Key Salary History Ruling Vacated Due to Judge's Death, Supreme Court Rules

Author: David B. Weisenfeld, XpertHR Legal Editor

February 25, 2019

The Supreme Court has vacated a major 9th Circuit Court of Appeals salary history ban ruling because the appellate court released the opinion shortly after the judge who authored it had died.

Last spring, the 9th Circuit ruled 6-5 in Rizo v. Yovino that an employee's past salary cannot justify a pay gap between men and women for performing similar work. But the San Francisco-based appellate court released the opinion on April 9, 2018, 11 days after its author - Judge Stephen Reinhardt - had died.

Judge Reinhardt had fully participated in the case and wrote the opinion for the full 9th Circuit. But without his vote, the case would have been 5-5 at the time the appellate court actually filed the decision. And the Supreme Court found that fact to be significant.

"Federal judges are appointed for life, not for eternity," the Court said in an unsigned decision. The 9th Circuit's practice in releasing the opinion "effectively allowed a deceased judge to exercise the judicial power of the US after his death."

The 9th Circuit had found that reliance on an applicant's or employee's prior wages to determine salary perpetuates past discrimination that the Equal Pay Act seeks to eliminate. The ruling was the first of its kind at the federal appellate level, but in line with the legislative trend of pay equity laws governing male and female employees who perform substantially similar work.

But with the Supreme Court's opinion, it is back to the drawing board for the 9th Circuit as the case is sent back for further proceedings consistent with the High Court's decision.