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A US court just outlawed one of the biggest excuses for the gender pay gap

Oliver Staley
By Oliver Staley

Culture & lifestyle editor

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Women can’t be paid less than men based on their previous salary, a US appeals court ruled today (April 9), a major victory for advocates fighting to close the gender pay gap.

While states and cities like Massachusetts and New York City have passed laws forbidding employers from asking about a candidate’s prior wages, today’s decision (pdf) says that using a woman’s previous salary as an excuse for paying her less than a man is in itself illegal and a violation of the 1963 law abolishing discrimination in pay.

Up to now, prior wages—along with factors like experience and education—had been one of the permissible reasons for paying women lower salaries.

“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 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,” wrote the late Stephen Reinhardt, the chief justice of the court, who died after the opinion was written and before it was released.

The unanimous decision by 11 judges on the ninth circuit court in San Francisco comes on the eve of America’s Equal Pay Day, which marks how long US women need to work into the year to match the pay of men from the previous year.

The case was brought by Aileen Rizo, a math consultant hired by Fresno County in 2009, whose starting pay was set according to a formula that added 5% to her previous salary. Three years later, while having lunch with colleagues, she learned that male employees in the same position started at a higher salary. She sued the county under the Equal Pay Act, arguing the system was a form of sex discrimination.

Fresno County argued that the formula was allowed under the law, and that it prevented salaries from being set for subjective or biased reasons, according to the Associated Press.