Recently, I watched Marin Alsop conduct the Baltimore Symphony Orchestra (BSO). I recalled the hype when she was appointed as the BSO’s first female music director in 2005.[1] In January 2018, she was again in the news after being appointed as the first female artistic director of the Vienna Radio Symphony Orchestra.[2]

Maestra Alsop’s accomplishments would be admirable for any conductor. For a woman, they are amazing. When I was in orchestras 30+ years ago, every conductor I performed under was male.

My first violin teacher was the female assistant concertmaster of a professional orchestra, a position she had held since at least the 1950’s. I didn’t realize that she was an anomaly. Even a decade later, when in my 20s, I was told that I was not selected as concertmaster because I was female. Entering the 21st century, the overwhelming majority of professional symphony musicians, and most section chairs still continued to be men.

Since judging musicians can be subjective, it is hard to tell whether sex discrimination is at play in symphony auditions. That changed when professional orchestras moved to blind auditions. For blind auditions, musicians audition behind a screen, outside of the view of the judges. As orchestras moved to blind auditions, the percentage of women in professional orchestras increased.

What is the Gender Pay Gap?

Despite historic sex discrimination, female musicians generally have not faced pay discrimination. Although musicians aren’t known for their robust paychecks, there is a pay scale based upon position. If a woman obtains an orchestra position, she usually will receive the same pay as her male counterparts.

Unfortunately, in other professions there still exists a gender pay gap. On average, women still make only about 80% of what a similarly-situated man makes for the same work. The gap is larger for black and Latina women.[3] Yet, since 1963 the Equal Pay Act (EPA) has prohibited wage discrimination based upon sex.

Equal Pay Act Requirements

The EPA prohibits wage discrimination based upon sex. If a woman can show that she is paid less than a man for the same job, then she has a prima facie[4] wage discrimination case.

Yet, sometimes, it isn’t obvious when two jobs are the same. The EPA provides that two jobs are the same when they share the following:

• Equal skill
• Equal effort
• Equal responsibility
• Similar working conditions

Similar working conditions might include things like work location or shift. For instance, it might be okay for a man in New York City to be paid more than a woman in Kansas City even though they are doing the same job for the same employer. Or a man who works third shift might be paid more than a woman who works first shift, because those working conditions differ.

Equal Pay Act Exceptions

There are four exceptions to the EPA. Three of these are based upon established objective criteria:

1. A seniority system
2. A merit system
3. A system which measures earnings by quantity or quality of production

The fourth, “a differential based upon any factor other than sex” operates as a “catch-all” for other wage differences not the result of sex discrimination.

The fourth category was at issue Rizo v. Yovino (Rizo), which was decided by the US Court of Appeals for the Ninth Circuit on April 9, 2018, the day before Equal Pay Day. 

Aileen Rizo, an experienced teacher with two graduate degrees, was hired as a math consultant by the Fresno County Office of Education. When Ms. Rizo started at Fresno, she was placed at the bottom of the salary scale based upon Fresno’s Standard Operating Procedure 1440 (SOP 1440). For new hires, SOP 1440 based an employee’s salary on her salary at her previous position. In this case, Ms. Rizo’s previous position had been as a secondary math teacher in Maricopa County, Arizona.

Ms. Rizo learned that Fresno hired new male teachers for the same position and started them at higher salaries. The men’s salaries also were set using SOP 1440.

There was no question that Ms. Rizo had a prima facie case of wage discrimination. Fresno, however, claimed that SOP 1440’s method of using previous salary to determine wage fell under the fourth exception to the EPA. Ms. Rizo, in turn, said that by using prior salary to establish a lower wage for her than for male employees, Fresno was continuing the type of gender pay inequality the EPA sought to end.

The trial court concluded that SOP conflicted with the EPA because it “perpetuate[s] a discriminatory wage disparity between men and women.” The trial court then took the unusual step of certifying the case for appeal without first entering judgment.

How the Rizo Court Viewed the Catch-All Equal Pay Exception

Rizo was decided by the Ninth Circuit en banc. That means instead of the decision coming from three judges, all eleven of the Ninth Circuit judges sat together and decided the case.

Also, interestingly, Rizo was written by Judge Stephen Rinehardt, who died less than two weeks before the decision was issued. Because Rizo was heard en banc, there were three concurring opinions,[5] two of which had a second judge joining in the concurrence. That means that five of the eleven judges agreed with result but not necessarily for the same reasons stated in Judge Rinehart’s decision.

With that background, let’s look at how the Rizo court viewed SOP 1440 and why there were three concurring decisions. All eleven judges agreed that SOP 1440 violated the EPA. They disagreed on whether and when prior salary ever can be a differential based upon a factor other than sex under the fourth exception to the EPA.

The six-judge majority of the court agreed with Judge Rinehardt that prior salary can never be a “factor other than sex.” The majority held only factors specific to the job at hand, such as experience, education, ability, or prior job performance, qualify under the fourth exception to the EPA.

The five concurring judges agreed that sometimes prior salary can be due to sex discrimination. In those instances, the five concurring judges agreed that it is inappropriate to consider prior salary when setting compensation.

Those concurring judges, however, differed in whether previous salary might sometimes be a consideration. Some agreed that prior salary may be considered along with job-related factors. Two noted that prior salary is an important consideration for both job applicants and employees. And one judge believed previous salary should be considered only if the employer can prove it wasn’t based upon sex discrimination.

Salary History After Rizo

As if the many judicial opinions were not confusing enough, some states and cities prohibit employers from asking prospective employees about salary history. California, Delaware, Massachusetts, and Oregon, as well as New York City and Philadelphia,[6] to name a few, all have passed such laws. Currently, the Maryland legislature is considering such a bill.[7]

In an ideal world, previous salary would never be discussed. Job classifications, experience, and education would be easy to categorize and compare. There would be a set pay scale, and every employee would be placed on that scale based upon objective criteria.

In this ideal world, every employee would be exceptional at the job and would receive the same bonus compensation. There would be no need for subjective performance reviews. In our ideal world, there would be no gender pay gap.

As we all know, that ideal world does not exist. As two of the concurring judges in Rizo noted, many people consider a job change because they are looking for an increase in pay. Pay is on their minds when they interview. Likewise, budget-conscious employers do not want to pay new employees more money than is necessary to get them to sign on.

Even where employers do not ask about previous salary, prospective employees may volunteer that information in the context of wage negotiations. In those cases, the employees may inadvertently lock themselves into a salary based upon a decades-old gender pay gap.

Employee Compensation Best Practices

When it comes to setting compensation, employers can learn from professional orchestras. Orchestras usually establish compensation based upon position. Differences are based upon responsibility, performance time, and sometimes, seniority. Musicians know the pay scale. They know going into the audition what the position will pay. And, they generally know what their colleagues are being paid.

Following this model, employer best practices include the following:

• Do not ask prospective employees about salary history, either in job advertisements or at interviews.
• Create and assign job descriptions which include the duties and responsibilities, education and qualifications, physical requirements, and working conditions for each job.
• Establish and implement set compensation schedules based upon job descriptions and seniority. Include increases, bonuses, and incentive pay. Communicate this information to employees.
• Make the performance review process as objective and transparent as possible, particularly if it impacts compensation.
• If a prospective employee brings up salary history in wage negotiations, explain that wages are set using standard compensation schedules without regard to salary history.
• Regularly audit employee compensation to see if there appears to be a gender pay difference between employees in the same job. If there are differences, determine why. If necessary, proactively make corrections.

With clear standards and transparency, employers can take steps to close the gender pay gap. This is not only a good social practice, but it is good for business.

[2] Tim Smith, Marin Alsop to become first female chief conductor of ORF Vienna Radio Symphony, Baltimore Sun (January 29, 2018).

[3] See Susan Milligan, Salary History Bans Could Reshape Pay Negotiations, HR Magazine (Feb. 16, 2018).

[4] Prima facie is a legal term roughly translating to “first face.” A plaintiff must show specific facts, in this case, 1) that she had the same job as a man, and 2) that she was paid less to meet her burden of proof. After she shows a prima facie case, the burden of producing evidence shifts to the employer to show a legitimate non-discriminatory reason for the pay difference.

[5] Since for the typical court of appeals case, there would be only three judges in all, it would be impossible for there to be four decisions total–one by the court as a whole and three more by judges agreeing in the decision but not in all the reasoning.

[6] See Jenna McGregor, Employers don’t think bans on asking about salary history will achieve goal, survey says, LA Times (November 17, 2017).

[7] Ally Schweitzer, It Could Become Illegal for Maryland Employers to Ask About Salary History, WAMU (March 29, 2018).

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.