Under the Equal Pay Act, an employer may avoid liability by proving the affirmative defense that a wage disparity is based "on any factor other than sex." Where an employee's starting salary is based on their prior salary, will this satisfy the "factor other than sex" defense? The Seventh Circuit recently approached this issue in Wernsing v. Dep't of Human Services. Unlike other circuits that require an employer to show a legitimate business reason for using prior salaries to set wages and satisfy the "factor other than sex" defense, this article discusses the Seventh Circuit's conclusion that prior salary standing alone satisfies this defense. The article concludes that this holding perpetuates sex discrimination contrary to the purposes of the Equal Pay Act.
Jessica L. Linsted,
The Seventh Circuit's Erosion of the Equal Pay Act,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol1/iss1/9