©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 63 salaries was a permissible “factor other than sex,” absent evidence that the prior salaries themselves were the product of sex discrimination.464 At the same time, the court stressed that an employer must prove it actually relied on the asserted neutral factor, and the explanation must justify the amount of the differential—not merely the fact that a raise occurred.465 Other Circuits have held differently. In Irby v. Bittick,466 the Eleventh Circuit held that “[w]hile an employer may not overcome the burden of proof on the affirmative defense of relying on ‘any other factor other than sex’ by resting on prior pay alone, as the district court correctly found, there is no prohibition on utilizing prior pay as part of a mixed-motive, such as prior pay and more experience.”467 The Tenth Circuit has also held that prior salary cannot stand alone as a defense to an EPA claim. In Angove v. WilliamsSonoma, Inc.,468 a male retail employee argued that the district court had impermissibly applied a “market factor” theory to evaluate his claim, arguing that it is impermissible to justify a wage disparity solely upon the “going market rate” for employees of a certain gender.469 The Tenth Circuit held that this theory only arises where an employer purports to rely on the “going rate” for employees based on their gender.470 Although setting an employee’s salary based solely on what the market would pay male versus female employees would clearly violate the EPA, there was no evidence to suggest that is what happened.471 The Tenth Circuit concluded that “where an employer sets a new employee’s salary based upon that employee's previous salary and the qualifications and experience the new employee brings, the defendant has successfully invoked the Act's affirmative defense.”472 This is because “the EPA only precludes an employer from relying solely upon a prior salary to justify pay disparity.”473 The Federal Circuit also recently joined the list of Federal Courts of Appeals who recognize the middle ground approach. In Boyer v. U.S.,474 a female clinical pharmacist at a VA hospital brought wage discrimination claims against her employer, alleging that a male coworker in the same position was hired after her with a higher starting pay rate. The plaintiff contended she had more experience, while the defendant employer argued the male comparator had different qualifications, including an additional master's degree. The employer argued that the federal pay-setting statutes that permit consideration of prior pay were a "factor other than sex" that explained the pay disparity. The Federal Circuit first examined the split among the circuits regarding the use of prior salary to set starting salary, recognizing that the Fourth and Seventh Circuits hold that prior salary alone is an acceptable factor other than sex; the Sixth, Tenth, and Eleventh Circuits hold prior salary is an acceptable factor when combined with other factors; and the Ninth Circuit holds that prior salary is never an acceptable factor to consider. The Federal Court decided to follow the “middle ground” approach of the Sixth, Tenth, and Eleventh Circuits, holding that this approach "recognizes that sex discrimination can be (but is not always) inherent in prior pay." It added one additional caveat, allowing the use of prior pay as a factor other than sex only if the defendant demonstrates that the prior pay was not based on sex.475 Another 2025 Federal Circuit-adjacent decision likewise affirmed the middle-ground approach, with the Court of Federal Claims applying Boyer and 464 Lane v. Stericycle, Inc., 162 F.4th 866, 870 (7th Cir. 2025). 465 Id. 466 Irby v. Bittick, 44 F.3d 949 (11th Cir. 1995). 467 Id. at 955 (citing Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1571 n.9 (11th Cir. 1988)). 468 Angove v. Williams-Sonoma, Inc., 70 F. App’x 500 (10th Cir. 2003). 469 Id. at 507. The employee relied on prior Eleventh Circuit and Supreme Court precedent, Mulhall v. Advance Security, Inc., 19 F.3d 586, 596 n.22 (11th Cir. 1994) and Corning Glass Works v. Brennan, 417 U.S. 188 (1974). In Corning Glass Works, the Supreme Court rejected an argument that an employer's higher wage rate for men on the night shift was permissible, holding that: “The differential arose simply because men would not work at the low rates paid women inspectors, and it reflected a job market in which [employer] could pay women less than men for the same work. That the company took advantage of such a situation may be understandable as a matter of economics, but its differential nevertheless became illegal once Congress enacted into law the principle of equal pay for equal work.” 417 U.S. at 204-05. 470 Angove, 70 F. App’x at 508. 471 Id. 472 Id. 473 Id. (emphasis in original). The Sixth Circuit has also adopted the reasoning of the Eleventh and Tenth Circuits. See Perkins v. Rock-Tenn Servs., Inc., 700 F. App’x 452, (6th Cir. 2017); Balmer v. HCA, Inc., 423 F.3d 606, 612 (6th Cir. 2005), abrogated on other grounds by Fox v. Vice, 563 U.S. 826 (2011). 474 Boyer v. U.S., No. 2022-1822, 2024 WL 1261326 (Fed. Cir. Mar. 26, 2024). 475 Id.
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