Jessica S.R. Stender

The long-running battle for pay equality between men and women is a central issue of Equal Rights Advocates’ Women at Work Initiative, and senior staff attorney Stender is on the front lines. A current effort to promote the cause by banning employers from asking workers about their prior salary history had a major boost in April when an 11-judge en banc panel of the 9th U.S. Circuit Court of Appeals ruled that bosses cannot compensate women less for commensurate work because of the pay they received at a former job.

The case arose when plaintiff Aileen Rizo learned that men hired for her job as a math consultant to the Fresno County Office of Education earned more than she did. Stender argued for a coalition of Equal Rights Advocates and 15 other amici groups that this was unlawful discrimination. “Employers respond to this challenge by saying it is simply how they do business,” she said. “They say that asking for prior pay information is just a measuring stick. My response is that they should look at the objective qualifications related to the job at hand.”

Oral argument was in December. The court published its opinion on April 9, one day before Equal Pay Day 2018, the date representing how far into the year an average woman must work to earn what the average man earns the previous year, according to the National Committee on Pay Equity, an advocacy group.

Stender said she was pleased that the circuit’s majority opinion was penned by the legendary liberal judge Stephen R. Reinhardt in one of his last rulings before his death last spring. “It was a beautiful opinion,” she said. Reinhardt held that the federal Equal Pay Act, fairly interpreted, bans prior salary considerations by employers, despite the defendant’s contrary argument. “It is inconceivable that Congress,” he wrote, “in an Act the primary purpose of which was to eliminate long-existing ‘endemic’ sex-based wage disparities, would create an exception for basing new hires’ salaries on those very disparities — disparities that Congress declared are not only related to sex but caused by sex.

“To accept the [defendant’s] argument would be to perpetuate rather than eliminate the pervasive discrimination at which the Act was aimed.” Rizo v. Yovino, 16-15372 (9th Cir. April 9, 2018).

Stender achieved similar results last year when she successfully advocated for AB 168 in the California Legislature, a bill prohibiting employers from asking about prior salaries. A similar bill this year, AB 2282 clarifies that prior salary information cannot be used to justify salary discrimination.

“It’s a real honor to represent women in discrimination cases,” Stender said.

— John Roemer