Prior salary can’t justify wage gap between men and women, appeals court rules

Los Angeles Times
Published: 4/9/2018 4:40:26 PM

SAN FRANCISCO — Employers should not base a new worker’s pay on past salary because that could exacerbate unequal pay between men and women, a federal appeals court decided Monday.

An 11-judge panel of the 9th U.S. Circuit Court of Appeals, overturning last year’s decision by a three-judge panel in the case, ruled unanimously in favor of a female math consultant from Fresno, Calif., who was paid less than men for equal work because her prior salary was lower.

“Allowing an employer to justify a wage differential between men and women on the basis of prior salary is wholly inconsistent with the provisions of the Equal Pay Act,” Judge Stephen Reinhardt, who died last month, wrote for the court.

Despite passage of the federal pay law in 1963, “the financial exploitation of working women embodied by the gender pay gap continues to be an embarrassing reality of our economy,” Reinhardt wrote.

The ruling came in a lawsuit brought by Aileen Rizo, a math consultant, against the Fresno County Superintendent of Schools.

Rizo sued after discovering that all the other math consultants, who were men, received higher pay than she did.

The school system conceded Rizo was paid less for the same work but attributed the disparity to the men’s pay history, not discrimination.

A federal magistrate, refusing to throw out her lawsuit, ruled that basing pay on previous salaries was unreasonable because it simply perpetuated gender discrimination.

A three-judge 9th Circuit panel overturned that decision a year ago, but a majority of judges on the court voted to reconsider.

Monday’s decision applies to nine Western states. California’s pay law, amended in part because of the Rizo case, says disparity in pay may not be justified solely by prior salary.


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