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Ninth Circuit‘s Decision on Salary History Put Aside, For Now

On April 9, 2018, the Ninth Circuit Court of Appeals en banc held salary history alone cannot justify a pay differential between men and women. The opinion was written by the Honorable Stephen Reinhardt, who passed away after he participated in discussing the case and voted to reach the court’s decision, but before the opinion was issued. His participation was noted in an opinion footnote, “[p]rior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”
The employer in the case, the Fresno County Office of Education, appealed the Ninth Circuit’s decision to the U.S. Supreme Court. Part of the appeal was based on the passing of Judge Reinhardt prior to the issuance of the court’s decision, and whether his vote and ruling survived his death. The U.S. Supreme Court ruled it did not. Commenting that federal judges are “appointed for life, not for eternity,” the Court asserted that allowing the ruling to stand would “effectively allow a deceased judge to exercise the judicial power of the United States after his death.”
The case was remanded back to the Ninth Circuit and the prior decision was vacated. The Supreme Court did not address the underlying merits of the case. It is believed the Ninth Circuit will take up this issue of salary history and gender bias again. Federal courts are generally split on the issue with some jurisdictions passing statutes prohibiting the use of salary history, including California and Oregon, which are part of the Ninth Circuit.