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University of Florida Journal of Law & Public Policy

Abstract

There is a circuit split regarding whether an employer can rely on an employee’s prior salary without violating the Equal Pay Act (EPA). The Seventh Circuit always allows an employer to consider prior salary, while the Ninth Circuit bans the use of prior salary considerations. The Federal Circuit joined the Eleventh and Eighth Circuit in a middle ground approach.

As Title VII incorporates the same exceptions as the EPA, the Supreme Court’s Title VII analysis will likely be probative to its eventual decision regarding the EPA. The Court will also likely employ textualist judicial canons to determine the desired lower court test. How the Supreme Court has employed these textualist canons in Title VII cases, such as plain meaning of text, avoidance of legislating from the bench, and other canons of construction, can be analogized to the EPA.

Ultimately, a plain text reading disfavors interpreting the “factor other than sex” exception altruistically—likely discounting the Ninth, Eleventh, and Federal circuit approaches that consider the purpose of the EPA over its text. Conversely, the Seventh Circuit also runs afoul of the textualist cannon ejusdem generis. A strict textualist understanding therefore favors the Eighth Circuit case-by-case analysis because it best balances the canons of textualism while scrutinizing business practices that perpetuate sex discrimination.

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