Variations in pay for male and female employees in the same classification of work are allowed if based on:
• Difference in duties or services performed
• Hours of work, shift, or time of day worked
• Restrictions on lifting objects in excess of specified weight
• Other reasonable factors other than sex
Such pay variations must also be exercised in good faith.
In February 2019, the U.S. Supreme Court vacated a decision by the 9th Circuit Court of Appeals, which had held that an employee’s prior salary, alone or in combination with other factors, does not constitute a “factor other than sex” that justifies a wage differential (Yovino v. Rizo, 203 L.Ed.2d 38 (2019)). The Court ruled that because one of the circuit judges died before the 9th Circuit’s decision was issued (and his opinion was not joined by a majority of the court), the 9th Circuit must rule on the case again.
In the 9th Circuit decision (Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018), the court held that a “factor other than sex” is limited to legitimate, job-related factors, such as experience, educational background, ability, or prior job performance.