It May Now Be Legal To Pay Women Less Than Men If This One Thing Is True
Last week, a federal appeals court ruled (unanimously, no less) that it was perfectly legal to pay employees doing the same job differently, based on their prior salary history — even if that results in a woman being paid less than a man for equal work. In other words, if you’re an employer using salary history as your guide for doling out salaries, there is no violation of equal pay laws if you pay a man and woman differently for the same job.
The gender pay gap is somewhat controversial precisely because people often wonder if it’s okay to pay people differently for equal or similar work due to differences in experience or education. What if the difference is simply your salary history? A bad pay negotiation or gender discrimination in the past can cause your salary to be lower than a man who takes the same job. That is the issue at the heart of this case, Rizio vs. Fresno County Office of Education.
According to Above the Law, the plaintiff in this case was Aileen Rizo, a math consultant in Fresno, California. They gave her a raise (five percent is the policy by the County Office of Education), which brought her salary to $62,733. Rizio filed the case after she found out a man was hired for the same position as hers and had a salary of $79,000.
So why did the judges say Fresno County’s pay policy was not discriminatory? In the judge’s own words:
“First... the policy includes no subjective opinions; it encourages candidates to leave current jobs to work for the county because they receive an automatic five percent pay raise above their current salaries; the policy prevents favoritism because it ensures consistency in application; and the policy is a judicious use of taxpayer dollars.”
Rizio told The San Francisco Chronicle, “When you see injustice, you have to make a change. I don't want the end of the road for my daughters to be sitting next to a man who makes more than they do just because of the figure he was making at a past job."
This ruling is probably very disappointing to anyone who has negotiated less than perfectly in the past and who thinks that people should be paid the same amounts for equal job descriptions. Helping to stop the perpetration of gender bias’ impact on the gender pay gap is one of the reasons that some states and cities have recently banned questions about your salary history.
In response, Congresswoman Eleanor Holmes Norton of Washington D.C. introduced a federal ban on salary history questions on Tuesday, saying the California court's ruling illustrated why a federal law is needed. We’ll now have to see whether Congress agrees with the federal court ruling and passes a national law to ensure equal pay for equal work.
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