If you’ve applied for a job recently, there’s a good chance you had to fill out an extensive salary history. It’s not at all unusual for companies to require applicants to provide their salaries at several – or even all – of their past jobs.
In public sector jobs, wages and benefits are easily accessible – either through record requests or because hiring managers at similar jobs are simply familiar with the existing salary scales.
This information allows companies to rein in salaries of new hires – your past salary plays a large role in determining how much you can expect to make when finding a new job. And as with so many other dynamics in the United States, the weight of this falls heavily on women.
But now, a case from the Ninth Circuit is likely to come before the Supreme Court, and there’s a real chance it could end gender-based wage disparities based on previous salary history.
How History Hurts Women
Here’s the cruel conundrum for women. Because of the long-established wage gap in the workforce, women usually get paid less than male colleagues from the moment they begin their careers. And since an employee’s subsequent salaries are (often) based on their existing salaries, women start from a lower base than men.
As a hypothetical, consider Mary and John, who are 30 years old, eight years into their careers and have had more or less identical positions from the moment they entered the workforce. As a result, when Mary and John are both hired by the Acme Corporation from outside the company, John has almost certainly made more money every single year during their careers. And since Acme is likely basing their salaries in part on how much money John and Mary are making when it hired them, John is probably going to make more, as he’s already earning a higher salary and needs more to leave his current employer.
The Case in Question
In April, an 11-judge panel from the Ninth Circuit Court of Appeals (which has jurisdiction over much of the western United States) found in favor of Aileen Rizo, a math teacher in Fresno, California. When Rizo was hired, the county paid her based on a salary schedule which started her with a five-percent raise from her previous job.
As a result, she was paid less for doing the same work as her male colleagues, a fact the county acknowledged in court. However, Fresno County argued that it did not violate the Equal Pay Act because the previous salary history was a non-gender based factor.
The case of Rizo v. Yovino has taken something of a winding path since initially being filed in 2012. A district court found in favor of Rizo, saying that the county’s salary schedule was certain to perpetuate discrimination.
However, a three-judge panel from the Ninth Circuit overturned that ruling in 2017. It took another year for an en banc panel (11 judges, as mentioned above) to review and overturn that decision, ruling in Rizo’s favor.
The opinion was written by Judge Stephen Reinhardt, a legendary progressive judge who has since passed away. In the opinion, Judge Reinhardt said the persistence of the wage gap in the American workforce was “an embarrassing reality.” And he answered with one word that question of whether an employer could justify a gender-based wage disparity by relying on prior salaries.
As Reinhardt wrote, “To hold otherwise – to allow employers to 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 the very purpose for which the Act stands.”
The Effect of the Ruling
In August, Fresno County filed a writ of certiorari with the Supreme Court, essentially asking the Court to consider the case. Rizo’s attorneys have asked for more time to respond.
The court is expected to take up the case, as the Ninth Circuit’s ruling presented a conflict with other courts across the country and thus calls for a final ruling from the highest court in the land. As a result of the Ninth Circuit’s ruling, judges in the Ninth Circuit’s jurisdiction will interpret the Equal Pay Act to ban the use of prior salary history to justify a wage gap. The same is true in the Tenth and Eleventh Circuits. However, the Seventh Circuit has ruled differently, which means there are currently different standards in different parts of the country, a situation that calls for Supreme Court guidance.
The fate of Aileen Rizo’s salary will likely lie, then, with the Supreme Court, and it must be acknowledged that she’s will probably face a hostile court. Under Chief Justice John Roberts, the Court has time and again sided with large employers over employees and taken a skeptical view of discrimination claims. And while the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy is currently up in the air, there’s a good chance that the Court will have five conservative judges when Rizo’s case is heard.
That doesn’t mean the outcome of Rizo v. Yovino is foreordained, to be clear. But the Roberts court has made its views on issues like these rather clear.
Governments trying to establish true equal pay do not have to rely on a hostile Supreme Court to do the right thing. California, Oregon and other states have banned prospective employers from asking about previous salaries and using those salaries to establish a new hire’s compensation. In addition, Congress could pass a law amending the Equal Pay Act to ensure salary history cannot be used to justify a wage gap – an unlikely move from the current Congress, but possible if Democrats seize control of one or both chambers in November.