March 19, 2019
In an article published in Forbes on March 19, 2019, Atlanta partner Sherry Culves discusses the Supreme Court’s recent ruling vacating the 9th circuit’s Rizo v. Yovino decision and the gender pay gap.
On April 9, 2018, the 9th Circuit ruled that companies would not be allowed to use an employee’s salary history to determine future earnings, effectively shuttering one of the most significant factors in perpetuating the gender gap. On Feb. 25, 2019, the Supreme Court held that the 9th Circuit improperly counted Judge Reinhardt’s vote in issuing the en banc majority decision, because he passed away after authoring the decision but before it was finalized and published.
Despite this update, Culves advises employers operating in these states to be remain cautious, as most court watchers expect the 9th Circuit to come out with a new decision in Rizo that is anticipated to uphold at least some level of a ban on reliance on prior compensation under the Equal Pay Act. “Rizo has not been struck down as incorrect legal analysis, it has been vacated and remanded due to an improper counting of the judges in the majority opinion. It is likely that the 9th Circuit will issue a new decision upholding at least some of the principles from the first case,” she explains.
In discussing how women can advocate for and protect themselves from being taken advantage of when it comes to equal pay, Culves states, “Women should not be afraid to speak up and talk with their employer if they feel they are not being compensated properly.” Additionally, it is critical for women to surround themselves with strong advocates and mentors in their industries. She shares, “Candidates and employers alike should approach the compensation system with a studied analysis of the skillsets needed to perform the job and the market for those skills.”
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