The Equal Pay Act’s Hidden Loophole: Eliminating Prior Compensation As A “Factor Other Than Sex”

Authors

Madeleine Bol, Fordham University School of Law

Keywords

Equal Pay Act; Prior Compensation; Gender Wage Gap; Disparate Treatment; Disparate Impact; Statutory Interpretation

Abstract

The Equal Pay Act of 1963 (EPA or the “Act”) prohibits employers from engaging in sex-based wage discrimination. The Act includes four exceptions that allow an employer to circumvent liability, the last of which allows for pay disparities when the “differential [is] based on any other factor other than sex.” The language of this exceedingly broad exception raises questions among courts on what “other than sex” entails—specifically, whether a court can rely on an employee’s prior compensation to justify a pay disparity between employees of the opposite sex. This Note examines how federal circuit courts have interpreted this catchall exception.

The U.S. Court of Appeals for the Ninth Circuit has adopted a restrictive interpretation, holding that prior compensation can never qualify as a “factor other than sex,” regardless of context. In contrast, the U.S. Courts of Appeals for the Seventh and Fourth Circuits have concluded that prior compensation may constitute a permissible “factor other than sex.” The U.S. Courts of Appeals for the Second, Sixth, Eighth, Tenth, Eleventh, and Federal Circuits have taken a middle-ground approach. This Note advocates for the Ninth Circuit’s interpretation that prior compensation does not qualify as a “factor other than sex” and argues that the U.S. Supreme Court should interpret the statute accordingly.

Recommended Citation

Madeleine Bol, The Equal Pay Act’s Hidden Loophole: Eliminating Prior Compensation As A “Factor Other Than Sex”, 94 Fordham L. Rev. 1015 (2025).
Available at: https://ir.lawnet.fordham.edu/flr/vol94/iss3/4