Fresno County, Calif. school system pays female math consultant less than male counterparts. Ninth Circuit(2017): The counterparts’ salaries at previous jobs were higher than hers, so it’s not necessarily unlawful. Ninth Circuit (en banc, authored by the late Judge Reinhardt): Nope. Any consideration of prior pay by employers who use a formula to set salaries (as opposed to individualized negotiations) violates the Equal Pay Act of 1963. Concurrences: Maybe prior pay can be part of the consideration.