A federal appeals court has said it will reconsider whether setting pay based on prior salary actually discriminates against women because it could perpetuate a discriminatory wage disparity between men and women.
The 9th U.S. Circuit Court of Appeals has voted to have an 11-judge panel consider whether Fresno County math consultant Aileen Rizo should be allowed to pursue a claim that the school district illegally paid men more than women for the same job by basing salaries on each teacher’s prior pay.
Rizo sued claiming violation of the Civil Rights Act of 1964 and California’s Fair Employment law after she learned that her math consultant position, considered a management job, paid her $62,733 based on her pay of $50,630 in her prior job. But she learned in 2012 that male colleagues with the same job were paid more.
The county maintains that sex was not a factor, that pay was based on wages each new employee received in a prior job.
In April, a three-judge panel sided with the school district and sent the case back to dismiss the claim saying the district could use prior salary as a factor if the district could show the prior salary was reasonable and effectuated a business policy.
The panel said the Equal Pay Act does not impose a strict prohibition against the use of prior salary even though an employer could manipulate its use of prior salary to underpay female employees.
Last week, the full 9th Circuit voted to reconsider that precedent before an 11-judge panel.
Case: Rizo v. Yovino, No. 16-15372
En Banc order HERE: