The Supreme Court has returned to the 9th U.S. Circuit Court of Appeals a case in which judges had ruled that employers cannot use salary histories as justification for paying female employees less than male ones who perform the same work.
“The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history and purpose of the Equal Pay Act, the answer is clear: No,” Judge Stephen Reinhardt wrote in the majority opinion in Yovino v. Rizo in April 2018.
Reinhardt died 11 days before the court’s decision was filed. In a per curiam decision issued Monday, the Supreme Court said that the court should not have counted his vote because doing so “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.” Without Reinhardt, the appeals court vote in the case was 5-5.
The appeals court now may re-vote or re-hear the case. Until a decision is made, the previous standard that a person’s prior salary history can be used as a factor in establishing his or her salary is restored.
The case affects employers and workers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada and Washington.
