Earlier today, the Ninth Circuit, sitting en banc, heard oral argument in Rizo v. Yovino, in which it is considering the extent to which prior salary can be used under the Equal Pay Act to justify a wage differential between a man and a woman doing the same job. Nominally, the issue that the court was supposed to look at is whether prior salary can be the sole factor under the Equal Pay Act, and in prior posts (here and here), I've pointed out that this case isn't an appropriate vehicle for answering that question because the defendant did not rely solely on prior salary. But that turns out not to have mattered because it became clear during the oral argument that it is all or nothing: either prior pay is a factor other than sex under the Equal Pay Act or it is not. It makes no difference whether it is the sole factor.
Strikingly, it was not the skill of the advocates that revealed the potential problem with relying to any extent on prior pay but rather Ninth Circuit judges who repeatedly questioned the coherence of the positions they were arguing. If reliance on prior pay is impermissible, as it was contended, because doing so perpetuates sex-based wage disparities, then it makes no difference whether prior pay is the only factor that is used to set a new employee's starting pay. The Equal Pay Act does not allow an employer to base pay on sex even if sex only plays a small part.
The EEOC, however, represented by Barbara Sloan, stuck to its guns, taking the peculiar position that prior pay can be considered by an employer but can't make a difference in how much someone is paid. As one of the judges noted, the EEOC was advocating an "interesting" position that "it's ok to utter the words, but they can't mean anything." Trying to clarify the EEOC's stance, Sloan argued that if an employer really needed a particular employee, then it could agree to match his prior salary, and in such a case, the employer would be relying on the need, not the prior salary. But if that is so, then it's not at all clear why the EEOC is objecting to what the defendant is doing in this case, because the defendant relied on prior salary, in part, to set pay so that it could recruit employees with the promise that they would get a 5% pay raise over what they are currently making.
Here, the judges by and large found the arguments advanced by Rizo and the amici supporting her to be lacking. Nevertheless, the EEOC and equal pay advocates may very well get not only what they have asked for but more. And this must be especially frustrating to Shay Dvoretzsky, who represented the employer, since that outcome, which seems likely to me, will not be because of any failure on his part but on the part of opposing counsel.
The lesson? Sometimes, the way to do a good job is to do a bad job.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.