The Supreme Court has overturned the court decision prohibiting employers from paying women less because of their compensation history—mirrored in several state laws— on a technicality.
The Supreme Court has now vacated Rizo v. Yovino, the 9th U.S. Circuit Court of Appeals' ruling that a person's previous compensation may not be used to justify gender pay disparity. In its Feb. 25 decision, the Supreme Court did not rule on the merits of the case, however vacated the decision because the circuit court counted the vote of a judge who wrote the opinion who was no longer alive when it was issued. Judge Stephen Reinhardt of the 9th Circuit had written the decision for the court before his death last March. The decision was issued the following month.
The Supreme Court stated: “Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the 9th Circuit erred in counting him as a member of the majority,” the Supreme Court said. “That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.”
Without that Judge Reinhardt's vote, the 9th Circuit did not have a majority of judges to reach its holding and the Supreme Court sent the case back to the 9th Circuit for further proceedings. This now leaves employers to now wonder to what extent they can rely on previous salaries as a defense for gender pay differences.
Related to this post:
“9th Circuit can't count deceased judge's vote, Supreme Court rules; pay-equity decision vacated”, By Debra Cassens Weiss; Posted February 25, 2019, 10:55 AM CST; http://www.abajournal.com/news/article/9th-circuit-cant-count-deceased-judges-vote-supreme-court-rules-pay-equity-decision-is-vacated
“Prior Salary Can’t Justify Gender Pay Disparity, Appeals Court Rules”, By Lisa Nagele-Piazza, J.D., SHRM-SCP, April 10, 2018. www.shrm.org
“Salary history bans: A running list of states and localities that have outlawed pay history questions”, By HRDive, Feb. 20, 2019. www.hrdive.com/news/salary-history-ban-states-list/516662/
U.S. Equal Employment Opportunity Commission, “The Equal Pay Act of 1963”. https://www.eeoc.gov/laws/statutes/epa.cfm