The United States Supreme Court recently sent back an important case on pay equity, Rizo v. Yovino, to the U.S. Court of Appeals for the Ninth Circuit because the judge who wrote the court’s opinion and supplied the deciding vote died before the ruling was announced. The Supreme Court explained that federal judges “serve for life, not for eternity,” and sent the case back to the Ninth Circuit.

The issue in Rizo v. Yovino, whether an employer that has been accused of paying a woman less than a man for the same job under the Equal Pay Act can justify the disparity by showing that the woman was paid less in a prior job, is very much alive.  The other circuit courts of appeal that have considered the issue have not ruled uniformly, and one, the Seventh Circuit, has ruled that prior salary can justify a pay disparity.  The Ninth Circuit had ruled that prior salary could not be a justification, but it will have to address the issue anew without the judge who died.

The use of prior salary to justify a pay disparity has become controversial, and in some jurisdictions moves have been made to outlaw any consideration of prior salary.  Even in jurisdictions where use of prior salary to justify a pay differential is still legal, employers would do well to steer clear of the practice, at least until the Supreme Court gets another chance to consider the issue..