                      FOR PUBLICATION

        UNITED STATES COURT OF APPEALS
             FOR THE NINTH CIRCUIT

 AILEEN RIZO,                                         No. 16-15372
                        Plaintiff-Appellee,
                                                        D.C. No.
                       v.                            1:14-cv-00423-
                                                          MJS
 JIM YOVINO, Fresno County
 Superintendent of Schools,
 Erroneously Sued Herein as Fresno                      OPINION
 County Office of Education,
                Defendant-Appellant.



         Appeal from the United States District Court
            for the Eastern District of California
         Michael J. Seng, Magistrate Judge, Presiding

    Argued and Submitted En Banc December 12, 2017
                San Francisco, California

                         Filed April 9, 2018

  Before: Sidney R. Thomas, Chief Judge, and Stephen
 Reinhardt *, M. Margaret McKeown, William A. Fletcher,
 Richard A. Paez, Marsha S. Berzon, Richard C. Tallman,


    *
       Prior to his death, Judge Reinhardt fully participated in this case
and authored this opinion. The majority opinion and all concurrences
were final, and voting was completed by the en banc court prior to his
death.
2                        RIZO V. YOVINO

Consuelo M. Callahan, Mary H. Murguia, Morgan Christen
          and Paul J. Watford, Circuit Judges.

                 Opinion by Judge Reinhardt;
               Concurrence by Judge McKeown;
               Concurrence by Judge Callahan;
                Concurrence by Judge Watford


                          SUMMARY **


                 Employment Discrimination

    Affirming the district court’s denial of summary
judgment to the defendant on a claim under the Equal Pay
Act, the en banc court held that prior salary alone or in
combination with other factors cannot justify a wage
differential between male and female employees.

    Overruling Kouba v. Allstate Ins. Co., 691 F.3d 873 (9th
Cir. 1982), the en banc court held that an employee’s prior
salary does not constitute a “factor other than sex” upon
which a wage differential may be based under the statutory
“catchall” exception set forth in 29 U.S.C. § 206(d)(1). The
en banc court concluded that “any other factor other than
sex” is limited to legitimate, job-related factors such as a
prospective       employee’s      experience,      educational
background, ability, or prior job performance. By relying on
prior salary, the defendant therefore failed as a matter of law



    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                       RIZO V. YOVINO                         3

to set forth an affirmative defense. The en banc court
remanded the case to the district court.

    Concurring, Judge McKeown, joined by Judge Murguia,
wrote that she agreed with most of the majority opinion,
particularly its observation that past salary can reflect
historical sex discrimination. She wrote that the majority,
however, went too far in holding that any consideration of
prior pay is impermissible under the Equal Pay Act, even
when it is assessed with other job-related factors.

    Concurring, Judge Callahan, joined by Judge Tallman,
wrote that in holding that prior salary can never be
considered, the majority failed to follow Supreme Court
precedent, unnecessarily ignored the realities of business,
and, in doing so, might hinder rather than promote equal pay
for equal work.

    Concurring in the judgment, Judge Watford wrote that in
his view, past pay can constitute a “factor other than sex,”
but only if an employee’s past pay is not itself a reflection of
sex discrimination.


                         COUNSEL

Shay Dvoretsky (argued), Jones Day, Washington, D.C.;
Michael G. Woods and Timothy J. Buchanan, McCormick
Barstow Sheppard Wayte & Carruth LLP, Fresno,
California; for Defendant-Appellant.

Daniel M. Siegel (argued) and Kevin Brunner, Siegel & Yee,
Oakland, California, for Plaintiff-Appellee.
4                     RIZO V. YOVINO

Jessica Stender (argued), Equal Rights Advocates, San
Francisco, California, for Amici Curiae Equal Rights
Advocates; 9to5, National Association of Working Women;
American Association of University Women; American
Association of University Women—California Chapter;
ACLU of Northern California and ACLU Women’s Rights
Project; Atlanta Women for Equality; California Women’s
Law Center; Feminist Majority Foundation; Legal Aid at
Work; Legal Voice; National Organization for Women
(NOW) Foundation; National Partnership for Women and
Families; National Women’s Law Center; Southwest
Women’s Law Center; Women Employed; and Women’s
Law Project.

Barbara L. Sloan (argued), Attorney; Margo Pave and
Elizabeth E. Theran, Assistant General Counsel; Jennifer S.
Goldstein, Associate General Counsel; James L. Lee,
Deputy General Counsel; P. David Lopez, General Counsel;
Office of the General Counsel, Washington, D.C.; as and for
Amicus Curiae Equal Employment Opportunity
Commission.

Laurence S. Zakson, Aaron G. Lawrence, and Marianne
Reinhold, Reich Adell & Cvitan APLC, Los Angeles,
California, for Amici Curiae Make-Up Artists and Hair
Stylists Guild, Local 706 of the International Alliance of
Theatrical State Employees, Moving Picture Technicians,
Artists and Allied Crafts of the United States, its Territories
and Canada, AFL-CIO, CLC; Costume Designers Guild,
Local 892 of the International Alliance of Theatrical Stage
Employees, Moving Picture Technicians, Artists and Allied
Crafts of the United States, its Territories and Canada, AFL-
CIO, CLC; and Orange County Managers Association.
                          RIZO V. YOVINO                      5

Rae T. Vann and Danny E. Petrella, Washington, D.C., for
Amicus Curiae Center for Workplace Compliance.


                               OPINION

REINHARDT, Circuit Judge:

     The Equal Pay Act stands for a principle as simple as it
is just: men and women should receive equal pay for equal
work regardless of sex. The question before us is also
simple: can an employer justify a wage differential between
male and female employees by relying on prior salary?
Based on the text, history, and purpose of the Equal Pay Act,
the answer is clear: No. Congress recognized in 1963 that
the Equal Pay Act was long overdue: “Justice and fairplay
speak so eloquently [on] behalf of the equal pay for women
bill that it seems unnecessary to belabor the point. We can
only marvel that it has taken us so long to recognize the fact
that equity and economic soundness support this
legislation.” 1 Salaries speak louder than words, however.
Although the Act has prohibited sex-based wage
discrimination for more than fifty years, the financial
exploitation of working women embodied by the gender pay
gap continues to be an embarrassing reality of our economy.

    Prior to this decision, our law was unclear whether an
employer could consider prior salary, either alone or in
combination with other factors, when setting its employees’
salaries. We took this case en banc in order to clarify the
law, and we now hold that prior salary alone or in
combination with other factors cannot justify a wage
differential. To hold otherwise—to allow employers to

   1
       109 Cong. Rec. 8916 (1963) (statement of Sen. Hart).
6                         RIZO V. YOVINO

capitalize on the persistence of the wage gap and perpetuate
that gap ad infinitum—would be contrary to the text and
history of the Equal Pay Act, and would vitiate the very
purpose for which the Act stands.

     Fresno County Office of Education (“the County”) 2 does
not dispute that it pays Aileen Rizo (“Rizo”) less than
comparable male employees for the same work. However,
it argues that this wage differential is lawful under the Equal
Pay Act. In relevant part, the Act provides,

         No employer having employees subject to
         any provisions of this section shall
         discriminate, within any establishment in
         which such employees are employed,
         between employees on the basis of sex by
         paying wages to employees in such
         establishment at a rate less than the rate at
         which he pays wages to employees of the
         opposite sex in such establishment for equal
         work on jobs the performance of which
         requires equal skill, effort, and responsibility,
         and which are performed under similar
         working conditions, except where such
         payment is made pursuant to (i) a seniority
         system; (ii) a merit system; (iii) a system
         which measures earnings by quantity or
         quality of production; or (iv) a differential
         based on any other factor other than sex.



    2
      The defendant is Jim Yovino, the Superintendent of the Fresno
County Office of Education. Because he is sued in his official capacity,
we refer to the defendant as the County.
                           RIZO V. YOVINO                                7

29 U.S.C. § 206(d)(1) (emphasis added). The County
contends that that the wage differential is based on the fourth
exception—the catchall exception: a “factor other than sex.”
It argues that an employee’s prior salary can constitute a
“factor other than sex” within the meaning of the catchall
exception. However, this would allow the County to defend
a sex-based salary differential on the basis of the very sex-
based salary differentials the Equal Pay Act was designed to
cure. Because we conclude that prior salary does not
constitute a “factor other than sex,” the County fails as a
matter of law to set forth an affirmative defense. We affirm
the district court’s denial of summary judgment to the
County and remand for proceedings consistent with this
opinion. 3

                               Background

    Aileen Rizo was hired as a math consultant by the Fresno
County Office of Education in October 2009. Previously,
she was employed in Maricopa County, Arizona as a middle
and high school math teacher. In her prior position, Rizo
earned an annual salary of $50,630 for 206 working days.
She also received an educational stipend of $1,200 per year
for her master’s degrees in educational technology and
mathematics education.

    Rizo’s new salary upon joining the County was
determined in accordance with the County’s Standard

    3
       We leave to the district court the question whether Rizo is entitled
to summary judgment on her Equal Pay Act claim. See Albino v. Baca,
747 F.3d 1162, 1176 (9th Cir. 2014) (en banc) (“We have long
recognized that, where the party moving for summary judgment has had
a full and fair opportunity to prove its case, but has not succeeded in
doing so, a court may enter summary judgment sua sponte for the
nonmoving party.”).
8                     RIZO V. YOVINO

Operating Procedure 1440 (“SOP 1440”), informally
adopted in 1998 and formally adopted in 2004. The
County’s hiring schedule consists of 10 stepped salary
levels, each level containing 10 salary steps within it. SOP
1440 dictates that a new hire’s salary is to be determined by
taking the hired individual’s prior salary, adding 5%, and
placing the new employee on the corresponding step of the
salary schedule. Unlike the County’s previous hiring
schedule, SOP 1440 does not rely on experience to set an
employee’s initial salary. SOP 1440 dictated that Rizo be
placed at step 1 of level 1 of the hiring schedule,
corresponding to a salary of $62,133 for 196 days of work
plus a master’s degree stipend of $600.

    During a lunch with colleagues in 2012, Rizo learned
that her male colleagues had been subsequently hired as
math consultants at higher salary steps. In August 2012, she
filed a complaint about the pay disparity with the County,
which responded that all salaries had been set in accordance
with SOP 1440. The County claimed to have reviewed
salary-step placements of male and female management
employees for the past 25 years (so including before the
policy was even informally adopted), finding that SOP 1440
placed more women at higher compensation steps than
males. Rizo disputes this analysis and claims that the data
show men were placed at a higher average salary step.

    Rizo sued Jim Yovino in his official capacity as the
Superintendent of the Fresno County Office of Education in
February 2014. She claimed a violation of the Equal Pay
Act, 29 U.S.C. § 206(d); sex discrimination under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”); sex discrimination under California
Government Code § 12940(a); and failure to prevent
discrimination under California Government Code
                         RIZO V. YOVINO                              9

§ 12940(k).     Rizo v. Yovino, No. 1:14-cv-0423-MJS,
2015 WL 9260587, at *1 (E.D. Cal. Dec. 18, 2015), vacated,
854 F.3d 1161 (9th Cir.), reh’g en banc granted, 869 F.3d
1004 (9th Cir. 2017).

    In June 2015, the County moved for summary judgment.
It asserted that, although Rizo was paid less than her male
counterparts for the same work, the discrepancy was based
on Rizo’s prior salary. The County contended that her prior
salary was a permissible affirmative defense to her
concededly lower salary than her male counterparts under
the fourth, catchall clause, a “factor other than sex.” Rizo,
2015 WL 9260587, at *7. The district court denied summary
judgment, reasoning that SOP 1440 “necessarily and
unavoidably conflicts with the EPA” because “a pay
structure based exclusively on prior wages is so inherently
fraught with the risk—indeed, here, the virtual certainty—
that it will perpetuate a discriminatory wage disparity
between men and women that it cannot stand.” Id. at *9. It
certified the legal question for interlocutory appeal,
recognizing that denying summary judgment for the County
“effectively resolves the issue of liability on Plaintiff’s
claims in her favor.” Id. at *12. 4

   This Court granted the County’s petition for permission
to file an interlocutory appeal. The three-judge panel
vacated the denial of summary judgment and remanded.
Rizo v. Yovino, 854 F.3d 1161, 1167 (9th Cir.), reh’g en banc
granted, 869 F.3d 1004 (9th Cir. 2017). The panel
concluded that Kouba v. Allstate Insurance Co., 691 F.2d

    4
      The certified question was “whether, as a matter of law under the
EPA, 29 U.S.C. § 206(d), an employer subject to the EPA may rely on
prior salary alone when setting an employee’s starting salary.” Id. at
*13.
10                    RIZO V. YOVINO

873 (9th Cir. 1982) was controlling and that it permits prior
salary alone to constitute a “factor other than sex” under the
Equal Pay Act. In Kouba, the employer considered prior
salary along with other factors, “including ‘ability,
education, [and] experience,’” in setting employees’
salaries. Rizo, 854 F.3d at 1166 (quoting Kouba, 691 F.2d
at 874). The panel concluded, however, that because Kouba
“did not attribute any significance to Allstate’s use of these
other factors,” that case permits consideration of prior salary
alone, as long as use of that factor “was reasonable and
effectuated some business policy.” Id. Because it believed
it was compelled to follow Kouba, the panel directed the
district court on remand to consider the reasonableness of the
County’s proffered business reasons for its reliance on prior
salary.

    We granted the petition for rehearing en banc in order to
clarify the law, including the vitality and effect of Kouba.

                      Standard of Review

   We review the district court’s denial of summary
judgment de novo. Diaz v. Eagle Produce Ltd. P’ship,
521 F.3d 1201, 1207 (9th Cir. 2008). Summary judgment is
available only when there are no genuine disputes of
material fact and the movant is entitled to judgment as a
matter of law. Id.

                           Discussion

    Congress enacted the Equal Pay Act in 1963 to put an
end to the “serious and endemic problem of employment
discrimination in private industry” and to carry out a broad
mandate of equal pay for equal work regardless of sex.
Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
It set forth a simple structure to carry out this simple
                      RIZO V. YOVINO                       11

principle. See 29 U.S.C. § 206(d)(1). A plaintiff must show
that her employer has paid male and female employees
different wages for substantially equal work. Not all
differentials in pay for equal work violate the Equal Pay Act,
however. The Act includes four statutory exceptions—“(i) a
seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex”—
which operate as affirmative defenses. Id.; Corning,
417 U.S. at 196; Maxwell v. City of Tucson, 803 F.2d 444,
446 (9th Cir. 1986). “[A]n employer [must] submit evidence
from which a reasonable factfinder could conclude not
simply that the employer’s proffered reasons could explain
the wage disparity, but that the proffered reasons do in fact
explain the wage disparity.” EEOC v. Md. Ins. Admin.,
879 F.3d 114, 121 (4th Cir. 2018) (first citing Stanziale v.
Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000); and then
citing Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312
(10th Cir. 2006)); see also 29 U.S.C. § 206(d)(1) (exempting
from liability wage differentials only where payment of
which was “made pursuant to” an enumerated exception
(emphasis added)).

    The Equal Pay Act “creates a type of strict liability” for
employers who pay men and women different wages for the
same work: once a plaintiff demonstrates a wage disparity,
she is not required to prove discriminatory intent. Maxwell,
803 F.2d at 446 (quoting Strecker v. Grand Forks Cty. Social
Serv. Bd., 640 F.2d 96, 99 n.1 (8th Cir. 1980) (en banc)).
The County and Amicus Center for Workplace Compliance
contend that the Supreme Court in Washington County v.
Gunther, 452 U.S. 161 (1981), infused into Equal Pay Act
law Title VII’s disparate treatment analysis. This is clearly
wrong. In Ledbetter v. Goodyear Tire & Rubber Co., Inc.,
the Supreme Court stated, “the EPA does not require . . .
12                        RIZO V. YOVINO

proof of intentional discrimination.” 550 U.S. 618, 641
(2007). 5 More recently, the Fourth Circuit reaffirmed that
“[a]n EPA plaintiff need not prove that the employer acted
with discriminatory intent to obtain a remedy under the
statute.” Md. Ins. Admin., 879 F.3d at 120 (collecting cases).
Accordingly, pretext as it is understood in the Title VII
context plays no role in Equal Pay Act claims. 6

    Here, the County does not dispute that Rizo established
a prima facie case and that none of the three specific
statutory exceptions applies. The County urges instead that
the fourth catchall exception, “any other factor other than
sex,” includes an employee’s prior salary and applies when
her starting salary is based on her prior salary. It
acknowledges that if it is wrong, it has no defense to Rizo’s
Equal Pay Act claim.

    The question in this case is the meaning of the catchall
exception. This is purely a question of law. We conclude,
unhesitatingly, that “any other factor other than sex” is
limited to legitimate, job-related factors such as a
prospective      employee’s      experience,     educational
background, ability, or prior job performance. It is
inconceivable that Congress, in an Act the primary purpose
of which was to eliminate long-existing “endemic” sex-
based wage disparities, would create an exception for basing
new hires’ salaries on those very disparities—disparities that

     5
      Superseded on other grounds by statute, Lilly Ledbetter Fair Pay
Act of 2009, Pub. L. No. 111-2, 123 Stat. 5.

     6
      Because the issue in this case is one of law, we do not have
occasion to address the burden-shifting framework applicable to Equal
Pay Act as opposed to Title VII claims. Maryland Insurance
Administration, however, sets forth the standards to apply when there are
factual, rather than legal, disputes. Id. at 120-21, 120 n.6, 120 n.7.
                           RIZO V. YOVINO                              13

Congress declared are not only related to sex but caused by
sex. To accept the County’s argument would be to
perpetuate rather than eliminate the pervasive discrimination
at which the Act was aimed. As explained later in this
opinion, the language, legislative history, and purpose of the
Act make it clear that Congress was not so benighted. Prior
salary, whether considered alone or with other factors, is not
job related and thus does not fall within an exception to the
Act that allows employers to pay disparate wages.
Reflecting the very essence of the Act, we hold that by
relying on prior salary, the County fails as a matter of law to
set forth an affirmative defense.

                                   A.

    Allowing an employer to justify a wage differential
between men and women on the basis of prior salary is
wholly inconsistent with the provisions of the Equal Pay
Act. 7 As the Supreme Court has emphasized, “[t]he Equal
Pay Act is broadly remedial, and it should be construed and
applied so as to fulfill the underlying purposes which
Congress sought to achieve.” Corning, 417 U.S. at 208. The
remedial purpose of the Act is clear: to put an end to
historical   wage      discrimination     against   women.
Representative Florence Dwyer said in support of the bill:
“The issue here is really a very simple one—the elimination
of one of the most persistent and obnoxious forms of
discrimination which is still practiced in this enlightened


    7
      This case arose in the context of initial wage-setting. By failing to
address compensation for employees seeking promotions or changes in
status within the same organization, we do not imply that the Equal Pay
Act is inapplicable to these situations.
14                          RIZO V. YOVINO

society.” 8 Representative Harold Donohue in his comments
on the bill stressed a similar point: “[T]his measure
represents the correction of basic injustice being visited
upon women in many fields of endeavor . . . .” 9 In other
words, the Equal Pay Act was not intended to be a passive
measure but a proactive one designed to correct salary
structures based on the “outmoded belief” that women
should be paid less than men. See Corning, 417 U.S. at 195
(quoting S. Rep. No. 88-176, at 1 (1963)).

    In light of the clear intent and purpose of the Equal Pay
Act, it is equally clear that we cannot construe the catchall
exception as justifying setting employees’ starting salaries
on the basis of their prior pay. At the time of the passage of
the Act, an employee’s prior pay would have reflected a
discriminatory marketplace that valued the equal work of
one sex over the other. Congress simply could not have
intended to allow employers to rely on these discriminatory
wages as a justification for continuing to perpetuate wage
differentials.

    Today we express a general rule and do not attempt to
resolve its applications under all circumstances. We do not
decide, for example, whether or under what circumstances,
past salary may play a role in the course of an individualized
salary negotiation. We prefer to reserve all questions
relating to individualized negotiations for decision in
subsequent cases. Our opinion should in no way be taken as
barring or posing any obstacle to whatever resolution future

     8
     109 Cong. Rec. 9200 (1963) (statement of Rep. Dwyer) (emphasis
added).

     9
         Id. at 9212 (statement of Rep. Donohue) (emphasis added).
                        RIZO V. YOVINO                          15

panels may reach regarding questions relating to such
negotiations. 10

                                  B.

     Basic principles of statutory interpretation also establish
that prior salary is not a permissible “factor other than sex”
within the meaning of the Equal Pay Act. The County
maintains that the catchall exception unambiguously
provides that any facially neutral factor constitutes an
affirmative defense to liability under the Equal Pay Act. It
is incorrect. The Supreme Court in Corning did not find the
Act clear on its face. Rather, that decision applied an
analytical framework similar to the one we use here by
looking to the history of the legislative process of the Equal
Pay Act as well as the context in which the Act was adopted.
417 U.S. at 198–203. Following a similar method of
analysis, it is clear that when the catchall exception is read
in light of its surrounding context and legislative history, a
legitimate “factor other than sex” must be job related and
that prior salary cannot justify paying one gender less if
equal work is performed.

                                  1.

    The Act “establishes four exceptions—three specific and
one a general catchall provision.” Corning, 417 U.S. at 196.
Where, as here, a statute contains a catchall term at the end
of a list, we rely on the related principles of noscitur a sociis
and ejusdem generis to “cabin the contextual meaning” of
the term, and to “avoid ascribing to [that term] a meaning so

    10
       Accordingly, Judge McKeown’s and Judge Callahan’s complaints
regarding our opinion’s effect upon the setting of pay on an
individualized basis are meritless.
16                    RIZO V. YOVINO

broad that it is inconsistent with its accompanying words,
thus giving unintended breadth to the Acts of Congress.”
Yates v. United States, 135 S. Ct. 1074, 1085-86 (2015)
(plurality opinion) (quoting Gustafson v. Alloyd Co.,
513 U.S. 561, 575 (1995)); id. at 1089 (Alito, J., concurring
in judgment) (applying noscitur a sociis and ejusdem
generis).

    The canon noscitur a sociis—“a word is known by the
company it keeps”—provides that words grouped together
should be given related meaning. Id. at 1085 (plurality
opinion). Here, the catchall phrase is grouped with three
specific exceptions based on systems of seniority, merit, and
productivity. These specific systems share more in common
than mere gender neutrality; all three relate to job
qualifications, performance, and/or experience. It follows
that the more general exception should be limited to
legitimate, job-related reasons as well.

    A related canon, ejusdem generis, likewise supports our
interpretation of the catchall term. We apply this canon
when interpreting general terms at the end of a list of more
specific ones. Id. at 1086. In such a case, “the general words
are construed to embrace only objects similar in nature to
those objects enumerated by the preceding specific words.”
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 114–
15 (2001) (quoting 2A Norman J. Singer, Sutherland on
Statutes and Statutory Construction § 47.17 (1991)). The
inclusion of the word “other” before the general provision in
the Equal Pay Act makes its meaning all the more clear:
“[T]he principle of ejusdem generis . . . implies the addition
of similar after the word other.” Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 199
(2012). Here, we read the statutory exceptions as: “(i) a
seniority system, (ii) a merit system, (iii) a system which
                      RIZO V. YOVINO                       17

measures earnings by quantity or quality of production; or
(iv) a differential based on any other [similar] factor other
than sex.” 29 U.S.C. § 206(d)(1). A similar factor would
have to be one similar to the other legitimate, job-related
reasons.

    The presence of the word “any”—which the County
contends indicates the expansive reach of the fourth statutory
exception—does not counsel against our interpretation. In
Circuit City Stores, for example, the Supreme Court
interpreted § 1 of the Federal Arbitration Act, which lists
“seamen, railroad employees, or any other class of workers
engaged in foreign or interstate commerce” to include only
transportation workers, not workers in literally any industry.
532 U.S. at 109, 114-15 (emphasis added) (quoting 9 U.S.C.
§ 1); see also, e.g., In re Indian Gaming Related Cases,
331 F.3d 1094, 1113-14 (9th Cir. 2003) (adopting district
court’s use of ejusdem generis to interpret the phrase “any
other purposes specified by the legislature” as being limited
to purposes directly related to gaming).

                               2.

    Although “the authoritative statement is the statutory
text,” the legislative history of the Equal Pay Act further
supports our interpretation that the catchall exception is
limited to job-related factors. See Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). “[T]he
way in which Congress arrived at the statutory language”
can provide “a better understanding of the [statutory]
phrase” in question than “trying to reconcile or establish
preferences between the conflicting interpretations of the
Act by individual legislators or the committee reports.”
Corning, 417 U.S. at 198. In Corning, the Supreme Court
relied heavily on the history of the legislative process in
interpreting the term “similar working conditions,” a factor
18                    RIZO V. YOVINO

in determining whether employees perform “equal work”
under the Equal Pay Act. Id. at 199-201. The Court
explained that “[a]s originally introduced,” the Equal Pay
bills considered in the House and Senate “required equal pay
for ‘equal work on jobs the performance of which requires
equal skills’” and included “only two exceptions—for
differentials ‘made pursuant to a seniority or merit increase
system which does not discriminate on the basis of sex.’” Id.
at 199; S. 882, 88th Cong. § 4 (1963); S. 910, 88th Cong.
§ 4(a) (1963); H.R. 3861, 88th Cong. § 4(a) (1963); H.R.
4269, 88th Cong. § 4(a) (1963). Industry representatives
during the House and Senate hearings were “highly critical
of the Act’s definition of equal work and of its exemptions.”
Corning, 417 U.S. at 199. The Corning Court compared the
original language in the House and Senate bills to that in the
final Act and thought “it plain that in amending the bill’s
definition of equal work to its present form, the Congress
acted in direct response to these pleas” for a more definite
standard for equal work based on bona fide job evaluation
plans. Id. at 200. The Court then used that context to
interpret “similar working conditions.” Id. at 200-01.

    We, too, look to the history of the legislative process and
draw a similar conclusion that the inclusion of the catchall
provision in the final bill was in direct response to the
entreaties of industry witnesses. Industry representatives
testified at the congressional subcommittee hearings that the
two exceptions in the bills that had been introduced in the
House and Senate were too specific and under inclusive, and
“evidence[d] . . . a lack of understanding of industrial
reality.” Equal Pay Act: Hearings Before the H. Special
Subcomm. on Labor of the H. Comm. on Educ. & Labor on
H.R. 3861, 4269, and Related Bills, 88th Cong. 135 (1963)
[hereinafter House Hearing] (statement of the American
Retail Federation). The witnesses were concerned that
                       RIZO V. YOVINO                         19

companies would no longer be able to rely on the wide
variety of factors used across industries to measure the value
of a particular job. Accordingly, the witnesses proposed a
series of job-related exceptions in addition to the two
original exceptions that had covered only seniority and merit
systems.

     Chief among those was an exception for job
classification programs. The Vice President of Owens-
Illinois Glass Co. testified: “Job classification and wage
incentive programs are so widely accepted . . . in American
industry that there seems little need to set forth a lengthy list
of reasons why they should be excepted from the present
bill.” Id. at 101 (statement of W. Boyd Owen, Vice
President of Personnel Administration, Owens-Illinois Glass
Co.). Bona fide job classification programs were necessarily
job related because they were used to “establish relative job
worth” in diverse industries, “each [of which] has its own
peculiarities and its own customs.” Id. at 238 (statement of
E.G. Hester, Director of Industrial Relations Research,
Corning Glass Works). Using factors like skill and
responsibility, these classification programs were “a
yardstick against which [employers] can measure work
performance and consequently pay.” Id. at 146 (statement
of John G. Wayman, Partner, Reed, Smith, Shaw &
McClay). The Owens-Illinois Glass representative, Mr.
Owen, explained that his proposed exceptions based on job
classification and wage incentive programs would “merely
parallel” the existing exceptions for seniority and merit
systems, id. at 101, both of which were themselves job
related.

    Most of the other exceptions urged by industry witnesses
were also job related. Mr. Owen, for example, explained that
there are “countless reasons for wage variations . . . which
20                         RIZO V. YOVINO

are not discriminatory in nature,” including differences in
“the shift or time of day worked, in the regularity of
performing duties, [and] in training.” Id. at 100. The
statement of the American Retail Federation likewise
explained: “It is a wholly justifiable fact that in retailing
there are many situations where there are differentials in
wage scales based on experience, hours worked (day or
evening), job hazards, physical requirements, and the like.”
Id. at 135.

    We think it plain that the catchall exception was added
to the final Equal Pay Act in direct response to these
employers’ concerns that their legitimate, job-related means
of setting pay would not be covered under the two exceptions
already included in the bill. 11 Following the hearings,
Representative Edith Green introduced H.R. 6060, which
added the exceptions for “a differential based on any other
factor other than sex” as well as “a system which measures
earnings by quantity or quality of production.” H.R. 6060,
88th Cong. § 2(d)(1) (1963). In its report discussing H.R.
6060, the House Committee explained that “a bona fide job
classification program that does not discriminate on the basis
of sex will serve as a valid defense to a charge of
discrimination.” H.R. Rep. No. 88-309, at 3 (1963), as

     11
        While the third exception under the Equal Pay Act—“a system
which measures earnings by quantity or quality of production”—is not
at issue in this case, we note that this exception was also added following
the hearings and that the exception roughly corresponds to the “wage
incentive programs” discussed by the Owens-Illinois Glass
representative. See House Hearing at 99, 101 (statement of W. Boyd
Owen, Vice President, Owens-Illinois Glass Co.); Equal Pay Act of
1963: Hearings Before the S. Subcomm. on Labor of the S. Comm. on
Labor & Pub. Welfare on S. 882 and S. 910, 88th Cong. 138 (1963)
(statement of W. Boyd Owen, Vice President of Personnel
Administration, Owens-Illinois Glass Co.).
                            RIZO V. YOVINO                         21

reprinted in 1963 U.S.C.C.A.N. 687, 689. The Committee
also provided an illustrative list of other factors in addition
to job classification programs which would be covered under
the fourth exception, the catchall provision: “[A]mong other
things, shift differentials, restrictions on or differences based
on time of day worked, hours of work, lifting or moving
heavy objects, differences based on experience, training, or
ability would also be excluded.” Id. In the end,
Representative Robert Griffin, author of the Landrum-
Griffin Act, the landmark labor-relations legislation, put it
best. Describing the catchall exception, he said, “Roman
numeral iv is a broad principle, and those preceding it are
really examples.” 12

    The Senate Committee Report likewise confirms that
Congress intended the catchall exception to cover factors
other than sex only insofar as they were job related.
Following the hearings, Senator Patrick McNamara
introduced S. 1409, which removed reference to seniority
and merit systems and instead included just one statutory
exception that was virtually identical to the Act’s catchall
exception. S. 1409, 88th Cong. § 2(d)(1) (1963). That
exception read, “except where such a wage differential is
based on any factor or factors other than sex.” Id. In its
report, the Senate Committee provided illustrative examples
of what this general exception would cover: “seniority
systems . . . based on tenure,” “merit system[s],” “piecework
system[s] which measure[] either the quantity or quality of
production or performance,” and “[w]ithout question,”
“other valid classification programs . . . .” S. Rep. No. 88-
176, at 4 (1963). Ultimately, the House version of the bill
prevailed, with the House passing H.R. 6060 on May 23,
1963, see 109 Cong. Rec. 9217, and the Senate agreeing by

    12
         109 Cong. Rec. 9203 (1963) (statement of Rep. Griffin).
22                       RIZO V. YOVINO

a voice vote to the House amendments on May 28, 1963, see
id. at 9761-62. In other words, the Senate contemplated
from the start that the factors ultimately exempted by the
House bill would be covered by a catchall provision identical
in substance to the fourth exception and that it would cover
only job-related factors.

    Contrary to the County’s assertion, Washington County
v. Gunther, 452 U.S. 161 (1981), supports the concept of a
catchall provision limited to job-related factors. The Court
commented in Gunther that “courts and administrative
agencies are not permitted to ‘substitute their judgment for
the judgment of the employer . . . who [has] established and
applied a bona fide job rating system . . . .’” 13 The predicate
for this dictum is that the employer must both establish a
bona fide work-related system and apply it in good faith.
The Court went on to reiterate its earlier conclusion in
Corning that “the Equal Pay bill [was] amended . . . to add
the fourth affirmative defense because of a concern that bona
fide job-evaluation systems used by American businesses
would otherwise be disrupted.” Id. at 170 n.11 (citing
Corning, 417 U.S. at 199-201). In sum, so long as the
employer proves that it is using a bona fide job classification
system or otherwise relying on bona fide job-related factors
to set pay, courts will not second guess the merits of the
particular method used. Courts have followed the Gunther
mandate. They have not held, for example, that it would be
more appropriate to value educational background over
years of experience when setting salaries or that job training
should outweigh demonstrated ability to do the job. Gunther
thus implicitly endorsed the bargain struck in the Equal Pay

     13
      452 U.S. at 171 (alterations in the original) (quoting 109 Cong.
Rec. 9209 (1963) (statement of Rep. Goodell)).
                           RIZO V. YOVINO                               23

Act: employers may continue to use their legitimate, job-
related means of setting pay but may not use sex directly or
indirectly as a basis for establishing employees’ wages. 14

                                       3.

    We are not the only federal court of appeals to construe
the catchall exception as limited to job-related factors. 15 The
Eleventh Circuit, for example, has concluded that “the
‘factor other than sex’ exception applies when the disparity
results from unique characteristics of the same job; from an
individual’s experience, training, or ability . . .”—in other
words, job-related reasons. 16 Glenn, 841 F.2d at 1571.


    14
       When there is a factual dispute over whether the Equal Pay Act
was violated, courts have established a procedure for resolving such
disputes which differs somewhat from the Title VII format. See supra
note 6; see also Md. Ins. Admin., 879 F.3d at 120.

    15
       See Riser v. QEP Energy, 776 F.3d 1191, 1198 (10th Cir. 2015);
Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 526 (2d Cir. 1992);
EEOC v. J.C. Penney Co., 843 F.2d 249, 253 (6th Cir. 1988); Glenn v.
General Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988). But see
Taylor v. White, 321 F.3d 710, 717-18 (8th Cir. 2003) (“[W]e are
reluctant to establish any per se limitations to the ‘factor other than sex’
exception . . . .”); Covington v. S. Ill. Univ., 816 F.2d 317, 321-22 (7th
Cir. 1987).
    16
         Although the Eleventh Circuit also listed “special exigent
circumstances connected with the business,” it did so in reference to “red
circle rates.” Glenn, 841 F.2d at 1571 (quoting H.R. Rep. No. 88-309,
at 3). Red circle rates, a term from the War Labor Board, refers to
“unusual, higher than normal wage rates” paid when “an
employer . . . must reduce help in a skilled job” so that skilled employees
are “available when they are again needed for their former jobs.” H.R.
Rep. No. 88-309, at 3. In other words, these rates are paid based on the
skills and experience of the particular employee who is temporarily
24                          RIZO V. YOVINO

Although some courts occasionally use “job-related” and
terminology like “business-related” or “legitimate business
reason[s]” interchangeably, we believe that it is neither
helpful nor advisable to do so. Terms like “business-related”
have been used loosely in a number of cases to refer to
factors that are in fact job related. For example, in Aldrich,
the Second Circuit used interchangeably the terms “job-
relatedness requirement,” “legitimate business-related
differences in work responsibilities and qualifications for the
particular positions,” and “legitimate business-related
considerations” to describe “the proper legal standard for the
factor-other-than-sex defense.” 963 F.2d at 525, 527.
Remanding the case to the district court, however, the
Second Circuit was clear in its instructions: the employer
could justify the wage differential “only if the employer
proves that the [factor relied on] is job-related.” Id. at 527
(emphasis added). 17




transferred to a position requiring fewer skills and normally paying less.
In short, red circle rates are indeed job related.
     17
        We have been able to find only one circumstance in which the use
of the term “business-related” does not refer to a factor that is in fact job
related. In EEOC v. J.C. Penney Co., the Sixth Circuit concluded that a
health benefits plan that provided spousal coverage only if the employee
was the “head of household” (i.e. the higher earner) was justified by the
“legitimate business reason” of “minimizing or controlling cost.”
843 F.2d 249, 253 (7th Cir. 1988); see also Wambheim v. J.C. Penney
Co., 705 F.2d 1492, 1495 (9th Cir. 1983) (same). The EEOC approved
the system grudgingly, requiring that any such defense be “closely
scrutinized” because it “bears no relationship to the requirements of the
job or to the individual’s performance on the job.” 29 C.F.R. § 1620.21
(2017). In fact, a head-of-household benefits system appears to be in
considerable tension with City of Los Angeles, Department of Water &
Power v. Manhart, 435 U.S. 702 (1978). See infra.
                      RIZO V. YOVINO                        25

     Including “business-related” as a legitimate basis for
exceptions under the catchall provision would permit the use
of far too many improper justifications for avoiding the
strictures of the Act. Not every reason that makes economic
sense—in other words, that is business related—constitutes
an acceptable factor other than sex. To the contrary, using
the word “business” risks conflating a legitimate factor other
than sex with any cost-saving mechanism. The Supreme
Court and Congress have repeatedly rejected such an
interpretation of the fourth exception.

    In Corning, the Supreme Court readily dismissed the
notion that an employer may pay women less under the
catchall exception because women cost less to employ, thus
saving the employer money. The Court explained that the
“market forces theory”—that women will be willing to
accept lower salaries because they will not find higher
salaries elsewhere—did not constitute a factor other than sex
even though such a method of setting salaries could have
saved the company a considerable amount and so would
have constituted a good “business” reason. Corning,
417 U.S. at 205. The Court explained that “Congress
declared it to be the policy of the Act to correct” the “unfair
employer exploitation of this source of cheap labor.” Id. at
206 (quoting Hodgson v. Corning Glass Works, 474 F.2d
226, 234 (2d Cir. 1973)). “That the company took advantage
of such a situation may be understandable as a matter of
economics, but its differential nevertheless became illegal
once Congress enacted into law the principle of equal pay
for equal work.” Id. at 205.

    Congress and the Supreme Court have also rejected the
notion that an employer may pay women less under the
catchall exception because women cost more to employ. In
City of Los Angeles, Department of Water & Power v.
26                       RIZO V. YOVINO

Manhart, the Supreme Court considered whether the
Department’s practice of requiring female employees—who
on average lived longer than male employees—to make
larger contributions from their paychecks to its pension fund
than male employees was a discriminatory employment
practice. 435 U.S. at 704-05. 18 In deciding that this alleged
cost difference was not a permissible factor other than sex,
the Court explained that Congress had rejected an
amendment to the Equal Pay Act “that would have expressly
authorized a wage differential tied to the ‘ascertainable and
specific added cost resulting from employment of the
opposite sex.’” Id. at 717 n.32 (quoting 109 Cong. Rec. 9217
(statement of Rep. Findley)). Acknowledging that the
legislative history is inconclusive as to whether a cost-
justification exception could constitute a factor other than
sex, the Court noted that “[i]t is difficult to find language in
the statute supporting even this limited defense.” Id. The
Court also emphasized that the Wage and Hour
Administrator, then charged with enforcing the Act, had
interpreted that “a wage differential based on differences in
the average costs of employing men and women is not based
on a factor other than sex.’” Id. at 714 n.26 (quoting
29 C.F.R. § 800.151 (1977)). The Equal Employment
Opportunity Commission, the agency now charged with
enforcing the Equal Pay Act, continues to interpret the Act
this way. See 29 C.F.R. § 1620.22 (2017). Thus, although
the catchall exception applies to a wide variety of job-related
factors, it does not encompass reasons that are simply good


     18
       Because the plaintiffs alleged a violation of Title VII based on
unequal wages for equal work, the Equal Pay Act’s affirmative defenses,
including the catchall exception, applied through the Bennett
Amendment to Title VII. Id. at 707, 712 n.22 (citing 42 U.S.C. § 2000e-
2(h)).
                        RIZO V. YOVINO                         27

for business. We use “job-related” rather than “business-
related” to clarify the scope of the exception.

                                  4.

     Prior salary does not fit within the catchall exception
because it is not a legitimate measure of work experience,
ability, performance, or any other job-related quality. It may
bear a rough relationship to legitimate factors other than sex,
such as training, education, ability, or experience, but the
relationship is attenuated. More important, it may well
operate to perpetuate the wage disparities prohibited under
the Act. Rather than use a second-rate surrogate that likely
masks continuing inequities, the employer must instead
point directly to the underlying factors for which prior salary
is a rough proxy, at best, if it is to prove its wage differential
is justified under the catchall exception.

                                 C.

    We took this case en banc to clarify our law and the
effect of Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th
Cir. 1982). In Kouba, we concluded that “the Equal Pay Act
does not impose a strict prohibition against the use of prior
salary.” Id. at 878. Here, the district court recognized that
its holding that prior salary alone cannot justify a wage
differential potentially conflicted with Kouba, in which the
salary structure was based on multiple factors including prior
salary. Rizo, 2015 WL 9260587, at *12. The three-judge
panel concluded that our decision in Kouba permits an
employer to “maintain a pay differential based on prior
salary . . . only if it showed that the factor ‘effectuate[s]
some business policy’ and that the employer ‘use[s] the
factor reasonably in light of the employer’s stated purpose
as well as its other practices.’” Rizo, 854 F.3d at 1161, 1165
(alterations in original) (quoting Kouba, 691 F.2d at 878).
28                    RIZO V. YOVINO

The panel explained that Kouba “did not attribute any
significance to [the employer’s] use of [] other factors”—
ability, education, and experience—in addition to prior
salary in setting employees’ initial salaries. Id. at 1166. At
the same time, Kouba directed the district court on remand
to consider the extent to which “the employer also uses other
available predictors of the new employee’s performance.”
Kouba, 691 F.2d at 878.

    Because Kouba, however construed, is inconsistent with
the rule that we have announced in this opinion, it must be
overruled. First, a factor other than sex must be one that is
job related, rather than one that “effectuates some business
policy.” Second, it is impermissible to rely on prior salary
to set initial wages. Prior salary is not job related and it
perpetuates the very gender-based assumptions about the
value of work that the Equal Pay Act was designed to end.
This is true whether prior salary is the sole factor or one of
several factors considered in establishing employees’ wages.
Although some federal courts of appeals allow reliance on
prior salary along with other factors while barring reliance
on prior salary alone, see, e.g., Glenn, 841 F.2d at 1571 &
n.9, this is a distinction without reason: we cannot reconcile
this distinction with the text or purpose of the Equal Pay Act.
Although Judges McKeown and Callahan correctly
acknowledge in their concurrences that basing initial salary
on an employee’s prior salary alone violates the Equal Pay
Act, neither offers a rational explanation for their
incompatible conclusion that relying on prior salary in
addition to one or more other factors somehow is consistent
with the Act. Declining to explain the inconsistency of their
positions, they simply rely on those who came before—the
EEOC and other courts of appeals, which also fail to explain
how what is impermissible alone somehow becomes
permissible when joined with other factors. For obvious
                         RIZO V. YOVINO                             29

reasons, we cannot agree. Reliance on past wages simply
perpetuates the past pervasive discrimination that the Equal
Pay Act seeks to eradicate. Therefore, we readily reach the
conclusion that past salary may not be used as a factor in
initial wage setting, alone or in conjunction with less
invidious factors.

                              Conclusion

    Unfortunately, over fifty years after the passage of the
Equal Pay Act, the wage gap between men and women is not
some inert historical relic of bygone assumptions and sex-
based oppression. Although it may have improved since the
passage of the Equal Pay Act, the gap persists today: women
continue to receive lower earnings than men “across
industries, occupations, and education levels.”19
“Collectively, the gender wage gap costs women in the U.S.
over $840 billion a year.” 20 If money talks, the message to
women costs more than “just” billions: women are told they
are not worth as much as men. Allowing prior salary to
justify a wage differential perpetuates this message,
entrenching in salary systems an obvious means of




      19
         Equal Rights Advocates Amicus Br. at 12 (footnotes omitted)
(first citing Nat’l P’ship for Women & Families, America’s Women and
the Wage Gap 2 (2017), http://www.nationalpartnership.org/research-
library/workplace-fairness/fair-pay/americas-women-and-the-wage-
gap.pdf; and then citing Francine D. Blau & Lawrence M. Kahn, The
Wage Gap: Extent, Trends, and Explanations, (Nat’l Bureau of Econ.
Research, Working Paper No. 21913, 2016), http://www.nber.org/paper
s/w21913.pdf).
     20
        Id. at 11 (citing Nat’l P’ship for Women & Families, supra note
19, at 1).
30                    RIZO V. YOVINO

discrimination—the very discrimination that the Act was
designed to prohibit and rectify.

     AFFIRMED AND REMANDED.



McKEOWN, Circuit Judge, with whom MURGUIA, Circuit
Judge, joins, concurring:

    For decade after decade, gender discrimination has been
baked into our pay scales, with the result that women still
earn only 80 percent of what men make. Unfortunately,
women employed in certain sectors face an even larger gap.
This disparity is exacerbated when a woman is paid less than
a man for a comparable job solely because she earned less at
her last job. The Equal Pay Act prohibits precisely this kind
of “piling on,” where women can never overcome the
historical inequality.

    I agree with most of the majority opinion—particularly
its observation that past salary can reflect historical sex
discrimination. But the majority goes too far in holding that
any consideration of prior pay is “impermissible” under the
Equal Pay Act, even when it is assessed with other job-
related factors such as experience, education, past
performance and training. In my view, prior salary alone is
not a defense to unequal pay for equal work. If an
employer’s only justification for paying men and women
unequally is that the men had higher prior salaries, odds are
that the one-and-only “factor” causing the difference is sex.
However, employers do not necessarily violate the Equal
Pay Act when they consider prior salary among other factors
when setting initial wages. To the extent salary is considered
with other factors, the burden is on the employer to show that
                      RIZO V. YOVINO                        31

any pay differential is based on a valid job-related factor
other than sex.

    To be sure, the majority correctly decides the only issue
squarely before the court: whether the Fresno County Office
of Education was permitted to base Aileen Rizo’s starting
salary solely on her prior salary. The answer is no. But
regrettably, the majority goes further and effectively bars
any consideration of prior salary in setting a new salary. Not
only does Rizo’s case not present this issue, but this
approach is unsupported by the statute, is unrealistic, and
may work to women’s disadvantage.

    Rizo’s case is an easy one. After she was hired as a math
consultant, she learned that male colleagues in the same job
were being hired at a higher salary. The only rationale
offered by the County was that Rizo’s salary was lower at a
prior job. In effect, the County “was still taking advantage
of the availability of female labor to fill its [position] at a
differentially low wage rate not justified by any factor other
than sex”—a practice long held unlawful. See Corning
Glass Works v. Brennan, 417 U.S. 188, 208 (1974); Glenn v.
Gen. Motors Corp., 841 F.2d 1567, 1570 (11th Cir. 1988)
(“[T]he argument that supply and demand dictates that
women qua women may be paid less is exactly the kind of
evil that the [Equal Pay] Act was designed to eliminate, and
has been rejected.”); Drum v. Leeson Elec. Corp., 565 F.3d
1071, 1073 (8th Cir. 2009) (It is “prohibited” to rely on the
“‘market force theory’ to justify lower wages for female
employees simply because the market might bear such
wages.”).

    This scenario provides a textbook violation of the “equal
pay for equal work” mantra of the Equal Pay Act. Prior
salary level created the only differential between Rizo and
her male colleagues. The County did not, for example,
32                    RIZO V. YOVINO

consider Rizo’s two advanced degrees or her prior
experience in setting her initial salary. This historical
imbalance entrenched unequal pay for equal work based on
sex—end of story. The County cannot mount a defense on
past salary alone.

    Congress enacted the Equal Pay Act to root out historical
sex discrimination, declaring it the “policy” of the Act “to
correct the conditions” of “wage differentials based on sex.”
Pub. L. No. 88-38, 77 Stat. 56 (1963). At the signing
ceremony, President John F. Kennedy called the Act “a first
step” in “achiev[ing] full equality of economic
opportunity—for the average woman worker earns only
60 percent of the average wage for men.” President John F.
Kennedy, Remarks Upon Signing the Equal Pay Act (June
10, 1963), http://www.presidency.ucsb.edu/ws/?pid=9267.
The unqualified goal of the statute was to “eliminate wage
discrimination based upon sex.” H.R. REP. NO. 88-309, at 1
(1963). Sadly, that gap remains today—with the median
salary of a female employee being only 80 percent of that of
a male. See NAT’L P’SHIP FOR WOMEN & FAMILIES,
AMERICA’S WOMEN AND THE WAGE GAP 1 (2017),
https://goo.gl/SLEcd8.

    Given the stated goal of the Equal Pay Act to erase the
gender wage gap, it beggars belief that Congress intended
for historical pay discrepancies like Rizo’s to justify pay
inequity. See Corning, 417 U.S. at 195 (“Congress’ purpose
in enacting the Equal Pay Act was to remedy . . . [an]
endemic problem of employment discrimination . . . based
on an ancient but outmoded belief that a man . . . should be
paid more than a woman even though his duties are the
same.”). Congress recently noted that the existence of
gender-based pay disparities “has been spread and
perpetuated” since the passage of the Act and “many women
                         RIZO V. YOVINO                             33

continue to earn significantly lower than men for equal
work.” H.R. REP. No. 110-783, at 1–2 (2008). “In many
instances, the pay disparities can only be due to continued
intentional discrimination or the lingering effects of past
discrimination.” Id. (emphasis added). Because past pay
can reflect the very discrimination Congress sought to
eradicate in the statute, allowing employers to defend
unequal pay for equal work on that basis alone risks
perpetuating unlawful inequity. C.f. Ledbetter v. Goodyear
Tire & Rubber Co., 550 U.S. 618, 647 (2007) (Ginsburg, J.,
dissenting), dissenting position adopted by legislative action
(Jan. 29, 2009) (“Paychecks perpetuating past
discrimination . . . are actionable . . . because they
discriminate anew each time they issue.”). That danger is
best avoided by construing the Equal Pay Act “to fulfill the
underlying purposes which Congress sought to achieve” and
rejecting prior salary as its own “factor other than sex”
defense. Corning, 417 U.S. at 208.

    Yet I differ with the majority in one key respect. Merely
because prior pay is unavailable as a standalone defense does
not mean that employers may never use past pay as a factor
in setting initial wages. 1 Using prior salary along with valid
job-related factors such as education, past performance and
training may provide a lawful benchmark for starting salary
in appropriate cases. 2 This interpretation of the statute still

    1
       Contrary to the majority’s assertion, it is wholly consistent to
forbid employers from baldly asserting prior salary as a defense—
without determining whether it accurately measures experience,
education, training or other lawful factors—and to permit consideration
of prior salary along with those valid factors.
    2
      As Congress observed, “there are many factors which may be used
to measure the relationships between jobs and which establish a valid
basis for a difference in pay.” H.R. REP. NO. 88-309, at 3 (1963). But
34                        RIZO V. YOVINO

places the burden on the employer to justify that salary is
determined on the basis of “any other factor other than sex.”

    My views align with those of the Equal Employment
Opportunity Commission (“EEOC”), the agency charged
with administering the Act, and most of our sister circuits
that have addressed the question. The EEOC’s Compliance
Manual states:

         [A]n employer may consider prior salary as
         part of a mix of factors—as, for example,
         where the employer also considers education
         and experience and concludes that the
         employee’s prior salary accurately reflects
         ability, based on job-related qualifications.
         But because “prior salaries of job candidates
         can      reflect    sex-based   compensation
         discrimination,” “[p]rior salary cannot, by
         itself, justify a compensation disparity.”

EEOC Amicus Br. 7 (quoting EEOC Compliance Manual,
Compensation Discrimination § 10-IV.F.2.g (Dec. 5, 2000),
available at https://www.eeoc.gov/policy/docs/compensatio
n.html).

    The Tenth and Eleventh Circuits reached the same
conclusion, holding that prior pay alone cannot justify a
compensation disparity. See Riser v. QEP Energy, 776 F.3d
1191, 1199 (10th Cir. 2015) (an employer may decide to pay
an elevated salary to an applicant who rejects a lower offer,
but the Act “precludes an employer from relying solely upon
a prior salary to justify pay disparity”); Irby v. Bittick,

“wage differentials based solely on the sex of the employee are an unfair
labor standard.” Id. at 2–3 (emphasis added).
                       RIZO V. YOVINO                         35

44 F.3d 949, 955 (11th Cir. 1995) (“This court has not held
that prior salary can never be used by an employer to
establish pay, just that such a justification cannot solely carry
the affirmative defense.”). The Eighth Circuit has adopted a
similar approach, permitting the use of prior salary as a
defense, but “carefully examin[ing] the record to ensure that
an employer does not rely on the prohibited ‘market force
theory’ to justify lower wages” for women based solely on
sex. Drum, 565 F.3d at 1073. The Second Circuit likewise
allows the prior-salary defense, but places the burden on an
employer to prove that a “bona fide business-related reason
exists” for a wage differential—i.e., one that is “rooted in
legitimate     business-related       differences     in    work
responsibilities and qualifications for the particular positions
at issue.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d
520, 525–26 (1992).

     Only the Seventh Circuit has veered far off course,
holding that prior salary is always a “factor other than sex.”
See Wernsing v. Dep’t of Human Servs., State of Illinois,
427 F.3d 466, 468–70 (2005). But its conclusion—that a
“factor other than sex” need not be “related to the
requirements of the particular position” or even “business
related”—contravenes the Act’s purpose of ensuring women
and men earn equal pay for equal work. Id. at 470. After
all, inherent in the Act is an understanding that compensation
should mirror one’s “skill, effort, and responsibility.” See
Corning, 417 U.S. at 195 (quoting 29 U.S.C. § 206(d)(1));
see also Glenn, 841 F.2d at 1571. Because we know that
historical sex discrimination persists, it cannot be that prior
salary always reflects a factor other than sex.

    I fear, however, that the majority makes the same
categorical error as the Seventh Circuit, but in the opposite
direction: it announces that prior salary is never a “factor
36                          RIZO V. YOVINO

other than sex.” By forbidding consideration of prior salary
altogether, the majority extends the scope of the statute and
risks imposing Equal Pay Act liability on employers for
using prior salary as any part of the calculus in making wage-
setting decisions. That, too, is a drastic holding, particularly
because companies and institutions often consider prior
salary in making offers to lure away top talent from their
competitors or to attract employees with specific skills. In
unpacking what goes into the calculation, it may well be that
salary accurately gauges a prospective employee’s “skill,
effort, and responsibility,” as the Equal Pay Act envisions—
in addition to her education, training, and past
performance—and a new employer wants to exceed that
benchmark. The Equal Pay Act should not be an
impediment for employees seeking a brighter future and a
higher salary at a new job. See generally ORLY LOBEL,
TALENT WANTS TO BE FREE 49–75 (Yale Univ. Press 2013)
(concluding that employee mobility between competitors
promotes innovation and job growth); Cade Metz, Tech
Giants Are Paying Huge Salaries for Scarce A.I. Talent,
N.Y. TIMES, Oct. 23, 2017, at B1 (noting that employers pay
a premium to hire top engineering talent).

    On that front, states have begun passing statutes that
prohibit employers from asking employees about their prior
salaries. 3 California’s statute just went into effect. See Cal.
Labor Code § 432.3. Those laws represent creative efforts
to narrow the gender wage gap. But they also provide
important exemptions for employees who wish to disclose

     3
       A bill has been introduced in Congress to enact a federal
prohibition on “requiring” or “requesting” that prospective employees
disclose previous wages or salary history. See H.R. 2418, 115th Cong.
(2017). Like its state counterparts, this bill does not seek to outlaw salary
negotiations initiated by an employee.
                       RIZO V. YOVINO                         37

prior salaries as part of a salary negotiation. See, e.g., Cal.
Labor Code § 432.3(g). Although the majority professes
that its decision does not relate to negotiated salaries, the
principle of the majority’s holding may reach beyond these
state statutes by making it a violation of federal
antidiscrimination law to consider prior salary, even when
an employee chooses to provide it as a bargaining chip for
higher wages. I am concerned about chilling such voluntary
discussions. Indeed, the result may disadvantage rather than
advantage women.

     To avoid those consequences, the majority endeavors to
limit its decision by announcing that it “express[es] a general
rule and do[es] not attempt to resolve its applications under
all circumstances.” The majority disclaims, for example,
deciding “whether or under what circumstances, past salary
may play a role in the course of an individualized salary
negotiation.” See Maj. Op. at 14. The majority’s disclaimer
hardly cushions the practical effect of its “general rule.”
Because the majority makes it “impermissible to rely on
prior salary to set initial wages” under the Act, it has left
little daylight for arguing that negotiated starting salaries
should be treated differently than established pay scales. See
Maj. Op. at 28. In the real world, an employer “rel[ies] on
prior salary to set initial wages” when it takes the prior salary
offered voluntarily by an employee in negotiations and sets
a starting salary above those past wages, even if there is an
established pay scale.

    The more limited holding adopted by our sister circuits
better accords with common sense and the statutory text.
The Equal Pay Act provides an affirmative defense for “any
other factor other than sex.” See 29 U.S.C. § 206(d)(1)
(emphasis added). The majority opinion recognizes that
“legitimate, job-related factors such as a prospective
38                     RIZO V. YOVINO

employee’s experience, educational background, ability, or
prior job performance” operate as affirmative defenses. But
the majority nonetheless renders those valid, job-related
factors nugatory when an employer also considers prior
salary. That is a puzzling outcome.

   For these reasons, I concur in the result, but not the
majority’s rationale.



CALLAHAN, Circuit Judge, with whom TALLMAN,
Circuit Judge, joins, concurring:

    We all agree that men and women should receive equal
pay for equal work regardless of gender. Indeed, we agree
that the purpose of the Equal Pay Act of 1963 was to change
“should receive equal pay” to “must receive equal pay.”
However, I write separately because in holding that prior
salary can never be considered, the majority fails to follow
Supreme Court precedent, unnecessarily ignores the realities
of business and, in doing so, may hinder rather than promote
equal pay for equal work.

    The factual fallacies of the majority opinion are, first,
that prior salary is not generally job-related, and second, that
prior salary inherently reflects wage discrepancies based on
gender. In fact, prior salary is a prominent consideration for
both a job applicant and the potential employer. The
applicant presumably seeks a job that will pay her more and
the potential employer recognizes that it will have to pay her
more if it wants to hire her. Of course, a prior salary might
reflect a wage discrepancy based on gender, but this does not
justify the majority’s absolute position.
                        RIZO V. YOVINO                          39

    Prior salary serves, in combination with other factors, to
allow employers to set a competitive salary that will entice
potential employees to take the job. The majority’s approach
ignores these economic incentives and appears to demand a
lockstep pay system such as is often used in government
service. 1 We allow private industry more flexibility. In the
private sector, basing initial salary upon previous salary, plus
other factors such as experience and education, encourages
hard work and rewards applicants who have stellar
credentials. The majority opinion stifles these economic
incentives with a flat prohibition on ever considering prior
salary, no matter how enlightened or non-discriminatory it
may have been.

    Second, the assumption that prior salary inherently
reflects gender bias is not true. The majority opinion
completely ignores economic disparity in pay for the same
jobs performed in different parts of the country, where costs
of living are lower and demand for available jobs may
exceed the supply of available and highly competitive
positions. While there is no question that prior salary in
some instances may well reflect gender discrimination, this
is not always the case. Historically, differences in prior
salaries may simply reflect the differing costs of living in
various parts of the country. And the flat prohibition ignores
the fact that when the prior salary was set there may well
have been more qualified job seekers than there were
available jobs to fill.




    1
         See United States Office of Personnel Management,
https://www.opm.gov/policy-data-oversight/pay-leave/pay-systems/fed
eral-wage-system/ (last visited Feb. 21, 2018).
40                    RIZO V. YOVINO

                               I

    As required by the Equal Pay Act, Rizo, at least for the
purposes of a motion for summary judgment, made a prima
facie case of pay discrimination by showing that (1) she
performed substantially equal work to that of her male
colleagues; (2) the work conditions were basically the same;
and (3) the male employees were paid more. See Riser v.
QEP Energy, 776 F.3d 1191, 1196 (10th Cir. 2015).

    The County does not contest the prima facie case but
argues that Rizo’s salary was exempt from Equal Pay Act
coverage under the fourth exception in 29 U.S.C.
§ 206(d)(1). Subsection (d)(1) reads:

       No employer having employees subject to
       any provisions of this section shall
       discriminate, within any establishment in
       which such employees are employed,
       between employees on the basis of sex by
       paying wages to employees in such
       establishment at a rate less than the rate at
       which he pays wages to employees of the
       opposite sex in such establishment for equal
       work on jobs the performance of which
       requires equal skill, effort, and responsibility,
       and which are performed under similar
       working conditions, except where such
       payment is made pursuant to (i) a seniority
       system; (ii) a merit system; (iii) a system
       which measures earnings by quantity or
       quality of production; or (iv) a differential
       based on any other factor other than sex.
                           RIZO V. YOVINO                              41

    We agree that this suit turns on our interpretation of the
fourth exception in 29 U.S.C. § 206(d)(1): “a differential
based on any other factor other than sex.”

                                    II

    “The Equal Pay Act is broadly remedial and it should be
construed and applied so as to fulfill the underlying purposes
which Congress sought to achieve.” Corning Glass Works v.
Brennan, 417 U.S. 188, 208 (1974). The majority struggles
mightily and unnecessarily to couple the fourth exception—
despite its clear language—so closely with the other three
exceptions that it loses independent meaning. 2 In doing so,
the majority conveniently overlooks the differences within
the three specific exceptions. While merit systems and
measuring earnings by quantity and quality of production are
specifically job-related, that is not true of seniority systems.
Indeed, at the time of the passage of the Equal Pay Act, if
not today, seniority systems accounted for a fair amount of
pay inequality. 3 Furthermore, the majority’s insistence that


     2
       The majority invokes the old chestnuts of statutory interpretation,
noscitur a sociis and ejusdem generis, but they are not very helpful. The
Supreme Court in Corning Glass, 417 U.S. at 196, recognized that the
Equal Pay Act “establishes four exceptions—three specific and one
general catchall provision.” It follows that noscitur a sociis—“a word is
known by the company it keeps”—does not aid our interpretation of the
statute because the catchall provision is intended to contrast with the
specific exceptions, not reflect them. For the same reason, ejusdem
generis is of little assistance as the “catchall provision” is not intended
to be similar to the specific exceptions.

    3
      For example, one-quarter of the complaints filed in the year after
the passage of the Equal Pay Act concerned complaints by women that
they were excluded from jobs because of seniority rules or because men
were preferred over women after layoffs. Vicki Lens, Supreme Court
42                           RIZO V. YOVINO

the fourth exception is limited to specific job-related
qualities is contrary to the Supreme Court’s statement that
the fourth exception “was designed differently, to confine
the application of the Act to wage differentials attributable
to sex discrimination.” Washington Cty. v. Gunther,
452 U.S. 161, 170 (1981). 4 Thus, the Equal Pay Act’s fourth

Narratives on Equality and Gender Discrimination in Employment:
1971–2002, 10 Cardozo Women’s L.J. 501, 507 (2004).

     4
         The paragraph from which this quote is taken reads in full:

            More importantly, incorporation of the fourth
            affirmative defense could have significant
            consequences for Title VII litigation. Title VII’s
            prohibition of discriminatory employment practices
            was intended to be broadly inclusive, proscribing “not
            only overt discrimination but also practices that are
            fair in form, but discriminatory in operation.” Griggs
            v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849,
            853, 28 L.Ed.2d 158 (1971). The structure of Title VII
            litigation, including presumptions, burdens of proof,
            and defenses, has been designed to reflect this
            approach. The fourth affirmative defense of the Equal
            Pay Act, however, was designed differently, to confine
            the application of the Act to wage differentials
            attributable to sex discrimination. H.R. Rep. No. 309,
            88th Cong., 1st Sess., 3 (1963), U.S.Code Cong. &
            Admin.News 1963, p. 687. Equal Pay Act litigation,
            therefore, has been structured to permit employers to
            defend against charges of discrimination where their
            pay differentials are based on a bona fide use of “other
            factors other than sex.” Under the Equal Pay Act, the
            courts and administrative agencies are not permitted to
            “substitute their judgment for the judgment of the
            employer ... who [has] established and applied a bona
            fide job rating system,” so long as it does not
            discriminate on the basis of sex. 109 Cong.Rec. 9209
            (1963) (statement of Rep. Goodell, principal exponent
            of the Act). Although we do not decide in this case
                         RIZO V. YOVINO                             43

exception for any “differential based on any other factor
other than sex” allows for reasonable business reasons that
extend beyond the narrow definition of job-related.

    More importantly, the limitation of “any other factor
other than sex” to specific job-related qualities is contrary to
the Supreme Court’s approach in Washington County. The
Court explained that Equal Pay Act litigation “has been
structured to permit employers to defend against charges of
discrimination where their pay differentials are based on a
bona fide use of ‘other factors other than sex.’” 452 U.S. at
170.    The Court went on to hold that courts and
administrative agencies were not permitted to substitute their
judgment for the judgment of the employer “so long as it
does not discriminate on the basis of sex.” Id. at 171. Thus,
we are directed not to look to whether a differential is
specifically job-related, but whether regardless of its “job-
relatedness,” it is attributable to sex discrimination. 5


        how sex-based wage discrimination litigation under
        Title VII should be structured to accommodate the
        fourth affirmative defense of the Equal Pay Act, see n.
        8, supra, we consider it clear that the Bennett
        Amendment, under this interpretation, is not rendered
        superfluous.

Washington Cty., 452 U.S. at 170–71 (footnote omitted).

    5
      This conclusion is further supported by a footnote in the Court’s
decision, which states:

        The legislative history of the Equal Pay Act was
        examined by this Court in Corning Glass Works v.
        Brennan, 417 U.S. 188, 198-201, 94 S. Ct. 2223,
        2229-2231, 41 L. Ed.2d 1 (1974). The Court observed
        that earlier versions of the Equal Pay bill were
44                        RIZO V. YOVINO

                                  III

    I agree that based on the history of pay discrimination
and the broad purpose of the Equal Pay Act, prior salary by
itself is not inherently a “factor other than sex.” As the
Eleventh Circuit noted, “if prior salary alone were a
justification, the exception would swallow up the rule and
inequality in pay among genders would be perpetuated.”
Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995). However,
the Eleventh Circuit continued:

        an Equal Pay Act defendant may successfully
        raise the affirmative defense of “any other
        factor other than sex” if he proves that he
        relied on prior salary and experience in
        setting a “new” employee’s salary. While an
        employer may not overcome the burden of
        proof on the affirmative defense of relying on

        amended to define equal work and to add the fourth
        affirmative defense because of a concern that bona fide
        job-evaluation systems used by American businesses
        would otherwise be disrupted. Id., at 199-201, 94 S.
        Ct., at 2230-2231. This concern is evident in the
        remarks of many legislators. Representative Griffin,
        for example, explained that the fourth affirmative
        defense is a “broad principle,” which “makes clear and
        explicitly states that a differential based on any factor
        or factors other than sex would not violate this
        legislation.” 109 Cong.Rec. 9203 (1963). See also id.,
        at 9196 (remarks of Rep. Frelinghuysen); id., at
        9197-9198 (remarks of Rep. Griffin); ibid., (remarks
        of Rep. Thompson); id., at 9198 (remarks of Rep.
        Goodell); id., at 9202 (remarks of Rep. Kelly); id., at
        9209 (remarks of Rep. Goodell); id., at 9217 (remarks
        of Reps. Pucinski and Thompson).

Washington Cty., 452 U.S. at 170 n.11.
                           RIZO V. YOVINO                              45

          “any other factor other than sex” by resting
          on prior pay alone, as the district court
          correctly found, there is no prohibition on
          utilizing prior pay as part of a mixed-motive,
          such as prior pay and more experience. This
          court has not held that prior salary can never
          be used by an employer to establish pay, just
          that such a justification cannot solely carry
          the affirmative defense.

Id.

    Many of our sister circuits are in accord. The Tenth
Circuit has held that “an individual’s former salary can be
considered in determining whether pay disparity is based on
a factor other than sex,” but that “the EPA ‘precludes an
employer from relying solely upon a prior salary to justify
pay disparity.’” Riser, 776 F.3d at 1199 (citing Angove v.
Williams–Sonoma, Inc., 70 Fed. Appx. 500, 508 (10th Cir.
2003) (unpublished)). The Second and Sixth Circuits are
basically in agreement. See Aldrich v. Randolph Cent. Sch.
Dist., 963 F.2d 520, 525 (2d Cir. 1992) (recognizing “that
job classification systems may qualify under the factor-other
than-sex defense only when they are based on legitimate
business-related considerations”); EEOC v. J.C. Penney Co.
Inc., 843 F.2d 249, 253 (6th Cir. 1988) (holding that “the
legitimate business record standard is the appropriate
benchmark against which to measure the ‘factor other than
sex’”). 6


      6
       The Seventh and Eighth Circuits prefer an even broader definition
for “factor other than sex.” Covington v. S. Ill. Univ., 816 F.2d 317, 321–
22 (7th Cir. 1987) (holding that the EPA does not preclude “an employer
from carrying out a policy which, although not based on employee
46                        RIZO V. YOVINO

    This approach reflects that the fourth exception was
intended to be, and is, broad. Thus, while a pay system that
relied exclusively on prior salary is conclusively presumed
to be gender based—to perpetuate gender based inequality—
a pay system that uses prior pay as one of several factors
deserves to be considered on its own merits. When a
plaintiff makes a prima facie case of pay inequality based on
gender, the burden of showing that the difference is not
based on gender shifts to the employer. In other words, the
prima facie case creates a presumption that the pay
inequality arising from the employer’s pay system is gender
based and hence is not a “factor other than sex.” In Corning
Glass, the Supreme Court explained that the Equal Pay Act’s

        structure and history also suggest that once
        the Secretary has carried his burden of
        showing that the employer pays workers of
        one sex more than workers of the opposite
        sex for equal work, the burden shifts to the
        employer to show that the differential is
        justified under one of the Act’s four
        exceptions.

Corning Glass, 417 U.S. at 196; see also Maxwell v. City of
Tucson, 803 F.2d 444, 445–46 (9th Cir. 1986) (stating that
once the plaintiff establishes a prima facie case, “the burden
shifts to the employer to show that the wage disparity is
permitted by one of the four statutory exceptions to the Equal


performance, has in no way been shown to undermine the goals of the
EPA”); Taylor v. White, 312 F.3d 710, 720 (8th Cir. 2003) (stating that
“a case-by-case analysis of reliance on prior salary or salary retention
policies with careful attention to alleged gender-based practices
preserves the business freedoms Congress intended to protect when it
adopted the catch-all ‘factor other than sex’ affirmative defense”).
                         RIZO V. YOVINO                             47

Pay Act”). There is no justification for holding that an
employer could, as a matter of law, justify the differential
under one of the first three exceptions, but not the fourth
exception. Accordingly, I differ from the majority in that I
think, as do the majority of our sister circuits, that when
salary is established based on a multi-factor salary system
that includes prior salary, the presumption that the system is
based on gender is rebuttable. 7

    This is also the position of the EEOC, the agency
charged with enforcing the EPA. In its amicus brief, the
EEOC states that in its view because prior salaries “can
reflect sex-based compensation discrimination,” a prior
salary “cannot by itself justify a compensation disparity,”
but “an employer may consider prior salary as part of a mix
of factors.” 8 That seems a reasonable approach to a multi-
faceted decision to formulate a rate of pay.

    7
      I agree with the majority that the market force theory for paying
women less was discredited by the Supreme Court in Corning Glass,
417 U.S. at 205, and that the notion that an employer may pay women
less because women allegedly cost more to employ than men was
discredited in City of Los Angeles, Department of Water & Power v.
Manhart, 435 U.S. 702 (1978). See Majority Opinion at 25–27.

    8
      In EEOC Notice Number 915.002 (Oct. 29, 1997), “Enforcement
Guidance on Sex Discrimination in the Compensation of Sports Coaches
in Educational Institutions,” the EEOC advised:

        Thus, if the employer asserts prior salary as a factor
        other than sex, evidence should be obtained as to
        whether the employer: 1) consulted with the
        employee’s previous employer to determine the basis
        for the employee’s starting and final salaries;
        2) determined that the prior salary was an accurate
        indication of the employee’s ability based on
        education, experience, or other relevant factors; and
48                         RIZO V. YOVINO

    In sum, I note that “prior pay” is not inherently a
reflection of gender discrimination. Differences in prior pay
may well be based on other factors such as the cost of living
in different parts of our country. Also, it is possible, and we
hope in this day probable, that the prior employer had
adjusted its pay system to be gender neutral. Nonetheless,
consistent with the intent of the EPA, I agree that where prior
pay is the exclusive determinant of pay, the employer cannot
carry its burden of showing that it is a “factor other than
sex.” 9 However, neither Congress’s intent, nor the language
of the Equal Pay Act, nor logic, requires, or justifies, the
conclusion that a pay system that includes prior pay as one
of several ingredients can never be a “factor other than sex,”
and thus fails to come within the fourth exception to the
Equal Pay Act.

                                   IV

   In this case, the County based pay only on prior salary,
and accordingly the district court properly denied it


         3) considered the prior salary, but did not rely solely
         on it in setting the employee's current salary.

     9
        We read the EPA to place the burden on the employer to
demonstrate that the pay differential falls within the fourth exception;
that it is indeed not based on gender. An employer cannot meet this
burden where the pay system is based solely on prior pay because by
blindly accepting the prior pay, it cannot rebut the presumption that using
the prior pay perpetuates the inequality of pay based on gender that the
EPA seeks to correct. If, instead, as suggested by the EEOC’s Notice
Number 915.002, an employer not only looked to prior pay but also
researched whether the applicant’s prior pay reflected gender based
inequality, and made adjustments if it did, the employer would no longer
be relying exclusively on prior pay. Thus, in such a situation, an
employer might be able to overcome the presumption and show that its
pay system was a “factor other than sex.”
                           RIZO V. YOVINO                              49

summary judgment.              Nonetheless, the majority
unnecessarily, incorrectly, and contrary to Supreme Court
precedent, insists that prior salary can never be a factor in a
pay system that falls within the fourth exception to the Equal
Pay Act.      Accordingly, I concur separately because
following the Supreme Court’s guidance, I agree with the
Tenth and Eleventh Circuits, as well as the EEOC, the
agency charged with enforcing the EPA, that prior pay may
be a component of a pay system that comes within the fourth
exception recognized in 29 U.S.C. § 206(d)(1). A defense
to a pay discrimination claim will lie if the employer meets
its burden of showing that its system does not perpetuate or
create a pay differential based on sex. We should not have
reached out to hold otherwise, particularly as there was no
need to do so.10

   For these reasons, I concur in the result, but not the
majority’s rationale.



WATFORD, Circuit Judge, concurring in the judgment:

    I agree with the result the majority reaches, but I arrive
there through a somewhat different reading of the statute.

    The Equal Pay Act prohibits employers from
discriminating “on the basis of sex” by paying female

    10
       The majority’s assertion that it expresses a “general rule” and does
not “attempt to resolve its application under all circumstances” (Majority
Opinion at 14) is at odds with its conclusion that past salary cannot be
considered “alone or in conjunction with less invidious factors.”
Majority Opinion at 29. As Judge McKeown notes in her separate
concurrence, the “disclaimer hardly cushions the practical effect of its
‘general rule.’” McKeown Concurrence at 37.
50                    RIZO V. YOVINO

employees less than their male counterparts for doing the
same work. 29 U.S.C. § 206(d)(1). The Act allows an
employer to justify such a pay disparity by proving, as an
affirmative defense, that the disparity is based on a “factor
other than sex.” Id.; see Corning Glass Works v. Brennan,
417 U.S. 188, 196 (1974). In my view, past pay can
constitute a “factor other than sex,” but only if an
employee’s past pay is not itself a reflection of sex
discrimination. If past pay does reflect sex discrimination,
an employer cannot rely on it to justify a pay disparity,
whether the employer considers past pay alone or in
combination with other factors. I agree with the majority
that holding otherwise would permit employers to perpetuate
the very form of sex discrimination the Act was intended to
outlaw.

   This reading of § 206(d)(1) aligns with the Supreme
Court’s interpretation of the same provision in Corning
Glass. There, Corning Glass had for many years paid female
day-shift inspectors less than male night-shift inspectors,
even though both sets of inspectors performed the same
work. The company argued that this pay disparity was
simply the result of prevailing market forces, which allowed
men to demand and receive higher wages than women. The
Court rejected that argument and held that the disparity
nonetheless violated the Act’s requirement of “equal pay for
equal work.” 417 U.S. at 205.

     The Court also rejected the company’s attempt to defend
its new pay system, which eliminated the pay disparity going
forward. Beginning in January 1969, all newly hired
inspectors would be paid the same wage regardless of shift.
The company set the new, uniform wage at an hourly rate
above what the day-shift inspectors had been earning but
below what the night-shift inspectors made. Existing
                      RIZO V. YOVINO                       51

employees would be paid the new, uniform wage as well,
unless they had been earning more beforehand. That meant
existing day-shift inspectors got a raise (to the new, uniform
wage), but existing night-shift inspectors got to retain their
previous, higher wage. Id. at 194, 208–09 & n.29. The
Supreme Court held that the resulting pay disparity between
female day-shift and male night-shift inspectors’ wages was
illegal: Although the disparity was attributable to a “neutral
factor other than sex”—namely, past pay—the employer
could not avail itself of the affirmative defense because an
employee’s past pay in this instance reflected sex
discrimination. Id. at 209–10. Holding otherwise, the Court
noted, would “perpetuate the effects of the company’s prior
illegal practice of paying women less than men for equal
work.” Id.

     I think the same analysis should govern even when an
employer’s prior pay practices are not overtly
discriminatory, as they were in Corning Glass. If an
employer seeks to justify paying women less than men by
relying on past pay, it bears the burden of proving that its
female employees’ past pay is not tainted by sex
discrimination, including discriminatory pay differentials
attributable to prevailing market forces. See id. at 205.
Unfortunately, even today, in most instances that will be
exceedingly difficult to do. Despite progress in closing the
wage gap, gender pay disparities persist in virtually every
sector of the American economy, with women today earning
on average only about 82% of what men make, even after
controlling for education, work experience, and other
factors. See Francine D. Blau & Lawrence M. Kahn, The
Gender Wage Gap: Extent, Trends, and Explanations, 55
J. Econ. Literature 789, 797–800 (2017). It therefore
remains highly likely that a woman’s past pay will reflect, at
least in part, some form of sex discrimination. As a result,
52                     RIZO V. YOVINO

an employer will rarely be able to justify a gender pay
disparity by relying on the fact that a female employee made
less than her male counterparts at her prior job.

    The employer in this case failed to prove that Aileen
Rizo’s past pay is not tainted by sex discrimination. Her
prior salary thus cannot be deemed a “factor other than sex.”
For that reason, I agree that the district court properly denied
the County’s motion for summary judgment.
