On September 30, 2022, NWLC—along with our law firm partner the Federal Practice Group and 46 additional organizations committed to equal pay—filed an amicus brief to the U.S. Court of Appeals for the Federal Circuit in Boyer v. U.S. The lawsuit was brought under the Equal Pay Act by Dr. Leslie Boyer, a clinical pharmacist at the Department of Veterans Affairs (VA) who was paid less than her male colleague for the same job, even though she had seven years’ more experience. The VA admits that it did not provide Dr. Boyer equal pay for equal work, but claims this is okay because it based the workers’ pay on their previous salaries. The trial court dismissed Dr. Boyer’s lawsuit, finding that the VA was allowed to rely on salary history to defend against sex-based inequality under the Equal Pay Act. Dr. Boyer appealed to the U.S. Court of Appeals for the Federal Circuit, asking the appeals court to reverse the trial court’s decision and allow her equal pay claim to proceed.
Our amicus brief explains why relying on salary history is not a legitimate justification for sex-based pay discrimination under the Equal Pay Act. That’s because women—and particularly women of color—are systematically paid less than men across occupations and industries. Therefore, employers who rely on salary history to select job applicants and to set new hires’ pay will often perpetuate existing disparities, directly undermining the purpose of the Equal Pay Act. A number of federal appeals courts have already decided that prior salary, particularly when it is the sole factor in compensation decisions, cannot be used as an affirmative defense under the Equal Pay Act. NWLC and our 46 partner organizations urge the appeals court to do the same by ruling in favor of Dr. Boyer and making clear that employers, including the federal government, cannot point to salary history to defend against pay discrimination.