On Monday, the U.S. Supreme Court vacated the Ninth Circuit’s ruling in Rizo v. Yovino regarding the use of salary history information to determine wages, finding that, because Judge Stephen Reinhardt was deceased and therefore no longer a judge when the decision was filed, he should not have been counted as a member of the majority opinion.
In that opinion, which Judge Reinhardt authored, the Ninth Circuit held that prior salary information may not be used to rationalize pay disparities between male and female employees under the federal Equal Pay Act (EPA). The Court concluded that prior salary is not “job related” and thus does not fall within the exception to the EPA that allows employers to pay disparate wages.
Although the Supreme Court’s decision revives other Ninth Circuit precedent allowing employers to base workers’ pay on their past salaries in certain cases (at least for the time being), it does not alter established Tenth and Eleventh Circuit precedent finding the EPA bars employers from using salary history as the sole justification for a pay disparity. See our prior alert on this for more information about the circuit split on this issue.