Federal appeals court rules prior salary can’t justify gender pay gap

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A federal appeals court on Monday ruled that employers can’t use prior salary amounts to justify paying men more than women.

In writing the majority opinion in the case, which was heard before the full panel of judges on the 9th Circuit Court of Appeals, Judge Stephen Reinhardt called the gender pay gap an embarrassing reality despite the Equal Pay Act of 1963.


The case, which was decided before Reinhardt died at the age of 87 late last month, centers on Aileen Rizo, a math consultant with the Fresno County Office of Education, who sued the school district’s superintendent in 2012 after she learned her male colleagues were being paid higher salaries.

The Fresno County Office of Education argued starting salaries are based on prior salary, and Rizo was paid less than her male colleagues because she made less than them in her last job.

The school district argued prior salaries fall under the Equal Pay Act’s “factor other than sex” exception that makes a wage difference lawful.

The 9th Circuit, however, said that catch-all is limited to legitimate job-related factors like a prospective employee’s experience, educational background, ability or prior job performance, but not their pay.

“It is inconceivable that Congress, in an Act the primary purpose of which was to eliminate long-existing ‘endemic’ sex-based wage disparities, would create an exception for basing new hires’ salaries on those very disparities—disparities that Congress declared are not only related to sex but caused by sex,” Reinhardt wrote.

“To accept the county’s argument would be to perpetuate rather than eliminate the pervasive discrimination at which the Act was aimed.”

The decision affirms the lower court’s decision to deny summary judgment to the school district and sends the case back down to the district court.

A footnote in the 9th Circuit opinion noted that Reinhardt fully participated in this case and authored his opinion before his death. All concurrences were final and voting had also been completed, the court said.

The decision comes a day before Equal Pay Day, which was created to raise public awareness about gender pay inequality.

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