46 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP 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.,376 a female parts manager for a roadway herbicide application provider alleged she was paid less than a male parts manager.377 However, the court found that plaintiff’s comparator’s higher pay was justified by a combination of his experience and his prior pay. In particular, the court found that 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.378 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.379 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.”380 Equal pay plaintiffs have tried to expand upon the logic of the “prior salary” line of cases to attack other factors other than sex, arguing they are inherently discriminatory and thus invalid for that defense. One factor that has increasingly been challenged is the idea that some employees are better negotiators than others. For example, in Duncan v. Texas Health & Human Services Commission,381 an employer attempted to justify a salary disparity by arguing that a male comparator possessed particularly valuable work experience and because it had to match his private sector salary.382 The court rejected that argument, holding that “a reasonable factfinder could reject [employer’s] position that the salary disparity was the result of a factor other than sex and find [employer] discriminatorily applied its negotiation policy by allowing [plaintiff] greater latitude to negotiate.”383 Despite these challenges, many courts continue to recognize negotiations as a legitimate factor other than sex. For example, in Baker v. Upson Regional Medical Center,384 a black female physician alleged she was paid less than her white male colleague, even though she provided more services, worked more (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”); Stice v. City of Tulsa, No. 17-cv-261CVE-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 non-discriminatory 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)). 376 Smith v. IVM Solutions, L.L.C., No. 1:21-cv-162-RAH, 2022 WL 16701100 (M.D. Ala. Nov. 3, 2022). 377 Id. at *3-4. 378 Id. at *5. 379 Id. 380 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.”). 381 Duncan v. Tex. Health & Human Servs. Comm’n, No. 17-cv-23-SS, 2018 WL 1833001 (W.D. Tex. Apr. 17, 2018). In that case, two female nurses and one male nurse applied and were hired into the same nursing position but at different salary levels. Id. at *1. The employer’s usual practice was to offer each applicant the minimum starting salary for the position and begin salary negotiations from there. Id. However, the male applicant was offered a higher salary initially because of his higher private sector salary. Id. at *2. The female employees argued that the male employee was paid more solely because of his gender and his prior salary. Id. at *3. 382 Id. 383 Id. at *4. The court noted that “it is an open question in the Fifth Circuit whether negotiation even qualifies as a ‘factor other than sex,’” noting that “several circuits have found that employers may not seek refuge under the ‘factor other than sex’ exception where the defendant’s sole justification for a pay disparity is an applicant’s prior pay.” Id. at *4 n.3 (citing Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018), rev’d, 139 S.Ct. 707 (2019)). 384 Baker v. Upson Reg’l Med. Ctr., No. 5:20-cv-00283-TES, 2022 WL 816470 (M.D. Ga. Mar. 17, 2022).
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