Appeals Court Rules in Equal Pay Case that Women Cannot Be Paid Less than Men Based on Salary History

Written By ESR News Blog Editor Thomas Ahearn

Just in time for Equal Pay Day on April 10, 2018, the 9th U.S. Circuit Court of Appeals ruled on April 9, 2018, that employers cannot pay women less than men for the same work based on their salary history in order to “capitalize on the persistence of the wage gap,” according to a report from the Fresno Bee.

The opinion in the case of Aileen Rizo, 43, who sued the Fresno County Office of Education after discovering her salary was less than a male co-worker who had the same job title but less education and experience, “could impact how women are paid in California and beyond,” The Fresno Bee reports.

The decision overturned a 2017 ruling where the 9th Circuit Court agreed that using salary history when calculating a new salary is allowed under The Equal Pay Act of 1963, a federal law that prohibits sex-based wage discrimination between men and women in the same workplace who perform equal jobs.

U.S. Circuit Judge Stephen Reinhardt wrote in the opinion: “The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the answer is clear: No.”

Reinhardt – who died of a heart attack in March at the age of 87 – continued: “… Although the Act has prohibited sex-based wage discrimination for more than fifty years, the financial exploitation of working women embodied by the gender pay gap continues to be an embarrassing reality of our economy.”

The Fresno Bee reports the attorney for the Fresno County Superintendent of Schools named in the lawsuit said they “respectfully disagree” with the decision, remain confident their policy of determining salaries was “absolutely gender-neutral,” and will petition for a review by the United States Supreme Court.

The Fresno Bee reports Rizo held a news conference: “We are watching a revolution grow. Women are half the human race. You can’t just ignore us. We will no longer let ourselves be paid less, be harassed at work, be assaulted on college campuses, and be victims of domestic violence. Our time is now.”

In 2015, women earned 80 percent of what men earned, according to the U.S. Census Bureau. The gender wage gap has narrowed by less than one-half a penny per year in the United States since 1963, when Congress passed the Equal Pay Act, according to the National Committee on Pay Equity.

In October 2017, ESR News reported that California Governor Jerry Brown signed into law several pieces of legislation to improve services and support for women that included Assembly Bill 168 (AB 168) which prohibits employers in the state from seeking salary history information about jobs applicants.

Several states and cities have passed laws prohibiting employers from seeking salary history as part of a “pay equity” movement to narrow the gender wage gap between women and men. This is one of the “ESR Top Ten Background Check Trends” for 2018 selected by Employment Screening Resources (ESR).

“When employers have a background screening firm perform past employment verifications, it is critical that the screening firm have the knowledge about states and cities that prohibit such questions as well as software that helps facilities compliance,” explains ESR founder and CEO Attorney Lester Rosen.

More Blogs about Equal Pay and Salary History

Employment Screening Resources (ESR) – a leading global background check provider – offers more ESR News blogs about laws for equal pay and salary history at www.esrcheck.com/wordpress/tag/salary-history/. To learn more about background screening solutions from ESR, visit www.esrcheck.com.

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