In a conundrum with big implications, a federal appeals court will revisit whether – in some circumstances -- men can be paid more than women for the same job.
On the surface, that conflicts with the Equal Pay Act. But a three-judge panel of the 9th Circuit ruled in April that salary history could justify unequal pay. In essence, the panel determined the men in question were not paid more because of their gender but because of their experience.
The EEOC appealed, saying that the ruling perpetuates the gender gap and conflicts with precedent in other circuits. The full 9th U.S. Circuit Court of Appeals has agreed to review the case, with oral arguments set for December.
She was hired at less pay than all the men in her job
Math consultant Aileen Rizo took a job with the public schools in Fresno County, California. Her $62,000 salary was a nice bump from her previous teaching job. But she soon learned that a male colleague was hired at $79,000 for the same job. Further inquiries revealed that all her male colleagues earned more.
When human resources did not act on her complaint, Rizo sued for employment discrimination. The school district’s rationale was that the men’s higher pay was based on their salary history. By county policy, starting pay was determined by adding 5 percent to the hiree’s preceding salary.
The Equal Pay Act allows unequal pay for men and women doing the same work if the disparity is based on factors other than gender, such as seniority. In ruling against Rizo, the appeals court panel cited a prior 9th Circuit decision that salary history can be a factor if the practice (a) effectuates some business policy and (b) is reasonably implemented.
Salary history exception may perpetuate the wage gap
The Equal Employment Opportunity Commission (EEOC) strongly disagrees and appealed the panel’s ruling. Before the 9th Circuit took up the review, the panel had remanded the case to the trial court to explore the “business reason” for the Fresno County salary policies.
The EEOC contends that the ruling continues the vicious cycle of the pay gap. If men are routinely paid more than women, their salary history will dictate they be paid more at the next job, and so on. The American Association of University Women, which studies the gender pay gap, says that the wage gap is partially rooted in outdated concepts of men as family providers. For example, AAUW statistics show women who are mothers are paid less than their peers (the “Mother Penalty”), but men who are fathers are paid more than average (the “Father Bonus”). This bias can be perpetuated in salary history policies and parental leave decisions.
The AAUW reports that women earn, on average, 80 percent of their male counterparts. The degree of the gap varies but it exists across all occupations. While women tend to top out in salary in their 40s, male salaries continue to rise into their 50s and beyond.