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August 21 2018

Courts Prohibit Use of Salary Information - States and Cities Taking Action

Like the "Ban the Box" initiative that includes 31 states, the District of Columbia and more than 150 cities and counties, a number of states in the last year have passed laws that prohibit employers from obtaining past income and salary information from applicants.

Some would argue that the pay disparity was fixed by the Equal Pay Act of 1963 (EPA), but the case of Rizo v. Yovino, supported the idea that employers cannot use salary history to justify differences in pay.

Math consultant Aileen Rizo sued the Fresco County Office of Education, claiming that she was paid less than men performing the same job function. Although it was originally thrown away by the court, a 12-judge panel in the Ninth Circuit reserved the prior decision and limited the EPA's affirmative defenses for "any other factor other than sex," to "legitimate, job-related factors such as prospective employee's experience, educational background, ability, or prior job experience".