Salary History and Pay Parity: Assessing Prior Salary History as a “Factor Other Than Sex” in Equal Pay Act Litigation

Abstract

Inquiries about a prospective applicant’s salary history are controversial because of the role such inequities play in the broader gender pay equity debate. The use of prior salary to determine compensation can perpetuate pay discrimination for women, especially women of color, and lock them into cycles of underpayment when these inequities are carried over from job to job. Reliance on salary history perpetuates historical discrimination and is antithetical to the language and purpose of Title VII and the Equal Pay Act. The purpose of this paper is to critically analyze the legal reasoning relied upon to interpret these laws, especially in light of the new cases emerging in this field, and to assess the potential impacts of these differing interpretations across the circuit courts. This paper offers a nuanced analysis of the courts’ reasoning, including an analysis of the text and context of the legislation and how this influences appellate courts’ divergent interpretation and reasoning. Given that this circuit split primes the issue for Supreme Court consideration, this Article considers the implications of the various interpretations.