For the past 50 years, it has been illegal for employers to offer one salary to a woman and a different salary to a man, given all other aspects of a situation being equal. That is to say, it is illegal to discriminate against women by offering them a lower salary than their male counterparts. However, what happens when a company offers employees salaries based on their previous employment?
That was the question before the Ninth Circuit Court of Appeals earlier in April. The plaintiff, Aileen Rizo alleged that she was being paid less than other male staff with same qualifications, skills, and job title. She had been working as a math consultant for the Fresno County Office of Education since 2009.
While the rationale behind offering Rizo a salary based on previous pay is not on its face discriminatory, Rizo and her lawyers argued that it opens up women to be discriminated by default in a culture that consistently undervalues their labor.
The question, then, before the court was: Does prior wage constitute one of the exceptions to the Equal Pay Act?
Court Rules that Previous Salary is Not a Valid Exception
Generally speaking, there is a four-criteria metric that must be employed to bypass the Equal Pay Act but, logistically, there must be some system in place that measures pay that is not based on gender. The way it works is:
- There is a predetermined system in place that is based on seniority, productivity, or some other merit.
- The system must be communicated clearly to all employees.
- The system must be consistently applied to all employees.
- These must be the only bases for discrepancies between pay for male and female employees.
The County moved to have the case dismissed because their reason for paying Rizo less was based on a factor other than sex. The court, however, believed this could only perpetuate a system in which wage discrimination was the norm. The County then appealed the verdict and lost again.
Their decision was based on Supreme Court commentary concerning the Equal Pay Act as “broadly remedial.” In other words, the EPA is meant to remedy a discriminatory situation. If new employers are allowed to use past pay scales that reflected discriminatory practice in the workplace, the EPA would be essentially powerless to prevent future discrimination. In fact, it would become the basis on which pay inequality was perpetuated.
Further, the Ninth Circuit Court determined that there is nothing about a prior salary that measures work experience, ability, or job performance. Thus, it cannot be used as the basis of a fair and even-handed approach for valuing one individual’s labor over another’s.
The Ninth Circuit Court’s decision affects women in a number of states, including Nevada and California, where one woman is suing Google under the Equal Pay Act. This decision will loom over that case as it goes through litigation.
Are You Being Paid Less for Discriminatory Reasons?
If so, you should give HKM Employment Law of Las Vegas a call right away. We can be reached at 702.625.3893. Call now and we will begin discussing your case immediately.