Salary History and the Equal Pay Act: An Argument for the Adoption of “Reckless Discrimination” as a Theory of Liability

Vandenberg, Kate | April 10, 2020

The Equal Pay Act (EPA) purports to prohibit employers from paying female employees less than male employees with similar qualifications; however, the affirmative defenses provided in the EPA are loopholes that perpetuate the gender pay gap. In particular, the fourth affirmative defense allows for wage differentials based on a “factor other than sex.” Many federal circuits have read this defense broadly to include wage differentials based on salary history. That is, an employer can pay a female employee less than her male counterparts because she was paid less by her previous employer. While salary history was once viewed as an objective data point for wage setting, research now demonstrates that reliance on salary history merely continues the gender discrimination of previous employers. This Note proposes that a model of recklessness in employment law should be applied to the EPA to cover employers who continue to use salary history to determine new hire salaries. Applying tort concepts, a plaintiff would show that the use of salary history is a gendered employment practice by satisfying two elements: first, her employer knew or should have known that using salary history carries the risk of perpetuating discrimination; second, her employer’s burden to reduce the risk of perpetuating discrimination was slight. This model allows a plaintiff to utilize an evolving understanding of gendered employment practices that perpetuate the pay gap in order to undermine the “factor other than sex” loophole in the EPA.