Today’s News & Commentary — April 10, 2018

Today is equal pay day.  The date each year symbolizes how far into the year women must work to earn what men earned in the previous year.  The National Committee on Pay Equity encourages people to wear red in honor of equal pay day.

On Monday, the 9th Circuit Court of Appeals ruled in Rizo v. Yovino (which the blog has briefly covered, here) that salary history cannot justify gender-based pay gaps.  The plaintiff, a woman hired as a math consultant, challenged Fresno County’s policy of paying new employees 5% more than their previous salary.  The lower court denied the county’s motion for summary judgment, finding that (per Bureau of Labor Statistics data) because women teachers are systemically paid less than men, salary scales based on prior pay are “inherently unequal.”  Because circuits are divided as to whether prior salary is a “factor other than sex,” a designation that would shield Fresno County from the plaintiff’s Equal Pay Act claims (the 7th and 8th Circuits have held that it is, while the 10th and 11th Circuits have held that it is not), the judge certified his ruling for interlocutory appeal to the 9th Circuit.  In an opinion by the late Judge Reinhardt, the court held that “prior salary alone or in combination with other factors cannot justify a wage differential.”

Last month, the Trump administration announced its nomination of Sharon Fast Gustafson for General Counsel of the EEOC.  Today, the Senate Committee on Health Education, Labor and Pensions will host a hearing on Gustafson’s nomination.  Gustafson has worked in private practice for more than two decades, and became widely known for successfully bringing a pregnancy discrimination case against UPS all the way to the Supreme Court.

Proposed legislation, currently before the Senate, titled the Opioid Crisis Response Act of 2018, would provide the Department of Labor (DOL) with grants to support state job training programs and treatment services to address the opioid crisis.