Ninth Circuit Sets Standard for Pay Parity

Employment law decision will influence other courts, employment lawyers say

Judge Stephen Reinhardt solidified his legacy as a “liberal lion” in the 9th Circuit Court of Appeals with a significant employment law opinion that came out April 9, just before Equal Pay Day. The court ruled en banc that employers cannot use employees’ prior pay history either alone or in combination with other factors to justify a gendered salary disparity.

Although the decision binds only the 9th Circuit, employment attorneys say Rizo v. Yovino is significant enough to start conversations among employers in other jurisdictions about what is appropriate to ask job applicants.

“If I’m reading this decision as an employer and I’m not in the 9th Circuit, I’m going to think long and hard about [whether I should] be asking about pay history,” said Sybil Kisken, a partner at Davis Graham & Stubbs who practices employment law. “And if so, why am I asking about it? What relevance does it have in my hiring decision?

”Rizo v. Yovino stands out from prior decisions from the 10th and 11th Circuit Courts of Appeals because it goes further, ruling pay history alone or in conjunction with other factors does not justify a pay gap between men and women employees. The opinion stated that because of the gendered pay gap that has persisted for decades, basing a woman’s pay on her compensation history is discriminatory.

To read this story and other complete articles featured in the April 23, 2017 print edition of Law Week Colorado, copies are available for purchase online.