Ninth Circuit

Ninth Circuit Hears Pay Case Challenging University Pay Decisions

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On Tuesday, May 12, 2020, the Ninth Circuit heard oral argument in Freyd v. University of Oregon.  Jennifer Freyd, a professor of Psychology at the University of Oregon, filed a class action lawsuit in March 2017 alleging gender-based pay differences in violation of the Equal Pay Act, Title VII, and other statutes.  Freyd asserted that the University paid her less than four male colleagues in her department and that the University’s retention award policy had a disproportionate impact on the University’s female psychology professors.  In May 2019, the District Court granted Defendants’ motions for summary judgment, and Freyd subsequently appealed the decision to the Ninth Circuit Court of Appeals. READ MORE →

Ninth Circuit Issues A Second En Banc Decision Regarding Prior Salary Considerations In Rizo v. Yovino Re-Do

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In yet another development in the closely watched case of Rizo v. Yovino, the en banc Ninth Circuit ruled that employers may not defeat a plaintiff’s prima facie case under the Equal Pay Act (EPA) by arguing prior pay is a “factor other than sex” within the meaning of the statute. By doing so, the Ninth Circuit reaches the same result as the previous opinion penned by the late Judge Stephen Reinhardt before his passing in 2018, including overruling Kouba v. Allstate, a prior Ninth Circuit opinion that held that prior pay could justify pay differentials in combination with other factors, and if relied upon reasonably and to effectuate a business policy. The majority opinion further holds that as a matter of statutory interpretation, a “factor other than sex” within the meaning of the EPA must be “job related,” yet it also makes clear that the EPA does not prohibit employers from considering prior pay in making starting pay offers (and in this regard differentiates the opinion from California’s salary history ban). Two separate concurring opinions agree with the result, but they criticize the majority opinion for giving too narrow a reading of the EPA’s fourth “catch all” defense and for embracing a view of prior pay that puts the Ninth Circuit at odds with other circuits and guidance from the U.S. Equal Employment Opportunity Commission (EEOC). READ MORE →

“Judges Are Appointed For Life, Not For Eternity”: SCOTUS Rules That Judge’s Vote in Equal Pay Case Does Not Count Due To Judge’s Passing

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In April 2018, an en banc Ninth Circuit held in Rizo v. Yovino that an employer cannot justify a wage differential between male and female employees under the Equal Pay Act by relying on prior salary. Before the Ninth Circuit published its decision, though, Judge Stephen Reinhardt passed away. On February 25th, the U.S. Supreme Court vacated the Ninth Circuit’s decision, reasoning that the appellate court should not have counted Reinhardt’s vote because he passed away before the decision was issued. Instead, the Ninth Circuit should not have released the opinion. READ MORE →

Business Groups Urge U.S. Supreme Court to Review Ninth Circuit Decision Rejecting Use of Prior Salary to Set Pay

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In the wake of the Ninth Circuit’s decision in Rizo v. Yovino, key employer-side groups have expressed support for U.S. Supreme Court review to determine whether employers who rely on prior salary to set starting pay can continue to do so consistent with the federal Equal Pay Act, 29 U.S.C. § 206(d)(1) (“EPA”). READ MORE →

En Banc Ninth Circuit Throws In Its Two Cents Regarding Use of Prior Salary Information To Justify Pay Differentials

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Last year, we covered a Ninth Circuit panel decision which concluded that an employer may rely on prior salary information as an affirmative defense to claims under the federal Equal Pay Act (“EPA”) if “it show[s] that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as other practices.’” An en banc Ninth Circuit has now reversed the panel’s prior opinion. READ MORE →

School’s Out! Ninth Circuit Holds Prior Salary of Teachers Can Justify Pay Differentials

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As schools across the country prepare for summer break, the Ninth Circuit overturned a lower court decision against the Fresno County public school district which had found that its pay practices were unlawful. Notably, the Ninth Circuit held that an employer may rely on prior salary as an affirmative defense to claims under the federal Equal Pay Act (“EPA”) if “it show[s] that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as other practices.’” READ MORE →