You'll probably hear about today's Ninth Circuit en banc opinion in various media. The court holds that it violates the Equal Pay Act to pay a woman less for the same work a man does when the only justification for that differential is because the woman made a lower salary in a prior job. To allow such a pay difference, the court holds, would perpetuate salary discrimination.
You may also hear today's opinion described (as it has been repeatedly) as "unanimous," but it only sort of satisfies this definition. Yes, all 11 members of the panel agreed on the result. But to say that the thing's unanimous overlooks key differences between the panel members -- differences that may well suggest that the Supreme Court might well take a different view of the subject.
The lead opinion -- for a bare majority of 6 of the 11 judges -- says that an employer can never be considered as a justification for paying women less than men. That's the holding.
But five of the judges in this "unanimous" opinion disagree. Judges McKeown and Murguia -- two left-leaning women on the panel -- join a concurrence that says that the majority goes to far, and that in their view, prior low salary is okay to consider if it's combined with other factors that justify the contemporary salary differential.
Judges Callahan and Tallman, not surprisingly, are even less sympathetic to the majority opinion, and agree that the current case was improperly resolved (since the only basis for the pay differential was prior salary), but think that this is basically an exception to the general rule, and believe that there may be a plethora of situations in which prior salary can validly be used to pay women a lower salary than men.
And then Judge Watford concurs as well, holding that, again, here, the employer should lose, but only because it failed to demonstrate that its use of prior salary wasn't itself tainted by discrimination that resulted in the prior pay differential as well.
So, yes, everyone agrees on the result. But it's a rare case when the only reason that an employer can come up with a basis for its pay disparity is the woman's prior salary. There are generally legions of alleged reasons that can instead be advanced. And, in those more routine cases, the panel is split on even the appropriate law to be applied, much less does it make it easy for a plaintiff (or jury) to prove as a factual matter that the pay differential was indeed discriminatory.
And the fact that even Judges McKeown and Murguia aren't on board for the majority's holding suggests incredibly strongly that the Supreme Court wouldn't exactly lovingly embrace the Ninth Circuit's ruling either. If only because it's an exceptional understatement to say that most of the justices on that tribunal are far less sympathetic to the objectives of the Equal Pay Act than these two Ninth Circuit judges.
One final point. The majority opinion is by Judge Reinhardt. Who, as most of you know, died on March 29th. The en banc court allows the opinion to go forward because "the majority opinion and all concurrences
were final, and voting was completed by the en banc court prior to his
death." I'm confident that's correct. I'm also confident that if this is indeed the final opinion of Judge Reinhardt's long and incredibly productive judicial career, he'd be content with the happenstance. It's a good way to go out. A last opinion that's a fairly representative testament to how the man lived and the values he expressed.
And if this opinion is subsequently reversed by the Supreme Court; well, he'd be very much used to that as well.
Fighting to the very end.
