On April 10, 2018, the world “celebrated” the 22nd official Equal Pay Day. Sadly, April 10th symbolizes how far into the year women must work to earn what men earned the previous year. Even worse, for African-American women, Equal Pay Day does not come until August 7th, and Hispanic women must wait until November 1st. Despite “celebrating” this infamous holiday last Tuesday, our Ninth Circuit Court of Appeals handed down a decision on Monday that will hopefully move Equal Pay Day closer to March.
The day before Equal Pay Day, the Ninth Circuit held that employers are prohibited from paying women less than men just because the female applicant made less at her previous job. In Rizo v. Yovino, the 11-judge panel reasoned that calculating a woman’s pay based on her previous salary was a form of gender discrimination, and thus, a violation of the Equal Pay Act of 1963. The majority opinion, penned by Judge Stephen Reinhardt, made special note of the latent and persistent gender pay gap, where women earn on average 80 cents for every dollar a man earns. Indeed, Justice Reinhardt opined that setting pay based on prior salary alone perpetuated pay discrimination; thus, compromising the very purpose of the Equal Pay Act.
Although the Ninth Circuit has moved the needle for pay equity in the right direction, at least one country has changed the record altogether. Earlier this year, Iceland passed a law that now requires companies (with more than 25 employees) to show that they pay men and women the same salary for the same work. Ironically, when the proposal was first brought forth in March 2017, Iceland ranked first in gender pay equality. In response to this accomplishment, Prime Minister Bjarni Benediktsson replied, “We may rank number one in the world at the moment, but the job is not done still.”
While Iceland possesses the pennant in equality today, the United States currently ranks 49th in the world for equal opportunity, trailing Uganda, Botswana, and Bangladesh. Additionally, men in the United States are 85% more likely than women to become VPs or C-Suite executives by mid-career, and men are 171% more likely to hold those positions late in their career. Fortunately, several states have taken it upon themselves to force change. Here in California, the legislature expanded the California Pay Act to replace “equal work” with “substantially similar work,” which is defined as a composite of skill, effort, responsibility performed under “similar working conditions” and without job titles controlling the similarity of work. Back in 1984, the Minnesota Legislature passed a bill extending pay equity to all local governments in the state while also prohibiting many Minnesota cities from pay discrimination based on sex. In July of this year, Massachusetts’ Act to Establish Pay Equity will go into effect which prohibits gender differentials in pay throughout employment, using a “comparable work” standard. Unfortunately, these examples are few and far between, and our country has capitulated to the gender gap for far too long.
Legislatures around the globe are owning up to gender-based pay disparity. While the United States has historically turned a blind eye to this insidious gap, the recent ruling in Rizo will likely put pressure on our legislatures to mind the gap, move the United States up the ranks in global equality, and push Equal Pay Day into Winter.
If you feel your employer has discriminated against you, you may have a case against your employer. For more information about your rights, and a free consultation, please call us at (619) 342-8000.
 Rizo v. Yovino, No. 16-15372 (9th Cir. Apr. 9, 2018) (en banc).
 Lab. Code §1197.5(a).