Monday, February 25, 2019

SCOTUS vacates Ninth Circuit Equal Pay Act decision

Under the Equal Pay Act, employers must pay men and women equally for substantially equal work. There are, of course, exceptions, such as a merit system, seniority system, a system based on quality or quantity of production, and the catchall "any other factor other than sex."

Well, last year, the Ninth Circuit held that employers could not rely on an employee's prior salary to justify pay differential. According to the Ninth Circuit, this would "allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum." This morning, the Supreme Court vacated that decision in a per curiam opinion (p. 13) . . . but for an interesting reason.

The Ninth Circuit opinion included a footnote at the very beginning:
Prior 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.
In other words, the Court officially decided the case after Judge Reinhardt had passed away.

This morning, the Supreme Court held that the Ninth Circuit should not have done that. "[F]ederal judges are appointed for life, not for eternity." Without Judge Reinhardt's vote (let alone opinion), only 5 of the remaining 10 judges concurred in the "majority" opinion. So, the Supreme Court vacated the case and remanded it back to the Ninth Circuit.

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