Jimmy Starke
On March 26, 2024, the U.S. Court of Appeals for the Federal Circuit held that setting an employee’s salary based on their prior compensation does not justify a gender-based pay gap between two employees of different sexes who perform similar work. The case, Boyer v. United States, affirmed the application of the Equal Pay Act (EPA) to Federal workplaces and requires that the government provide evidence other than prior salary to justify a wage differential between two employees of different sexes. The Federal Circuit joins the Sixth, Eighth, Tenth, and Eleventh Circuits in holding that prior salary, alone, is not “a factor other than sex” that can defend against an EPA claim.
Dr. Boyer was a pharmacist for the Veterans Affairs Medical Center of Birmingham, hired with a starting salary of $115,364. Six months later, the VA hired a male pharmacist to work at the same Medical Center with a starting salary of $126,000. Boyer discovered their pay disparity and filed a claim under the Equal Pay Act.
To succeed on an EPA claim, a plaintiff must show a pay gap with an employee of a different sex and that they perform similar work. If proven, the burden shifts to the employer to defend the pay differential with evidence that a “factor other than sex” explains the difference. Here, the government conceded that Dr. Boyer and her male colleague performed similar work, but argued that it used the salaries they made prior to joining the agency to determine their agency pay: Boyer’s prior salary was $115,003 and her male counterpart’s prior salary was $130,000.
The Federal Circuit rejected the use of salary history, alone, as “a factor other than sex,” holding that such evidence can only justify a gender pay differential if an employer can prove that the prior pay differential was not due to sex discrimination. The court reasoned that accepting prior pay as a justification for lower compensation, without proving the prior pay was not a result of discrimination, perpetuates gender-based pay inequities. This undermines the goal of the EPA, which was passed in 1963 to eliminate the gender wage gap. The court remanded the case to the trial court with guidance for the VA to either (1) provide a second factor other than sex that can explain the pay disparity, or (2) prove that the prior pay was not lower due to sex discrimination.
This holding will affect hundreds of thousands of Federal employees, strengthening their protections against gender-based pay disparities. In fact, while the appeal was pending, the Federal government finalized regulations, effective April 1, 2024, prohibiting consideration of prior pay when setting salaries for new employees. These regulations must be complied with by October 1, 2024, and apply to all Federal employees, helping to further eliminate a factor that perpetuates gender-based pay inequities.
