Update: SCOTUS Decision
On February 25, 2019, the Supreme Court of the United States (SCOTUS) vacated and remanded Rizo v. Yovino based on a legal technicality rather than the merits of the case. In Rizo v. Yovino, the Ninth Circuit Court of Appeals (see below) had held that under the federal Equal Pay Act (EPA) an employer cannot justify a wage differential between male and female employees by relying on prior salary.
SCOTUS’s per curiam decision does not overrule relevant state law or remove EPA protections. Rather, it addresses whether a federal court can count the vote of a judge who dies before the decision is issued. SCOTUS held that it could not “[b]ecause Judge Reinhardt was no longer a judge at the time when the . . . decision in [Rizo] was filed, the Ninth Circuit erred in counting him as a member of the majority. 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.”
Read the opinion.
Ninth Circuit Court Decision
On April 9, 2018, in Rizo v. Yovino, the Ninth Circuit Court of Appeals held that under the federal Equal Pay Act an employer cannot justify a wage differential between male and female employees by relying on prior salary. The EPA prohibits sex-based wage discrimination between men and women, in the same establishment, who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions.
According to the court’s opinion, “[w]e 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 [endlessly] – would be contrary to the text and history of the EPA and would vitiate the very purpose for which the act stands.”
What Happened in Rizo
In this case, after Rizo was hired she learned that male colleagues in the same job were being hired at a higher salary than her. However, the only rationale the employer offered for this wage disparity was that Rizo’s salary was lower at a prior job. The court held, “[that] this scenario provides a textbook violation of the “equal pay for equal work” mantra of the EPA . . . because [p]rior salary level created the only differential between Rizo and her male colleagues. Thus, requiring that the “any-other-factor-other-than-sex” defense must be limited to legitimate, job-related factors.”
Through this decision, the Ninth Circuit (covering employers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) joins the Second, Sixth, Tenth, and Eleventh Circuits that have likewise interpreted the “any-factor-other-than-sex” defense is limited in its application.
The impact of the Rizo decision reinforces federal and state equal pay rights and highlights National Equal Pay Day because the decision was filed April 9, 2018, the day before 2018’s Equal Pay Day. Equal Pay Day was originated by the National Committee on Pay Equity (NCPE) as a public awareness event illustrating the gap between men’s and women’s wages and is commemorated around the nation and the world. When created, the NCPE decided to select a Tuesday in April as Equal Pay Day. A Tuesday was selected to represent how far into the next work week women must work to earn what men earned the previous week.
The fight for equal pay continues. So, what now? Employers should take steps to review their policies and eliminate any hiring policy that relies on a job applicant’s prior salary in determining their starting pay. Additionally, employers should review applicable state laws related to hiring practices and prior salaries to ensure compliance and avoid liability.
However, according to the NCPE, because on average women earn less than men, they must work significantly longer for the same amount of pay. So . . . maybe the better answer to “What now?” is that employers do not just review their policies, but take the steps necessary to ensure that their employees are paid equally, regardless of gender, and work toward ending the perpetual cycle of pay inequality.
Salary history bans and equal pay mandates are being introduced in states and municipalities across the country. Read more about how this trend affects employers in Four Pay Issues to Watch in 2018. ThinkHR customers can register for our April 16, 2019 wage and hour webinar and earn SHRM or HRCI credits while learning how to stay compliant with a wide range of pay risks.