Fighting for Equal Pay: Amicus Brief Filed in Ninth Circuit Court of Appeals
Update: Our petition to rehear Aileen’s case has been granted! On Tuesday, December 12, Rizo v. Yovino will be heard en banc at the 9th Circuit Court of Appeals.
Aileen Rizo, a math consultant for the Fresno County Office of Education, discovered in 2012 she was being paid $12,000 less per year than her male co-workers doing the same job. She approached her employer about the difference, assuming it would be corrected – she had more experience than her male coworkers, and their job responsibilities were the same. But her employer told her it was no mistake. The county sets pay was based entirely on the prior salary of incoming employees. The only justification provided by her employer for paying her less than her male counterparts was that she made less than them at her previous job.
Now, Aileen has brought a case against her former employer, alleging gender-based pay discrimination in violation of the federal Equal Pay Act. In December 2016, the District Court denied the employer’s motion for summary judgment, holding that an employer cannot rely on prior salary alone to justify paying employees of the opposite sex differently for doing equal work. Earlier this month, the Ninth Circuit Court of Appeals vacated the District Court’s order and sent the case back for further proceedings.
This week, Equal Rights Advocates, along with 15 partners, including the National Women’s Law Center, American Association of University Women, and the ACLU of Northern California, filed an amicus brief in support of Aileen’s petition for a panel rehearing or rehearing en banc of the Ninth Circuit decision. Read the brief.
The federal Equal Pay Act (EPA) prohibits employers from paying workers of the opposite sex differently for equal work, unless the employer can prove that the pay differential results from a system of seniority, merit, quantity or quality of production, or is “a differential based on any other factor other than sex.” Aileen’s employer argues that prior salary is a “factor other than sex,” and that it alone can be used to justify paying Aileen less than her male counterparts.
But prior salary does not exist in a vacuum.
As outlined in the brief: “Given the existence of a gender wage gap in virtually every occupation and industry, prior salary should only be accepted as a ‘factor other than sex’ if the wage difference can be explained or supported by some other factor. If the employer can show no other factor that correlated to the lower prior salary, then there is a strong likelihood, ‘indeed . . . the virtual certainty,’ that the pay differential is a result of past pay discrimination, making it a sex-based factor – precisely what is prohibited by the Equal Pay Act.”
“This case clearly illustrates the need to address the use of prior salary in setting pay in order to close the gender wage gap, and ensure that women like Aileen are paid fairly for their work,” said ERA Senior Staff Attorney Jessica Stender. “To allow an employer to justify paying a woman less than a man for performing equal work based only on the fact that she earned less in her prior job, would allow the exception to swallow up the rule and perpetuate the very problem that the EPA was intended to address, a result clearly not intended by Congress in passing the Act.”
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