The federal Equal Pay Act generally requires that men and women receive equal pay for equal work, but it has a few exceptions, including one that allows for pay differences that are based on “any factor other than sex.”
In the underlying case before the Supreme Court, a California teacher sued the school district, arguing that it violated the Equal Pay Act because it set new teacher salaries based on the salaries they made at their previous jobs. The teacher learned that many of her male peers had higher salaries than she did because, in part, they had higher salaries at their previous employers. The school district claimed that its policy did not violate the Equal Pay Act, because a person’s pay history is a “factor other than sex.”
The case eventually made its way to an 11-judge panel of the Ninth Circuit Court of Appeals, which heard oral argument in December 2017. On April 9, 2018, the Ninth Circuit published a decision which ruled in the teacher’s favor and explicitly held that salary history is not a legitimate justification for gender pay disparities under the Equal Pay Act because it allows sex-based pay disparities to persist. A narrow majority of six judges voted in favor of the published opinion that set the controlling precedent going forward. (The other five judges also ruled in the teacher’s favor, but relied on different reasoning as to how they reached that outcome.) One of the six judges counted with the majority was the opinion’s author, Judge Stephen Reinhardt. However, Judge Reinhardt died 11 days before the opinion was published.
The U.S. Supreme Court ruled that Judge Reinhardt’s vote should not have counted. A court decision is not final until it is published, the Supreme Court wrote. Even though Judge Reinhardt voted in the case and wrote the opinion before he died, he was no longer a judge at the time the Ninth Circuit’s opinion was published, so his vote should not have been counted. Without Judge Reinhardt’s vote, the decision was split 5-5 and had no majority. As a result, the Supreme Court vacated the decision and sent it back to the Ninth Circuit.
But don’t start asking job applicants about their previous salaries just yet. The Supreme Court’s ruling only directly impacts federal courts in the Ninth Circuit (i.e., California, Washington, Nevada, Arizona, Oregon, Alaska, Hawaii, Idaho, Montana). Other federal appeals courts, including the Tenth Circuit, which includes Colorado, have previously ruled that salary history is not a legitimate justification for gender pay disparities under the Equal Pay Act. Those rulings are still good law.
The case is Supreme Court case is Yovino v. Rizo, 586 U.S. ____ (2019), and the Court’s full opinion is available here.