The year 2021 marks the forty-eighth anniversary of the mobile phone[1] and the eighty-third anniversary of the programmable computer.[2] It is no secret that mobile devices are significantly more powerful than their inventors could have ever predicted.[3] What started as clunky, cumbersome machinery has transformed into the backbone of society as we know it.[4]
Many aspects of corporate success are rooted in the evolution of the mobile device.[5] To aid in their success, the majority of employers now permit the cross-use of electronic devices for personal and professional purposes—a movement known as “Bring Your Own Device” and lovingly referred to as “BYOD” for short.[6] More specifically, the BYOD phenomenon is a practice whereby employees[7] use their own electronic devices[8] to do their jobs on the employers’ platforms.[9] The BYOD practice is loved by employees and employers alike[10] and drives corporate activity in ways nearly unimaginable even ten years ago.[11] In fact, in 2018, the BYOD market was predicted to reach nearly $367 billion by 2022.[12] In the wake of the COVID-19 pandemic, the true number is likely even higher.[13] Pandemic or no pandemic, it is clear that the BYOD era is here to stay.[14]
Despite the rising popularity of the BYOD workstyle, very few businesses actually enforce formal BYOD policies and instead simply allow employees to access corporate data on their own devices free of internal regulation.[15] A study conducted in 2016 revealed that, even though roughly 70 percent of employees conduct work-related activities on their personal devices, only 39 percent of companies have a formal BYOD policy in place.[16] This is dangerous; if companies do not regulate their BYOD practices, they risk breaches of sensitive corporate data and violations of federal privacy laws.[17]
The Tension Between Privacy Interests and Data Protection
Perhaps the most problematic issue that comes with implementing a BYOD policy is determining to what extent an employer can legally monitor and access its employee’s personal devices.[18] The American Bar Association describes balancing the employers’ interests in data security with the employees’ rights of privacy as “the single greatest challenge” to a successful BYOD program.[19] With that said, it must be recognized that employees enjoy a heightened right to privacy regarding information stored on their own personal devices as compared to employer-provided devices.[20] Such protection may be found in both statutory and common law.
Specifically, the Computer Fraud and Abuse Act of 1986 (“CFAA”)[21] imposes criminal and civil penalties on individuals and companies that “intentionally access a computer without authorization or exceeds authorized access” to obtain “information from any protected computer.”[22] The CFAA began as a means to protect government computers from hackers, but today the law reaches every computer connected to the internet.[23] Of course, in 2021, computers are not the only devices used to conduct work. Luckily, federal case law establishes that, in addition to desktop and laptop computers, the CFAA protects devices such as cell phones,[24] tablet devices, and even videogame systems.[25] To supplement the CFAA, employees might also claim a violation of the Electronic Communications Privacy Act (“ECPA”), a subsection of the Stored Communications Act (“SCA”) that protects the privacy of electronic communications in electronic storage.[26]
So far, courts addressing the new BYOD privacy dichotomy seem reluctant to construe statutory protection broadly in favor of plaintiff-employees who had their personal devices wiped clean of all information. For instance, in Rajaee v. Design Tech Homes, Ltd.,[27] a company remotely deleted all of an employee’s work and personal files from his mobile device after he resigned.[28] The device was connected to the employer’s data server, allowing for remote access to email and calendar platforms.[29] The employee sued for damages under the ECPA and the CFAA, but the court rejected both claims, reasoning that the personal data lost was not “electronic storage” as defined under the ECPA and was not a qualified “loss” under the CFAA.[30] Such stringent readings of these statutes makes asserting a viable claim for lost personal data caused by the employer a very difficult feat for employees.[31]
Because technology moves light-years faster than the development of law,[32] the CFAA and ECPA are two of the closest statutes to the BYOD issue; there is currently no federal or state legislation directly addressing BYOD policies.[33] Similarly, the relevant case law is negligible.[34] It is thus vital for employers to create and implement comprehensive, transparent, and officially documented BYOD programs. Thorough BYOD policies are important because, with the lack of statutory law on point, courts in many cases will look directly to the provisions in the BYOD policy to “determine the bounds of permissible employer conduct.”[35]
Private employees generally retain privacy interests in common law so long as their expectations are “reasonable.”[36] When considering whether an employee has a reasonable expectation of privacy in electronic communications, courts tend to balance the following factors: (1) account ownership;[37] (2) device ownership;[38] (3) the security level of the communication;[39] and (4) published employer policies and whether they were routinely enforced.[40] No one factor is dispositive and different courts may weigh factors differently.[41] Because two of the four factors essentially look for whether a BYOD program exists, employers can cover a significant number of bases simply by drafting a formal policy.[42]
Best Practices for Employers
Despite the lack of concrete legal guidelines surrounding the BYOD phenomenon, an employer can mitigate the majority of its concerns by implementing a formal BYOD policy. An effective policy should “emphasize security and contain clear instructions” regarding acceptable and unacceptable activities on personally owned devices that have access to corporate information systems.[43] Additionally, an employer’s BYOD policy should make clear that “any and all company information and emails” on all personal devices remain “the sole property” of the company, and that the employer “in its sole discretion” may access and delete any company data that “may be in jeopardy.”[44] No threat is too small when it comes to business use of personal devices, and providing express notice to employees is the very best way to mitigate legal liability surrounding BYOD policies.[45]
In addition to implementing a comprehensive, written BYOD policy, many companies—especially those that handle sensitive information—are utilizing Mobile Device Management (“MDM”) service providers to help mitigate the technical risks associated with allowing employees to access company data on their own devices.[46] In essence, MDM broadens the scope of BYOD protection and is “designed to fill security gaps” in employee use of personal devices.[47] MDM allows employers to exercise control over the device, monitor applications, and remotely wipe the device if it is lost or stolen—clearly a worthwhile addition to any BYOD policy.[48]
The Bottom Line
An astonishing number of employees and employers engage in the BYOD workstyle. While BYOD practices often increase employee satisfaction and performance, and decrease employer costs, they come with inherent risks that cannot be ignored, such as data breaches and violations of federal privacy law. Employers can mitigate many of these risks by implementing a strong written BYOD policy that clearly delineates the employers’ rights of access to each device. Now more than ever, actively and uniformly enforcing a BYOD policy is the best mechanism to alleviate legal risks while the law plays catch-up with the modern technological workplace.
[3]See Dyroff, supra note 1 (“Over the past half-century, the cell phone has . . . evolved to connect us in ways that [its inventors] perhaps never imagined.”). In fact, it is estimated that “the number of mobile-connected devices now exceeds the number of people on Earth.” Danielle Richter, “Bring Your Own Device” Programs: Employer Control Over Employee Devices in the Mobile E-Discovery Age, 82 Tenn. L. Rev. 443, 458 (2015) (quoting Stephen Wu, A Legal Guide to Enterprise Mobile Device Management: Managing Bring Your Own Device (BYOD) and Employer-Issued Device Programs 1 (2013)).
[4]See Lindsey Blair, Note, Contextualizing Bring Your Own Device Policies, 44 J. Corp. L. 151, 152 (2018) (describing the impact of mobile devices on the corporate environment).
[6]See Blair, supra note 4, at 152 (“BYOD policies rapidly expanded during the 2010s in [information-technology] communities and have [since] become increasingly common in other professional fields.”).
[7] For purposes of this post, the terms “employer” and “employers” refer only to private employers. Similarly, the terms “employee” and “employees” refer only to employees of private employers.
[8] Although the term “BYOD” may refer to personal use by employees of employer-owned devices, BYOD is more often understood as employee use of a personally owned device to conduct work activities. With BYOD, the Genie Is Out of the Bottle, So Deal with It, 23 No. 1 N.C. Emp. L. Letter 5 (M. Lee Smith ed., 2013). The latter is the only form of BYOD that is discussed in this post.
[9]Id. Such platforms include company email, calendar, and data servers. Id.
[10] Employees favor BYOD policies because they provide the “freedom to ‘work and collaborate the way they prefer’” on devices familiar to them; employers favor BYOD policies because they cut costs and allow for a “‘more mobile, productive, [accessible], and satisfied’ workforce.” Melinda L. McLellan et al., Wherever You Go, There You Are (With Your Mobile Device): Privacy Risks and Legal Complexities Associated with International “Bring Your Own Device” Programs, 21 Rich. J. L. & Tech., no. 3, 2014, at 1, 1.
[20] Bellamy & Gonzalez, supra note 18. In contrast, employers retain significantly greater control and access to company-owned devices that are merely provided to employees. Richter, supra note 3, at 458. However, the scope of employee rights surrounding employer-provided devices is outside the purview of this post and will not be discussed further.
[24]See United States v. Nosal, 844 F.3d 1024, 1050–51 n. 2 (9th Cir. 2016) (recognizing protection of cell phones under the CFAA); see also United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (same).
[25]See United States v. Nosal, 676 F.3d 854, 861 (9th Cir. 2012).
[30]Id. at *2 (citing Garcia v. City of Laredo, Tex., 702 F.3d 788, 791 (5th Cir. 2012)).
[31] CFAA claims are only cognizable if the plaintiff can show that the unauthorized access to his or her computer resulted in a loss of at least $5,000 in a one-year period. See 18 U.S.C. § 1030(c)(4)(A). This is often a high hurdle for plaintiff-employees to meet. See, e.g., Rajaee, 2014 WL 5878477, at *3–4 (determining that plaintiff’s loss of personal photos, cell phone contacts, text messages, notes, and emails did not satisfy the CFAA’s “loss” requirement).
[34]See Mendez v. Piper, No. H041122, 2017 WL 1350770, at *14 (Cal. Ct. App. Apr. 12, 2017) (recognizing that the law surrounding an employee’s “rights of ownership and privacy in personal information” stored on a personal device is actively evolving).
[36] Blair, supra note 4, at 162–63. Private employees do not enjoy the right to privacy under the Fourth Amendment; this is reserved for public employees. Id.
[37]See, e.g., Mintz v. Mark Bartelstein & Assocs., Inc., 906 F. Supp. 2d 1017, 1033 (C.D. Cal. 2012) (concluding that the plaintiff had an expectation of privacy in his personal email account despite the fact that he used the account for work-related matters).
[38]See, e.g., Sitton v. Print Direction, Inc., 718 S.E.2d 532, 537 (Ga. Ct. App. 2011) (deciding that the use of an employee’s laptop to review that employee’s emails did not invade the employee’s privacy).
[39]See, e.g., Mintz, 906 F. Supp. 2d at 1033 (explaining the appropriateness of the plaintiff’s use of a password on his email account).
[40]See, e.g., In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005) (applying this four-prong test to determine whether employee privacy was breached).
[44]See H.J. Heinz Co. v. Starr Surplus Lines Ins. Co., No. 2:15-CV-00631-AJS, 2015 WL 12791338, at *4 (W.D. Pa. July 28, 2015) (describing a similar BYOD policy that gave Heinz Co. custody and control of any company data present on employees’ personal mobile devices), report and recommendation adopted, No. 2:15-CV-00631-AJS, 2015 WL 12792025 (W.D. Pa. July 31, 2015).
[45]See, e.g., Muick v. Glenayre Elec., 280 F.3d 741, 743 (7th Cir. 2002) (no reasonable expectation of privacy in workplace computer files where employer had announced that he could inspect the computer); Thygeson v. U.S. Bancorp, No. CV-03-467-ST, 2004 WL 2066746, at *20 (D. Or. Sept. 15, 2004) (no reasonable expectation of privacy in computer files and email where employee handbook explicitly warned of employer’s right to monitor files and email).
President John F. Kennedy signed the Equal Pay Act into law on June 10, 1963, remarking that such legislation constituted a “significant leap forward.”[1] Advocates of the bill heralded the legislation as “a matter of simple justice” ensuring that “there is no longer any excuse for paying women less than men for performing the same work, if there ever was any.”[2] Today, more than fifty years after Congress enacted the legislation, the pay gap persists. In 1963, when the law was enacted, women earned $0.59 to a dollar earned by men.[3] In 2018, fifty-five years later, women earned only $0.81 to a dollar earned by men—evidencing only meager progress towards closing the gender pay gap.[4] The persistence of the gap is, in part, created by the sustained use of prior salary information in setting employee compensation rates for new employees.[5] Currently, federal courts are split in their interpretation of a critical catch-all phrase in the Equal Pay Act (“EPA”)—an exception that permits an employer to pay individuals of different sexes disparate salaries for substantially equal work so long as the differential is based on a “factor other than sex.”[6] Employers have used this exception as justification for relying on prior salary history. Use of salary history inquiries, however, serves to perpetuate the wage gap, locking women into cycles of lower pay and “piling on” wage disparity from job to job.[7]
Prior to the Ninth Circuit’s 2018 en banc decision in Rizo v. Yovino,[8] federal courts had articulated three general approaches to the catch-all exception to the EPA. The Seventh Circuit’s pro-employer approach unequivocally permits the use of prior salary as either a standalone factor or in conjunction with other factors, creating a broad interpretation of the exception.[9] The Eighth Circuit has taken a slightly more restrictive approach, allowing the use of prior salary as the sole determinant of new salary but implementing a case-by-case reasonableness inquiry.[10] In contrast, the Tenth and Eleventh Circuits greatly limit the use of prior salary history, holding that the use of such information as the sole factor in setting an employee’s compensation violates the EPA.[11] The Ninth Circuit’s 2018 en bancdecision created a fourth category—the most restrictive interpretation of the EPA—prohibiting the use of salary history entirely.[12] Although many hoped the Supreme Court would resolve the split, after granting certiorari, the Court vacated and remanded Rizo on purely procedural grounds.[13] In early 2020, the Ninth Circuit reheard the case en banc, and issued a majority opinion that echoed the previous decision: Prior salary may not be considered in salary determinations. The Supreme Court has since declined to resolve the issue, leaving the circuit split unresolved and employers in an uncertain position, particularly those who may be subject to conflicting circuit interpretations and a dizzying array of local and state laws prohibiting or limiting the use of salary history inquiries.[14]
This Comment will first provide an overview of the history and text of the EPA, including the Supreme Court’s interpretation of the claim structure and available defenses for employers. Next, this Comment will detail the current status of the circuit split on this issue. This Comment will argue that the majority reasoning articulated in the Ninth Circuit’s 2020 en banc decision in Rizo is the best approach to resolving the ambiguity surrounding the “factor other than sex” exception to the EPA. Finally, this Comment will analyze the impact the split has on employers as well as the benefits created by broad prohibitions on the use of salary history.
II. Gender Wage Gap and the EPA
The origins of the EPA can be traced to the influx of female workers into the economy during World War II in response to severe labor shortages.[15] Following the war, men returning home displaced women from their wartime roles, sending the number of women in the workplace back to pre-World War II levels.[16] Women who managed to remain in the workforce were often reclassified into new roles and suffered decreased wages.[17] By 1963, women made an average of $21,959 per year, compared to an average annual male salary of $37,253—a 41.1 percent wage gap.[18]
Although several bills were introduced throughout the 1950s advocating for equal pay,[19] equal pay legislation did not gain significant traction until the Kennedy administration. President Kennedy signed the EPA into law as an amendment to the Fair Labor Standards Act on June 10, 1963, characterizing it as merely a “first step” towards economic equality.[20]
Despite the EPA’s egalitarian promise of equal pay for equal work, the wage gap persists today, more than fifty years after the legislation’s enactment. The wage gap has moderately narrowed since 1963,[21] but the rate of change has slowed significantly since 2001.[22] At the current rate women are not expected to receive pay parity until 2106.[23] Women of color experience an even greater disparity, with African-American and Latina women making $0.63 and $0.55 to the dollar, respectively, when compared with non-Hispanic white men.[24] Over the course of a forty-seven year career, a female college graduate will earn roughly $1.2 million less than a white male college graduate.[25] These figures highlight the importance of a consistent and transparent approach to the EPA’s protections.[26]
In Corning Glass Works v. Brennan,[27]the Supreme Court stressed that the EPA was not meant to be a passive prohibition on discrimination, but rather Congress’s remedy to the “endemic problem”[28] of different wage structures “based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.”[29] The solution to such a problem is to require that “equal work . . . be rewarded by equal wages.”[30] The Court has characterized congressional intent for the EPA to be “more than a token gesture to end discrimination”[31] and advised that the broad remedial nature of the statute be “construed and applied so as to fulfill the underlying purposes which Congress sought to achieve.”[32]
Under the EPA, employers are prohibited from discriminating between employees on the basis of sex in the wage rate for equal work unless the wage differential 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.”[33] Through this language, the EPA provides for four exceptions to the equal pay for equal work mandate of the legislation.[34] The fourth exception, a catch-all category providing for “any other factor other than sex,” is the subject of the current circuit split, with courts differing in their interpretations of whether salary history falls within the exception.
To establish his or her prima facie case under the EPA, a plaintiff must demonstrate “that an employer paid different wages to employees of opposite sexes ‘for equal work on jobs the performance of which are performed under similar working conditions.’”[35] Once the plaintiff has established his or her prima facie case, the burden shifts to the employer to prove the differential was made pursuant to one of the statutory exceptions.[36] Although the Supreme Court has characterized the proof structure of the EPA as “straightforward,”[37] deciphering the implications of a “factor other than sex” has proved otherwise.
III. Circuit Split: Is Salary History a “Factor Other Than Sex” Under the EPA’s Affirmative Defenses?
A. Seventh Circuit: Salary History Is Unequivocally a “Factor Other Than Sex”
In addressing the scope of the catch-all exception the Seventh Circuit has adopted the broadest construction of “factor other than sex,” holding that “wages at one’s prior employer are a ‘factor other than sex’ and . . . an employer may use them to set pay consistently with the Act.”[38] Disapproving of any approach that requires a court to second-guess the motivations of an employer’s use of a “factor other than sex,” the Seventh Circuit emphasizes “Section 206(d) does not authorize courts to set their own standards of ‘acceptable’ business practices. The statute asks whether the employer has a reason other than sex—not whether it has a ‘good’ reason.”[39] Under this approach salary history always constitutes a “factor other than sex,” enabling an employer to assert an affirmative defense under the EPA to liability for sex-based wage differentials.[40]
B. Eighth Circuit: Case-by-Case Analysis of the Use of Prior Salary History
Similarly, the Eighth Circuit does not recognize a blanket prohibition against the use of prior salary.[41] In contrast to the Seventh Circuit’s approach, the Eighth Circuit acknowledges the potential for employers to use prior salary history in a discriminatory manner.[42] Despite this concern, the Eighth Circuit has held that such opportunity for misuse does not warrant a per se prohibition against the use of salary history policies.[43] Rather, courts must undertake careful examination of the record to ensure the employer is not relying on the “market forces” theory “to justify lower wages for female employees simply because the market might bear such wages.”[44] By requiring a case-by-case reasonableness assessment of an employer’s use of the “factor other than sex” defense, the Eighth Circuit adopts a slightly narrower interpretation of the EPA exception, though one largely supportive of the use of salary history policies.
C. Tenth and Eleventh Circuits: The Use of Salary History Alone in Setting Compensation Does Not Constitute a “Factor Other Than Sex”
Before the Ninth Circuit’s en banc decision completely prohibiting the use of salary history, the Tenth and Eleventh Circuits had adopted the most restrictive interpretations of a “factor other than sex.”[45] The approach shared by these circuits permits the use of salary history only when used in conjunction with additional factors.[46] Although an employer may consider an applicant’s prior salary, a pay disparity may not be premised on this factor alone.[47]
D. Ninth Circuit: En Banc Decision Prohibits Any Use of Salary History
In its 2018 en bancdecision in Rizo v. Yovino, the Ninth Circuit overturned existing circuit precedent and adopted an approach even more restrictive than that of the Tenth and Eleventh Circuits.[48] A few months later the Supreme Court granted certiorari for Yovino v. Rizo, and it appeared as though the circuit split regarding the interpretation of “factor other than sex” would finally be resolved.[49] The Supreme Court, however, vacated the case on a distinct procedural posture issue and avoided the EPA question entirely.[50] Following the remand, the Ninth Circuit reheard the case en banc, and issued an opinion reaffirming its restrictive approach: employers may not use salary history when determining pay levels.[51]
In February 2014, Plaintiff Aileen Rizo filed suit against Defendant Jim Yovino in his official capacity as Superintendent of Fresno County Office of Education (“FCOE”).[52] Rizo filed four causes of action including violation of the EPA and sex discrimination under Title VII.[53] In 2009, Rizo applied for, and was offered, a position as a math consultant in FCOE’s Science, Technology, Engineering, and Mathematics program.[54] In accordance with FCOE’s Standard Operating Procedure 1440, Rizo’s initial salary was determined by adding 5 percent to her most recent salary and placing her on Step 1 of the county’s salary schedule.[55] Three years later, Rizo learned of a male colleague who had just been hired by FCOE as a math consultant but placed on Step 9 of the salary schedule.[56] Rizo argued she established her prima facie case for an EPA claim by showing that she, a woman, was placed on a lower salary schedule step than a male employee hired to perform substantially the same work.[57] The County did not dispute that Rizo had satisfied her prima facie case, thereby shifting the burden to the County to prove the wage disparity resulted from one of the EPA’s four available exceptions.[58] The County argued that since it had used her salary history in application of its standard operating procedure, the differential fell within the catch-all exception of a “factor other than sex” and thus was permissible.[59]
The district court acknowledged it was placed in the unique position of interpreting whether the use of prior salary alone properly fell within the catch-all exception.[60] The court distinguished Rizo from Ninth Circuit precedent[61] in Kouba v. Allstate.[62] In Kouba, the Ninth Circuit held, “the Equal Pay Act does not impose a strict prohibition against the use of prior salary.”[63] Noting that the employer in Kouba relied on multiple factors in setting an employee’s salary, the district court differentiated Rizo as the County determined her new salary solely through the use of her prior salary.[64] Thus, the district court found that the standard operating procedure violated the EPA and denied FCOE’s motion for summary judgement.[65]
FCOE petitioned for, and was granted, interlocutory appeal from the district court’s order denying summary judgment.[66] The three-judge panel of the Ninth Circuit found that the case was controlled by Kouba, rejecting any strict prohibition on salary history, and vacated and remanded the district court’s order.[67]
In late 2017, the Ninth Circuit granted Rizo’s petition for a rehearing en banc to determine the continued applicability of Kouba.[68] All eleven circuit court judges agreed that an employer’s use of prior salary alone to set an employee’s new salary violates the EPA, and thus Fresno County’s standard operating procedure was impermissible.[69] Beyond this however, the circuit was severely split in its reasoning regarding the limits of the catch-all exception, a “factor other than sex.”[70] Authoring the six-judge majority opinion, Judge Stephen Reinhardt held that the EPA prohibits an employer from relying on prior salary as a justification, either alone or in conjunction with other factors, for a wage differential between male and female employees.[71] Relying on the text, history, and purpose of the EPA, Judge Reinhardt explicitly overruled Kouba, refuting the Ninth Circuit’s prior contention that reliance on prior salary is job related and therefore permissible under the catch-all exception.[72] The United States Supreme Court granted certiorari to review the en bancdecision.[73] Although many employers hoped for a resolution of the uncertainty surrounding the exception,[74] the Supreme Court’s per curiam opinion was entirely focused on the resolution of a different question.[75] Because the Ninth Circuit’s decision was issued eleven days after the death of Judge Stephen Reinhardt, the Supreme Court held the use of his vote rendered the decision void and vacated the en bancjudgment, remanding for further proceedings.[76]
Upon remand, the Ninth Circuit reconsidered FCOE’s appeal en banc in early 2020.[77] Similar to the decision issued in 2018, all eleven judges agreed that FCOE’s use of prior salary as the sole factor in setting Rizzo’s salary violated the EPA. However, the judges remained split over the consideration of prior salary in conjunction with other factors.
The majority opinion, authored by Judge Christen, incorporated the arguments advanced by Judge Reinhardt. Starting with the text of the EPA, the majority argues each word of the statute—”any other factor other than sex”[78]—should be given effect and concludes that the catch-all defense is limited to job-related factors.[79] Employing two canons of construction, noscitur a sociis and ejusdem generis, the majority held that the text of the EPA requires the catch-all to be job-related.[80]
The majority also looked to the legislative history and purpose of the EPA for additional support for its interpretation of the catch-all exception. As emphasized in Corning Glass, Congress intended the EPA to remedy the “serious and endemic problem” of wage discrimination in private employment.[81] After determining that the fourth exception includes only job-related factors, the majority concluded that prior pay is not such a job-related factor.[82] This en banc decision ratifies the narrow scope of the catch-all provision previously articulated by the late Judge Reinhardt. Under the majority’s approach, prior salary may not be used in determining an employee’s salary as it serves no job-related purpose.[83] This limiting construction, however, was not adopted by the entire circuit; the two concurrences criticize the extent of the majority’s ban on the use of prior salary, arguing it should be permitted in conjunction with other factors.[84]
In July 2020, the Supreme Court denied certiorari for the case, declining to resolve the circuit split. As a result, circuits remain deeply divided on the legal question of whether prior salary constitutes a “factor other than sex” either alone or in combination with other factors and employers continue to face conflicting requirements.
IV. The Impact of the Circuit Split on Employers
In response to the lack of clarity regarding the use of salary history on the federal level, and growing concerns regarding the role of salary history in perpetuating gender inequality, many states and localities have enacted legislation limiting the use of salary history in setting new employees’ salaries.[85] The specifics of the legislation differ among jurisdictions, creating nuances that frustrate the development of a “one-size fits all approach to compliance.”[86] Beyond the uncertainty created by the circuit split, employers are faced with a patchwork of state and local laws that further complicates a standard approach to recruiting.
For many employers, questions regarding salary history have long been a standard aspect of the hiring process.[87] This type of inquiry quickly provides employers with information about a potential applicant early in the interview process.[88] Salary history inquiries allow employers to remove from consideration those candidates with higher previous salaries than the amount budgeted for the job in question, while allowing candidates who previously earned less to be “snapped up at a bargain.”[89] This early screening is considered to be the greatest advantage of using salary history to set new employees’ compensation.[90] Salary history bans and interpretations of the EPA that exclude salary history as an available affirmative defense force employers to reconfigure hiring practices and compensation policies.[91]
To ensure compliance with the dynamic legal landscape regarding the use of salary history, many employers have proactively begun to eliminate these inquiries from their hiring procedures.[92] For companies with national footprints and workforces, the necessity of a uniform hiring approach is critical.[93] Rather than create a set of disparate hiring policies, each tailored to the unique requirements of the jurisdiction, these companies have sought to preempt any future changes.[94] Nearly half of the executives surveyed in a 2017 study concerning the implications of salary history bans indicated that they would change their policies to comply with the most restrictive legislation rather than creating policies that vary by location.[95] As a result, human resources experts forecast the elimination of salary history policies to emerge as a recruiting best practice.[96] The need for a consistent interpretation of the EPA’s “factor other than sex” exception is important in providing employers with a clear mandate, one on which they can craft legal and enforceable policies.
A. The Most Effective Interpretation of “Factor Other Than Sex”
The deepening circuit split and proliferation of state and local legislation on the topic beg the question: Which circuit approach should be adopted as the national standard, and to what extent, if at all, does salary history constitute a “factor other than sex” as an affirmative defense to gender wage disparities under the EPA? The Ninth Circuit’s 2020 en bancdecision provides a bright-line rule for employers; consideration of salary history is not permitted under the EPA, either alone or in combination with other factors, in justifying a gender-based wage disparity.[97] This approach, although by far the most narrow interpretation of the EPA’s “factor other than sex,” best reflects legislative history and conforms with the legislative text. Furthermore, prohibiting the use of salary history in setting employee salary rates benefits employers and employees alike by shifting the basis of compensation to the skills, experience, and responsibilities of the candidate, a notable step in the right direction to eliminating gender pay inequity.
B. Advantages of Ninth Circuit’s Approach
The complete prohibition on the use of salary history, adopted by the Ninth Circuit initially in 2018 and again in 2020, provides clear guidance to employers and reflects the original intent of the EPA. A salary history inquiry “forces women and, especially women of color, to carry lower earnings and pay discrimination with them from job to job.”[98] The EPA was designed to force employers to address explicit gender discrimination and justify any wage differentials. Broad constructions of “factor other than sex” that permit reliance on salary history simply enable employers to perpetuate such discrimination without articulating a non-discriminatory reason for the disparity.
The text of the EPA’s catch-all affirmative defense allows employers to justify wage-based pay differentials if the disparity is due to any “factor other than sex.”[99] At the time of the legislation’s enactment salary history was directly related to sex. The extreme wage disparity of the mid-1960s, with women earning roughly $0.59 to a man’s $1.00 for substantially the same work, reflects this reality.[100] The text of the EPA, as originally enacted, understood women’s salaries to be inherently gendered and the product of long-standing discrimination. Because legislators at the time of the EPA’s passage considered women’s salaries to be a product of their sex, any interpretation of the catch-all exception that permits salary history as a “factor other than sex” is contrary to the original interpretation of the affirmative defenses available to employers.
In comparison to the approaches adopted by other circuits, the Ninth Circuit’s bright-line rule provides a decisive and reasoned interpretation of the catch-all exception. The Seventh Circuit’s approach allows employers to perpetuate gender discrimination by locking women into a cycle of lower wages than their male colleagues, in direct contrast to the stated purposes of the EPA. The Eighth Circuit’s case-by-case analysis leaves employers with a limited understanding as to how a court will evaluate a claimed affirmative defense. Finally, the Tenth and Eleventh Circuits’ limited use of salary history, in conjunction with other factors, is redundant. If an employer has an alternative criterion to justify a wage disparity, such as an applicant’s education or prior experience, then salary history should be rendered unnecessary. In contrast, drawing from the text and purpose of the EPA, the Ninth Circuit’s approach provides clear direction for employers, prohibiting the use of salary history.
C. Benefits to Employers from Eliminating Salary History Inquiry
Given the extent of changes to recruiting policies that are required to ensure compliance with judicial and legislative changes to the use of salary history, it is unsurprising that employers have been reluctant to adapt. Without doubt, the adoption of the Ninth Circuit’s interpretation of “factor other than sex,” prohibiting any sort of reliance on salary history, will require significant alterations to recruiting processes.[101] Lost in the current discourse concerning salary history bans, however, is a discussion of their potential advantages to employers. Employers can incur both economic and non-monetary benefits from ending inquiries into applicants’ prior salaries. Embracing salary history bans and reimagining human resources policies to ensure employees are compensated based on their experience and skills rather than their previous salaries can help employers recruit and retain top talent while limiting the expenses associated with a changing workforce.
1. Monetary Benefits
Ending the use of salary history in compensation determinations can result in direct economic benefits for employers, including better valuation of skills, fewer wage discrimination lawsuits, and reduced employee turnover.
Although helpful in initial application reviews, salary history is largely unrelated to a candidate’s ability to do the job.[102] Instead, employers should seek to “price the job, not the person.”[103] Removing salary history questions from employment applications forces employers to identify the core knowledge and skill requirements of the job and measure the job’s value to the organization rather than simply relying on a previous employer’s perception of the position’s value. Because past salary “often reflects the historical market forces which value the equal work of one sex over the other,” prior salary is an imperfect proxy for the market value of an applicant or a position.[104] Through approaches intended to address the wage gap, such as pay audits and increased reliance on market data regarding compensation levels, employers will not only have a better sense of any wage gaps within their organization, but also a clearer understanding of the true “going-rate” of certain positions.
Furthermore, eliminating salary history inquiries protects employers from potential wage discrimination lawsuits.[105] Beyond ensuring compliance with the complex legal landscape of salary history bans, removing this information from applications ensures employers have additional, defensible reasons for a wage differential such as an employee’s experience or education.[106]
Finally, employers benefit economically from the increased efficiency created by an engaged workforce with minimal employee turnover. Shifting to more transparent pay structures, including eliminating the use of salary history data, improves employee engagement while decreasing the likelihood of turnover.[107] Employees feel valued for their contributions and are more likely to perceive a sense of fairness and collaboration within an organization.[108] The costs associated with employee turnover are substantial, with the costs to replace the employee approximating 20 percent of the employee’s salary.[109] While changing recruiting approaches and human resources policies to eliminate the use of salary history create upfront expenses, employers stand to benefit economically from such changes long-term.
2. Non-Monetary Benefits
Ending reliance on salary history also fosters non-monetary benefits for employers. In addition to the advantages of a more engaged workforce, employers that do not rely on salary history are able to draw from a larger and more talented candidate pool and are perceived as better places to work.[110] Recent research indicates that employers without access to prior salary data actually interview more applicants than those provided with such data.[111] Instead of relying on prior salary as an indicator of productivity, employers ask more substantive questions regarding the applicant’s role at previous jobs, inquiring into the skills and responsibilities involved in former positions.[112] By using prior salary as a screening mechanism, employers have effectively used this data as a proxy of an applicant’s interest in a position.[113] This, however, limits an employer’s prospective applicant pool, shutting out potentially talented employees from even initial interviews.[114] Those reentering the workforce, particularly female workers who have taken time off for familial reasons, are penalized if they choose to apply for lower-paying, less demanding roles.[115] Non-monetary compensation, including greater benefits, flexibility, and paid time off, can be major selling points for certain applicants.[116] The use of salary history, however, would exclude those same applicants from consideration despite their potential experience and value if their prior salaries are above the employer’s perceived cut-off.
Lastly, employers benefit from the positive public perception associated with eliminating the use of prior salary information. As salary history bans become more widespread, applicants may view salary history inquiries negatively, perceiving them as a violation of privacy and assuming that disclosure of their salary would put them at a disadvantage.[117] Although employees are open to discussing their salaries among friends and colleagues,[118] this type of inquiry from a prospective employer may come across as “intrusive and heavy-handed.”[119] Changing the conversation from prior salary history to a discussion of an applicant’s target or expected salary can benefit an employer’s brand and help to recruit talent.[120]
Proponents of the use of salary history argue that salary history bans limit an employer’s ability to quickly and efficiently screen candidates.[121] Prior salary information is seen as a fast, low-cost method of assessing an applicant’s candidacy for a job, evaluating whether the employer can afford the applicant and identifying a starting point for salary negotiations.[122] This initial screen, however, can be achieved through other means that do not have the discriminatory impact of prior salary inquiries. Employers can avoid spending time on candidates outside of their target ranges by providing candidates with a salary range or pay band expectations at the outset of the application process.[123] This can help to set the expectations of both the applicant and the employer, leading those applicants seeking higher salaries to pursue other opportunities while also ensuring employers do not rely on the market forces theory, dropping compensation below the internally anticipated range simply because an applicant’s prior salary is lower.
V. Conclusion
While signing the EPA, President Kennedy observed that “much remains to be done to achieve full equality of economic opportunity.”[124] Over fifty years later, this statement continues to ring true today.[125] The fourth exception delineated in the EPA, permitting wage differentials between sexes so long as the disparity is based on a “factor other than sex,” remains an area where further change is required.
Currently, federal circuits are deeply split on the issue of whether the use of an employee’s salary history is a permissible basis for a wage disparity under the EPA’s catch-all exception.[126] Although it briefly appeared as though the Supreme Court would resolve the uncertainty surrounding this exception, the Court’s decision in Yovino v. Rizo failed to settle the issue.[127] As a result, employers are faced with vastly different judicial interpretations of the exception in addition to an increasingly complex landscape of local and state laws on the issue.[128]
The approach first articulated by Judge Reinhardt in his 2018 decision, and later affirmed by the Ninth Circuit’s 2020 en bancdecision in Rizo v. Yovino, provides the most effective interpretation—prohibiting the use of prior salary from consideration as either the sole factor or one of multiple criteria. Eliminating the use of salary history information helps to disrupt the cycle of wage discrimination suffered by minority employees and can provide both economic and non-monetary benefits to employers. As the late Judge Reinhardt noted, “Allowing prior salary to justify a wage differential perpetuates this message, entrenching in salary systems an obvious means of discrimination—the very discrimination that the Act was designed to prohibit and rectify.”[129]
* J.D. Candidate 2021, Wake Forest University School of Law; International Politics, B.S. 2016, Georgetown University. Thank you to the Board and Staff of the Wake Forest Law Review for their time and effort on this Comment. I would also like to thank my mother, Susan Foster, for reading countless drafts of this Comment and listening to endless discussions on pay parity.
[6]. Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1)(iv).
[7]. Rizo v. Yovino, 887 F.3d 453, 469 (9th Cir. 2018) (McKeown, J., concurring); see also Miller & Vagins, supra note 4, at 21.
[8]. 887 F.3d 453 (9th Cir. 2018).
[9]. Wernsing v. Dep’t of Hum. Servs., Ill., 427 F.3d 466, 468 (7th Cir. 2005).
[10]. Taylor v. White, 321 F.3d 710, 720 (8th Cir. 2004); see also Drum v. Leeson Elec. Corp., 565 F.3d 1071, 1073 (8th Cir. 2009) (applying Taylor).
[11]. Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015); Angove v. Williams-Sonoma, Inc., 70 F. App’x 500, 508 (10th Cir. 2003); Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995).
[12]. Rizo, 887 F.3d at 460–61.
[13]. Yovino v. Rizo, 139 S. Ct. 706, 710 (2019). In its per curiam decision, the Court addressed the issue of whether a judge who died prior to the issuance of the opinion can be counted as a member of the majority, failing to resolve the uncertainty surrounding the EPA exception. Id. at 707–08.
[15]. Equal Pay Act of 1963, Nat’l Park Serv., https://www.nps.gov/articles/equal-pay-act.htm (last updated Apr. 1, 2016). The number of women in the civilian workforce grew rapidly during this time, increasing from roughly 24 percent at the beginning of the twentieth century to 37 percent by 1945. See id. An early push for equal compensation came from union leaders as they attempted to ensure that men’s wages after the war would not be undercut by the “cheaper” women’s labor. See id.
[16]. See id.
[17]. See id.
[18]. Lane & Robbins, supra note 3.
[19]. Pearsall, supra note 1. Additionally, in his 1956 State of the Union Address, President Dwight D. Eisenhower urged Congress to move forward with such legislation, remarking: “Legislation to apply the principle of equal pay for equal work without discrimination because of sex is a matter of simple justice.” Annual Message to the Congress on the State of the Union. Jan 5, 1956, Eisenhower Libr. (Jan. 5, 1956), https://www.eisenhowerlibrary.gov/sites/default/files/file/1956_state_of_the_union.pdf.
[20]. Equal Pay Act of 1963, supra note 15.
[21]. In 2018, women’s earnings constituted 82 percent of men’s earnings. Bleiweis, supra note 4.
[22]. Id. From 1960 to 2001 the rate of change was 0.38 percent per year; from 2001 to 2017 the rate was 0.26 percent per year. Miller & Vagins, supra note 4, at 5.
[26]. In 2018, the Ninth Circuit criticized the current status of the promise of equal pay, noting that “[a]lthough 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.” Rizo v. Yovino, 887 F.3d 453, 456 (9th Cir. 2018), vacated, 139 S. Ct. 706 (2019).
[27]. 417 U.S. 188 (1974).
[28]. Id. at 195.
[29]. S. Rep. No. 88-176, at 1 (1963).
[30]. Id.
[31]. Corning Glass Works, 417 U.S. at 205, 208 (“To permit the company to escape [the] obligation [of paying male and female workers equally for the same work] by agreeing to allow some women to work on the night shift at a higher rate of pay as vacancies occurred would frustrate, not serve, Congress’s ends.”).
[32]. Id. at 208.
[33]. Equal Pay Act, 29 U.S.C. § 206(d)(1).
[34]. Id.
[35]. Corning Glass Works, 417 U.S. at 195 (citing Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1)). Although the EPA has similar objectives to Title VII in prohibiting discrimination in employment, the two statutes have distinct proof structures. In contrast to Title VII’s McDonnell Douglas burden-shifting framework, the EPA “creates a type of strict liability” for those employers who pay sexes differently for the same work. Compare McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (“The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. . . . The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”), with Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986). Unlike Title VII, a plaintiff who demonstrates a wage disparity is not required to prove discriminatory intent under the EPA. See Maxwell, 803 F.2d at 446.
[36]. Corning Glass Works, 417 U.S. at 196. The statutory exceptions are affirmative defenses that must be both pled and proved by the employer. Kouba v. Allstate Ins. Co., 691 F.2d 873, 875 (9th Cir. 1982); see also CorningGlass Works, 417 U.S. at 196–97.
[37]. Corning Glass Works, 417 U.S. at 195 (referring to the EPA’s “basic structure and operation” as “straightforward”).
[38]. See Wernsing v. Dep’t of Hum. Servs., Ill., 427 F.3d 466, 468 (7th Cir. 2005).
[39]. Id. at 468. In defense of its broad interpretation, the Seventh Circuit criticizes other circuits that have adopted a narrower construction and argues that those circuits have violated the text and explicit exceptions of EPA. See id. at 470.
[40]. See id.; see also Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1462 (7th Cir. 1994) (citing Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989)) (“We explained in Fallon that the EPA’s fourth affirmative defense ‘is a broad “catch-all” exception [that] embraces an almost limitless number of factors, so long as they do not involve sex.’”); Covington v. S. Ill. Univ., 816 F.2d 317, 322 (7th Cir. 1987).
[41]. See Taylor v. White, 321 F.3d 710, 717–20 (8th Cir. 2003).
[42]. See id. at 718 (“While we recognize that salary retention policies might lead to wage decisions based on factors unrelated to an individual’s qualifications for a particular job, such policies are not necessarily gender biased.”).
[43]. See id.
[44]. Drum v. Leeson Elec. Corp., 565 F.3d 1071, 1073 (8th Cir. 2009); see also Corning Glass Works v. Brennan, 417 U.S. 188, 205 (1974) (rejecting employer’s “market forces” argument that the gender-based wage differential arose due to a job market that allowed women to be paid less than men for the same work).
[45]. See Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015); Angove v. Williams-Sonoma, Inc., 70 F. App’x 500, 508 (10th Cir. 2003); Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995).
[46]. See Riser, 776 F.3d at 1199; Angove, 70 F. App’x at 508. In Riser v. QEP Energy, the Tenth Circuit reiterated existing circuit precedent holding that “the EPA ‘precludes an employer from relying solely upon a prior salary to justify pay disparity.’” 776 F.3d at 1199 (quoting Angove, 70 F. App’x at 508).
[47]. See Riser, 776 F.3d at 1199. Similarly, the Eleventh Circuit has also rejected employers’ sole reliance on prior salary as a valid “factor other than sex” exception to the EPA’s pay equity mandate, but has permitted “mixed-motive” salary determinations. See Irby, 44 F.3d at 955. In Irby v. Bittick, the Eleventh Circuit held that “[w]hile an employer may not . . . rest[] on prior pay alone, . . . there is no prohibition on utilizing prior pay as part of a mixed-motive, such as prior pay and more experience.” Id.
[48]. See Rizo v. Yovino, 887 F.3d 453, 456 (9th Cir. 2018) (“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.”), vacated, 139 S. Ct. 706 (2019); see also id. at 468 (“Because Kouba, however construed, is inconsistent with the rule that we have announced in this opinion, it must be overruled.”).
[49]. Yovino v. Rizo, 139 S. Ct. 706, 710 (2019).
[50]. Id. at 707 (“The petition in this case presents the following question: May a federal court count the vote of a judge who dies before the decision is issued?”).
[51]. See Rizo v. Yovino, 950 F.3d 1217, 1231 (9th Cir. 2020) (“[I]f called upon to defend against a prima facie showing of sex-based wage discrimination, the employer must demonstrate that any wage differential was in fact justified by job-related factors other than sex. Prior pay, alone or in combination with other factors, cannot serve as a defense.”).
[52]. See Rizo v. Yovino, No. 14-cv-0423, 2015 WL 13236875, at *1 (E.D. Cal. Dec. 4, 2015).
[53]. See id.
[54]. See id. at *3.
[55]. See id. at *2–3.
[56]. See id. at *4.
[57]. See id. at *6.
[58]. See id.
[59]. See id.
[60]. See id. at *7.
[61]. See id. (“The Ninth Circuit inKouba was not called upon to, and did not, rule on the question of whether a salary differential based solely on prior earnings would violate the EPA, even if motivated by legitimate, non-discriminatory business reasons.”).
[62]. 691 F.2d 873 (9th Cir. 1982).
[63]. Id. at 878.
[64]. See Rizo, 2015 WL 13236975, at *6–7.
[65]. See id. at *8–9 (“[N]othwithstanding its non-discriminatory purpose, SOP [Standard Operating Procedure] 1440 necessarily and unavoidably conflicts with the EPA.”).
[66]. See Rizo v. Yovino, 854 F.3d 1161, 1165 (9th Cir. 2017).
[67]. See id. at 1163. The panel emphasized that the Circuit continued to adhere to the interpretation articulated in Kouba: That the EPA does not impose a per se prohibition on the use of prior salary, and, further, the use of prior salary as the sole factor of consideration does not change this reasoning. See id. at 1166 (“We do not agree with the district court that Kouba left open the question of whether a salary differential based solely on prior earnings violates the Equal Pay Act. To the contrary, that was exactly the question presented and answered in Kouba.”).
[68]. See Rizo v. Yovino, 887 F.3d 453, 459 (9th Cir. 2018).
[69]. See id. at 456; id. at 469 (McKeown, J., concurring); id. at 477 (Callahan, J., concurring); id. at 478 (Watford, J., concurring).
[70]. See id. at 460 (“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. . . . 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.”); id. at 469 (McKeown, J., concurring) (“In my view, prior salary alone is not a defense to unequal pay for equal work. . . . However, employers do not necessarily violate the Equal Pay Act when they consider prior salary among other factors when setting initial wages.”); id. at 477 (Callahan, J., concurring) (“[N]either 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 . . .’”); id. at 478 (Watford, J., concurring) (“[P]ast pay can constitute a ‘factor other than sex,’ but only if an employee’s past pay is not itself a reflection of sex discrimination.”).
[71]. Id. at 456. “To hold otherwise—to allow employers to 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.” Id. at 456–57.
[72]. Id. at 468. “Reliance on past wages simply perpetuates the past pervasive discrimination that the Equal Pay Act seeks to eradicate. Therefore, . . . past salary may not be used as a factor in initial wage setting, alone or in conjunction with less invidious factors.” Id.
[76]. Id. at 707–10. The Court noted that the Ninth Circuit’s use of Judge Reinhardt’s vote “effectively allowed a deceased judge to exercise the judicial power of the United States after his death” while “federal judges are appointed for life, not for eternity.” Id. at 710.
[78]. Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (emphasis added); see alsoRizo, 950 F.3d at 1224 (“The fourth exception is often shortened to ‘any factor other than sex,’ but here we are called upon to define its precise contours and we examine every word: ‘any other factor other than sex.’”) (internal citations omitted) (emphasis in original).
[79]. Rizo, 950 F.3d at 1224 (“Because the three enumerated exceptions are all job-related, and the elements of the ‘equal work’ principle are job-related, Congress’ use of the phrase ‘any other factor than sex’ . . . signals that the fourth exception is also limited to job-related factors.”).
[80]. Id. at 1224–25. Noscitur a sociis advises courts to interpret words that are grouped together as carrying similar meanings. See Yates v. United States, 574 U.S. 528, 543 (2015) (citing Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)) (“[W]e rely on the principle of noscitur a sociis—a word is known by the company it keeps—to ‘avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.’”). When applied to the ambiguous “factor other than sex” exception, this canon requires the general exception to be interpreted similarly to the specific job-related exceptions of seniority, merit, and productivity delineated by the EPA. Rizo, 950 F.3d at 1224 (“Because the enumerated exceptions are job-related, the more general exception that follows them refers to job-related factors too.”). Similarly, ejusdem generis requires general words at the end of a list to be understood as related and similar to the preceding, specific words. See Norfolk & W. Ry. Co. v. Am. Train DispatchersAss’n, 499 U.S. 117, 129 (1991) (“Under the principle of ejusdem generis, where a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.”). Through this lens, the catch-all exception “any other factor than sex” must be limited to job-related reasons. Rizo, 950 F.3dat 1225 (“Because all of the enumerated exceptions are job-related, the general exception that follows—’any factor other than sex’—is limited to job-related factors.”).
[81]. Corning Glass Works v. Brennan, 417 U.S. 190, 195 (1963); see also S. Rep. No. 88-176, at 1 (1963).
[82]. Rizo, 950 F.3d at 1228 (“But prior pay itself is not a factor related to the work an employee is currently performing, nor is it probative of whether sex played any role in establishing any employee’s pay.”).
[83]. See id. at 1229 (“[W]e conclude that the wage associated with an employee’s prior job does not qualify as a factor other than sex that can defeat a prima facie EPA claim.”). See also Rizo v. Yovino, 887 F.3d 453, 468 (9th Cir. 2018) (“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.”) vacated, 139 S. Ct. 706 (2019).
[84]. See Rizo, 950 F.3d at 1232 (McKeown, J., concurring) (“But the majority goes too far in holding that any consideration of prior pay is ‘inconsistent’ with the Equal Pay Act, even when it is assessed alongside other job-related factors . . .”); id. at 1242 (Callahan, J., concurring) (“Nonetheless, the majority goes beyond what is necessary to resolve this appeal and mistakenly proclaims that prior salary can never be considered as coming within the fourth exception to the Equal Pay Act.”). Judges McKeown and Callahan also authored concurrences to the 2018 en banc decision authored by Judge Reinhardt, similarly criticizing the bright-line rule barring employers from ever considering prior pay. See Rizo, 887 F.3d at 469 (McKeown, J., concurring) (“[T]he majority goes too far in holding that any consideration of prior pay is ‘impermissible’ under the Equal Pay Act.”); id. at 472–73 (Callahan, J., concurring) (“I write separately because in holding that prior salary can never be considered the majority fails to follow Supreme Court precedent.”). Judge Watford authored a separate concurrence in 2018 but joined the majority in 2020. See id. at 478. But seeRizo, 950 F.3d at 1219.
[85]. Salary History Bans, Alliance 2020, https://www.alliance2020.com/resources/salary-history-bans/ (last visited Feb. 20, 2021). As of February 2021, eighteen states and fifteen localities have legislation banning the use of salary history. See id.
[93]. To illustrate this complexity, consider the structure of two household names. In 2018, Apple had over 2.4 million employees in the United States across all fifty states, four times greater than the number of U.S. employees it had in 2010. See, e.g., Apple’s US Jobs Footprint Grows to 2.4 Million, Apple: Newsroom (Aug. 15, 2019), https://www.apple.com/newsroom/2019/08/apples-us-job-footprint-grows-to-two-point-four-million/ (expanding workforce to include employees in all fifty states). Projecting similar growth, Amazon announced the creation of 3,000 jobs for “remote workers” in March 2019. Abigail Hess, Amazon is Hiring 3,000 Remote Workers in 18 States,CNBC (Mar. 11, 2019), https://www.cnbc.com/2019/03/11/amazon-is-hiring-3000-remote-workers-in-18-states.html. The job listings for these customer service positions indicated the roles were distributed across eighteen states. See id. With these workforce expansions, both of these companies would now be subject to each of the varying interpretations of “factor other than sex.” Considering the impact of the circuit split alone, without the effects of state and local laws, Apple and Amazon may set the salaries of new employees in Wisconsin, located in the Seventh Circuit, on the sole basis of prior salary. However, for employees one state away in Iowa, located in the Eighth Circuit, the companies would have to show the use of prior salary for employees did not improperly rely on the prohibited market forces theory. The same companies could only rely on prior salary history for employees in New Mexico and Alabama, located in the Tenth and Eleventh Circuits respectively, if they also used other factors, such as experience and education, to justify the wage disparity. Add to this confusion the restrictions of various state and local laws, and the landscape becomes bewildering.
[98]. Nat’l Women’s L. Ctr., Asking for Salary History Perpetuates Pay Discrimination from Job to Job 1 (2018), https://nwlc.org/wp-content/uploads/2018/12/Asking-for-Salary-History-Perpetuates-Discrimination-1.pdf. This cycle of discrimination is precisely what the EPA was designed to remedy. The legislation was introduced in response to a report issued by President Kennedy’s Commission on the Status of Women recommending equal pay statutes for comparable work. President’s Comm’n on the Status of Women,American Women 37 (1963); see also Audio tape: John F. Kennedy,Statement by the President on the Establishment of the President’s Commission on the Status of Women (Dec. 14, 1962) (transcript available in the John F. Kennedy Presidential Library and Museum) (“It is my hope that the Commission’s Report will indicate what remains to be done to demolish prejudices and outmoded customs which act as barriers to the full partnership of women in our democracy.”).
[99]. Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1).
[112]. See id. In response to the lack of data regarding an applicant’s salary history, “employers responded to their information deficit primarily by acquiring more of their own information.” Id. Although more effort is required to thoroughly screen applicants without salary history information, by getting a sense of prior job attributes through questioning rather than the use of a salary proxy, employers cast a wider net and hired a broader pool of applicants than those that would have been hired based on prior salary alone. See id.
[113]. See Nat’l Women’s L. Ctr., supra note 98, at 3.
[114]. See id. at 3. Using salary history as an indicator for interest in a position can remove more experienced workers with higher salaries from consideration even if they are interested into pursuing positions with less responsibilities or lower time commitments. Employers relying on the prior salaries of these applicants would deem them too expensive for the position and they would be screened out of the application process. See id. at 1.
