9th Circuit: Forget asking about salary history, you can’t even use it if it’s offered,

by Evil HR Lady on April 12, 2018

Last year, the 9th circuit ruled that it was okay to pay a teacher from Arizona who moved to California less than her co-workers because the formula was based strictly on the previous salary and had nothing to do with sex. If the teachers in question had all been male or all been female, the salary discrepancy would have been the same.

This week, though, in an En Banc ruling, they flipped it around to say the previous salary is never a valid reason for a difference in pay.

Many states and cities have made it illegal to ask a candidate for salary history, making basing their current offer on a previous salary difficult (but not impossible). Keep in mind, none of these laws prevent employers from asking what salary someone is looking for. A person who currently earns $50,000 is most likely going to say she is looking for a lower salary than someone who currently earns $80,000. The best way is for companies to state a salary range up front: “This job pays between $75-$85,000. Does that work for you?”

Regardless, using previous salary was a legal way to determine a current salary but the 9th Circuit said no more. Why? Not because of the plain language that allows difference based on “any other factor other than sex” but because the end result can look like illegal sex discrimination. Judge Reinhart writes in the decision:

To keep reading, click here: 9th Circuit Rules Salary History Isn’t A Legitimate Way to Determine Pay

{ 4 comments… read them below or add one }

grannybunny April 12, 2018 at 5:43 pm

I disagree with your analysis. And, I further believe that it is a misreading of Judge Reinhart’s decision to say that using salary history as a factor is verboten “because the end result can look like illegal sex discrimination.” To the contrary, even reading the limited snippet of the opinion contained in the story leads to the opposite conclusion: that a woman’s lower salary history — more likely than not — is the residual result of now-prohibited gender-based pay discrepancies. Teaching is traditionally considered a female profession. As a result, who can credibly claim that the low levels of Arizona’s teacher pay is not the result of gender-based pay discrimination?

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Evil HR Lady April 12, 2018 at 5:54 pm

Because everyone involved was a teacher. Teacher pay may be low because it’s dominated by women, but that doesn’t change the fact that all the employees were teachers.

I saw zero evidence that gender played any role in this salary. It was a policy question. Cases should be decided on facts, and it seems to me that this one was not.

The school district who came up with this policy were dumb as rocks, but there was no evidence that suggested it discriminated on the basis of sex. A male teacher from Arizona would have earned the same.

Also, Arizona teachers are way underpaid.

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Maria Rose April 12, 2018 at 11:23 pm

I am glad you stated how dumb the people were who decided the decision of the salary, because they never really looked at all options for deciding what salary to give position. Position skills should determine the salary.

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Neosmom April 13, 2018 at 8:28 pm

Pay range of $75 – $85,000?!!!!! That’s a huge range. Actually, I know it is understood that this should read $75,000 – $85,000. Inaccuracies like this bug me. Thanks for letting me rant.

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