Zoe Spencer v. Virginia State University, et al.

The United States Courts of Appeals diverge on whether and under what circumstances prior salary may constitute "any other factor other than sex" under the fourth "catch all" exception of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) and, correspondingly, under the Bennett Amendment § 703(h) to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (a)(1). Despite this divergence, nearly all circuits that allow wage differentials, based upon the prior salary exception, adhere to this Court's precedent that salary differentials be related to bona fide job evaluation systems. See, Corning Glass Works v. Brennan, 417 U.S. 188, 201, 94 S.Ct. 2223 (1974). In the Fourth Circuit's opinion below, "prior service" or rather the prior salary equation, as "a factor other than sex," upon which the opinion relied, was not based upon a bona fide job evaluation system Id.; and thus, defied this Court's authority in Corning and exacerbated the entrenched circuit split in a manner that prospectively undermines the legislative intent of the Equal Pay Act. In furtherance of resolving the "prior salary question" presented to this Court in a recent petition for a writ of certiorari, Yovino v. Rizo, 586 U.S. (2019) per curiam, and addressing the Fourth Circuit's impingement upon the Seventh Amendment, the questions presented are: Is prior salary a factor other than sex? If so: Whether the Equal Pay Act intends prior salary, as a "catchall exception," to be excluded from bona