Employment & Labor Insider

One of the cases the Supreme Court was thinking about reviewing was Yovino v. Rizo, in which the U.S. Court of Appeals for the Ninth Circuit decided that salary history was not a "factor other than sex" to justify a pay differential under the federal Equal Pay Act. I've written about the decision here and (very briefly -- see "Third Update") here.

Today, the Supreme Court vacated the Ninth Circuit decision. Ninth Circuit Judge Stephen Reinhardt voted on the decision and wrote the "majority" opinion, but he died on March 29, 2018, 11 days before the decision was actually issued by the court.

Because Judge Reinhardt was deceased by the time the decision was issued, and because his opinion was not joined by a majority of the living members of the Ninth Circuit, the Supreme Court said that the Ninth Circuit decision was invalid and "unlawful." 

The Supreme Court said, "[I]t is generally understood that a judge may change his or her position up to the very moment when a decision is released." Therefore, it was not an excuse that Judge Reinhardt had already voted on the outcome and written the decision before he died.

The decision was unlawful, the Supreme Court said, because Judge Reinhardt's decision was joined by less than a quorum of the judges who were alive on the date of issuance.

So, the Yovino case will go back to the Ninth Circuit, meaning that the U.S. Supreme Court won't be ruling anytime soon on whether salary history is a legitimate "factor other than sex" that justifies a pay differential.

(But we haven't given up on those three LGBT-Title VII cases!)