The U.S. Supreme Court on Monday threw out a major ruling over gender-based pay discrimination in education, ruling that a federal appeals court had improperly counted the vote of a recently deceased judge when it held that prior salary may not justify a difference in pay between male and female workers doing the same job.
The high court, in an unsigned opinion in the case of a female California education administrator, said the U.S. Court of Appeals for the 9th Circuit, in San Francisco, erred when it issued an opinion written by Judge Stephen R. Reinhardt 11 days after he had died at age 87.
“That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death,” the Supreme Court said in its Feb. 25 decision in Yovino v. Rizo. “But federal judges are appointed for life, not for eternity.”
Reinhardt last April wrote for six judges on an 11-judge panel, which is the size the 9th Circuit uses for “en banc” rehearings of certain cases rather than its full roster of 29 active judges.
Reinhardt’s vote was critical in the appeals court’s decision that under the Equal Pay Act of 1963 an employer does not have a valid defense under the statute if it bases an employee’s starting salary entirely on her prior pay.
The 9th Circuit’s decision had come 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, which included a $600 stipend for her master’s degree, 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 pointing to the Equal Pay Act, which permits male and female pay differentials for equal work under four exceptions: a seniority system, a merit-pay system, a system which measures earnings by quantity or quality of production, or because of a differential based on “any other factor other than sex.”
The education agency argued that the fourth exception should apply to Rizo’s circumstances, but the 9th Circuit court majority disagreed. Actually, all 11 judges on the panel voted to revive Rizo’s case, but it was only Reinhardt’s opinion that commanded a majority.
“We conclude, unhesitatingly, that ‘any other factor other than sex’ is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance,” Reinhardt wrote for the 9th Circuit majority in a decision issued last April. “It is inconceivable that Congress, in an act the primary purpose of which was to eliminate long-existing ‘endemic’ sex- based wage disparities, would create an exception for basing new hires’ salaries on those very disparities.”
The 9th Circuit explained its handling of the case with a footnote that 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.”
In his appeal to the Supreme Court, Jim Yovino, the superintendent of the Fresno County education office, urged the justices to examine the question of whether employers may consider prior pay, but he also said it was wrong for the 9th Circuit to have issued an opinion that relied on a deceased judge’s vote.
“When Judge Reinhardt died, he left ‘regular active service’ as a federal judge,” Yovino’s brief said, quoting a federal statute.
The Supreme Court agreed. In its five-page “per curiam” opinion, the high court said the 9th Circuit’s view that opinions and voting in the case were “final” before Reinhardt’s death “is inconsistent with well-established judicial practice, federal statutory law, and judicial precedent.”
The high court said “it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”
The opinion said it was not uncommon for three-judge appeals court panels, which is how the vast majority of appeals are handled, to issue an opinion after one member of the panel has died, retired, or resigned. But that happens only when the remaining two judges have agreed on the outcome, and still form a quorum of the original court.
In the Rizo case, the binding opinion was joined when it was released by less than a quorum “the judges who were alive at that time,” the high court said.
The Supreme Court vacated the 9th Circuit’s decision and returned the case to that court, where it was not immediately clear what would happen next.
Justice Sonia Sotomayor did not join the high court’s per curiam opinion, indicating that she concurred only in the judgment, or outcome.
A version of this news article first appeared in The School Law Blog.