Court Rules Women Can’t Have Old Salaries Used against Them
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UPDATED: May 1, 2018
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The Ninth US Circuit Court of Appeals has ruled that employers can’t pay women less than men just because the women earned less at their previous jobs.
Under the federal Equal Pay Act of 1963,
No employer… shall discriminate…between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs[,] the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex…
Since 1982, courts have held that an employee’s pay history can be considered as one of those “other factors.”
As law professor Nicole Porter noted in the New York Times, employers may use “market excuses” to justify paying women less than men:
One of those market excuses is when employers rely on what an applicant was making in a prior job in order to set that applicant’s pay. Because women have historically been paid less than men (for reasons both lawful and unlawful), that pay disparity perpetuates itself when employers base current salary on prior salary.
According to the court, those “other factors” should be “limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.”
As KQED reported,
The ruling came in a lawsuit by California school employee Aileen Rizo, who learned in 2012 while having lunch with her colleagues that male counterparts hired after her were making more money.
Fresno County public schools hired Rizo as a math consultant in 2009 for a little under $63,000 a year. The county had a standard policy that added 5 percent to her previous pay as a middle school math teacher in Arizona.
The court cited studies that show American women collectively lose out on $840 billion annually because of the gap between what men and women are paid.
In the US, women earn about 80 cents for each dollar earned by men, on average. In Wyoming and Louisiana, women earn only 60 cents for each dollar earned by men.
According to District Judge Stephen Reinhardt, who wrote the opinion,
Although the [Equal Pay] Act has prohibited sex-based wage discrimination for more than fifty years, the financial exploitation of working women embodied by the gender pay gap continues to be an embarrassing reality of our economy.
The ruling came out one day before Equal Pay Day, which was designed to raise awareness about — and close — the wage gap.
California, Massachusetts, and New York City, among other places, have passed laws prohibiting employers from considering job applicants’ past salaries or asking about past pay during interviews. More than 20 other states have introduced similar bills.