No, The Court Did Not Rule that Discrimination Against Women Is Legal

by Evil HR Lady on May 1, 2017

“Employers can legally pay women less than men for the same work based on differences in the workers’ previous salaries, a federal appeals court ruled Thursday,” says the Associated Press.

“Employers can pay women less than men based on salary histories, 9th Circuit rules,” says the ABA Law Journal.

“The wage gap is the worst. After all, it seems like a no-brainer that employers should pay men and women doing the same jobs the same amount of money. But now, it’s legal not to: on Thursday, the 9th Circuit Court of Appeals ruled that companies can pay women less than men for the same work based on differences in prior salaries,” writes Glamour.

Oh dear, everyone is in a tizzy about the recent 9th Circuit Court of appeals decision and everyone is jumping to the conclusion that fits the narrative that women are always the victims of discrimination. The court didn’t even rule that you could pay women less than men. It ruled that you could use a previous salary to determine current salary.

To keep reading, click here: No, The Court Did Not Rule that Discrimination Against Women Is Legal

{ 7 comments… read them below or add one }

grannybunny May 1, 2017 at 3:37 pm

I have a problem with this case. A law can be, on its face, gender-neutral — as this one appears to be — and still be discriminatory in its impact, as this one also appears to be. As noted in the article, Massachusetts realized that basing salaries on salary histories perpetuates prior discrimination. The Lillie Ledbetter case was a prime example of that phenomenon. That would not be the case were the salary formula based on other factors, such as prior experience, academic degrees, etc.

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Evil HR Lady May 1, 2017 at 3:46 pm

Having one person have a lower salary than another person isn’t discriminatory, though. It literally had nothing to do with her gender.

Because everything was formula based–in AZ and CA, there was no chance for gender bias to sneak in.

I support (not wholeheartedly because I don’t care for gov’t micromanagement) the MA law about not asking salary history because there are problems and it’s a stupid way to determine salary. But in this case? The school district is dumb,but not discriminatory

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Stephanie May 3, 2017 at 4:38 pm

It’s an interesting argument, that the policy/practice, while not gender-biased in it’s intent, may have the unintended consequences of having a disparate impact on one particular gender. However, there is not enough data put forward to come to that conclusion. It may be that, while it may affect some women in this way, it may be affecting men at a statistically similar rate, and without that data, the gender-neutral formula is a lawful policy (and clearly originated from someone in finance, and not someone in HR).

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BethRa May 1, 2017 at 9:52 pm

grannybunny’s point, though, is that the formula DID allow gender discrimination to sneak in because of the disparate impact it has (or could have) on women.

I can institute a new dress code in the office that bans the wearing of visible religious symbols and claim it’s neutral because it applies to all religions, but in practice it’s going to have an disparate impact people who’s faith requires them to wear head coverings.

Whether that rises to the level of something the courts can act on is another story (and I agree that the headlines around this ruling are particularly brainless).

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Sam May 1, 2017 at 3:56 pm

I fully agree with “Grannybunny.” I would also caution “The Evil HR Lady” not embrace this decision with the gusto you convey in this article. While one can argue the decision is technically consistent with previous precedent and therefore with the law, it is a Bad Law, and a law which perpetuates discrimination on many levels, not just gender. Further, what one earns in salary at a school system in Arizona would be clearly inadequate with the cost of living in California. This is a Stupid precedent. Like “Plessy v. Ferguson,” it is an established precedent which must be overturned. “Res ipsa liquitor,” the thing speaks for itself.

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Evil HR Lady May 1, 2017 at 7:22 pm

Look, the policy was dumb, but it doesn’t violate civil rights law. It violates common sense, but not civil rights law.

Would you be up in arms if all 3 teachers were male?

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Kobayashi May 2, 2017 at 12:13 am

I agree that, in this case, the salary was not a result of gender (but more the result of coming from Arizona). However, CA recently did update its gender pay gap law. I realize this is a 9th circuit case and that the case started well before the update. AB1676 does specify that prior salary cannot, by itself, justify any disparity in compensation under the bona fide factor exception. So, I’m hopeful that language will help such situations…in the future. Thoughts?

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