Just in time for Equal Pay Day (April 10), in its en banc opinion in Rizo v. Yovino, Fresno County Superintendent of Schools, the Ninth Circuit held earlier this week that prior salary alone, or in combination with other factors, cannot justify a wage differential between male and female employees under the Equal Pay Act (“EPA”). In reaching this holding, the Ninth Circuit affirmed the district court’s denial of summary judgment to Fresno County and overruled a prior Ninth Circuit decision, Kouba v. Allstate Insurance Co., 691 F. 2d 873 (9th Cir. 1982). The court in Rizo also took a view of available EPA affirmative defenses which conflicts with the views held by other circuits and the EEOC.
Last week, a California state court in San Francisco ruled that a California Equal Pay Act class action against Google Inc. has survived the pleading stage. The California Equal Pay Act currently requires equal pay for employees who perform “substantially similar work” when viewed as a composite of skill, effort and responsibility. The 2016 amendment to the Equal Pay Act also prohibits employers from relying on the employee’s prior salary to justify a sex-based difference in salary. Plaintiffs allege in their amended complaint that Google relies on gender stereotypes and has a company-wide policy of relying on former salary history in setting pay and assigning jobs. These allegations were critical to the court’s decision to allow the case to proceed as a class action.
Title III of the Americans with Disabilities Act (ADA) requires “places of public accommodation,” such as retail businesses and restaurants, to be accessible to persons with disabilities. Common architectural features that permit access include handicap parking, curb cuts, wheelchair ramps and other design modifications. The ADA provides a private right of action to force a non-compliant establishment to make the necessary physical alterations to allow access. If the lawsuit is successful, the ADA provides for reasonable attorneys’ fees—a prospect that has fueled the proliferation of ADA lawsuits.
Allegations of sexual misconduct against celebrities and high-profile individuals continue to occupy the national spotlight. State legislators around the country have started to propose new laws which ban confidentiality and nondisclosure provisions in settlement agreements that resolve disputes arising from sexual harassment allegations. As we wrote about in an early blog post, critics of confidentiality provisions claim these clauses enable victimizers to conceal and continue long-running patterns of sexual misconduct, and prevent discussion of the accusations among the victims and co-workers.
We have summarized the proposed legislation here:
California joins Delaware, Massachusetts, Oregon and several municipalities, including New York City and San Francisco, by banning inquiries into salary history. Aimed at combating wage disparity based on gender, the new law (AB 168), to be codified at Labor Code section 432.3, prohibits employers from seeking or relying upon salary history information.
Ban on Seeking Salary History Information
AB 168, which goes into effect on January 1, 2018, prohibits employers from seeking salary history information about applicants for employment. Specifically, employers may not, orally or in writing, seek salary history information, which includes compensation and benefits. The new law also prohibits employers from seeking such information through agents such as headhunters or recruiters.
Last year, the U.S. Equal Employment Opportunity Commission (EEOC) unveiled its proposed revisions to the Employer Information Report EEO-1 (EEO-1). Previously, the EEO-1 directed federal contractors and employers with 100 or more employees to report annually the number of individuals that they employ by job category, race, ethnicity and gender in 10 different job groupings. As part of the Obama administration’s enhanced focus on equal pay, the EEOC’s proposed EEO-1 revisions aimed to expand the information collected to include pay data and working hours to help the EEOC discover potential discrimination in employment and pay equity.
The EEOC finalized its new EEO-1 in September 2016, and the additional information was to be provided by employers by the next reporting deadline in March 2018. That was the plan until the Office of Management and Budget (OMB) stepped in.