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Judge’s Death Prompts High Court to Return Pay History Case (1)

Feb. 25, 2019, 3:24 PMUpdated: Feb. 25, 2019, 5:16 PM

The Supreme Court Feb. 25 sent back to the Ninth Circuit a case asking whether an employer may use an employee’s salary at a prior job as a factor when setting the worker’s starting pay.

The late Judge Stephen Reinhardt, who sat on the U.S. Court of Appeals for the Ninth Circuit for nearly 40 years, died March 29, 2018—11 days before the full court issued its opinion reviving Aileen Rizo’s case against Fresno County, Calif. The county concedes it paid Rizo, a math consultant for its public school system, less than her male peers. It says it based her pay on a scale that factored in her prior work experience as a math teacher and her graduate-level education.

An en banc Ninth Circuit vacated a prior three-judge panel opinion and held that using a worker’s prior salary to set pay “is not job related and it perpetuates the very gender-based assumptions about the value of work that the Equal Pay Act was designed to end.”

The appeals court judges will now likely meet and determine whether it has the votes to issue another majority opinion with another judge, Penn State Law professor Michael Foreman told Bloomberg Law. The court may also decide to have a full re-hearing with oral arguments if it believes it doesn’t still have a majority that agrees with the decision that Justice Reinhardt wrote, he said.

Until the Ninth Circuit re-visits the case, precedent that prior pay history can be used as a factor other than sex in establishing salary is restored. That precedent had been in place for many years and “returns litigants back to the longstanding status quo,” Rae T. Vann, general counsel of the Center for Workplace Compliance, told Bloomberg Law.

Unexpected Development

Foreman said he was “somewhat amazed” that the Supreme Court fixated on the issue of a judge’s death over the larger issue of when prior salary history can be used in setting pay. Foreman is also the director of Penn State Law’s Civil Rights Appellate Clinic.

Multiple legal observers told Bloomberg Law last month that Justice Reinhardt’s death was unlikely to impact the Supreme Court’s ruling of the case. The high court had been asked to consider the impact of Reinhardt’s death as part of the county’s petition for review.

“The fact that a judge writes a decision and then passes away is not a factor in terms of whether the Supreme Court decides to take the case,” Rutgers Law School Co-Dean David Lopez told Bloomberg Law Jan. 4.

Because Reinhardt had passed away by the time of the full court’s April 9, 2018, publication of its opinion, his participation was “unlawful,” the Supreme Court said in its Feb. 25 order. The case may have been voted on and Reinhardt’s majority opinion finalized prior to his death, but the Ninth Circuit wasn’t authorized to act on that vote and render a decision unless a quorum of the remaining judges voted in favor of the majority view.

“That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death,” the high court said. “But federal judges are appointed for life, not for eternity.”

Without Reinhardt, the vote was 5-5, so the Ninth Circuit shouldn’t have issued its en banc ruling in favor of Yovino, the justices said. They sent the case back to the appeals court “for further proceedings.”

A three-judge panel of the Ninth Circuit had ruled in April 2017 that prior salary may be a valid basis for setting pay as long as there’s a reasonable business reason, even if it results in a difference in pay between male and female workers. That was later vacated by the full appeals court in April 2018.

Use of Prior Salary Questioned

California is among the states and local jurisdictions that have banned salary history inquiries in recent years out of concern for perpetuating a gender pay gap. Fresno County ended its salary history-based pay procedure in 2015.

Critics say the practice violates the Equal Pay Act because it carries sex-based pay discrimination from one job to the next. The law prohibits employers from paying a woman less than a comparable male employee who performs the same job unless the difference can be attributed to a factor other than sex.

Others say not allowing employers to ask about prior salary deprives them of a necessary tool in determining how to pay new hires. It might also cause employers to make 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.

The case is Yovino v. Rizo, U.S., No. 18-272, grant, vacate, remand order 2/25/19.

(Updated with additional reporting.)

To contact the reporters on this story: Patrick Dorrian in Washington at; Andrew Wallender in Washington at

To contact the editors responsible for this story: Jo-el J. Meyer at; Nicholas Datlowe at; Jay-Anne B. Casuga at