On February 25, the U.S. Supreme Court vacated a judgment of the U.S. Court of Appeals for the Ninth Circuit and remanded the case for further proceedings because Judge Reinhardt, who authored the 6-5 decision, died before it was handed down. With Reinhardt’s vote, the Ninth Circuit ruling tipped in favor of Aileen Rizo who sued the Fresno County Office of Education over unequal pay.
The Supreme Court arrived at its decision without reviewing the merits of the equal pay case, focusing solely on the issue of whether a federal court can count the vote of a judge who dies before the decision is issued. Ultimately, the Supreme Court concluded that the Ninth Circuit Court erred in counting Judge Reinhardt among the majority opinion in Fresno County Superintendent of Schools v. Aileen Rizo since he died 11 days before the decision was announced. The Supreme Court opinion stated, “That practice 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.” And, “As for judicial practice, we are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”
Rizo, an employee of the Fresno County Office of Education, sued the superintendent of schools, claiming the county was violating the Equal Pay Act (EPA) of 1963 after learning it awarded a male math consultant a higher starting salary than her because he earned more at a previous job, despite having less experience and seniority. In the April 2018 ruling, Judge Reinhardt concluded that such pay-setting policies violate the federal EPA because they can perpetuate sex-based pay gaps when women change jobs. The Ninth Circuit’s ruling deepened a circuit split over whether a worker’s past pay is a “factor other than sex” that employers can use to justify pay gaps under the EPA that largely bars employers from paying men and women at different rates for the same work. The EPA outlaws paying men and women differently for the same work, with four exceptions: 1) employers can pay workers at different rates if they do so based on seniority; 2) merit; 3) the quantity or quality of the employee’s work; or 4) “any other factor other than sex.”
The Society for Human Resources Management, U.S. Chamber of Commerce, and other organizations had pressed for the Supreme Court to review the Rizo case. This case highlights employers’ practice of relying on an employee’s salary history to set starting salary as a significant factor that contributes to the gender pay gap. By remanding the case to the lower court for further proceeding, the Supreme Court has kicked the can down the road as to whether organizations can lawfully consider applicants’ past pay when determining starting salary.
By Angie Rosenbaum, Principal Consultant, and Barbara Nett, Associate Principal Consultant, at DCI Consulting Group