• Ninth Circuit Ruling on Equal Pay: Salary History Cannot Justify Wage Disparities Between Men and Women
  • April 25, 2018 | Author: Eric J. Wu
  • Law Firm: Leech Tishman - El Segundo Office
  • On the eve of Equal Pay Day, the Ninth Circuit Court of Appeals ruled that employers may not justify paying women a lower salary than men by relying on salary history. Equal Pay Day raises awareness for the gender wage gap. It falls on a date that represents how far into the year women must work to earn pay equal to what men earned in the previous year.[1]

    In a unanimous ruling in Rizo v. Yovino, No. 16-15372 (9th Cir. Apr. 9, 2018) (en banc) the Ninth Circuit held that pay differences based upon salary history are inherently discriminatory under the Equal Pay Act because the previous salaries were the result of gender bias. Judge Stephen Reinhardt’s posthumous opinion explained that prior salary is not a legitimate measure of work experience, ability, performance, or any other job-related quality. This is a significant reversal from the Ninth Circuit’s ruling just last year, which allowed employers to justify pay disparities by looking at prior salary.
    The Equal Pay Act forbids employers from paying women less than men based on gender for equal work performed under similar conditions. There are exceptions where pay differences are based upon “any other factor than sex,” such as merit, seniority, quantity or quality of work. In the Ninth Circuit, however, prior salary can no longer be considered as a “catchall” exception.
    Employers in California, Arizona, Alaska, Idaho, Hawaii, Montana, Nevada, Oregon and Washington will now have to look to other legitimate factors, rather than salary history, to prove that pay differentials do not violate the Equal Pay Act.