By: Jessica Shoemaker*
Abstract
Despite decades of legislative efforts to achieve pay equity, women in the United States earn less on average than men. The Equal Pay Act (“EPA”) prohibits sex-based wage discrimination. But the EPA allows for pay differentials based on a “factor other than sex.” Competing interpretations of this provision have led to a deep circuit split. Some courts permit the use of prior salary alone as a justification, but others prohibit it entirely, and a third group takes a “middle ground” approach, allowing courts to consider prior pay only in conjunction with other legitimate business factors.
This Comment examines the historical context of the EPA, the emergence of the circuit split regarding prior salary, and the legal and policy implications of each approach. This Comment argues that the middle ground approach strikes the best balance between employer flexibility and employee protections, ensuring that employers do not use prior pay to perpetuate historical discrimination while allowing organizations to legally use prior pay as a relevant factor in wage-setting. This Comment urges the Supreme Court to resolve the split by adopting the middle ground approach. The middle ground approach improves clarity for employers, employees, and lower courts, reinforcing the EPA’s mission of pay equity.
*J.D. Candidate, The Pennsylvania State University Dickinson School of Law, 2026. With thanks to my dad for his invaluable edits and encouragement, and to my cat, Maggie, for her late-night companionship during this Comment’s research and editing.