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On Technicality, U.S. Supreme Court Vacates Ninth Circuit Ruling Barring Reliance on Prior Salaries As Defense In Pay Discrimination Dispute

Because the judge who authored the ruling died before the decision was issued, the Ninth Circuit erred in counting him as a member of the majority, the U.S. Supreme Court ruled in Yovino v. Rizo, No. 18-272 (Feb. 25, 2019). On this technicality, the Supreme Court vacated the Ninth Circuit ruling that prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees under the Equal Pay Act.

The case was brought by a female employee of the Fresno County Office of Education, Aileen Rizo, after she learned she was paid less than male counterparts for the same work. Fresno County asserted the “catch-all” affirmative defense of the federal Equal Pay Act, which provides, in pertinent part, that wage differentials are permissible if “based on any factor other than sex.”

The district court denied summary judgment to the County. On appeal, a three-judge panel of the Ninth Circuit reversed, holding that using prior salary to calculate wages is permissible under the Equal Pay Act if the employer can establish the use of prior salary was reasonable and effectuated a business policy. However, the en banc court reversed the panel decision (link to Rizo v. Yovino, No. 16-15372 (April 9, 2018). It held that prior salary alone is not a “factor other than sex” under the Equal Pay Act. For a full discussion of the prior decision, please see our earlier publication.

Judge Stephen Reinhardt passed away on March 29, 2018, but was listed as the author of the en banc decision issued on April 9, 2018. A footnote indicated that voting had been complete and the decision had been written before Judge Reinhardt’s death. All eleven judges on the Ninth Circuit agreed that the plaintiff’s suit should be revived, and five of the judges agreed with Judge Reinhardt’s rationale, meaning it was deemed to be a majority opinion, constituting precedent for future Ninth Circuit panels. However, without Judge Reinhardt, his opinion would not have majority support.

In overturning the Ninth’s Circuit ruling, the Supreme Court held that Judge Reinhardt was not an active judge when the Ninth Circuit issued its opinion in the case and “by statute he was without power to participate in the en banc court’s decision at the time it was rendered.” The Court further held that counting him as a member of the majority “effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.”

The Supreme Court remanded the case to the Ninth Circuit for further proceedings.

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 58


About this Author

Stacey A. Bastone, Jackson Lewis, EEO-1 classifications lawyer, compensation analyses attorney

Stacey A. Bastone is an Associate in the Long Island, New York, office of Jackson Lewis P.C. She assists companies in the preparation of affirmative action plans for federal contractors including job group analyses, EEO-1 classifications, utilization analyses, compensation analyses and adverse impact analyses.

In addition, Ms. Bastone successfully has defended federal government contractors during audits conducted by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) including...

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