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9th Circuit Will Reexamine Whether Employers Can Pay Women Less

By William Vogeler, Esq. on September 07, 2017 6:57 AM

The U.S. Ninth Circuit Court of Appeals will take a second look at a decision that said employers can pay women less than men for the same job.

A three-judge panel of the appeals court said in April that women can be paid less based on salary histories. An en banc court will revisit that decision, which said pay disparities between men and women are lawful if the difference is not based on gender.

"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 in Rizo v. Yovino.

Equal Pay Act of 1963

The appeals court had turned back arguments by Aileen Rizo 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.

The case arose after 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, however, 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.

According to Tribune New Services, the courts have not applied a new law that prohibits paying women and men with equal qualifications differently in California. The law took effect in January.

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