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District Court Was Wrong To Dismiss University Professor’s U.S. Equal Pay Act Claim
Jennifer Freyd is a Professor of Psychology at the University of Oregon (University) and a leader in the field of the psychology of trauma. At the University, Freyd is the principal investigator at the Freyd Dynamics Laboratory where she conducts empirical studies related to the effects of trauma and is responsible for running the laboratory and supervising both doctoral candidates and undergraduate students. Freyd is the editor of the Journal of Trauma & Dissociation and has served on the editorial board for many other journals. In addition, Freyd has served in a variety of roles at the University and consults for other entities.
The University adjusts tenured faculty salaries using two different mechanisms. First, a merit raise is based on job performance and the contributions made in the areas of research, teaching, and service. Second, a retention raise is based on whether the faculty member is being recruited by another academic institution. To determine whether to grant a retention raise, the University considers many factors, including the faculty member’s productivity and contribution to the University; if the faculty member’s departure is imminent in the absence of a raise; any previous retention increases; implications for internal equity within the unit; and the strategic goals of the University. While Freyd received initial inquiries from other universities, she never had a retention negotiation nor received a retention raise.
In 2014, as part of an unrelated public records request, Freyd unintentionally received salary information for the Psychology Department faculty. That information showed she was making between $14,000 and $42,000 less per year than four male colleagues with comparable rank and tenure. Each of those four men had received retention raises or had at least one retention negotiation. Freyd conducted her own regression analysis on the data and noticed a marked disparity in pay between the genders. Freyd and two other female psychology professors then conducted a second regression analysis, which presented similar results.
In spring 2016, the Psychology Department conducted a mandatory annual self-study. The self-study revealed an annual average difference of $25,000 in salary between male and female professors. The study concluded this discrepancy appeared to have emerged mostly as a result of retention raises. Indeed, of the 20 retention negotiations from 2006 through 2016, only four affected female faculty, and only one of the successful retention cases involved a woman.
Several months later, the Department Head conducted his own regression analysis and sent his results to the Dean and Associate Dean of the College of Arts and Sciences. The Department Head recommended the University address its “most glaring” inequity case –Freyd. But, the Dean and Associate Dean concluded Freyd’s compensation “was not unfairly, discriminatorily, or improperly set.” Accordingly, she was denied a raise.
Freyd sued the University, the Dean. and Assistant Dean alleging, among other claims, violations of the U.S. Equal Pay Act, Title VII of the Civil Rights Act, and Title IX. The district court found in favor of the University because Freyd could not show that she and her comparators performed substantially equal or comparable work. The district court also concluded that Freyd didn’t have sufficient evidence of disparate impact or discriminatory intent and that the University did show its salary practices were job-related and a business necessity. Freyd appealed.
The U.S. Equal Pay Act prohibits wage discrimination based on sex. The Act requires a female employee to show that a male employee is paid different wages for equal work in jobs that are “substantially equal.”
On appeal, the Ninth Circuit concluded the district court was wrong to rule in the University’s favor on Freyd’s Equal Pay Act claim. Specifically, the court concluded that a reasonable jury could find that Freyd and her comparators perform a “common core of tasks” and do substantially equal work. For example, Freyd and three of the comparators are all full professors in the Psychology Department who conduct research, teach classes, advise students, serve actively on University committees, and participate in relevant associations and organizations. While their duties may not have been identical, the court reasoned that their responsibilities were not so unique that they could not be compared for purposes of the Equal Pay Act.
The Ninth Circuit also found that the district court erred in dismissing Freyd’s Title VII disparate impact claim. To establish disparate impact under Title VII, an employee must show that a seemingly neutral employment practice has a significantly discriminatory impact on a protected group. The employee also must establish that the challenged practice is: not job related; or is inconsistent with business necessity. Here, the court noted that Freyd challenged the practice of awarding retention raises without also increasing the salaries of other professors of comparable merit and seniority. Further, because of numerous factors related to gender, female faculty may be less willing to move and thus less likely to entertain an overture from another institution. It also noted that Freyd had significant evidence that the University’s practices caused a significant discriminatory impact on female faculty. Freyd’s evidence included the statistical analysis of an economist who concluded female professors earned $15,000 less than male professors, as well as the University’s own self-study data. Finally, the court noted that Freyd may be able to establish the University’s retention raise practice was not a business necessity because she offered an alternative practice that may be equally effective in accomplishing the University’s goal of retaining talented faculty.
However, the Ninth Circuit determined that the district court was right to rule in the University’s favor with respect to Freyd’s Title VII and Title IX disparate treatment claims. Regarding Freyd’s TVII disparate treatment claim, the court noted that because equity raises and retention raises are not comparable, it could not say that Freyd’s comparators were treated “more favorably” than she was. Similarly, Freyd’s Title IX disparate treatment claim failed because Freyd presented no evidence of intentional discrimination.
The Ninth Circuit remanded the case back to the district court for further proceedings on Freyd’s Equal Pay Act and disparate treatment claims.
Freyd v. Univ. of Oregon (2021) 990 F.3d 1211.
This case involved the US Equal Pay Act, which prohibits wage discrimination only on the basis of sex. California’s Equal Pay Act (Labor Code sections 432.3 and 1197.5) prohibits wage discrimination on the basis of sex, race, and ethnicity. California’s law provides employees greater protection than the US Equal Pay law because it prevents an employer from relying on an employee’s salary history to justify a wage disparity. Conducting an equal pay audit can ensure that all employees are paid similarly for substantially equal or similar work.