Prior Pay Can’t Justify Unequal Salaries for Women

In a significant equal pay victory for women, an 11-judge appeals panel held that employers can’t justify differing pay grades for male and female employees by relying on historic salary payments alone.

Judge Stephen Reinhardt, center.

The ruling by the 9th U.S. Circuit Court of Appeals Monday overturned 30 years of circuit case law. It was written by Judge Stephen Reinhardt as one of his final opinions before his death in March.

In a 1982 opinion, the appeals court had held that prior salary, like experience, education, ability and prior job performance were factors “other than sex” that were legitimate job-related factors. Monday’s opinion struck prior salary off the list of reasons for the lack of equal pay between a male or female candidate. Basing a woman’s pay on prior salary only perpetuate the pay discrimination, the court said.

“The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex,” Reinhardt wrote.

The question before the court was whether an employer could justify a wage differential between men and women by relying on prior salary. The clear answer is no, Reinhardt said, adding, “we can only marvel that it has taken us so long to recognize the fact that equality and economic soundness support this legislation.”

Fresno School Pay

Aileen Rizo was a math consultant in the Fresno school district. In 2014 she sued the district for violate of the Equal Pay Act claiming the district paid her thousand of dollars less than three male colleagues to instruct the county’s math teachers, even though Rizo had more experience.

The district moved to dismiss the case seeking a summary judgment that it did not engage in gender discrimination, saying the disparity was based on Rizo’s prior lower pay. Fresno’s pay structure, since 2004, based an incoming employee’s salary solely on salary history.

Rizo got a 5 percent increase from her previous salary and a bonus for her master’s degree giving her a $62,133 starting salary for a manager in Fresno. The district refused to raise her salary after she learned her colleagues were paid more. And they reprimanded her supervisor for talking about pay with her.

“To accept the county’s argument would be to perpetuate rather than eliminate the pervasive discrimination at which the act was aimed,” Reinhardt said.

The three-judge panel in the case found they were bound by the 1982 precedent but urged that the full court, in an en banc 11-judge panel, review the precedent.

Circuit Split

The decision maintains a circuit split on the issue. The 9th Circuit joins the Denver-based 10th and Atlanta-based 11th Circuits, which have ruled employers are not exempt from Equal Pay Act claims when pay is based on prior salary. But the Chicago-based 7th Circuit and St. Louis-based 8th Circuits have held the opposite.

This could make the case more likely to be taken up by the U.S. Supreme Court for review.

Joining Reinhardt were Judges Sidney Thomas, Margaret McKeown, William Fletcher, Richard Paez, Marsha Berzon, Richard Tallman, Connie Callahan, Mary Murguia, Morgan Christen and Paul Watford. Three wrote separate concurring opinions.

The case now goes back to the district court for resolution of her claims.

Case: Rizo v. Yovino, No. 16-15372



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