Ninth Circuit Says (Again) That Past Salary Can’t Justify Sex-Based Pay Gaps

Originally published by Caroline B. Burnett, Susan F. Eandi and Emily Harbison.

The Ninth Circuit just reiterated one of the late U.S. Circuit Judge Stephen Reinhardt’s last opinions after the U.S. Supreme Court wiped it out last February. (Decision here.) In February 2019, the Supreme Court vacated and remanded Rizo v. Yovino, which held that employers cannot justify a wage differential between men and women by relying on prior salary, because Judge Reinhardt, who authored the decision, was deceased at the time the decision was issued.

Noting that “federal judges are appointed for life, not for eternity,” the Supreme Court granted certiorari and vacated the Ninth Circuit’s decision. Now, upon remand, the en banc Ninth Circuit has basically repeated its previous decision. (See our summary of Reinhardt’s decision here.) The opinion revived a suit alleging a California school system violated the Equal Pay Act by paying teacher Aileen Rizo less than her male colleagues because she made less money at her previous job. The court determined that past salary is not a “factor other than sex” that can justify gendered pay gaps.

“The express purpose of the act was to eradicate the practice of paying women less simply because they are women,” Judge Morgan Christen wrote for the majority. “Allowing employers to escape liability by relying on employees’ prior pay would defeat the purpose of the act and perpetuate the very discrimination the EPA aims to eliminate.”

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