64 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP holding that an employer may rely on prior pay only if it demonstrates the pay was not based on sex, or considers prior pay together with other non-sex-based factors.476 This issue also divides the district courts. Many have declined to follow the reasoning of the Ninth Circuit in Rizo. Some district courts rejected the Ninth Circuit’s reasoning due to prior precedent in their circuit. This leaves open the possibility that the law could shift if and when it is considered by the additional Courts of Appeals. For example, in Abe v. Virginia Department of Environmental Quality,477 the Eastern District of Virginia was presented with the following question: “Does using prior salary as a factor in setting an employee’s starting salary constitute a per se violation of the Equal Pay Act . . .?”478 In that case, four named plaintiffs and twenty opt-in plaintiffs argued that the court should adopt the reasoning of the Ninth Circuit in Rizo and hold that prior salary history can never constitute a “factor other than sex” under the EPA, either alone or in combination with other factors.479 The court declined to impose a categorical bar on prior salary, noting that the Fourth Circuit “has not delineated the precise circumstances under which an employer may rely on prior salary as an affirmative defense in an EPA case”480 and that, in Spencer v. Virginia State University, the Fourth Circuit “has clearly indicated that [the EPA] does not prohibit an employer from doing so.”481 Similarly, in McKinley v. United Parcel Service Inc.,482 the employer argued that pay differentials were justified because it had paid plaintiff within the pay bands applicable to her positions. But plaintiff tried to recast this as a defense based on her prior wages, noting that “the Seventh Circuit has held that basing pay on prior wages could be discriminatory if sex discrimination led to the lower prior wages.”483 She pointed to an alleged sexist comment made by a former manager in 1994 that she “chose a family over a career,” and the fact that she was not promoted for eighteen years. The court found that she had not provided sufficient evidence to show that her past wages were a result of sex discrimination. “The evidence submitted by [employer] supports that it closely followed its pay band structure to determine compensation for its employment positions,” that “[plaintiff] was given raises in-line with the [employer] pay band for Part-Time Supervisors and that upon being promoted to a Specialist, her hourly pay rate increased to be consistent with the Specialist pay band,” and that “[employer] paid [plaintiff] at the top of the pay band for her position before she was promoted to a Specialist.”484 Relying on Lauderdale, the 476 Urban v. United States, No. 20-1600, 2025 WL 1244438 (Fed. Cir. Apr. 30, 2025) (applying Boyer and rejecting employer’s reliance on prior pay where Postal Service used prior salary alone to set promotional pay and made no showing that prior pay was unrelated to sex). 477 Abe v. Va. Dep’t of Env’t Quality, No. 3:20-cv-270, 2021 WL 1250346 (E.D. Va. Apr. 5, 2021). 478 Id. at 1. In that case, four named plaintiffs and twenty opt-in plaintiffs alleged that their employer’s “past practice of using pay history to determine new hire’s salary perpetuates the gender wage gap and violates the EPA.” Id. 479 Id. at 2. 480 Id. 481 Id., at 2-3 (citing Spencer v. Va. State Univ., 919 F.3d 199, 202-03 (4th Cir. 2019) (emphasis in original). The court noted that Spencer involved a female sociology professor who alleged she had been discriminated against in terms of her compensation because she was paid less than two comparable male professors whose salary was set as a percentage of their previous salaries as administrators at the same university. The Fourth Circuit determined that the university’s decision to set starting salaries for those purported comparators in that way established that the alleged pay differential was due to a factor other than sex. The court in Abe interpreted this to mean that “at minimum, the Fourth Circuit does not prohibit employers from raising prior salary as an affirmative defense in an EPA case.” Id. at 3. The court further rejected plaintiffs’ argument that the employer should at least have to prove that its use of salary history is job-related, as they argued the Fourth Circuit held in another case, EEOC v. Maryland Ins. Admin., 879 F.3d 114 (4th Cir. 2018). The Abe court sidestepped the issue. It held that it was not necessary to resolve that question to decide the narrow issue before the Court; namely: “May [defendant] raise prior salary as an affirmative defense?” Abe, 2021 WL 1250346, at 4. Based on the Fourth Circuit’s decision in Spencer, the Court held that it could and denied Plaintiff’s motion to strike the employer’s affirmative defense that was based on prior salary. See also McGee v. Va. Dep’t of Envtl. Quality, 624 F. Supp. 3d 616, 632 (E.D. Va. 2022) (noting that “[t]his Court has previously held that employers may raise prior salary as an affirmative defense in EPA cases as a ‘factor other than sex,’ and holding that defense was met where plaintiff’s comparator’s salary was set because the employer, “knew that his private sector job probably paid more,” and even raised its initial offer after his prior employer offered a salary increase to entice him to stay). 482 McKinley v. United Parcel Serv. Inc., No. 1:19-cv-2548-TWP-DLP, 2021 WL 4477830 (S.D. Ind. Sept. 30, 2021). 483 Id. (internal quotations omitted). 484 Id. at *16.
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