Bea will hear equal pay case

Judge Carlos T. Bea has been selected to replace the late Judge Stephen Reinhardt on the 9th U.S. Circuit Court of Appeals en banc panel for the latter's final opinion, which was posthumously released and then vacated by the U.S. Supreme Court.

Reinhardt authored the majority opinion in Yovino v. Rizo, an Equal Pay Act dispute. Though the decision was unanimous, the judge's expansive view that prior pay can never justify pay disparities under the act, which became precedent for the circuit, drew disagreeing concurrences from five of the 11 judges on the en banc panel.

The opinion was released 11 days after Reinhardt's death in 2018. In February, the Supreme Court vacated it, writing "[F]ederal judges are appointed for life, not for eternity," in an unsigned opinion.

With Bea's selection, the panel adds a staunch conservative in place of its longtime "liberal lion."

Attorneys involved in the case said they doubted the overall result would change, given its unanimity.

"Obviously, there's a big difference in terms of judicial philosophy between Judge Bea and the late Judge Reinhardt, but in the context of this case, it doesn't seem to me that changing one member of an 11-judge panel is going to make a huge difference," said Daniel Siegel of Siegel, Yee & Brunner, who represented the plaintiff.

9th Circuit Judge Carlos Bea (S. Todd Rogers)

Jessica Stender of Equal Rights Advocates, who argued for amici curiae on the plaintiff's side, referred back to the organization's comments when the decision was vacated, expressing confidence Reinhardt's position would prevail.

"We believe the weight of authority strongly supports the well-reasoned majority opinion of the en banc panel, and we're confident the 9th Circuit will once again hold that prior salary is not a valid justification, alone or in combination with other factors, for denying women equal pay under the federal Equal Pay Act," the statement reads.

Shay Dvoretzky argued for the defendant and did not respond to a request for comment.

Siegel, reticent to speculate on whether any nuance of the decision might change with the newly constituted panel, said the pressing question is what action it takes next.

"One of the questions I asked myself when I saw [the order] was whether the court will order additional arguments or bring Judge Bea up to speed and then meet and confer to see what they can do," he said.

Writing a new majority decision, Bea signing onto Reinhardt's opinion, or previously aligned judges standing fast or changing sides are all possibilities, he said

The five judges who disagreed with Reinhardt's view signed onto one of three concurring opinions that did so from different points. In one, Judges M. Margaret McKeown and Mary H. Murguia agreed past pay can show past discrimination, but felt Reinhardt went too far in saying it could never be considered, even with other job factors. Judges Consuelo Callahan and Richard Tallman wrote that Reinhardt's position contravened precedent and ignored business realities. Judge Paul J. Watford wrote that past pay can be a permissible factor if the figure was proven discrimination-free.

The 9th Circuit's decision to release the opinion in April 2018 was controversial in part because without Reinhardt's vote, the majority opinion would have been reduced to a plurality. Scholars questioned the choice despite a note at the start of the opinion that said, "The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to [Reinhardt's] death."

The Supreme Court, however, noted they were unaware of a rule that rendered votes "immutable at some point in time prior to their public release." Yovino v. Rizo, 2019 DJDAR 1445 (U.S. Feb 25, 2019).

The underlying case involved a Fresno County school district math consultant who alleged she received a lower salary than male counterparts hired after her. County officials called the disparity a result of bigger paychecks they got before starting in Fresno.

The use of prior pay to justify pay gaps has recently fallen into deepening disrepute. The California Legislature passed AB 168 in 2017, which prohibits companies from asking candidates for prior pay, and a follow-up bill, AB 2282, essentially codified Reinhardt's view into the California Equal Pay Act and states past compensation cannot explain a disparity. Similar legislation is currently on the U.S. Senate calendar, having cleared the U.S. House of Representatives at the end of March.