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The scope of the fourth Equal Pay Act exception is limited. The "factor other than sex" defense does not include literally any other factor. Based on the text and purpose of the Equal Pay Act, the fourth affirmative defense comprises only job-related factors, not sex.
The Fresno County Office of Education hired Aileen Rizo as a math consultant in October 2009. She held two master's degrees when she was hired: one in educational technology and one in mathematics education. Her employment experience included three years as head of the math department for an online school and designer of the school's math curriculum. The County set its new employees' salaries according to a pay schedule governed by Standard Operating Procedure 1440 (SOP 1440). Based on her prior wages, the County placed Rizo at Step 1, Level 1 on its pay schedule. In 2012, Rizo learned that a newly hired male math consultant had placed at Level 1, Step 9, putting the new consultant’s starting pay at $79,088, significantly more than Rizo was paid after working three years for the County. Rizo realized that she was the only female math consultant at Fresno County, and that all of her male colleagues were paid more than she was, even though she had more education and experience. Consequently, Rizo filed a complaint, alleging that the County violated the Equal Pay Act, 29 U.S.C. § 206(d), and included claims for sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; sex discrimination under California's Fair Employment and Housing Act, § 12940(a); and failure to prevent discrimination under California's Fair Employment and Housing Act, § 12940(k). Fresno County moved for summary judgment, arguing that Rizo's pay was the result of SOP 1440, and that this pay policy, which was based solely on its employees' prior pay, was a "factor other than sex" that defeated Rizo's EPA claim. The district court held that the County’s SOP 1440 necessarily and unavoidably conflicted with the EPA, and thus, denied the County's motion for summary judgment. The Ninth Circuit reversed and held that the district court was bound by the decision in Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). The Supreme Court subsequently vacated the Ninth Circuit’s decision on a procedural issue. The parties submitted supplemental briefing after the case was remanded from the Supreme Court, and the Ninth Circuit reconsidered the County’s appeal.
Was the district court bound by the decision in Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982), thereby warranting the grant of summary judgment in favor of the employer?
The Court held that the district court properly denied the employer's motion for summary judgment on claims under the Equal Pay Act, 29 U.S.C.S. § 206(d)(1), because the employee's prior rate of pay was not a "factor other than sex" that allowed the employer to pay her less than male employees who performed the same work, and only job-related factors could serve as affirmative defenses to Equal Pay Act claims. Moreover, the Court held that Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982) was overruled because its holding that prior pay in combination with other factors may serve as an affirmative defense was inconsistent with the Equal Pay Act's text, purpose, and burden-shifting framework for the same reasons the use of prior pay alone was inconsistent with the Equal Pay Act's text, purpose, and burden-shifting framework.