High court declines Equal Pay Act case

Dispute centers on past salary history

WASHINGTON — The Supreme Court is leaving in place a decision that employers can’t use past salary history to justify a pay disparity between male and female employees.

The court on Thursday declined to take up a case from the California-based U.S. Court of Appeals for the 9th Circuit. Judges there said the federal Equal Pay Act, which generally requires men and women to be paid equally for the same work, doesn’t allow past salary history to be used as justification for a pay disparity. As is usual, the justices did not explain their decision declining to take the case.

The case the justices turned away involved a Fresno County public school math consultant who sued after learning she made less than male colleagues. Aileen Rizo challenged the school system’s policy that based all new employees’ salaries on their previous salaries. The school system argued the policy didn’t favor men or women. California law has since changed so that employers can’t use a person’s salary history in determining their starting salary. A total of 18 states bar employers from using previous salary information to set a new salary.

The case had been to the Supreme Court once before. The justices sent it back to the 9th Circuit last year for review because a decision in the case had been written by Appeals Court Judge Stephen Reinhardt but was released 11 days after his death on March 29, 2018.

The justices said in an unsigned opinion at the time that judges can’t rule from beyond the grave. “Federal judges are appointed for life, not for eternity,” the opinion said.

After a new judge was appointed to replace Reinhardt, the 9th Circuit issued a new majority opinion that reached the same result.

Also Thursday, the Supreme Court said it will consider giving companies a broader shield against lawsuits by victims of overseas atrocities, agreeing to take up a case stemming from child slavery on cocoa farms in the Ivory Coast.

Nestle SA’s U.S. unit and Cargill Inc. are urging the court to end a suit that accuses them of complicity in the use of forced child labor in the African country. The Supreme Court said Thursday that it will hear both companies’ appeals of that ruling.

The justices said they will review an appeals court decision that revived the lawsuit filed by former child laborers who say they were taken from Mali and held in slavery on cocoa plantations in Ivory Coast.

Arguments will be held during the term that begins in October.

The case will test a centuries-old law, the 1789 Alien Tort Statute, that had become a favorite tool of humanrights activists before the Supreme Court started scaling it back. The court ruled in 2013 that the law generally doesn’t apply beyond U.S. borders, and in 2018 that foreign corporations can’t be sued.

But a federal appeals court said the allegations against the American arm of Switzerland-based Nestle and agribusiness company Cargill might have enough of a U.S. connection if the plaintiffs amended their lawsuit to provide more specifics.

“The allegations paint a picture of overseas slave labor that defendants perpetuated from headquarters in the United States,” the San Francisco-based appeals court said.

President Donald Trump’s administration joined the companies in urging the Supreme Court to take up the case.

The case has been moving up and down the federal court system since 2005. The companies are accused of aiding and abetting slave labor by giving Ivory Coast farmers financial assistance in the expectation that cocoa prices would stay low. The suit alleges the companies were fully aware that child slavery was being used.

The ex-slaves say children were forced to work as much as 14 hours a day, given only scraps to eat, and were severely beaten or tortured if they tried to escape.

In its appeal, Nestle USA said the plaintiffs “have not even alleged that their injuries can be traced to the domestic conduct of a defendant.” The company said it “unequivocally condemns child slavery.”

Cargill said the plaintiffs “do not allege they worked on a farm from which Cargill purchased cocoa or to which Cargill provided any form of assistance.”

Multinational companies have faced dozens of suits accusing them of playing a role in human-rights violations, environmental wrongdoing and labor abuses.