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A major new test of the power of employers to use prior salary history to justify wage disparities between male and female employees is inching closer to the U.S. Supreme Court after settlement talks failed to resolve the closely-watched dispute.

Lawyers from Jones Day, representing a California school district, have received extra time to file a petition by Sept. 4, according to court filings. The Fresno school district lost in the U.S. Court of Appeals for the Ninth Circuit, which said an employee’s salary history can’t be used to justify paying men and women differently for comparable jobs.

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