Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, May 1, 2017

Court Holds Salary Histories are Non-Discriminatory Basis for Paying Women Less

Employers Can Pay Women Less Than Men Based on Salary History, 9th Circuit Holds

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled Thursday that an employer can pay a woman less than a man for the same work if he was paid more in his previous job and the employer used prior salaries as a measure in a reasonable business policy, the San Francisco Chronicle reports.

 

In the ruling in Rizo v. Yovino (PDF), the 9th Circuit cited and upheld its earlier ruling in a similar case in 1982. In that matter, Kouba v. Allstate Insurance Co., the appeals court said that an employee’s prior salary can be considered “a factor other than sex” under the federal Equal Pay Act if the employer can show that doing so “effectuate[s] some business policy” and is done “reasonably in light of [its] state purpose as well as its other practices.”

 

In that case and in the current one, the appeals court remanded the matter for the trial court to evaluate the business reasons put forth by the Fresno County school system in setting the salaries.

 

The case was brought by Aileen Rizo, who was hired by Fresno County schools in 2009 as a math consultant, a management position. She had previously worked as a schoolteacher in Arizona for 13 years and in Fresno County got a starting salary of $62,733, almost $10,000 more than at her last job, but at the bottom of the scale in her new one.

 

In 2012, Rizo learned in lunchtime conversation with colleagues that a man who had just been hired in the same position as hers was getting approximately $79,000 a year, and subsequently learned that others in the job, all men, made more than she did. She sued. ***

 

One prominent critic says the decision feeds rather than stems pay discrimination against women.

 

“This decision is a step in the wrong direction if we’re trying to really ensure that women have work opportunities of equal pay,” Deborah Rhode, who teaches gender equity at Stanford Law School, told the Associated Press. “You can’t allow prior discriminatory salary setting to justify future ones, or you perpetuate the discrimination.”

 

Daniel Siegel, Rizo’s lawyer, told the Associated Press that the case could reach the U.S. Supreme Court because other appeals courts have decided differently on the issue.

The decision is completely tone deaf as to understanding systemic and structural discrimination.   

For the recent legislative trend to enact laws to specifically prohibit the use of salary histories, see:

Philadelphia First City to Ban Salary Histories as Perpetuating Gender Discrimination

Equal Pay Legislation Banning Salary History Questions is Based in Data

http://lawprofessors.typepad.com/gender_law/2017/05/court-holds-salary-histories-are-non-discriminatory-basis-for-unequal-pay.html

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