High Court Won’t Review Salary History Defense in Pay Bias Suits

July 2, 2020, 1:43 PM

The U.S. Supreme Court won’t resolve whether employers can use salary history to defend against suits accusing them of paying women less than men in similar jobs, a business practice that worker advocates say perpetuates gender discrimination.

The high court on Thursday declined to consider the case of Fresno County, Calif., math consultant Aileen Rizo, who sued her school district when she discovered men in similar jobs made as much as $10,000 more than she did for similar work. The district justified her lower pay because her compensation was based on the salary she made at her previous job at an Arizona school district.

This is the second time the case has made its way to the Supreme Court for review. The justices returned the case to the U.S. Court of Appeals for the Ninth Circuit last year because the judge who penned the ruling died 10 days before it was issued. The Ninth Circuit again affirmed its decision that salary history shouldn’t be a “factor other than sex” that employers can raise as a defense under the Equal Pay Act.

Appeals courts around the country have rendered different opinions on the use of salary histories. The Second, Fourth, and Tenth circuits all agree that only job-related factors are relevant to the factor-other-than-sex defense. The Seventh Circuit is the only federal appeals court that has found the defense “embraces an almost limitless number” of other criteria as long as they don’t involve a worker’s sex, the Ninth Circuit concluded.

At the federal level, the Equal Employment Opportunity Commission has said this tool exacerbates the gender pay gap in the country, where women make 80 cents on the dollar to men in comparable positions. It says that because women historically make less than men, this practice only furthers that cycle.

California is among dozens of states and cities to ban salary history inquiries in recent years to combat gender pay gaps. Fresno County ended its policy of asking about salary history in the hiring process in 2015.

Some business groups have argued that not allowing employers to ask about prior salary deprives them of a necessary tool in determining how to pay new hires. It also might contribute to employers making other unwanted assumptions, including that a female job candidate will accept a lower pay rate than a male candidate because women historically had been paid less than men, some say.

Siegel, Yee, Brunner & Mehta represents Rizo. Jones Day represents the school district.

The case is Yovino v. Rizo, U.S., No. 19-1176, cert. denied 7/2/20.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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