Aileen Rizo v. Jim Yovino
887 F.3d 453
9th Cir.2018Background
- Aileen Rizo was hired by Fresno County Office of Education as a math consultant; the County placed her on a lower starting step based on its SOP 1440 formula that used prior salary (plus 5%) to set initial pay.
- Rizo discovered male colleagues were hired at higher salary steps and sued under the Equal Pay Act (EPA) and related discrimination statutes, alleging she was paid less than male comparators for equal work.
- The County conceded a pay disparity but asserted the EPA’s fourth exception—"any other factor other than sex"—and argued prior salary justified the difference.
- The district court denied the County’s summary judgment motion, finding a pay system based exclusively on prior wages conflicts with the EPA; a three-judge panel reversed based on Kouba and remanded for reasonableness review.
- The Ninth Circuit reheard en banc and held that prior salary, alone or combined with other factors, cannot constitute a permissible “factor other than sex” for initial wage-setting under the EPA; it affirmed the district court’s denial of summary judgment and overruled Kouba to that extent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior salary can be a defense under the EPA’s catchall "factor other than sex" for initial pay-setting | Rizo: prior salary reflects historic sex-based wage disparities and cannot justify unequal pay | County: prior salary is a facially neutral business factor that may justify wage differentials (alone or with other factors) | Prior salary—alone or combined with other factors—does not qualify as a permissible "factor other than sex" for initial salary setting |
| Whether Kouba controls permitting prior salary with other factors | Rizo: Kouba is inconsistent with EPA text, purpose, and history; should be overruled | County: Kouba allows prior salary if reasonable and effectuates business policy | En banc court overruled Kouba to the extent it permitted reliance on prior salary in initial wage-setting |
| Proper scope of the EPA’s fourth exception | Rizo: exception limited to legitimate job-related factors (experience, education, ability, performance) | County/Amici: exception should allow any facially neutral or business-related factor | Court construes the catchall narrowly—limited to bona fide, job-related factors; not to perpetuate sex-based disparities |
| Role of intent/pretext in EPA claims | Rizo: EPA is strict-liability; no need to prove discriminatory intent | County: argued for Title VII–style analysis (in part) | Court reaffirms EPA does not require proof of intent; pretext concepts from Title VII do not apply |
Key Cases Cited
- Corning Glass Works v. Brennan, 417 U.S. 188 (1974) (EPA is broadly remedial; interpret exceptions in light of purpose to eliminate sex-based pay disparities)
- Washington County v. Gunther, 452 U.S. 161 (1981) (acknowledges fourth affirmative defense protects bona fide job-evaluation systems but does not allow perpetuation of sex discrimination)
- Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982) (prior Ninth Circuit precedent allowing prior salary in salary setting; overruled in part by this opinion)
- Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (EPA does not require proof of intentional discrimination)
- City of Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978) (rejects cost-based justifications tied to sex as permissible defenses)
- Riser v. QEP Energy, 776 F.3d 1191 (10th Cir. 2015) (prior salary alone cannot justify pay disparity; may be considered with other factors under certain circuit approaches)
- Glenn v. General Motors Corp., 841 F.2d 1567 (11th Cir. 1988) (interprets "factor other than sex" to encompass job-related individual characteristics such as experience and ability)