Boyer v. United States

Case: 22-1822 Document: 54 Page: 1 Filed: 03/26/2024

United States Court of Appeals
for the Federal Circuit
______________________

LESLIE BOYER,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2022-1822
______________________

Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00438-ZNS, Judge Zachary N. Somers.
______________________

Decided: March 26, 2024
______________________

LACHLAN W. SMITH, Wiggins Childs Pantazis Fisher &
Goldfarb LLC, Birmingham, AL, argued for plaintiff-appel-
lant. Also represented by JON C. GOLDFARB.

KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY.

DEBRA D'AGOSTINO, The Federal Practice Group,
Washington, DC, for amici curiae A Better Balance, Amer-
ican Medical Women’s Association, California Women
Case: 22-1822 Document: 54 Page: 2 Filed: 03/26/2024

2 BOYER v. US

Lawyers, California Women’s Law Center, Center for
Women’s Health & Human Rights, Suffolk University, Chi-
cago Foundation for Women, Clearinghouse on Women’s
Issues, Desiree Alliance, Equal Rights Advocates, Faith Ac-
tion for All, Feminist Majority Foundation, Hadassah, the
Women’s Zionist Organization of America, Human Rights
Campaign, If/When/How: Lawyering for Reproductive Jus-
tice, In Our Own Voice: National Black Women’s Reproduc-
tive Justice Agenda, In the Public Interest, Indiana
Community Action Poverty Institute, International Action
Network for Gender Equity & Law, Lawyers Club of San
Diego, Legal Aid at Work, Legal Momentum, the Women's
Legal Defense and Education Fund, NARAL Pro-Choice
America, National Asian Pacific American Women’s Fo-
rum, National Association of Women Lawyers, National
Coalition on Black Civic Participation, National Consum-
ers League, National Crittenton, National Employment
Lawyers Association, National Health Care for the Home-
less Council, National LGBTQ Task Force, National
Women’s Law Center, National Womens Political Caucus,
Queen’s Bench Bar Association of the San Francisco Bay
Area, Religious Coalition for Reproductive Choice, Re-
proaction, Service Employees International Union, Shriver
Center on Poverty Law, SisterReach, Washington Lawyers’
Committee for Civil Rights and Urban Affairs, Women Em-
ployed, Women Lawyers On Guard Inc., Women’s Bar As-
sociation of the District of Columbia, Women’s Bar
Association of the State of New York, Women’s Institute for
Freedom of the Press, Women’s Law Center of Maryland,
Women’s Law Project, Women’s Media Center. Also repre-
sented by JANEI AU; GAYLYNN BURROUGHS, SUNU CHANDY,
PHOEBE WOLFE, National Women’s Law Center, Washing-
ton, DC.
______________________

Before DYK, CHEN, and STOLL, Circuit Judges.
DYK, Circuit Judge.
Case: 22-1822 Document: 54 Page: 3 Filed: 03/26/2024

BOYER v. US 3

Dr. Leslie Boyer brought suit against the United
States, claiming a violation of the Equal Pay Act (“EPA”),
29 U.S.C. § 206(d)(1), because the government set her pay
unequally compared to a male comparator. The Court of
Federal Claims (“Claims Court”) granted summary judg-
ment to the United States on the ground that, under the
EPA, an employer may consider a “factor other than sex,”
that “Congress permitted the [Veteran’s Administration] to
use existing or prior pay alone [as a factor other than sex]
in determining pay rates for new appointees,” and prior
pay accounted for the differential in this case. J.A. 36. We
conclude that the EPA applies equally to the United States
as to other employers and that mere reliance on prior com-
pensation standing alone is not an affirmative defense to a
prima facie case under the EPA, unless the employer can
demonstrate that the prior pay itself was not based on sex.
We reverse the grant of summary judgment to the United
States and remand for further proceedings consistent with
this opinion.
BACKGROUND
I
Dr. Boyer was employed by the Veterans Affairs Medi-
cal Center of Birmingham, Alabama (“BVAMC”) as a clini-
cal pharmacist in 2015. Six months later, BVAMC hired a
male clinical pharmacist. Both Dr. Boyer and the male
comparator were hired according to the federal hiring sys-
tem, the General Schedule or “GS” system. The federal hir-
ing system sets salary scales by locality, with each federal
position assigned a grade. Within each grade, there are a
series of steps with corresponding salary increases. To hire
an employee over the minimum rate within a particular
grade, the agency must make a showing that certain qual-
ities justify that departure, including superior qualifica-
tions, special needs of the government, and prior
compensation. 5 C.F.R. § 531.212.
Case: 22-1822 Document: 54 Page: 4 Filed: 03/26/2024

4 BOYER v. US

At the time of her hiring, Dr. Boyer was appointed as a
clinical pharmacist at GS-12, Step 7 with a starting salary
of $115,364. Although the minimum rate in this locality
for GS-12 clinical pharmacists was $96,133 at Step 1, Dr.
Boyer was appointed at Step 7 ($115,364) due, at least in
part, because of her prior salary, which was $115,003. The
male comparator was appointed at a GS-12, Step 10, with
a starting salary of $126,223. His prior salary was
$130,000.
There are alleged other differences between the two.
Dr. Boyer contends that she was more qualified than the
male comparator, having had seven more years of experi-
ence after graduating with her doctorate in pharmacy in
1999. She also contends that she had unique mental health
work experience as compared to the male comparator. The
government argues that the male comparator was more
qualified in other ways, having a master’s degree in biolog-
ical sciences in addition to his doctorate in pharmacy and
different work experience.
Three years after her hiring, Dr. Boyer discovered the
pay discrepancy. She inquired about the differential with
Human Resources and eventually, in 2018, filed an Equal
Employment Opportunity (“EEO”) complaint, alleging
wage discrimination. The EEO counselor created an inves-
tigative report in 2019 but did not issue any official conclu-
sions or recommendations. Two months later, Dr. Boyer
filed suit in the United States District Court for the North-
ern District of Alabama, alleging a violation of the EPA.
Boyer v. Wilkie, No. 2:19-CV-00552 (N.D. Ala. transferred
Feb. 13, 2020). 1

1 The parties consented to the jurisdiction of a mag-
istrate judge. ECF No. 11 (May 30, 2019).
Case: 22-1822 Document: 54 Page: 5 Filed: 03/26/2024

BOYER v. US 5

II
The Equal Pay Act codifies “the principle of equal pay
for equal work regardless of sex.” Corning Glass Works v.
Brennan, 417 U.S. 188, 190 (1974). The EPA provides that
no employer that is subject to the Act shall discriminate
between employees of the opposite sex for equal work that
requires “equal skill, effort, and responsibility, and which
are performed under similar working conditions.”
29 U.S.C. § 206(d)(1). The EPA has four exceptions to this
general principle, where a differential is made pursuant to
“(i) a seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of produc-
tion; or (iv) a differential based on any other factor other
than sex.” Id.
Under the EPA, the plaintiff has the burden of estab-
lishing a prima facie case—showing that the employer pays
employees of the opposite sex who perform substantially
equal work unequally. 2 Corning Glass Works, 417 U.S. at
195. Once established, the burden of proof shifts to the em-
ployer to prove that the differential is made pursuant to
one of the four affirmative defenses. Id. at 196–97; see
Beck-Wilson v. Principi, 441 F.3d 353, 365 (6th Cir. 2006).
If the employer successfully establishes that the differen-
tial was made pursuant to one of the four defenses, the

2 The Claims Court noted that in Yant v. United
States, the Federal Circuit affirmed the grant of summary
judgment to the government when there was no showing
that the salary differential was “either historically or pres-
ently based on sex.” 588 F.3d 1369, 1372 (Fed. Cir. 2009).
This holding was recently overruled in Moore v. United
States, which held that a prima facie case under the EPA
does not require a showing that a pay differential is either
historically or presently based on sex. 66 F.4th 991, 997
(Fed. Cir. 2023) (en banc).
Case: 22-1822 Document: 54 Page: 6 Filed: 03/26/2024

6 BOYER v. US

plaintiff may counter that the affirmative defense is merely
pretextual. See, e.g., Ryduchowski v. Port Auth. of N.Y. &
N.J., 203 F.3d 135, 142 (2d Cir. 2000) (citing Belfi v. Pren-
dergast, 191 F.3d 129, 136 (2d Cir. 1999)).
The government conceded that Dr. Boyer had estab-
lished a prima facie case under the Equal Pay Act because
Dr. Boyer and the male comparator performed work of sim-
ilar skill, effort, and responsibility under similar working
conditions for unequal pay. But the government argued
that the pay differential was justified by a “factor other
than sex,” namely Dr. Boyer’s prior salary. Dr. Boyer in
turn contended that the BVAMC violated the EPA by rely-
ing on prior salary alone to set her and the male compara-
tor’s disparate salaries. There is no contention that the
government’s reliance on prior salary was pretextual.
III
The Northern District of Alabama initially granted
summary judgment to Dr. Boyer, finding that “the record
establishes that prior salary alone was the reason for [the]
salaries and ‘such a justification cannot solely carry the af-
firmative defense.’” Boyer v. Wilkie, No. 2:19-CV-00552,
2019 WL 13268069, at *5 (N.D. Ala. Nov. 5, 2019) (quoting
Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995)). Thereaf-
ter, the government filed a motion to dismiss, arguing that
the district court lacked subject matter jurisdiction, and
plaintiff filed a motion to transfer the case to the Court of
Federal Claims (“Claims Court”). The magistrate judge va-
cated his ruling on summary judgment and transferred the
case.
Before the Claims Court, the parties cross-moved for
summary judgment. The Claims Court concluded that the
statute allowed consideration of factors other than sex and
held that consideration of prior pay alone was a factor other
than sex. In reaching this conclusion, the court relied on a
pay-setting statute, 5 U.S.C. § 5333, which allows prior pay
to be considered in hiring. The Claims Court concluded
Case: 22-1822 Document: 54 Page: 7 Filed: 03/26/2024

BOYER v. US 7

that Congress provided as to federal employees that “exist-
ing pay alone, without regard to high or unique qualifica-
tions or other factors, is an appropriate reason to depart
from the otherwise minimum rate of pay under the GS sys-
tem.” J.A. 29. The Claims Court also relied on 38 U.S.C.
§ 7408, containing similar language in a statute governing
aspects of VA hiring. Because, in the Claims Court’s view,
prior pay alone could establish an affirmative defense to a
prima facie case under the EPA in the context of federal
employees, the court granted summary judgment for the
government and denied Dr. Boyer’s motion for summary
judgment. This appeal followed.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
Summary judgment is appropriate if there is no genu-
ine issue of material fact in dispute and the moving party
is entitled to judgment as a matter of law. First Com. Corp.
v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003); Rule
56(a) of the Rules of the Court of Federal Claims (RCFC).
We review the grant of summary judgment by the Claims
Court de novo. Id.
I
This case presents the question whether the rules con-
cerning consideration of prior compensation should be dif-
ferent for federal employers as compared to employers
outside the federal government in light of two federal stat-
utes that together apply to most, but not all, federal em-
ployee hiring and that permit consideration of prior pay in
hiring—5 U.S.C. § 5333 and 38 U.S.C. § 7408. These stat-
utes do not apply to Dr. Boyer because she was hired pur-
suant to 38 U.S.C. § 7401(3), a statute that provides
specifically for the hiring by the VA of certain health pro-
fessionals (including pharmacists), though the VA Hand-
book governing such hiring states that “[a]uthorized
officials may, after considering an individual’s existing pay,
Case: 22-1822 Document: 54 Page: 8 Filed: 03/26/2024

8 BOYER v. US

higher or unique qualifications, or special needs of VA, ap-
point . . . VHA GS patient-care personnel at rates of pay
above the minimum rate.” VA Handbook 5005, Part II,
Chapter 3 (Dec. 6, 2007). The government argues that, un-
less one rule is held to be applicable to all federal employ-
ees, the different statutes would in practice “carve VA
employees into distinct classes for the purpose of EPA
claims.” Appellee Br. at 24 (quoting J.A. 34). We agree the
EPA should apply equally to all federal employees. The
question here is whether it applies differently to federal
employees than to employees outside the federal govern-
ment.
II
We first consider the standard applicable to employers
other than the federal government and whether prior com-
pensation in that context can justify a pay differential.
A
The EPA was enacted in 1963. The EPA prohibited
wage discrimination on the basis of sex for work that re-
quires “equal skill, effort, and responsibility, and which are
performed under similar working conditions.” 29 U.S.C.
§ 206(d)(1). As the Supreme Court long ago made clear,
“[t]he Equal Pay Act is broadly remedial, and it should be
construed and applied so as to fulfill the underlying pur-
poses which Congress sought to achieve.” Corning Glass
Works, 417 U.S. at 208.
As noted, the EPA provides for four exceptions justify-
ing a salary differential between employees of the opposite
sex, when the differential is made pursuant to “(i) a senior-
ity 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.”
Id. Here, we are concerned with the fourth exception and
the question whether prior pay is a factor other than sex.
Case: 22-1822 Document: 54 Page: 9 Filed: 03/26/2024

BOYER v. US 9

The courts of appeals have adopted three main ap-
proaches to the use of prior compensation as a “factor other
than sex” defense to the EPA. 29 U.S.C. § 206(d)(1)(iv).
The Fourth and the Seventh Circuits have held that prior
pay is a factor other than sex and that, standing alone, it
can justify differential treatment. They interpret the
fourth “catchall” exception to include virtually any factor,
so long as it is not sex. Wernsing v. Dep’t of Hum. Servs.,
State of Ill., 427 F.3d 466, 469 (7th Cir. 2005). Because, in
the Seventh Circuit’s view, “markets are impersonal and
have no intent,” setting wages based on what the market
will bear cannot be discriminatory—so the EPA is not vio-
lated even when prior compensation is the only justifica-
tion for a wage differential. Id.; see also Spencer v. Va.
State Univ., 919 F.3d 199, 206 (4th Cir. 2019).
The remaining circuits that have considered the ques-
tion have rejected this approach, holding that considera-
tion of prior pay standing alone cannot be a factor other
than sex. One circuit, the Ninth, has held that prior pay
can never justify unequal pay. Rizo v. Yovino, 950 F.3d
1217, 1229 (9th Cir. 2020). The court found that the pres-
ence of the first “other” in the phrase “any other factor
other than sex” limits the word “factor” to considerations
that are job-related. Id. at 1229. The EPA “requires em-
ployers to demonstrate that only job-related factors, not
sex” caused the wage disparities between employees of the
opposite sex. Id. at 1228. In the Ninth Circuit’s view, “the
history of pervasive wage discrimination in the American
workforce prevents prior pay from satisfying the em-
ployer’s burden to show that sex played no role in wage dis-
parities between employees of the opposite sex.” Id.
Therefore, prior pay is excluded as a factor other than sex
under 29 U.S.C.A. § 206(d)(1)(iv). 3

3 In Rizo, the Ninth Circuit describes the difference
between using prior pay when justifying a wage
Case: 22-1822 Document: 54 Page: 10 Filed: 03/26/2024

10 BOYER v. US

Three circuits have followed a middle ground, allowing
consideration of prior pay while acknowledging that it may
perpetuate existing discrimination, and have held that
prior pay can be a factor other than sex only if it is consid-
ered together with at least one other permissible factor, for
example experience or education. See, e.g., Balmer v. HCA,
Inc., 423 F.3d 606, 612 (6th Cir. 2005), abrogated on other
grounds by Fox v. Vice, 563 U.S. 826, 832 (2011) (“Consid-
eration of a new employee’s prior salary is allowed as long
as the employer does not rely solely on prior salary to jus-
tify a pay disparity.”); Glenn v. Gen. Motors Corp., 841 F.2d
1567, 1570–71 (11th Cir. 1988); Irby v. Bittick, 44 F.3d 949,
955–56 (11th Cir. 1995); Price v. Lockheed Space Opera-
tions Co., 856 F.2d 1503, 1506 (11th Cir. 1988); Riser v.
QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015). 4
The basic notion behind these cases is an employer has
shown that a lower rate of prior pay is not serving as a

differential under the EPA and relying on prior pay when
setting an employee’s salary. 950 F.3d at 1231. Some find
this not to be a meaningful distinction. See id. at 1234
(McKeown, J., concurring) (“Permitting prior pay in setting
salary but not as an affirmative defense to the Equal Pay
Act results in an indefensible contradiction. The ‘tension’
highlighted by the majority is precisely the reason that
prior pay cannot be relegated to the dust bin.”).
4 The Eighth Circuit has permitted the use of prior
salary only after “carefully examin[ing] the record to en-
sure that an employer does not rely on the prohibited ‘mar-
ket force theory’ to justify lower wages” for women. Drum
v. Leeson Elec. Corp., 565 F.3d 1071, 1073 (8th Cir. 2009)
(quoting Taylor v. White, 321 F.3d 710, 718 (8th Cir. 2003)).
“In conducting this examination, this court’s concern is re-
lated solely to the issue of whether the prior salary is based
on a factor other than sex.” Id.
Case: 22-1822 Document: 54 Page: 11 Filed: 03/26/2024

BOYER v. US 11

proxy for sex—and is thus “other than sex,” as required by
the EPA—when there is a clearly identified other reason
besides sex (such as less education or less experience). In
those circumstances, those “business reasons . . . reasona-
bly explain the utilization of prior salary.” Irby, 44 F.3d at
955 (alteration in original) (quoting Price, 856 F.2d at
1506). The concern about relying on prior pay standing
alone in the case of female hires is that prior pay might be
artificially reduced by prior sex discrimination such that
the prior pay would be lower than that for the male com-
parator and its consideration would improperly justify a
lower starting salary for an equally qualified female hire. 5
If there are other differences between the two that are truly
considerations unrelated to sex (education, work experi-
ence, recommendations, etc.) that favor the male compara-
tor, it is likely that these same differences could explain
any prior pay gap as well. Under these circumstances, the
employer can properly rely on educational, experience, or
other legitimate, non-sex-based differences and prior pay
together.
B
This middle ground approach recognizes that sex dis-
crimination can be (but is not always) inherent in prior pay.
As both the government and Boyer acknowledge, the con-
cern with the use of prior compensation is that prior com-
pensation itself may be lower because it reflects gender
discrimination. The concern is well justified. As pointed
out by amici and not contradicted by the government, “the
gender wage gap has hardly narrowed over the last 15
years.” Brief for National Women’s Law Center, et. al. as
Amici Curiae Supporting Plaintiff-Appellant at 8, Boyer v.

5 The concern about relying on prior pay generally
arises only if it is used to justify a pay differential, i.e.,
where the male comparator’s prior pay is higher than the
female hire’s prior pay.
Case: 22-1822 Document: 54 Page: 12 Filed: 03/26/2024

12 BOYER v. US

United States (No. 22-1822) (citing Amanda Barroso &
Anna Brown, Gender Pay Gap in U.S. Held Steady in 2020,
Pew Research Ctr. (May 25, 2021), https://www.pewre-
search.org/fact-tank/2021/05/25/gender-pay-gap-facts/).
“[W]omen working full time, year round were paid just 84
cents for every dollar paid to men in 2021.” Id. (citing Nat’l
Women’s Law Ctr., NWLC Resources on Poverty, Income,
and Health Insurance in 2021 (Sept. 13, 2022),
https://nwlc.org/resource/nwlc-resources-on-poverty-in-
come-and-health-insurance/); see also Jessica Semega &
Melissa Kollar, Income in the United States: 2021, U.S.
Census Bureau, Current Population Reports, at Table A-7
(Sept. 2022), https://www.census.gov/content/dam/Cen-
sus/library/publications/2022/demo/p60-276.pdf. When a
pay disparity is the result of sex discrimination, using prior
pay to set compensation necessarily perpetuates unjusti-
fied pay disparities.
The government does not dispute—as an empirical
premise—that reliance on prior pay can perpetuate im-
proper disparate treatment. It could hardly do otherwise.
During the pendency of this appeal, the government final-
ized regulations prohibiting consideration of prior pay
when setting salary for new employees. Advancing Pay Eq-
uity in Governmentwide Pay Systems, 89 Fed. Reg. 5737,
5754–57 (Jan. 30, 2024) (to be codified at 5 C.F.R. pts. 531–
32, 534 & 930). 6 In its rulemaking, the government con-
ceded, among other things, that “[b]ecause salary history is
not always a good proxy for worker value, experience, and
expertise . . . setting pay based on a candidate’s salary his-
tory could perpetuate a pay rate that [is] inequitable.” Id.
at 5748.

6 This regulation will only apply prospectively. Id.
at 5737. The rulemaking does not address the question of
whether the EPA is violated by consideration of prior pay
alone.
Case: 22-1822 Document: 54 Page: 13 Filed: 03/26/2024

BOYER v. US 13

Thus, using prior compensation alone could undermine
a core concern of the EPA—to eliminate gender discrimina-
tion in compensation. See also id. at 5752 (“21 states and
22 localities have enacted laws prohibiting the use of salary
history in setting pay.”). The empirical evidence discussed
by the government in its proposed rulemaking, which pro-
posal Dr. Boyer cited in a notice of supplemental authority,
reflects that when government actors have enacted bans on
considering prior pay, they have seen increases in women’s
salaries and decreases in the gap between men and
women’s salaries—confirming that prior pay may operate
as a proxy for sex. See Appellant’s Citation of Supple-
mental Authority, ECF No. 50 (referencing 88 Fed. Reg.
30251 (May 11, 2023)); see also 88 Fed. Reg. at 30258. In
the final rulemaking, the government acknowledged that
“[p]ay setting based on salary history may be inequitable,
can perpetuate biases from job to job, and may contribute
to a pay gap between the earnings of men and women.” 89
Fed. Reg. at 5737.
In light of these factual premises, relying on prior com-
pensation alone as an affirmative defense to the EPA risks
thwarting the Act’s most fundamental goal—equal pay for
equal work. In short, these empirical premises recognize
the simple fact that prior pay can be—and frequently is—
a proxy for the sex of the worker. 7 When prior pay is a
proxy for sex, it is not “other than sex”—it is intertwined
with sex. The EPA prohibits reliance on prior pay unless
(1) the prior pay itself is not based on sex, or (2) an addi-
tional permissible factor “other than sex” is present to as-
sure a factfinder that the “other factor” of prior pay is
indeed “other than sex” (i.e., not a proxy for sex).

7 It is significant that these factual points are not
only undisputed by the government in its briefing and at
oral argument, but affirmatively advanced by the govern-
ment in the rulemaking.
Case: 22-1822 Document: 54 Page: 14 Filed: 03/26/2024

14 BOYER v. US

C
It follows that because it is undisputed that prior pay
can perpetuate systemic gender discrimination, the best in-
terpretation of the phrase “other factor other than sex”
does not include prior pay alone (unless that prior pay itself
can be shown to be not based on sex). We are in agreement
with the Sixth, Tenth, and Eleventh Circuits with this one
qualification. We think that this approach most conforms
with the both the text and the underlying central purpose
of the EPA.
This middle-ground approach also meets the EPA’s
goal to accommodate legitimate business interests, partic-
ularly the requisite flexibility to hire and retain employees.
See Washington Cnty. v. Gunther, 452 U.S. 161, 171 n.11
(1981) (“[T]he fourth affirmative defense [was included] be-
cause of a concern that bona fide job-evaluation systems
used by American businesses would otherwise be dis-
rupted.”). Thus, this approach acknowledges that there
may be legitimate reasons to consider prior salary, such as
the ability to hire and retain skilled workers, but that prior
salary without consideration of other factors can allow be-
havior to persist that is “antithetical to the language and
purpose of the EPA.” Jennifer Safstrom, Salary History
and Pay Parity: Assessing Prior Salary History as a “Factor
Other Than Sex” in Equal Pay Act Litigation, 31 Yale J.L.
& Feminism 135, 139 (2019).
We also agree that, as many of our sister circuits have
held, this exception (consideration of prior pay with other
non-sex-based factors) is permissible only if that consider-
ation was in fact the basis for the decision, but not if it is
offered as an after the fact justification. See Drum v.
Leeson Elec. Corp., 565 F.3d 1071 (8th Cir. 2009). In Drum,
the court held that “merely . . . articulating a legitimate,
non-discriminatory reason” will not allow an employer to
“escape liability.” Id. at 1072 (quoting Simpson v. Mer-
chants & Planters Bank, 441 F.3d 572, 579 (8th Cir. 2006)).
Case: 22-1822 Document: 54 Page: 15 Filed: 03/26/2024

BOYER v. US 15

Instead, “the defendant must prove that the pay differen-
tial was based on a factor other than sex.” Id. (quoting
Simpson, 441 F.3d at 579). Similarly, other circuits have
explained that it is not enough that “the employer’s prof-
fered reasons could explain the wage disparity.” Riser, 776
F.3d at 1198 (quoting Mickelson v. N.Y. Life Ins. Co., 460
F.3d 1304, 1312 (10th Cir. 2006)). It is necessary that “the
proffered reasons do in fact explain the wage disparity.” Id.
(quoting Mickelson, 460 F.3d at 1312); see also U.S. Equal
Emp. Opportunity Comm’n v. Md. Ins. Admin., 879 F.3d
114, 121 (4th Cir. 2018). Because language of the EPA pro-
hibits a disparity in pay among genders “‘except where
such payment is made pursuant to’ one of the four . . . af-
firmative defenses,” it is not enough to provide a post hoc
nondiscriminatory reason without evidence that the non-
discriminatory reason actually motivated the decision to
set unequal pay. Mickelson, 460 F.3d at 1312 (emphasis
added) (quoting 29 U.S.C. § 206(d)(1)).
D
In short, the central lesson is that the prior pay cannot
be an “other factor other than sex” if the prior pay itself is
the product of sex discrimination. In joining the other cir-
cuits and adopting this middle ground, we think one fur-
ther qualification is required. It is necessary to leave room
for an employer to otherwise establish that the prior pay is
not based on sex. If the employer can establish that prior
pay was not based on sex, the employer is relying on an
“other factor other than sex” to justify the disparity. We
leave for future cases to consider what evidentiary showing
is needed to carry this burden.
Both the text of the EPA and precedent require the em-
ployer to carry the burden of establishing that the prior pay
was not the product of gender discrimination. Consistent
with the characterization as an affirmative defense, the
Supreme Court, our court, and every circuit to expressly
consider address the question have concluded that the
Case: 22-1822 Document: 54 Page: 16 Filed: 03/26/2024

16 BOYER v. US

employer bears the burden of establishing the factual
premises underlying the affirmative defense. See, e.g.,
Corning Glass Works, 417 U.S. at 196 (stating that once a
prima facie case has been set out, “the burden shifts to the
employer to show that the differential is justified under one
of the Act’s four exceptions”); Moore v. United States, 66
F.4th 991, 996 (Fed. Cir. 2023) (en banc); Soto v. Adams
Elevator Equip. Co., 941 F.2d 543, 548 (7th Cir. 1991) (“If
an EPA plaintiff establishes a prima facie case, the burden
shifts to the defendant employer to provide evidence of any
of the statutorily based affirmative defenses . . . .”).
Thus, the employer bears the burden to prove its af-
firmative defense that prior pay is a factor other than sex
because it does not reflect sex discrimination. As we ex-
plained in Moore v. United States, once a prima facie case
is established, “it becomes the employer’s burden to prove—
as an affirmative defense—that the pay differential has a
permissible non-sex-based justification.” 66 F.4th at 996.
That burden allocation follows from the plain text of
the EPA. The EPA requires an employer to show both that
the pay differential was justified by an “other factor” and
that such factor was “other than sex.” 29 U.S.C.
§ 206(d)(1)(iv). Merely showing that an employer relied on
prior pay—the alleged “other factor”—does not carry the
full burden imposed by the statute. Id. Instead, the em-
ployer must also show that the prior pay was not based on
sex—that it was, in fact, also “other than sex.” Id. As the
party with the burden of proof, the employer is not entitled
to simply assume that prior pay is unrelated to (or “other
than”) sex. Without a showing that the prior pay is a “non-
sex-based” justification, an employer cannot carry the af-
firmative defense. Moore, 66 F.4th at 996. This approach
is simply a faithful application of the requirement that the
employer must show both the existence of an alleged “other
factor” and must—as a factual matter—show that it is
“other than sex.”
Case: 22-1822 Document: 54 Page: 17 Filed: 03/26/2024

BOYER v. US 17

In summary, the employer can only rely on prior pay if
either (1) the employer can demonstrate that prior pay is
unaffected by sex-based pay differentials or (2) prior pay is
considered together with other, non-sex-based factors.
III
The government does not dispute that other circuits
have held in the context of employers other than the federal
government that prior compensation alone in general can-
not be the governing factor. Nor does the government or
the Claims Court “suggest that other courts have incor-
rectly construed the EPA as precluding defendants’ reli-
ance on existing or prior pay alone to justify pay
differentials between employees of different sexes.” J.A. 30
n.13. However, the government argues that a different
rule should prevail with respect to federal government em-
ployees.
A
Initially, the EPA applied only to private employees
and did not apply to federal employees (or state and local
government employees). The federal government was ap-
parently excluded as an employer simply because the EPA
was an amendment to the Fair Labor Standards Act, and
the government was excluded from coverage when the first
Fair Labor Standards Act was passed in 1938. S. REP. NO.
88-176, at 2 (1963). In the Fair Labor Standards Act of
1938, the definition of “[e]mployer” did “not include the
United States or any State or political subdivision of a
State.” Fair Labor Standards Act of 1938, Pub. L. No. 75-
718, 52 Stat. 1060, 1060 § 3(d). There appears to have been
no policy reason for the exclusion of federal government
employees under the EPA’s initial coverage.
In 1974, the EPA was amended to apply to federal em-
ployees. The 1974 Fair Labor Standards Amendments ex-
panded the coverage of both the Fair Labor Standards Act
and the Equal Pay Act to “individual[s] employed by the
Case: 22-1822 Document: 54 Page: 18 Filed: 03/26/2024

18 BOYER v. US

Government of the United States.” 29 U.S.C.
§ 203(e)(2)(A). Congress included no statutory restriction
8

or language indicating that the FLSA—or the EPA—
should apply differently to government workers. Before us,
the government has identified nothing in the text of the
1974 Fair Labor Standards Amendments that indicates an
intent to provide disparate treatment under the EPA for
federal government workers. Instead, the plain text of the
1974 Fair Labor Standards Amendments simply expands
the ordinary operation of the FLSA—including the EPA—
to cover an additional class of workers: those employed by
the federal government.
The legislative history of these amendments confirms
an intention to achieve equal treatment of government and
private employers and employees. The Senate Committee
on Labor and Public Welfare in the 1972 report on a previ-
ous version of the bill recognized that “[m]any arguments
have been advanced for bringing public employees under
the [Fair Labor Standards Act]. A major argument was
and continues to be a moral one. Government should be
willing to apply to itself any standard it deems necessary
to apply to private employment.” S. REP. NO. 92-842, at 18
(1972) (emphasis added). Again in 1974, in reporting the
final version of the bill, the Senate Report stated the pur-
pose of the bill was “to amend the Fair Labor Standards
Act of 1938, as amended, to extend its protection to addi-
tional employees”—not to extend some lesser (or different)

8 In 1966, the Fair Labor Standards Act was
amended to include some state government employees.
The 1974 Amendments further expanded coverage to in-
clude virtually all federal and state government employees.
H. REP. NO. 93-953, at 6 (“‘Public agency’ means the Gov-
ernment of the United States; the government of a State or
political subdivision thereof . . . .”).
Case: 22-1822 Document: 54 Page: 19 Filed: 03/26/2024

BOYER v. US 19

set of protections to government employees. S. REP. NO. 93-
690, at 1 (1974) (emphasis added). While the original
FLSA had been narrower in various ways—including by
not protecting government employees—the “goal of the
amendments embodied in” the 1974 legislation was “to con-
tinue the task initiated in 1961—and further implemented
in 1966 and 1972—to extend the basic protection of the
Fair Labor Standards Act to additional workers and to re-
duce to the extent practicable at this time the remaining
exemptions” to coverage. Id. at 7.
The purpose of the 1974 amendments was thus to fill
“gaps” in the FLSA’s prior coverage, extending that to cover
“additional workers” in government. Id. at 16 (“The Com-
mittee reviewed present coverage, as well as the gaps
therein, and determined that a strong need exists for cov-
ering . . . additional workers . . . in government.”). Accord-
ingly, “[t]he Committee intends that government apply to
itself the same standards it applies to private employers.”
Id. at 24. Prior House debate on a predecessor version of
the bill echoed similar reasoning:
Government, at whatever level, should not be ex-
empt from provisions of the law which apply to pri-
vate sector employers. Employees should not be
subjected to discrimination because they happen to
work for government rather than for a private sec-
tor employer.
119 CONG. REC. 18,159 (1973) (statement of Rep. Bar-
bara Jordan). Thus, both the text and legislative history of
the EPA indicate that it should apply equally to govern-
ment and private employers.
B
However, the government relies on two statutes,
5 U.S.C. § 5333 and 38 U.S.C. § 7408 as supporting a dif-
ferent conclusion. Section 5333 is entitled “Minimum rate
for new appointments” and addresses the general pay-
Case: 22-1822 Document: 54 Page: 20 Filed: 03/26/2024

20 BOYER v. US

setting authority for government employees. The statute
authorizes a departure from the minimum rate of the ap-
propriate grade for new appointments “under regulations
prescribed by the Office of Personal Management which
provide for such considerations as the existing pay” of the
candidate, among other qualities. 5 U.S.C. § 5333. Simi-
larly, 38 U.S.C. § 7408, a statute that addresses appoint-
ment of some employees within the Veteran’s Health
Administration, authorizes a departure from the minimum
pay rate of the appropriate grade for new appointments “af-
ter considering an individual’s existing pay, higher or
unique qualifications, or the special needs of the Depart-
ment.” While these statutes do not apply to Dr. Boyer, the
VA Handbook, which does apply, contemplates considera-
tion of prior pay, see VA Handbook 5005, Part II, Chapter
3 (Dec. 6, 2007), and the government argues that the same
rules must apply to all federal employees, a proposition
with which we agree.
In light of these statutes, the government contends
that the middle ground that we have found generally ap-
plicable to employees outside the federal government
should not apply to the federal workforce. In other words,
that the federal pay-setting statutes should be read to
cabin the EPA as it applies to the federal workforce. We do
not agree.
When, as here, “two statutes are capable of co-exist-
ence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as
effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974);
Highland Falls-Ft. Montgomery Cent. Sch. Dist. v. United
States, 48 F.3d 1166, 1171 (Fed. Cir. 1995); see also Van
Dermark v. McDonough, 57 F.4th 1374, 1386 (Fed. Cir.
2023). Thus, statutes that appear to be in conflict should
be construed if possible to reconcile the two. United States
v. Borden Co., 308 U.S. 188, 198 (1939); Morton, 417 U.S.
at 551. Here, the Equal Pay Act and the government pay-
setting statutes are capable of co-existence. The pay-
Case: 22-1822 Document: 54 Page: 21 Filed: 03/26/2024

BOYER v. US 21

setting statutes allow consideration of prior pay. The EPA
allows consideration of prior pay if prior pay is not sex-
based and also allows consideration of prior pay with an-
other factor. This reconciliation renders the statutes not
inconsistent and is fully consistent with the Congressional
design.
First, as discussed earlier, the principle of the 1974
amendments to the Fair Labor Standards Act, expanding
the EPA to federal employees, is that the same rules ought
to apply to both government and private employees. See S.
REP. NO. 93-690, at 24 (1974) (“The Committee intends that
government apply to itself the same standards it applies to
private employers.”); see also S. REP. NO. 92-842, at 18
(1972) (“Many arguments have been advanced for bringing
public employees under the [Fair Labor Standards Act]. A
major argument was and continues to be a moral one. Gov-
ernment should be willing to apply to itself any standard it
deems necessary to apply to private employment.”). The
government offers no plausible reason as to why Congress
would want to apply different standards to government
and the private sector. It fails to demonstrate that Con-
gress wished to apply differential standards. It would take
fairly explicit statutory language to indicate that Congress
intended to depart from this general principle. No such
language appears in either 5 U.S.C. § 5333 (which was first
enacted before the EPA applied to federal employees) or
38 U.S.C. § 7408 (enacted after the EPA). The two statutes
that the government relies on simply do not address issues
relating to the EPA.
Second, both pay-setting statutes are permissive, not
mandatory. Both statutes include lists of factors that the
government “may” consider when setting a new appoint-
ment’s salary above the minimum rate. See 5 U.S.C.
§ 5333 (“[U]nder regulations prescribed by the Office of
Personnel Management which provide for such considera-
tions as the existing pay or unusually high or unique qual-
ifications of the candidate, or a special need of the
Case: 22-1822 Document: 54 Page: 22 Filed: 03/26/2024

22 BOYER v. US

Government for his services, the head of an agency may
appoint . . . an individual to a position at such a rate above
the minimum rate of the appropriate grade . . . .” (emphasis
added)); 38 U.S.C. § 7408(b) (“The Secretary, after consid-
ering an individual’s existing pay, higher or unique quali-
fications, or the special needs of the Department, may
appoint the individual . . . at a rate of pay above the mini-
mum rate . . . .” (emphasis added)). Prior pay, existing sal-
ary, and salary history are listed among the factors that
“may” be used, but the statutes do not require that the gov-
ernment consider prior pay at all—much less do they re-
quire that that the government consider prior pay
exclusively. See Biden v. Texas, 597 U.S. 785, 802 (2022)
(“The statute says ‘may.’ And ‘may’ does not just suggest
discretion, it ‘clearly connotes’ it.”) (quoting Opati v. Re-
public of Sudan, 590 U.S. 418, 428 (2020)); see also Off. of
Personnel Mgmt., Fact Sheet: Superior Qualifications and
Special Needs Pay-Setting Authority,
https://www.opm.gov/policy-data-oversight/pay-leave/pay-
administration/fact-sheets/superior-qualifications-and-
special-needs-pay-setting-authority/ (“Existing salary, re-
cent salary history, or a competing salary offer is only one
of a number of factors that may be used to determine an
employee’s step rate.” (emphasis omitted)). Nor does the
disjunctive use of “or” in 5 U.S.C § 5333 and 38 U.S.C.
§ 7408 impose any such requirement. The presence of the
word “or” does not convert broad discretion to consider a
flexible list of factors into a command to consider each of
the listed factors.
Third, even though our reading of the EPA would, to a
limited extent, cabin the discretion that federal employers
would otherwise have under the pay-setting statute, no
Congressional policy will be defeated by construing those
statutes not to authorize actions that would be in violation
of another statute. In particular, there is no indication that
Congress in enacting the pay-setting statutes considered
the possibility that relying on prior compensation would
Case: 22-1822 Document: 54 Page: 23 Filed: 03/26/2024

BOYER v. US 23

perpetuate discrimination. There is certainly no indication
there is any statutory policy embodied in the pay-setting
statutes that would be undermined by applying EPA poli-
cies or barring consideration of prior pay standing alone
(where there is no showing that the prior pay is not based
on sex). “Here[,] the basic purposes” of the government
pay-setting statutes “can be fairly served by giving full ef-
fect” to the EPA. Radzanower v. Touche Ross & Co., 426
U.S. 148, 155 (1976) (construing venue authorization stat-
ute not to apply to national banks in light of another venue
statute specifically applicable to national banks).
In short, the pay-setting statutes simply authorize tak-
ing into account certain considerations in hiring. They do
not require such consideration. They are easily construed
to only authorize consideration of prior pay if such consid-
eration is not contrary to another statute, here the EPA.
There is nothing in the pay-setting statutes that is re-
motely designed to allow agencies to engage in discrimina-
tory practices in hiring. The Claims Court erred in holding
that the government in hiring may consider prior pay
standing alone as a factor other than sex, unless the gov-
ernment can also prove that the prior pay was not itself
based on sex.
IV
Dr. Boyer argues that we should reverse and require
an award to Dr. Boyer without remanding for further pro-
ceedings. The Claims Court held that under Dr. Boyer’s
legal theory (which we now adopt), genuine issues of mate-
rial fact remained. We see no error in that determination.
Dr. Boyer asserts that the record indisputably shows
that the BVAMC relied on prior pay alone when creating a
wage disparity between herself and the male comparator.
But there is evidence both ways as to whether prior pay
alone was the deciding factor.
Case: 22-1822 Document: 54 Page: 24 Filed: 03/26/2024

24 BOYER v. US

The selecting official, Monica Sfakianos, testified to the
fact that she “boarded everybody exactly the same without
regards to anything special other than their current pay
stubs.” J.A. 260 (7:18–20). Other members of the Veterans
Integrated Service Networks 7 Pharmacy Professional
Standards Board gave similar testimony. See J.A. 279
(4:15–17) (Kendra Brookshire testifying “at the end of the
day pay stubs can basically trump what would be deter-
mined by the qualifying experience”); J.A. 271 (6:08–09)
(Lisa Ambrose testifying that what a candidate is currently
being paid is “the biggest factor that we always took into
consideration”).
But there is evidence that other factors went into the
decision to set Dr. Boyer and the male comparator’s pay.
When emailing with Dr. Boyer at the time of her hiring, the
selecting official, Ms. Sfakianos, told Dr. Boyer that salary
could be “based on education, residency, published articles”
in addition to salary matching. J.A. 130. Similarly, in the
same deposition where Dr. Ambrose acknowledged that
pay stubs are “the biggest factor,” she also explained that
salary setting was “an algorithm” that took several factors,
including years of service and publications, into account.
J.A. 269.
If, on remand, the Claims Court determines that a bona
fide business reason other than prior pay played a role in
the differential, an important part of the Claims Court’s
task will be to explain in detail how prior pay together with
another bona fide business reason explains the differential.
In other words, the Claims Court would need to find that
the BVAMC actually relied on specific differences in expe-
rience or credentials that were material to the work being
performed by Dr. Boyer and the male comparator. Alter-
natively, if, on remand, the Claims Court determines that
BVAMC relied on prior pay alone, the government should
be provided an opportunity to attempt to prove that the
prior pay on which BVAMC relied was not itself based on
sex.
Case: 22-1822 Document: 54 Page: 25 Filed: 03/26/2024

BOYER v. US 25

Because the Claims Court erred in its construction of
the EPA, and there are genuine disputes of material fact
as to whether the BVAMC relied on prior pay alone to jus-
tify the pay differential between Dr. Boyer’s and the male
comparator’s salaries, we reverse the grant of summary
judgment and remand to the Claims Court for further pro-
ceedings consistent with this opinion.
REVERSED AND REMANDED
COSTS
Costs to appellants.