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US Supreme Court Reverses Controversial Ninth Circuit Equal Pay Act Ruling
Feb. 26 2019

US Supreme Court Reverses Controversial Ninth Circuit Equal Pay Act Ruling

Topics: Court Decisions, Wage & Hour Issues

Readers of this blog may recall the case Rizo v. Yovino, a case involving a federal Equal Pay Act claim by a teacher who was paid less than her male counterparts for performing the same job.  The reason for the pay disparity was that the employer factored in prior salary history, among other factors, and the plaintiff had made less in her prior job.  When the case was first presented to the Ninth Circuit, the court relied on its own precedent to hold that the employer’s use of prior salary history to justify a pay disparity was lawful because prior salary history is a bona fide factor other than sex.  Our prior posts on these decisions are here and here.  The plaintiff in the case then petitioned for en banc review by the Ninth Circuit (review by a full panel of the Ninth Circuit rather than a panel of three judges), which was granted.  Following its en banc review, the Ninth Circuit issued a new opinion reversing its prior decision and holding that prior salary history is not a factor that may be considered, either alone or in combination with other factors, to justify a pay disparity.  Six out of the eleven judges on the en banc panel formed the majority opinion, which was authored by Judge Reinhardt.  However, Judge Reinhardt passed away 11 days before the decision was issued by the Ninth Circuit.  In a footnote to the opinion, the Ninth Circuit noted that Judge Reinhardt fully participated in the decision and that it was “final” prior to his death. 

The defendant-employer petitioned for review by the Supreme Court.  The Supreme Court issued its opinion on Monday, reversing the Ninth Circuit’s decision.  The high Court did not reach the merits of the pay disparity issue involved in the case, but instead ruled that the Ninth Circuit erred by issuing a decision that rested on the participation of a judge who had passed away before the decision was issued.  The Supreme Court explained:

“A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date.  In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away.  By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow.  See United States v. Caperna, 251 F. 3d 827, 831, n. 2 (2001).  Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed.  Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference.”

In holding that the Ninth Circuit’s reliance on Judge Reinhardt for the majority opinion was reversible error, the Court reasoned:

“The Ninth Circuit did not expressly explain why it concluded that it could count Judge Reinhardt’s opinion as ‘[t]he majority opinion’ even though it was not endorsed by a majority of the living judges at the time of issuance, but the justification suggested by the footnote noted above is that the votes and opinions in the en banc case were inalterably fixed at least 12 days prior to the date on which the decision was ‘filed,’ entered on the docket, and released to the public.  This justification is inconsistent with well-established judicial practice, federal statutory law, and judicial precedent.  As for judicial practice, we are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release.  And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”

The Court further stated, “When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge.  For that reason, by statute he was without power to participate in the en banc court’s decision at the time it was rendered.”

The Supreme Court’s opinion in Yovino v. Rizo is here.  The case will now go back to the Ninth Circuit to reconsider the issue anew before a panel of living judges.  I wonder how that will turn out ;)  In the meantime, California employers are reminded that under California state law, they cannot rely on prior salary history to justify a pay disparity (nor can they inquire about prior salary history).

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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