"Employers can legally pay women less than men for the same work based on differences in the workers' previous salaries, a federal appeals court ruled Thursday," says the Associated Press.

"Employers can pay women less than men based on salary histories, 9th Circuit rules," says the ABA Law Journal.

"The wage gap is the worst. After all, it seems like a no-brainer that employers should pay men and women doing the same jobs the same amount of money. But now, it's legal not to: on Thursday, the 9th Circuit Court of Appeals ruled that companies can pay women less than men for the same work based on differences in prior salaries," writes Glamour.

Oh dear, everyone is in a tizzy about the recent 9th Circuit Court of appeals decision and everyone is jumping to the conclusion that fits the narrative that women are always the victims of discrimination. The court didn't even rule that you could pay women less than men. It ruled that you could use a previous salary to determine current salary.

In this particular case, a female teacher from Arizona moved to California. The Fresno School district had a policy of taking a teacher's previous salary and adding 5 percent to it. Since this teacher came from Arizona (average teacher salary: $49,885) and moved to California (average teacher salary: $69,324), it should come as no surprise to anyone that the former Arizonan's salary was so low that it didn't meet the minimum level for the job, so Fresno bumped her up to $62,733. (Their minimum for the job plus a bonus for her master's degree.)

If the teacher from Arizona had been male, he would have received the exact same salary. There was absolutely, positively, zero gender discrimination involved here. And the court ruled correctly--the law prohibits employers from discriminating on the basis of sex, but it doesn't prohibit employers discriminating on the basis of being from Arizona. Nor does the law prohibit employers from being dumber than rocks when they figure out salaries.

This case appears to be about gender, which in fact, it is strictly about paying based on a formula and nothing else. Massachusetts realized that basing current salaries on past salaries can result in the perpetuation of gender discrimination if a women receive less money in their first jobs, which is why it is banning inquiring into an employee's salary history.

In this case, however, there's zero indication that Arizona or California discriminated against this teacher on the basis of sex. Teachers in both cases are paid based on formulas, it's just that the Fresno school district's formula treats teachers from states that pay less horribly.

If the highly paid teachers had happened to be female and the Arizona teacher had been male, the ruling would have been the same. If the highly paid teachers had been Black and the Arizona teacher had been white, the ruling would have been the same. If the Arizona teacher had been born in Honduras and the California teachers had been born in the USA, the ruling would have been the same.

You may think this is stupid. It is. You may think this is a horrible way to figure out pay. It is. However, it is not the court's job to decide if a company pay policy is stupid. Their job is to see if the law is applied correctly. The legislative branch determines what the law is. As long as it doesn't violate the constitution (state or federal), the court's job is to make sure it is followed.

There's no gender discrimination in this decision. Just an acknowledgment that the law allows stupid salary guidelines to exist as long as they aren't based on gender, race, etc. Which this one wasn't. So, it's not legal to pay women less than men any more than it is to pay men less than women. But it is legal to pay this woman less than those men based on a gender-neutral policy.

Published on: May 1, 2017