Listen to this post

Until death do you rule, and not a single day after.

In Rizo v. Yovino, the U.S. Supreme Court vacated a ruling interpreting the Equal Pay Act by the U.S. Ninth Circuit Court of Appeals because the Ninth Circuit improperly counted the vote of Judge Stephen Reinhardt, who died 11 days before the ruling was announced.

Aileen Rizo, an employee of the Fresno County Office of Education, sued the superintendent of schools and claimed that the county violated the Equal Pay Act. The county conceded that it had paid Ms. Rizo less than comparable male employees for the same work, but sought to establish the affirmative defense that the pay differential was based on a “factor other than sex” by showing its pay structure was based on employees’ prior salaries.

On April 9, 2018, the Ninth Circuit affirmed the District Court’s order denying the county’s motion for summary judgment on Ms. Rizo’s claim under the Equal Pay Act, holding that prior salary alone or combined with other factors cannot justify a wage differential between male and female employees. This was a landmark decision as it overturned the Ninth Circuit’s previous ruling in Kouba v. Allstate Ins. Co. (1982), which accepted an employees prior salary as a “factor other than sex” upon which disparities in pay may be based. (See our previous alert for more.)

Judge Reinhardt was listed as the author of the April 9 decision, on behalf of a 6-5 majority. Although Judge Reinhardt died on March 29, 11 days prior to the Ninth Circuit issuing the decision, a footnote at the beginning of the en banc opinion states: “Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”

Because Judge Reinhardt was not alive and no longer a judge when the en banc decision was filed, the Supreme Court held that the Ninth Circuit erred in counting him as a member of the majority. Without Judge Reinhardt’s vote, the decision could not be a “majority opinion” since it was not endorsed by a majority of the living judges when it was issued. The Supreme Court found:

[T]hat practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.”

The Supreme Court’s ruling clarifies that the votes of a deceased judge cannot be used in a decision. However, the decision leaves it unclear on whether employers are prohibited from relying on employees’ prior salary in justifying a pay disparity under the Equal Pay Act. While the Ninth Circuit reconsiders the case, the prior ruling under Kouba may be revived.