This morning the Supreme Court sent a blockbuster case back to the Ninth Circuit to be reconsidered because the judge who actually wrote the Ninth Circuit’s majority decision had passed away before it issued. The plaintiff brought an Equal Pay Act (“EPA”) claim against the School District when she learned that a similarly situated co-worker was paid a higher salary because he had earned more at a previous job. The employer asserted a key EPA defense, arguing that the pay disparity arose from a “factor other than sex”, namely the past salary histories of the plaintiff and her comparator. When the case was dismissed by the trial court, an en banc panel of eleven Ninth Circuit judges unanimously reversed the dismissal, but did so for contradictory reasons resulting in a 6-5 decision.
The Ninth Circuit’s majority decision, authored by Judge Stephen Reinhardt, held that use of women’s past salary histories as a reason to pay them less than males constituted a clear violation of the EPA. According to the majority decision, this pay practice unlawfully perpetuates past pay discrepancies based on gender. Because six judges reached this conclusion, it became the law of the courts within the Ninth Circuit, although it conflicted with decisions in other circuits. However, the Ninth Circuit handed down the Rizo decision only after its author, Judge Reinhardt, passed away. As a result, the Supreme Court has now ordered the Ninth Circuit to reconsider the Rizo decision with a full complement of living judges, cleverly noting that “federal judges are appointed for life, not for eternity.”
While the Supreme Court did not express agreement or disagreement with the substantive conclusions of the Rizo case, it will eventually have to do so, since the federal circuit courts are irreconcilably split on this issue. In the meantime, Rizo does not represent the rule of law in the Ninth Circuit, at least until a new Ninth Circuit en banc panel can convene and re-decide the decision.