U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Employers Can Pay Women Less Than Men Due to Salary History, 9th Cir. Rules

A woman can be paid less than a man for the same work based on salary histories, a federal appeals court said.

The U.S. Ninth Circuit Court of Appeals said that pay disparities between men and women are lawful if the difference is based on salary history and not gender. It is equally true whether a man or a woman is paid more than the other.

In Rizo v. Yovino, the appeals court turned back arguments by the plaintiff and the Equal Employment Opportunity Commission that unequal pay perpetuates gender discrimination. An employer may pay men and women differently without undermining the Equal Pay Act, the court said.

Prior Salary Alone

"If prior salary alone is responsible for the disparity, requiring an employer to consider factors in addition to prior salary cannot resolve the problem that the EEOC and the plaintiff have identified," Judge Lynn S. Adelman wrote.

The case arose after Aileen Rizo, was hired as a consultant by Fresno county schools in 2009. She was paid an annual salary of $62,733, almost $10,000 more than her previous job.

In 2012, Rizo learned that a man was hired for the same job but paid $79,000 a year. She complained to her employer, and discovered that other men were paid more than she was based on their salaries at their most recent jobs.

"Factor Other Than Sex"

Rizo sued, and a federal magistrate ruled the pay disparity was sex discrimination. The appeals court reversed and remanded.

The unanimous panel said the Equal Pay Act permits pay differences based on "a factor other than sex," which includes past salaries. On remand, they instructed the magistrate to consider those factors.

Daniel Siegel, the plaintiff's attorney, said the decision is at odds with other appeals courts. He said the case could go to the U.S. Supreme Court.

"The logic of the decision is hard to accept," Siegel told the Associated Press. "You're OK'ing a system that perpetuates the inequity in compensation for women."

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