Susan Gross Sholinsky Quoted in "Federal Courts Still Split on Employers Asking Salary History Questions"

The U.S. Supreme Court’s Feb. 25 decision to remand a federal Equal Pay Act case issued by the 9th U.S. Circuit Court of Appeals because of the death of the judge who wrote it means a circuit court split over the issue of whether employers can ask job candidates about their salary history stands, at least for now.

But many employers are already issuing rules forbidding questions about salary history in response to the growing number of states and other governmental entities that prohibit these queries, experts say.

Justice Stephen Reinhardt died on March 29, 2018, before the April 9, 2018, en banc opinion in Aileen Rizo v. Jim Yovino, Fresno County Superintendent of Schools was issued by the San Francisco-based appeals court.

Ms. Rizo, a math consultant for the Fresno County, California, schools, charged she was given a starting salary less than a male math consultant who had been hired.

The 9th Circuit’s strongly worded opinion in Ms. Rizo’s favor replaced an April 2017 ruling by a three-judge 9th Circuit panel and affirmed a ruling by the U.S. District Court in Fresno that denied Fresno County summary judgment in the case. The ruling held it is “impermissible to rely on prior salary to set initial wages.”

All 11 judges who heard the case en banc agreed Ms. Rizo should prevail, but five of the judges held it should be on different grounds than those expressed in the majority opinion.

In its unsigned ruling, the Supreme Court said, “By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow.”

“Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed. Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference.”

The 9th Circuit “effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity,” said the court, in remanding the case for further proceedings. …

“It’s likely that the 9th Circuit will come out with another decision” in Ms. Rizo’s favor, but “it may or may not be as strong” as Judge Reinhardt’s opinion, said Susan Gross Sholinsky, a member of law firm Epstein Becker & Green PC in New York.