone cannot qualify because it perpetuates historical pay disparities and undermines the Act’s purpose | Prior salary can qualify as a neutral business factor that justifies pay differentials if it effectuates a business policy and is used reasonably | Prior salary can be a permissible “factor other than sex” under Kouba if the employer proves it effectuates a business policy and is used reasonably |
| Standard for employer at summary judgment when asserting the affirmative defense | N/A (plaintiff bears prima facie only) | County must show no reasonable trier of fact could find against its affirmative defense at summary judgment | Employer bears the burden to prove the affirmative defense and must meet Kouba’s reasonableness and business-policy tests at summary judgment/remand |
| Relevance of considering additional factors (e.g., education) alongside prior salary | Additional factors do not cure a disparity if prior salary alone causes the difference | Consideration of other factors can justify pay and mitigate risk of perpetuating disparities | The court rejected the notion that considering other factors automatically cures a prior-salary–based disparity; focus remains on whether prior salary caused the differential and was used reasonably |
| Proper allocation of burdens regarding pretext or intent evidence | Plaintiff argued perpetuation shows de facto discrimination | County argued its neutral policy suffices without proof of intent | Because Equal Pay Act is strict liability, employer’s affirmative defense does not require proof of intent; employer must persuade the trier that its asserted factor caused the disparity and satisfies Kouba’s tests; plaintiff may introduce evidence to rebut or show pretext |
Key Cases Cited
- Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982) (prior salary may be a permissible "factor other than sex" if it effectuates a business policy and is used reasonably)
- Maxwell v. City of Tucson, 803 F.2d 444 (9th Cir. 1986) (Equal Pay Act affirmative defenses are employer’s burden; Act is strict liability)
- Stanley v. Univ. of S. Cal., 178 F.3d 1069 (9th Cir. 1999) (plaintiff’s burden to establish prima facie Equal Pay Act claim)
- Hein v. Oregon Coll. of Educ., 718 F.2d 910 (9th Cir. 1983) (prima facie Equal Pay Act requires showing different wages for equal work)