Differences of opinion in courts over Equal Pay Act heightens likelihood of U.S. Supreme Court review, attorney says

By John Breslin | Apr 24, 2018

SAN FRANCISCO – Differences of opinion among different federal courts of appeal makes it likely that a dispute over the interpretation of the Equal Pay Act is likely to make its way to the U.S. Supreme Court with a request for a review.

SAN FRANCISCO – Differences of opinion among different federal courts of appeal makes it likely that a dispute over the interpretation of the Equal Pay Act is likely to make its way to the U.S. Supreme Court with a request for a review.

One case in the U.S. Court of Appeals for the 9th Circuit centers on a former school teacher employed by the Fresno County Office of Education who claimed she was discriminated against because male employees were paid more than her for the same work.

Under the federal Equal Pay Act (EPA), employers must pay men and women for the same amount of work. However, there are loopholes if an employer can show the difference is not because of gender but other reasons, including seniority, merit, quality or quantity of production, or any other factor not linked to gender.

Fresno County argued that an employee's pay history can be used to justify a lower wage under the "other factor" rule.

A lower court disagreed and ruled in favor of plaintiff Aileen Rizo, a decision reversed by a three-judge panel of the 9th Circuit, but then affirmed by the full bench of the appeals court April 9 after Rizo requested a rehearing. The opinion was written by the late Judge Stephen Reinhardt, one of his last before passing away earlier this month.

Reinhardt wrote that prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees.

Michael Mandel, an attorney with McGuireWoods in Los Angeles and an expert on employer liability, including wage and hour issues, said he suspects this will be sent to the U.S. Supreme Court for review.

"I think there is a good chance that it will go to the Supreme Court," Mandel told the Northern California Record. "The 8th and 7th Circuits held differently and the split does augur a review."

The 8th and 7th Circuits found that employers must be allowed some defense against a claim under the EPA when it comes to prior pay history, Mandel explained, adding that their position was that "other factors," such as time away from a career or a later start to one, can be taken into account when assessing pay.

Fresno County has already announced it plans to ask the U.S. Supreme Court for a review.

Mandel believes Reinhardt's position was that prior pay cannot be taken into account at all as a defense and that equal pay for equal work should be the goal in all circumstances, a position, the attorney said, that even the concurring judges appeared reluctant to agree with, believing he went too far.

The majority opinion also assumed that there was prior discrimination over pay, and that Fresno County was perpetuating that differential, Mandel said.

While the court rejected the idea that salary history can be used a defense to a claim under the EPA, it did note that a prior wage can be used in salary negotiations.

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