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9th Circuit Revists Ruling on Unequal Pay in Some Situations

Wednesday, September 20th, 2017

In a conundrum with profound implications, a federal appeals court will revisit whether – in some circumstances — men can be paid more than women for the same job.

On the surface, that conflicts with the Equal Pay Act. But a three-judge panel of the 9th Circuit ruled in April that salary history could justify unequal pay. In essence, the panel determined the male hires in question were paid more because of their last paycheck and that their gender was a coincidence.

The EEOC appealed, saying that the ruling perpetuates the gender gap and conflicts with precedent in other circuits. The full 9th U.S. Circuit Court of Appeals has agreed to review the case, with oral arguments set for December.

She was hired at less pay than all the men in her job

Aileen Rizo, a math consultant, took a job with the public schools in Fresno County, California. Her $62,000 salary was a nice bump from her previous teaching job. But she soon learned that a male colleague was hired at $79,000 for the same job. Further investigation revealed that all her male colleagues earned more.

When human resources did not act on her complaint, Rizo sued for employment discrimination. The school district’s rationale was that the men’s higher pay was based on their salary history. Per county policy, starting pay was determined by adding 5 percent to the hiree’s preceding salary.

The Equal Pay Act allows unequal pay for men and women doing the same work if the disparity is based on factors other than gender, such as seniority. In ruling against Rizo, the appeals court panel cited a prior 9th Circuit decision that salary history can be a factor if the practice (a) effectuates some business policy and (b) is implemented in a reasonable way.

Salary history exception may perpetuate the wage gap

The Equal Employment Opportunity Commission (EEOC) strongly disagrees and appealed the panel’s ruling. Before the 9th Circuit took up the review, the panel had remanded the case to the trial court to explore the “business reason” for the Fresno County salary policies.

The EEOC contends that the ruling enables the pay gap’s vicious cycle. If men are routinely paid more than women, their salary history will dictate they be paid more at the next job, and so on. The American Association of University Women, which studies the gender pay gap, says the wage gap is partially rooted in outdated concepts of men as family providers. For example, AAUW statistics reveal that women who are moms earn less than their female peers (the “Motherhood Penalty”), but men who are dads are paid more than average (the “Fatherhood Bonus”). This bias can be perpetuated in salary history and parental leave policies.

The AAUW says that women earn, on average, 80 percent of their male counterparts. The wage gap varies, but it is true across all industries and all levels of employment, including public sector employees. There is already a pay gap when females enter the workforce in their teens. While women tend to top out in salary in their 40s, male salaries continue to rise into their 50s and 60s.

On the other hand, many economists say it’s a myth that women are paid 80 cents on the dollar compared to men. Rather than a wage gap, they say, it’s an earnings gap. Men gravitate toward – or have more access to – higher-paying jobs. Some moms drop out of the workforce or scale back. Et cetera. Without settling the broader pay gap dispute, the 9th Circuit case is in fact about unequal pay for equal work.

This blog was originally published by Passman and Kaplan, P.C. on September 12, 2017. Reprinted with permission. 

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

The "What Ifs" of a Woman's Retirement

Wednesday, June 4th, 2014

seiu-org-logoWhat if I don’t get a promotion? What if I take time off to raise my children? What if I can’t find another job with benefits? The phrase “what if” seems to be a constant part of life for American women as they navigate their careers.

A recent article from CNN Money reporter Melanie Hickin shows how these “what if” questions continue to follow women even after they’ve exited the workforce.

“Gender inequality doesn’t end at the workplace. For many women, the gender gap haunts them well into their retirement years, when far more women find themselves living in poverty,” writes Hickin.

What if we work for unequal pay?
It’s no secret gender inequality still exists in today’s workforce. Women earn significantly less than men and are less likely to have access to an employer-sponsored retirement savings plan. These differences add up to less retirement income for women. On average, women 65 years and older rely on a median income of around $16,000 a year compared to nearly $28,000 for men, according to a Congressional analysis of 2012 Census data.

What if I get married and have kids? 
Women also spend less time in the workforce and take on more family obligations than their male counterparts. While married women tend to do better in retirement, many elderly women are living on their own. Since women live longer than men, they face higher medical costs in retirement, according to the AARP Public Policy Institute.

What if I can’t afford retirement?
Disparities in pay and savings leave many women working past retirement age. However, many are wondering if they’ll ever be able to retire. And if they do what if they can’t maintain a decent standard of living?

This is a question 69-year-old Gaylord Weston of Belgrade, Maine often asks herself since she retired from her public sector job as an administrative worker. Her pension and Social Security benefits combined provide her with $1,700 a month along with a small inheritance from her mother.

But that money is tightly stretched as she pays for auto and homeowner’s insurance, property taxes, a $6,000 annual heating bill and home repairs for her old farmhouse.

“I know I’m very fortunate. But if my car goes, if I need to put a new roof on the house or (buy) a new furnace for the house, these kinds of expenses would put me under the bridge,” Weston told CNN.

What if there’s a solution?
Efforts to address gender inequality (in retirement) received a boost recently in one state as lawmakers passed the Minnesota Women’s Economic Security Act of 2014. This bold legislative package includes provisions to close the gender pay gap, expand family leave and sick leave, and study and create new private sector retirement savings models for workers.

Although the act hasn’t been fully implemented yet, what if more states followed this model? And what if a similar bill were introduced in Congress?

Last week US Senator Patty Murray (D-WA) called on lawmakers to address retirement insecurity for women with an approach that considers all these factors.

“I think sometimes we don’t connect all of the policies that we talk about today, that we think are so important, whether it is making sure you have childcare so that you can stay at work, whether it is pay equity, how that impacts your finances, both today and when you retire,” said Murray.

What if our government took concrete steps to help women eliminate all of these “what ifs” that seem to define our working lives and prospects for a secure retirement? Let’s work together to make that “what if” a reality!

This article was originally posted on SEIU on May 29, 2014.  Reprinted with permission.

Author: Keiana Greene-Page

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