The U.S. Supreme Court has summarily reversed, on procedural grounds, a controversial 2018 ruling by the full Ninth Circuit Court of Appeals that held that prior salary is not a lawful “factor other than sex” under the federal Equal Pay Act (EPA). 

In sending Rizo v. Yovino back to the Ninth Circuit for further consideration, the Supreme Court found that it was improper for the appeals court to count the vote of a judge who died days before the Rizo ruling was issued. According to the High Court’s five-page per curiam opinion, it is not permissible to allow “a deceased judge to exercise the judicial power of the United States after his death,” noting that “federal judges are appointed for life, not for eternity.”

As a practical matter, the Court’s ruling restores, at least for now, the Ninth Circuit’s prior 1982 holding in Kouba v. Allstate Insurance Co., that a pay differential based on use of prior salary can be a permissible “factor other than sex,” so long as it effectuates some business policy and is used “reasonably in light of the employer’s stated purpose as well as its other practices.” 

Members of the Center for Workplace Compliance (CWC) can read more here.