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Supreme Court reverses Ninth Circuit because … “Federal judges are appointed for life, not for eternity”

The Supreme Court reversed the Ninth Circuit’s decision in a potentially landmark Equal Pay Act case, because … “Federal judges are appointed for life, not for eternity.” In this per curiam decision, the Supreme Court, not surprisingly, held that a judge needs to be alive to issue a ruling in a case.

How could the Ninth Circuit have thought otherwise? It was an exceedingly controversial case. The Ninth Circuit would have split evenly without the deceased judge’s vote, so the Ninth Circuit, oddly, decided to go ahead and count his vote. In fairness he had expressed his intent to vote one way, and had actually authored an opinion accordingly. He unfortunately passed away though before the opinion was issued. The Supreme Court held that the Ninth Circuit erred by continuing to count his vote (in this case and others). The Court explained that a judge’s vote cannot be counted until an opinion is filed, especially because “a judge may change his or her position up to the very moment when a decision is released.”

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death.  But federal judges are appointed for life, not for eternity.

The underlying case is very controversial. As explained in a previous blog post, the issue has the potential to bring a pay-history ban to all 50 states by way of federal common law, by interpreting the longstanding Equal Pay Act as effectively banning inquiries and consideration of pay history.

per curiam decision is a decision issued by a court with more than one judge (like the Supreme Court and other appellate courts) that is authored by the court itself, without identifying one or more individual judge’s contributions to the writing of the opinion or even votes in the case. It is not signed by anyone judge (though individual judges may, if they choose, sign dissents).

Source: Yovino v. Rizo, 586 U.S. —, case no. 18-272 (2/25/19)

Pay history bans coming, at a federal level, by way of the Circuit Courts?

A growing number of state and local governments prohibit asking applicants about their pay history or using prior employer pay histories as a basis for setting employee pay. Two Circuit Court cases suggest that such a ban may be coming, not by way of state and local legislation, but at a federal level under currently existing federal laws known as Title VII and the Equal Pay Act.

The Circuit Courts are the nation’s federal appellate courts. They are divided (and numbered) by region. They are for practical purposes generally the highest courts in the land, just beneath the Supreme Court of the United States. Very few cases result in Supreme Court review; the Circuit Courts resolve the vast bulk of federal appellate litigation without cases ever rising to the Supreme Court.

Pay history bans are growing across the country because advocates for equal pay, particularly between men and women, contend that one reason women earn less than men in many positions, is simply that women tend to have previously earned less than men in prior positions. In other words, they contend it is a self-perpetuating cycle.

In one case, the Ninth Circuit held last year, in 2017, that, consistent with its precedent, an employer may set pay levels purely on the basis of pay histories. However last summer the Ninth Circuit withdrew that decision and ordered the matter reheard en banc (by the entire bench of its judges). The case is pending reconsideration.

In the other case, the Eleventh Circuit just ruled in a Georgia case that an employer was not entitled to summary judgment, in other words, it would have to explain itself to a jury, where the female plaintiff argued she was underpaid compared to her male predecessor. The Eleventh Circuit case did not go so far as to hold that pay histories cannot be considered. It simply held, on the basis of the record before it, that pay histories were not themselves enough to warrant ruling for that employer. The Eleventh Circuit’s decision may be limited to its facts in that, there, the company’s HR manager had testified to general female-male pay disparities at the company and further that the company’s general manager had made an anti-female remark.

Employers should consider monitoring pay history bans.

Source: Rizo v. Yovino, case no. 15-372 (9th Circuit) (case pending reconsideration en banc); Bowen v. Manheim Remarketing, Inc., case no. 16-17237 (11th Cir. 2/21/18).