Working women in Idaho, within hours of the celebration of Equal Pay Day in 2018, received a much deserved and much-needed boost this week when the Ninth Circuit Court of Appeals ruled that employers may not use a woman’s salary history to rationalize paying her less than a man performing the same job. The 11-judge panel rightly ruled that the act of calculating a woman’s wages based on her salary history is a form of gender discrimination and a violation of the 1963 Equal Pay Act, which prohibits businesses from paying women less than men earn for doing the same work.
The court’s opinion, one of the last written by Judge Stephen Reinhardt, who died last month, focused on the impact of an insidious practice to deny equal pay to female workers. Permitting employers to take account of a woman’s salary history, Reinhardt wrote, allows “employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum,” which would violate “the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands.” Judge Reinhardt, known as the “liberal lion,” wrote that a woman’s salary history should not be used as a factor to pay her less than a man.
The Ninth Circuit’s ruling in Rizo v. Yovino is now law for all western states within the circuit, including Idaho. The ruling is in conflict with other circuit courts, including the 10th and 11th Circuits, which have held that businesses may not use salary history as the “sole” reason for paying a woman less. The split among the circuits makes the issue ripe for review by the U.S. Supreme Court. How the Court might rule on an eventual appeal is anyone’s guess at this juncture, but at least four of the current Justices—Ginsburg, Sotomayor, Kagan, and Breyer-- will be very much alive to Reinhardt’s reasoning and likely to embrace it.
The gender pay gap, Reinhardt observed, “ is an embarrassing reality of our economy.” It rests on “the financial exploitation of women.” Several states, including Massachusetts, Delaware, and Oregon, have enacted laws prohibiting employers from asking job candidates about their salary history. Major cities have passed similar ordinances. Judge Reinhardt’s ruling doesn’t stretch that far, but it will make it more difficult for employers in the Ninth Circuit to ignore and dismiss gender pay questions and complaints.
There remain grounds, within the parameters of the Equal Pay Act, to pay women less than men, but they must be based on factors “other than sex.” Thus, a man may be paid more than a woman for reasons of experience, seniority and job performance. One way for employers to protect themselves against gender pay lawsuits, of course, is to avoid asking women about their salary history. Avoiding that question is a win-win for employer and employee.
The gender pay gap is alarming and mocks the concept of equal protection under the 14th Amendment. April 10 marked Equal Pay Day. On average, women had to work 99 days into 2018 from the start of 2017 to earn the same amount of money that men earned on average in 2017.
A white woman earns roughly 80 cents for every dollar that a white man earns. Unsurprisingly, it’s worse for women of color. African-American women earn 63 cents and Latina women make only 54 cents for every dollar that a white man makes. As a society, we are staring at an average 20% gender wage gap.
What to do about this? Unless businesses assume the responsibility of narrowing and eliminating, the wage gap, the citizenry—men and women alike—must assert the importance, value, and justice in the principle of equal pay for equal work. This principle is of such importance to America that the burden of achieving it should not rest on the shoulders of women alone.