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REINHARDT WRITINGS RING TRUE

As we mourn the passing of the Ninth Circuit’s “liberal lion,” Judge Stephen Reinhardt, we should celebrate one of his last writings, the majority opinion in Rizo v. Yovino (December 12, 2017) published at 2018 DJDAR 3122. In the opening paragraph of his opinion, Judge Reinhardt thrusts upon the “legal slate” for the world to read the following recognized truth:

“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.  “[1]

The specific holding in Rizo is that “prior salary alone or in combination with other factors cannot justify a wage differential.”[2]

Of course, the California Legislature took such corrective action in October 2017 when Governor Brown signed AB 168 which added Section 432.3 to the California Labor Code to not only prohibit salary inquiry histories (directly or through an agent) in the hiring process, but also to prohibit employers from relying upon an applicant’s salary history as a factor in determining whether to offer employment or in determining what salary to offer.[3]

In Rizo, the employer raised the ingenuous argument that an employee’s prior salary may constitute “a factor other than sex’ within the fourth, so-called, “catch-all,” exception stated at 29 U.S.C. Section 206(d)(1) of the Equal Pay Act.  In his majority opinion Judge Reinhardt countered that such construction would “allow the [defendant] County to defend a sex-based salary differential on the basis of the very sex-based salary differentials the Equal Pay Act was designed to cure.”  Later in the opinion he similarly wrote that “To accept the County’s argument would be to perpetuate rather than eliminate the pervasive discrimination at which the Act was aimed.”  Rest in peace, Judge Reinhardt.

[1] Judge Reinhardt “echoes”  this observation in his conclusion:  “Unfortunately, over fifty years after the passage of the Equal Pay Act, the wage gap between men and women is not some inert historical relic of bygone assumptions and sex-based oppression….If money talks, the message to women costs more than ‘just’ billions [$840 billion a year in wage gap costs to women]:  women are told they are not worth as much as men.”

 

[2] “To hold otherwise- to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum- would be contrary to the text and history of the Equal Pay Act and would vitiate the very purpose for which the Act stands,” writes Reinhardt.  Contrast the wisdom of Reinhardt’s insight with the bogus jurisprudence/employer-biassed diktat of Alito’s majority opinion, joined in by Scalia, Roberts, Thomas and Kennedy, Ledbetter v. Goodyear Tire & Rubber Company, Inc. (2007) 550 U.S. 618, in which SCOTUS held, contrary to the purposes of Title VII, that each paycheck did not constitute a discriminatory practice, such as to deny plaintiff Ledbetter’s claim that Goodyear discriminated against her based upon her gender in paying her less than it paid men doing the same work.  Justice Ruth Bader Ginsburg actually read from the bench her dissent in Ledbetter, arguing that the broad remedial purpose of Title VII was incompatible with the Court’s “cramped” interpretation.  Fortunately (though not for Ledbetter), this travesty of justice occurred during the Obama years. Obama favored the Democratic-sponsored Lilly Ledbetter Fair Pay Act during the 2008 Presidential election campaign, McCain opposed it, Ledbetter spoke at the DNC, and in 2009 Obama signed the Lilly Ledbetter Fair Pay Act, effectively reversing the SCOTUS Ledbetter ruling such that every paycheck issued constitutes its own violation of pay discrimination laws and, thereby, in defense verbiage, “effectively rewriting” the statute of limitations applicable to wage discrimination claims.

[3] This Act additionally requires that, upon applicant request, the employer supply the applicant with the pay scale for the position being sought.