Judge Stephen Reinhart served as a judge on the Ninth Circuit Court of Appeals for 37 years.  When asked about the prospect of the Supreme Court overturning his decisions, Judge Reihnart famously commented “They can’t catch ’em all.”  Judge Reinhardt’s final judicial opinion was issued in April in the case Rizo v. Yovino.  It was a significant decision regarding the federal Equal Pay Act, which we wrote about here: https://bullardlaw.com/news/alert/ninth-circuit--salary-history-is-no-longer-a-valid-defense-to-equal-pay-act-claims-/. 
 
Today, the United States Supreme Court vacated Judge Reinhardt’s decision and remanded the Rizo case for further proceedings.  The Supreme Court held that the Ninth Circuit’s en banc decision was improper because Judge Reinhardt died eleven days before the opinion was issued.  Although the Ninth Circuit had concluded all voting on the opinion before Judge Reinhardt’s death, the Supreme Court concluded that issuing the decision posthumously “effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.”  The Ninth Circuit will now have to reissue a decision, which will likely be on narrower grounds. 
 
Despite this dramatic development, Oregon and Washington employers should not alter their approach to pay equity.  Both states have newly adopted state equal pay act laws that are more far-reaching than the federal law.  Those state laws reflect similar reasoning to Judge Reinhardt’s now-vacated opinion.  Many Oregon and Washington employers are in the midst of compliance efforts related to new state laws and we encourage employers to continue those efforts with the same urgency.
 
If you have any questions about state or federal equal pay laws, or if your organization would like assistance in assessing its practices, please contact Bullard Law.