Money Talks: Using Prior Salary as an Affirmative Defense in Equal Pay Claims

The wage gap is alive and well, with women on average making 82 cents for every dollar a man makes. Moreover, the wage gap has stagnated, with no significant progress being made to close the gap for the past ten years. In light of this stagnation, it is important to review current practices and consider steps that could be taken in order to catalyze a modern effort at closing the wage gap. One commonplace business practice that should be addressed is an employer’s use of an employee’s prior salary to determine starting pay. Courts are divided as to whether employers can or should be allowed, under the Equal Pay Act of 1963, to rely on an employee’s past salary to excuse any resulting wage differential between employees of the opposite sex performing substantially similar work.This Note argues that, within the context of the Equal Pay Act, employers should not be able to excuse a wage gap by using an employee’s prior salary. This Note proceeds by examining the history and current context of the Equal Pay Act of 1963, as well as the disparate court responses concerning whether employers can use their considerations of an employee’s prior salary to defend a resulting wage gap. This Note finds that, while prior salary may appear to be an objective measure that helps facilitate setting current wages, prior salary is ultimately some thirdparty’s determination of a person’s worth. Prior salary is a shadowy concept and it is extraordinarily difficult, if not outright impossible, to discern what factors may have been used in setting it and whether that determination was at all prejudicial. Therefore, this Note ultimately urges courts and legislatures to recognize that prior salary should not be used to excuse a wage gap. People’s livelihoods are at risk and it is important that the question of whether prior salary should continue to be considered and used as a defense by employers be resolved.