Yesterday, the 9th U.S. Circuit Court of Appeals ruled that it is illegal for employers to consider a woman’s previous salary when determining pay for her new job, as it perpetuates pay discrimination between men and women. The groundbreaking decision came the day before the national Equal Pay Day, which marks the point into 2018 that women must work on average to earn the same amount earned by men in just 2017.
The case was brought by a California teacher who learned in 2012 that she was earning thousands of dollars less than her male colleagues. In 2009, when she initially took the job in Fresno County, the policy of the superintendent was to add 5 percent to the previous salary of all new hires.
But the 11-judge panel unanimously determined that this practice is inherently discriminatory under the Equal Pay Act due to the fact that previous salaries could have been the result of gender bias, thus the new salary perpetuates a cycle of underpaying women for the same work as men. This decision overturns the one reached by a 3-judge panel of the same court. The Fresno County superintendent says he will appeal to the Supreme Court.
“Employers always point to salary history to justify paying an employee less, which just institutionalizes the discrimination,” said employment attorney Debra Katz to the Washington Post.
According to salary data from 2015, women make an average of 80 cents to a man’s dollar, but the racial disparity in the gender wage gap is vast. For every dollar earned by a white man, Asian American and Pacific Islander women earn an average of 87 cents, white non-Hispanic women earn 76 cents, black women earn 62 cents, American Indian women earn 58 cents, and Hispanic/Latina women earn 54 cents.
The fights for gender pay equity on the federal level have been a back and forth tug for over 60 years. The first Equal Pay Law was signed by President Kennedy in 1963, making it illegal to pay women less money for doing the same job. However, a Supreme Court ruling later limited the amount of time that a woman had to file a wage discrimination suit against her employer to within 180 days of the first discriminatory pay check. In 2009, President Obama signed the Lilly Ledbetter Fair Pay Act, allowing women to file suit for wage discrimination no matter how much time had passed since the discrimination first began.
In August, the Trump administration stalled a 2016 Obama-era initiative that empowered the Equal Employment Opportunity Commission to collect pay data sorted by gender, race, and ethnicity from businesses with 100 or more employees. The Trump administration called the rule, which would have required employers to provide only summary data, not specific salary information on individual employees, “enormously burdensome” and unhelpful. But most employers were already prepared to file this data and a number of large public companies began widely disclosing this information in recent years. The policy was purposefully crafted with the employer community in mind and the goal of efficiency. Since then, the National Women’s Law Center and other women’s rights organizations have filed a lawsuit to keep the program in place.
Media Resources: Washington Post 4/9/18; Vice 4/10/18; Feminist Newswire 8/30/17