©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 65 court concluded that the employer’s use of pay bands was a legitimate neutral factor accounting for the pay disparity because plaintiff was paid according to the pay band of her current and prior positions.485 Other courts have rejected Rizo on more prudential grounds, reasoning that a higher prior salary could reflect, in some instances, that an applicant is bringing more experience and skills to the position. For example, in Smith v. IVM Solutions, L.L.C.,486 a female parts manager for a roadway herbicide application provider alleged she was paid less than a male parts manager.487 However, the Middle District of Alabama found that the male comparator’s higher pay was justified by a combination of his experience and his prior pay. In particular, the court found the employer valued his knowledge of the exact same parts that he would oversee as parts manager, due to his years of experience in the “niche market” of herbicide application.488 Moreover, his hourly pay rate prior to becoming a parts manager was higher than plaintiff’s due to the financial incentive offer he received to induce him to leave his former employer.489 The plaintiff attempted to establish that the employer’s reasons were merely a pretext for discrimination, arguing that the employer was not well aware of her experience prior to being hired. But the court found this failed to show discriminatory intent: “disputing whether [employer] knew the specifics of [plaintiff’s] prior work history when determining her pay as parts manager does not give rise to an inference of pretext, especially when nothing in the record suggests [employer] was motivated by discriminatory animus.”490 In O’Neill v. Scripps Media, Inc., a female morning show anchor alleged that she was paid less than her male co-anchor.491 The Southern District of Ohio found the employer carried its “factor other than sex” defense based on market-driven recruiting considerations and rejected the female anchor’s argument that the employer could not solely rely on the male co-anchor’s prior salary or requested salary as an affirmative defense.492 In particular, the court focused on the fact that the male co-anchor’s salary was driven by his experience in a larger out-of-state market that required better skills and experience, the male co-anchor was eligible for a raise in his prior role, and the tax implications of moving to a city with state and local income tax.493 The court found the employer did not pay the male co-anchor “more merely because he made more previously or requested a higher salary[,]” instead, the employer “wanted an 485 Id. Some courts have allowed prior salary history to be considered in connection with theories of “salary compression,” i.e., a pay discrepancy that is the result of later-hired employees starting at a higher salary, which widens over time as a result of regularly scheduled percentage pay increases. See, e.g., Kellogg v. Ball State Univ., No. 1:18-cv-2564-TAB-TWP, 2020 WL 707846, at *2-3 (S.D. Ind. Feb. 12, 2020) (holding that the Seventh Circuit allowed theories of “salary compression” as a justification for wage disparities, pointing to the Seventh Circuit’s reasoning contrary to Rizo, and finding that employer’s reliance on salary compression qualifies as a factor other than sex that “comports with current Seventh Circuit precedent”), rev’d on other grounds, 984 F.3d 525 (2021); Stice v. City of Tulsa, No. 17-cv-261-CVE-FHM, 2018 WL 3318894, at *2-5 (N.D. Okla. July 5, 2018) (holding that “salary compression” could be a factor other than sex—explaining that a system of percentage-based salary increases provides a nondiscriminatory explanation for the differences in pay—and holding that neither Rizo, nor the Tenth Circuit has held that the use of prior salary history can never be a consideration to justify a pay disparity, just that it cannot be the only consideration, but ultimately rejecting employer’s motion for summary judgment because that explanation was “not so convincing that any rational jury would find in favor of defendant on plaintiff’s EPA claim”) (citing and quoting Angove v. Williams–Sonoma, Inc., 70 F. App’x 500, 508 (10th Cir. July 8, 2003)). 486 Smith v. IVM Solutions, L.L.C., No. 1:21-cv-162-RAH, 2022 WL 16701100 (M.D. Ala. Nov. 3, 2022). 487 Id. at *3-4. 488 Id. at *5. 489 Id. 490 Id. See also Thomas v. Gray Transp., Inc., No. 17-cv-2052-KEM, 2018 WL 6531661, at *7 (N.D. Iowa Dec. 12, 2018) (holding that male dispatcher who had worked for the company as a driver manager and had kept his previous salary when he became a dispatcher meant that the comparator’s “prior work (and salary) for [employer] establish that his higher salary was based on a factor other than sex”); Ouzts v. Leebos Stores, Inc., No. 1:16-cv-277, 2018 WL 4495217, at *3 (W.D. La. Sept. 19, 2018) (“[I]t is undisputed that in order to recruit [comparator], [employer] agreed to pay [comparator] the same salary and vacation he had been earning at Coca-Cola. [Comparator’s] significant prior experience and demand that his Coca-Cola compensation package be matched are legitimate, non-discriminatory factors that fall within the catch-all exception.”). 491 O’Neill v. Scripps Media, Inc., d/b/a WCPO-TV, Case No. 1:23-cv-410, 2026 WL 622095, at *4-5 (S.D. Ohio). 492 Id at *6. 493 Id. at *5-6.
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