Gender, Justice, Labor / Employment, On The Job, Women's Issues

You Can Pay Women Less Than Men For The Same Job, As Long As She Was Making Less In Her Old Job

The glass ceiling is protected by circular logic.

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(Photo courtesy of Getty)

(Photo courtesy of Getty)

Last week, the Ninth Circuit ruled that the patriarchy can continue to win, so long as it’s already winning. A three-judge panel unanimously ruled that paying people based on their previous salaries does not violate equal pay laws, even if that results in a woman being paid less for the same job because she made less in her previous job.

It’s a perfect argument, if you like circles that keep women making less then men in perpetuity. What’s the point of having equal pay protection if it doesn’t protect people from historically making less money?

The case is Rizo v. Yovino. Aileen Rizo was a teacher in Arizona before being hired as a math consultant in Fresno, California. They gave her a raise — Fresno guarantees at least a five-percent raise to entice new hires — to bring her salary to $62,733. Later, Rizo learned that a man hired for the same position made $79,000. She also learned that other male consultants made more than she did.

I’m no math consultant, but if you have a man making $79,000 a year while a woman makes $62,733 for the same job, that seems like a clear cut case of gender discrimination.

But Fresno argued that wasn’t the case. The school argued that given their guaranteed 5 percent bump, the male’s salary was based on his previous rate, just like Rizo’s salary was based on hers.

The Ninth Circuit ruled that basing a person’s salary on their previous salary is not discriminatory at all. From the ABA Journal:

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Judge Lynn S. Adelman, a district judge sitting with the 9th Circuit on designation from the Eastern District of Wisconsin, detailed those in his opinion for the unanimous three-judge panel.

First, that the policy includes no subjective opinions; it encourages candidates to leave current jobs to work for the county because they receive an automatic 5 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.

Right, except that the “consistency” is that women are consistently paid less than men, and Fresno is locking in that discrepancy while claiming that it’s fair for everybody. It’s not fair for everybody, especially people who were paid less in their previous jobs because of their gender.

Fresno also argues that sometimes the policies “benefit women,” which just shows that the school has no idea about how wage discrimination works. OF COURSE Fresno’s five percent pay raise policy should “benefit” some women. The problem is that the policy locks in previous wage discrimination, instead of simply paying people the same for the same work. If one employer ties bricks to your ankles, another employer can’t come by and say, “Hey, we just shove everybody into the water equally, it’s not our fault if some people have an easier time swimming.” That there are some women who have not been financially hamstrung before they got to Fresno is irrelevant with regards to whether Fresno’s policies promote wage equality.

There’s also real cynicism in Fresno’s argument. Nobody begrudges a male schoolteacher making $79,000 a year. The problem is not the dude’s salary, the problem is that Fresno won’t pay the woman the same nut. Women need their salaries to rise to the equal level of their male counterparts, they don’t need men to be knocked down to the level of women.

And don’t even get me started on whether these allegedly “benefited” women have actually been earning as much as men the men who decide that Fresno’s 5 percent pay bump offer isn’t appealing enough.

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Rizo’s case was brought under the federal Equal Pay Act. Subsequent to her case, California passed its own Fair Pay Act. The California standard now specifically tells employers that prior salary history cannot be the only factor in justifying a pay gap between men and women.

I guess we will have to wait for another case to see how employers are going to get away with paying women less under those standards, but you can trust that right now California employers are working out new ways to justify paying women less than men for the same work.

Employers can pay women less than men based on salary histories, 9th Circuit rules [ABA Journal]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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