In one of his last opinions for the Ninth Circuit, Judge Stephen Reinhart issued a ruling on behalf of a unanimous court, arguing that women should not be subject to unequal pay simply because of their salary history. At 87, Reinhart died of a heart attack shortly after authoring the decision, ending his 40-year tenure at the appeals court with a powerful statement on the issue of gender equality in this country. His colleague, Chief Judge Sidney Thomas, spoke highly of him in a statement to the press: “As a judge, he was deeply principled, fiercely passionate about the law and fearless in his decisions.” In his recent decision, Reinhart lived up to those words, insisting on a world that does not use wage history as an excuse to perpetuate cycles of disproportionate pay and treatment.
Fierce Opinion
The ruling, joined by 10 other judges of the en banc panel, contended that the Equal Pay Act should not be sidestepped through underhanded tactics. “The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex,” wrote Reinhardt. In his signature fierce tone, he continued to lambast the current state of affairs vis-à-vis gender equality: “The financial exploitation of working women embodied by the gender pay gap continues to be an embarrassing reality of our economy.”
Against the Equal Pay Act
Moreover, allowing unequal pay on the basis of wage history would undermine the very intention of the Equal Pay Act: “To allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum … would be contrary to the text and history of the Equal Pay Act, and would vitiate [void] the very purpose for which the Act stands.”
The court convened en banc in order to settle a complicated case history around the question of equal pay. In fact, Reinhardt’s decision effectively overturned a ruling from a three-judge panel of the same court, who argued that previous salaries were fair game in determining a person’s current pay.
The Case Details
The case, Rizo v. Yovino, involved a woman named Aileen Rizo, who worked as a math consultant for the Fresno County Office of Education and who, after several years of employment, found out that men hired after her were earning a higher salary, even though they were doing essentially the same job. When Rizo sued Jim Yovino, the superintendent of the school district, his defense agreed that men working the same job were paid more. Yovino’s attorneys argued that that was because Rizo had earned less at her previous job in Maricopa County.
Breaking the Cycle
Thanks to the 11-judge court’s ruling, Rizo was able to find a modicum of justice after six years of legal battles. Reinhardt noted, in his ruling, that relative to men, women make 80 cents on the dollar. Thus, basing someone’s pay on previous salaries can only perpetuate this form of gender discrimination. The only way to break the cycle, is to actually break the cycle. The Equal Pay Act was passed in 1963, and nearly a half-century later, the courts are still having it out. The Ninth Circuit itself has promulgated a more moderate interpretation, but now with Reinhardt’s last opinion, the court is more radical than the Tenth and Eleventh Circuits, who issued similar rulings that allowed for previous salaries to be considered alongside other criteria. The Ninth Circuit, by contrast, barred employers from considering salaries at all.
Nine states in the Western Region associated with the Ninth Circuit will be affected by Reinhardt’s decision. The rest of the country is also in the crucible, as women’s rights advocates have come out in full force, asking lawmakers to pass laws prohibiting the consideration of past wages. Some cities and states have already put an end to the practice.
Looking ahead, the Ninth Circuit’s ruling could make it a lot harder for CEOs in Silicon Valley (for example) to block gender discrimination lawsuits.
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