If you employ one or more employees, you are likely a covered employer under the federal Equal Pay Act (EPA). The EPA prohibits discrimination between employees on the basis of sex. There are a few exceptions, including using, “a differential based on any other factor other than sex.”
The question has been asked and answered by U.S. Circuit Courts of Appeals across the county as to whether use of a candidate’s salary history is a factor other than sex. That answer has varied across the courts.
As a result, the U.S. Supreme Court (SCOTUS) has been petitioned and asked to answer whether the Equal Pay Act ever permits employers to use prior salary as a “factor other than sex” to help explain a pay difference.
