Pay Disparity and the Time’s Up Movement
The pay disparity between men and women has garnered wide-spread media attention in recent months with Hollywood’s Time’s Up movement in which actresses and activists across the country are demanding equal pay for men and women. Data from Pew Research Center released on April 9, 2018, reveals that women earned 82% of what men earned in 2017. One pervasive practice believed to lead to wage disparity is employer collection of prior salary information during the hiring and selection process. The United States Court of Appeals of the Ninth Circuit (the “Ninth Circuit”) recently examined the collection of such information in the context of the Equal Pay Act of 1963 (the “EPA”) in Rizo v. Yovino.
The EPA was enacted by Congress to end wage discrimination against women in the workplace and to require that men and women receive equal pay for equal work on the basis of skill, effort and responsibility. However, the EPA allows employers to pay different wages to equally qualified men and women if the pay disparity is justified by: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earning by quantity or quality of production; or (iv) a differential based on any factor other than sex.” The employer-defendant in Rizo argued that the fourth exception allowed it to pay a female employee a lower starting salary as a result of her prior salary history.
The Ninth Circuit reasoned that a “factor other than sex” must be a job-related factor, such as the experience and educational level of a prospective employee. It ultimately held that prior salary “may not be used as a factor in initial wage setting, alone or in conjunction with less invidious factors,” and to allow employers to continue to rely on prior salary information would “perpetuate” the past pervasive discrimination that the Equal Pay Act seeks to eradicate.”
What does this mean for Florida employers?
The decisions of the Ninth Circuit are not binding on Florida employers, but cases such as Rizo v. Yovino, in conjunction with societal pressures, can lead to legislative action. In fact, the Senator Helen Gordon Davis Fair Pay Protection Act (Senate Bill 594 and House Bill 393) (the “Fair Pay Protection Act”) was filed in the Florida Senate and House of Representatives on October 23, 2017, seeking to amend the current language of Section 448.07, Florida Statutes. Section 448.07 mirrors the EPA, and the proposed statutory amendment contained language that would limit the “factor other than sex” to “bona fide” factors “including, but not limited to, education, training or experience.” However, the Fair Pay Protection Act died in committee in both the Senate and House of Representatives this most recent session.
Although the Fair Pay Protection Act did not become law, Florida employers should still be on notice that paying female employees less than equally qualified male counterparts on the basis of prior salary history may not pass muster as an adequate justification for pay disparity under the EPA. Time may not be up yet for Florida employers, but they should be wary of using prior salary history as a factor, either alone or in combination with other factors, to justify pay gaps between otherwise equally situated men and women.
 Nikki Graf, Anna Brown and Eileen Patten, The Narrowing, but Persistent, Gender Gap in Pay, PEW Research, April 9, 2018 (http://www.pewresearch.org/fact-tank/2018/04/09/gender-pay-gap-facts/).
 The United States Court of Appeal for the Ninth Circuit has jurisdiction over Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington.
 Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018).
 29 USC § 206(d)(1)(2015).
 887 F.3d at 12, 28.
 887 F.3d at 29.
 SB 594, 2018 (Fla. 2018)