Ruling in an important case about gender-based pay disparities in education, a federal appeals court has once again held that an employer does not have a valid defense against alleged sex discrimination under the Equal Pay Act of 1963 if it bases a worker’s starting salary entirely on her prior pay.
“Setting wages based on prior pay risks perpetuating the history of sex-based wage discrimination,” said the Feb. 27 opinion for a majority on an 11-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.
The appeals court issued the new opinion in Yovino v. Rizo after the U.S. Supreme Court last year threw out an earlier decision in the case because one judge on the panel had died days before the original appellate decision was released. The judge, Stephen R. Reinhardt, had provided the critical vote to form a majority and had written the opinion for the court. The 9th Circuit released the 2018 decision 11 days after Reinhardt had died at age 87.
The Supreme Court, in an unsigned opinion last February, threw out the earlier 9th Circuit decision, saying that the votes of judges who later died could not be counted.
“Federal judges are appointed for life, not for eternity,” the Supreme Court opinion said.
The dispute over the deceased judge’s vote distracted somewhat from the significance of the legal question in the case of Aileen Rizo, a former middle school and high school mathematics teacher who was hired in 2009 by the Fresno County, Calif., Office of Education for the staff position of math consultant.
Rizo had been earning $52,000 as a math teacher in Arizona before accepting the Fresno County math consultant’s job at a salary of $62,133, court papers say.
During a lunch with her colleagues in 2012, Rizo learned that her male colleagues had been hired as math consultants at higher steps on the office’s salary scale. Court papers say one man had been hired at $73,832, another man at $79,088, but also one woman at $76,414.
Rizo complained to her employer, which said that all salaries had been set in accordance with standard operating procedure based primarily on the employee’s most recent prior salary.
The county education office defended its system by arguing that the Equal Pay Act permits male and female pay differentials for equal work under a handful of exceptions, including the one the office relied on: a differential based on “any other factor other than sex.”
In the first round at the 9th Circuit, all 11 judges on the “en banc” panel of that court agreed that Rizo’s lawsuit should proceed, but five judges wrote or joined opinions that suggested pay history could sometimes be a factor other than sex under the EPA and thus could provide an employer with a defense against pay discrimination.
The new opinion once again has a narrow majority of six judges holding that prior pay may never be the basis for the “any other factor” defense.
“Because prior pay may carry with it the effects of sex-based pay discrimination, and because sex-based pay discrimination was the precise target of the EPA, an employer may not rely on prior pay to meet its burden of showing that sex played no part in its pay decision,” said the new majority opinion by Judge Morgan B. Christen, who was part of the original majority.
When the 9th Circuit court reconsidered the case on remand, it added another member of that court to replace Reinhardt on the 11-judge panel. That is the size the 9th Circuit uses for “en banc” rehearings of certain cases rather than its full roster of 29 active judges.
That addition to the case, Judge Carlos T. Bea, did not join the majority decision but concurred in the result. It appears that another member of the panel, Judge Paul J. Watford, who had not joined the majority the first time around, supplied the sixth vote for the new decision.
The five judges who concurred in allowing Rizo’s suit to proceed but disagreed with the majority’s rationale wrote or joined two separate opinions. One said employers do not necessarily violate the Equal Pay Act when they consider prior salary among other factors when setting initial wages. The other said that a standard that prior wages may never be considered “ignores the realities and dynamic nature of business.”
The opinions in the case suggest that at least five other federal appeals courts have limited the consideration of prior pay as a “factor other than sex” defense, but the 9th Circuit judges disagreed about the scope of the differences in approach among the other courts and whether there was a “circuit split” on the issue.
A version of this news article first appeared in The School Law Blog.