Prior salary is Equal Pay affirmative defense

An employer defending an Equal Pay Act claim can point to prior salary as a factor other than sex that explains the pay differential between the employee and their alleged comparators.

Background

The four named plaintiffs and the defendant, the Virginia Department of Environmental Quality, or DEQ, have filed cross-motions for partial summary judgment addressing a single legal issue: does using prior salary as a factor in setting an employee’s starting salary constitute a per se violation of the Equal Pay Act, or EPA? In other words, may DEQ defend against the plaintiffs’ EPA claims by pointing to prior salary as a factor other than sex that explains the pay differential between the plaintiffs and their alleged comparators?

The plaintiffs urge the court to adopt the Ninth Circuit’s ruling in Rizo v. Yovino, 950 F.3d 1217 (9th Cir. 2020), and forbid DEQ from using prior salary as an affirmative defense in this case. DEQ argues that Rizo conflicts with Fourth Circuit precedent and that the court, therefore, should allow them to assert prior salary as an affirmative defense.

Analysis

Although the Fourth Circuit has not delineated the precise circumstances under which an employer may rely on prior salary as an affirmative defense in an EPA case, it has clearly indicated that it does not prohibit an employer from doing so. In Spencer v. Virginia State University, 919 F.3d 199 (4th Cir. 2019), the Fourth Circuit noted that, even if the plaintiff could establish a prima facie EPA claim, the employer’s decision to pay her purported comparators “75% of their previous salary as administrators” established that “the salary difference [between the plaintiff and her purported comparators] was based on a ‘factor other than sex.’” This shows that, at minimum, the Fourth Circuit does not prohibit employers from raising prior salary as an affirmative defense in an EPA case. Accordingly, the court will not adopt Rizo’s contrary holding.

The plaintiffs argue that the court should find that “an employer ‘must present evidence that job-related distinctions’ explain ‘different starting salaries.’” In other words, they ask the court to make DEQ show that prior salary constitutes a “job-related distinction[]” justifying the pay discrepancy between the plaintiffs and their comparators. The court need not resolve that issue to answer the narrow question before it: may DEQ raise prior salary as an affirmative defense? For the reasons stated above, the answer is yes. Because the Fourth Circuit allows employers to raise prior salary as an affirmative defense in EPA cases, the court will grant DEQ’s motion for summary judgment and allow it to assert prior salary as an affirmative defense in this case.

Plaintiffs’ motion for summary judgment denied. Defendant’s motion for summary judgment granted.

Abe v. Virginia Department of Environmental Quality, Case No. 3:20-cv-270, April 5, 2021. EDVA at Richmond (Gibney). VLW 021-3-189. 7 pp.