Metropolitan News-Enterprise


Friday, February 28, 2020


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Ninth Circuit:

Woman’s Pay in Past Job Is No Defense To Unequal Salary in Present Position

Majority Takes Same Stance as in 2018 Opinion That Was Invalidated Because It Was Filed After Death of Its Author, Stephen Reinhardt


By a MetNews Staff Writer


Unequal pay for a women can never be justified based on what her pay was in her prior job, the Ninth U.S. Circuit Court of Appeals held yesterday in an en banc opinion, repeating what it said on April 9, 2018, in an opinion that was to be invalidated by the U.S. Supreme Court because it was filed with Judge Stephen Reinhardt listed as the author although he had died 11 days earlier.

In a unanimous, unsigned order of Feb. 25, 2019, the Supreme Court said: “Federal judges are appointed for life, not for eternity.”

In his posthumously filed opinion, Reinhardt wrote:

“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. The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act. the answer is clear: No.”

‘Embarrassing Reality’

He went on to say:

“Although the Act has prohibited sex-based wage discrimination for more than fifty years, the financial exploitation of working women embodied by the gender pay gap continues to be an embarrassing reality of our economy.

“Prior to tins decision, our law was unclear whether an employer could consider prior salary, either alone or in combination with other factors, when setting its employees” salaries. We took this case en banc in order to clarify the law. and we now hold that prior salary alone or in combination with other factors cannot justify a wage differential. To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands.”

In a footnote, that opinion said:

“Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”

Christen’s Opinion

Yesterday’s opinion was authored by Circuit Judge Morgan Christen, who had signed Reinhardt’s opinion; there were three concurring opinions in 2018.

Christen said in the new version:

“The express purpose of the Act was to eradicate the practice of paying women less simply because they are women. Allowing employers to escape liability by relying on employees’ prior pay would defeat the purpose of the Act and perpetuate the very discrimination the EPA aims to eliminate. Accordingly, we hold that an employee’s prior pay cannot serve as an affirmative defense to a prima facie showing of an EPA violation.”

In 2018, Reinhardt’s opinion drew six signatures; five judges thought it went too far. Christen’s opinion represented the view of six judges, with Judge Paul Watford joining in it.

Two years ago, he wrote a concurring opinion, saying:

“In my view, past pay can constitute a ‘factor other than sex,’ but only if an employees past pay is not itself a reflection of sex discrimination.”

This time around, as last time, Circuit Judges Consuelo M. Callahan and M. Margaret McKeown wrote concurring opinions saying that the majority went too far in declaring that past pay can never be taken into account.

Callaghan was joined, as she was last time, by Senior Judge Richard C. Tallman, and also by Senior Judge Carlos Bea who did not participate in 2018. She set forth:

“…I agree with our sister circuits, that when salary is established based on a multi- factor salary system that includes prior salary, the presumption that the system is based on gender is rebuttable.”

McKeown, joined, as before, by Judge Mary H. Murguia, as well as by Tallman, said:

“The majority embraces a rule not adopted by any other  circuit—prior salary may never be used, even in combination  with other factors, as a defense under the Equal Pay Act. The  circuits that have considered this important issue have either  outright rejected the majority’s approach or declined to adopt  it. I see no reason to deepen the circuit split. What’s more,  the majority’s position is at odds with the view of the Equal  Employment Opportunity Commission…, the agency  charged with administering the Act. And, perhaps most  troubling, the majority fails to account for the realities of  today’s dynamic workforce, choosing instead to view the  workplace in a vacuum. In doing so, it betrays the promise of  equal pay for equal work and disadvantages workers  regardless of gender identity.”

The case is Rizo v. Yovino, 16-15372.


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