It’s Day 456? of Quarantine also known as April 9, 2020. Fads of yesteryear like public gatherings, watching sports, shopping in stores, working in close proximity to human beings from different bloodlines, and wearing workplace appropriate attire are out, like way, way out. Social distancing, elastic waist sweatpants, showering bi-weekly, Tiger King and cotton facemasks are in, and salary history bans and hair discrimination laws are the only topics other than COVID-19 that anyone is talking about.
On February 27, 2020, the Ninth Circuit Court of Appeals jumped on the ban…wagon, when it held that employers cannot use prior salary as a defense against an Equal Pay Act (EPA) lawsuit in the case of Rizo v. Yovino, 950 F.3d 1217 (9th Cir. 2020).
Aileen Rizo, a math consultant at the Fresno County Office of Education, filed an EPA claim against the county after she learned male workers in similar roles were placed on higher earning tracks (Fresno’s salary procedure dictated employees were to be given a 5% raise over their previous salary, and from there were to be placed on a structured salary track). The employer argued that an employee’s prior salary fits into the EPA’s “factor other than sex” provision, which allows employers to set different salaries for employees in similar positions, so long as the employee’s gender was not a contributing factor.
Rejecting the employer’s argument, the Appellate Court held that allowing the use of an employee’s previous salary to set pay “may carry with it the effects of sex-based pay discrimination,” thereby ignoring that “sex-based pay discrimination was the precise target of the EPA.” The Court further elaborated that the EPA’s “factor other than sex” provision may only be used for job-related factors (e.g., education, skills, experience, etc.); salary history not included.
The Ninth Circuit’s ruling in Rizo is hardly the first of its kind. The Second, Third, Sixth, Tenth, and Eleventh Circuits have all reached similar conclusions. A growing number of states and municipalities have also banned employers from asking candidates about their salary histories.
StraightforWARD Legal Advice:
Considering the current climate surrounding pay equality, it would be wise for employers (even if their state/ local government hasn’t addressed the issue) to examine their hiring and compensation practices to avoid similar pitfalls in the future.
In what seems like a lifetime ago on November 20, 2019, we blogged about the “Creating a Respectful and Open World for Natural Hair (CROWN) Act,” after California and New York became the first states to ban hair discrimination. Since then, New Jersey, Virginia, Montgomery County, MD, and Cincinnati, OH have passed similar legislation and the CROWN Act even received a shout-out at the Oscars. On March 6, 2020, Colorado became the fifth state to ban discrimination based on “hair texture, hair type, or a protective hairstyle commonly or historically associated with race, such as braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps.” Several other states are considering some version of the CROWN Act to prevent hair discrimination. Legislation has also been introduced at the federal level.
StraightforWARD Legal Advice:
With these swift changes, companies should consider, regardless of their municipality or state, removing ambiguous grooming policies and updating anti-bias training to prevent racial discrimination when things return to normal. I can assure you personal hygiene is at an all-time low right now, so there is no time like the present for employers to rewrite/update these policies.