Note by Hannah D. Ankerson
In the busy environment of the Veterans Affairs Medical Center in Birmingham, Alabama, Dr. Leslie Boyer committed herself to her work as a clinical pharmacist, dedicated to serving veterans with the utmost care. Yet, despite her dedication and expertise, she discovered a disheartening truth: Her salary was notably lower than that of a male colleague who held the same position and responsibilities. When Dr. Boyer pursued legal action to correct this disparity, her employer defended the pay differential by explaining that its pay-setting protocols relied on employees' salary history to establish starting pay--a practice that can perpetuate systemic gender discrimination.
Boyer brought action against the United States in the Court of Federal Claims, alleging that the federal government violated the Equal Pay Act when it determined her pay at a lower rate than a comparable male coworker's. Generally, the Act protects against the practice of paying women less than their male counterparts for performing the same work. However, it outlines four exceptions where pay differences are permitted: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” The Federal Claims Court granted summary judgment in favor of the United States under the fourth exception, finding that prior pay, on its own, was a permissible factor “other than sex” on which to base employee pay rates. Boyer appealed to the United States Court of Appeals for the Federal Circuit, which reversed and remanded. Deepening a three-way circuit split, the Federal Circuit held that prior pay can only act as a basis for pay differentials if it is considered in combination with another genuine business reason, or if the employer can prove that the employee's prior salary determination was not based on sex. The court subsequently denied a sua sponte request for rehearing en banc.
The Federal Circuit largely aligned with the United States Courts of Appeals for the Sixth, Tenth, and Eleventh Circuits in its interpretation of the Equal Pay Act's fourth exception as it relates to salary history. At best, the decision provides a rule that effectively disallows employers from using prior pay as a factor on which to base starting rates. More troublingly, the decision provides an avenue for employers to continue to base starting pay rates on prior pay, as long as they make sure to identify an additional, potentially pretextual factor to explain the starting rate. By veering away from the overarching purpose of the Act, the Federal Circuit failed to adequately protect against systematically biased salary-setting practices and workplace inequity.
This Note closely analyzes the court's decision and its attempt to reconcile business interests with Equal Pay Act protections against sex-based pay differentials. Part II provides context and case law relevant to the court's decision. Part III examines the Federal Circuit's approach to interpreting the Act's fourth exception in the noted case. Part IV further explores the significance of the court's interpretation and the implications of its “middle ground approach” to the issue. Part V briefly concludes.
About the Author
Hannah Ankerson. J.D. Candidate 2026, Tulane University Law School; B.A. 2019, University of Vermont.
Citation
99 Tul. L. Rev. 1107