Show Me the Money: Salary Equity in the Academy

Are women being paid less than men? Recent court cases reveal years of unequal treatment.

By Donna R. Euben

Winn Newman, the eminent labor and employment lawyer, defined wage inequity as meaning "simply that women or minorities are paid less for the work they do than men or non-minorities, because of their sex or minority status and not because of the jobs they perform." Such gender-based salary inequity in higher education appears alive and well:

• In January the Minnesota State Colleges and Universities system settled for a rumored $830,000 a class-action suit filed by about three hundred women professors at St. Cloud State University, who alleged that they had been paid less and promoted slower because of their sex.

• The University of Cincinnati AAUP chapter is currently in arbitration with the university over the finding, by a study the chapter commissioned, that women professors receive salaries up to 4.85 percent less, on average, than their male colleagues.

• In 1998 the University of South Florida settled for $144,000 a pay-discrimination lawsuit brought by five women professors. The professors relied on a study that found that female full professors were paid in 1997 an average of $8,380 less than their male counterparts.

This article reviews some of the continuing challenges for the higher education community in achieving salary equity, as illuminated (or made murkier) by recent legal cases. It also suggests issues that institutions—faculty members and administrators—might consider when undertaking salary-equity studies.

The Law

In seeking to rectify gender-based wage disparities, faculty rely mainly on two federal laws: the Equal Pay Act (EPA) and Title VII of the Civil Rights Act. Executive Order 11246, which President Lyndon Johnson issued in 1965, also prohibits discrimination by federal contractors, which includes many colleges and universities. In addition, many states and some localities have antidiscrimination laws and "baby" EPAs.

The EPA bars gender discrimination in wages, requiring equal pay for equal or "substantially similar" work in public and private institutions. To establish a claim, a professor must prove that a university or college pays a higher salary to a colleague of the opposite sex for performing work that is, as the U.S. Supreme Court has explained, equal in "skill, effort, and responsibility, and which [is] performed under similar working conditions." At the same time, the law allows for salary differences between women and men based on a number of "affirmative defenses," including merit, seniority, and factors "other than sex."

Title VII protects individuals from discrimination by an employer, including most colleges and universities, on the basis of sex, race, color, national origin, or religion. The law specifically prohibits discrimination "against any individual with respect to his compensation . . . because of such individual’s . . . sex." The U.S. Supreme Court has explained that Title VII bars "not only overt discrimination, but also practices that are fair in form, but discriminatory in operation." The Bennett Amendment to Title VII incorporates the EPA’s affirmative defenses into Title VII’s prohibition against wage discrimination based on gender.

Recent litigation brought under these laws has highlighted the challenges involved in achieving salary equity in higher education. To whom, for example, is an allegedly underpaid female professor to compare herself? What is the proper role of market forces in setting salaries? Can merit-pay and promotion systems be "infected" with gender discrimination? Are public colleges and universities "immune" from claims by individual professors under federal antidiscrimination laws? When might "reverse discrimination" claims by male professors lead to salary-equity adjustments?

Point of Reference

In 1989 Barbara Lavin-McEleney, who teaches criminal justice, faced such a quandary. She first expressed concern to the Marist College administration about her salary when the school newspaper reported that the average professor’s salary was about $4,000 more than she received. In 1996, after having obtained no satisfactory response, she sued the college for pay discrimination under Title VII, the state antidiscrimination law, and the EPA. At trial both the college’s and the professor’s experts found a salary differential between her and comparable men, but they disagreed on whether the difference was "statistically significant." The jury awarded her about $120,000 on her EPA claim, and the college appealed.

On appeal, the college contended that Lavin-McEleney inappropriately compared herself to a "hypothetical" male comparator, rather than to an actual male colleague in her department.¹ There were, however, no assistant professors of equivalent seniority in her department.

The court disagreed with the college, noting that Lavin-McEleney had identified two male comparators who had positions "substantially equivalent" to hers. The comparators were not in her department but in the psychology department of the social and biological sciences division, the same division in which Lavin-McEleney taught. In its reasoning, the court relied on expert testimony that departmental differences within divisions were not associated with differences in salary. The court affirmed the jury verdict in favor of the professor, concluding that she properly identified a specific male comparator, even though the comparator was outside of her department.

Market Forces

[M]arket-determined wages and discrimination that merits correction are by no means mutually exclusive. The prices or salaries that a market sets depend on supply and demand. If persons operating on the demand side of the market—those with the power to make salary offers and to hire—behave in a discriminatory manner because of societal tradition, and if competition is not rigorous enough to eliminate such discriminatory behavior, then the market itself will produce discriminatory results.

Courts have recently considered whether the "market rate" is a valid measure upon which to base faculty salaries, and the results have been mixed. In 1998 the Nevada Supreme Court relied on market theory to justify a salary differential between a white female professor, Yvette Farmer, and a comparably qualified black male professor at the University of Nevada.²

She applied for an assistant professorship in sociology, with an advertised salary range between $28,000 and $34,000. Under a "minority bonus policy," which allowed a department to hire an additional faculty member following the initial placement of a minority candidate, the university first hired as an assistant professor in the sociology department a black male candidate who was comparably qualified to Farmer. He was offered $35,000 a year, with a $5,000 increase upon completion of his doctorate. Farmer was hired the following year at an annual salary of $31,000, with a $2,000 raise after completion of her dissertation.

Farmer and her colleague started with an initial pay differential of $7,000 upon completion of their dissertations, which continued to widen because of the male professor’s additional year of teaching and differences in merit increases. At trial, Farmer won a jury verdict of $40,000 against the University of Nevada for several legal claims, including violation of the EPA.

On appeal, the university asserted that because only 1 percent of its faculty were black and 87 percent were white, and because women made up 25 to 29 percent of the faculty, it should hire a black man before a white woman to reduce this racial imbalance. Farmer argued that the wage disparity between her and the black male professor was impermissibly grounded in gender discrimination.

The court, however, agreed with the university that "qualified minority applicants, who are in short supply, can command premium salaries on the open market." It reasoned that the search committee simply "elected to avoid an all-out bidding war with other educational institutions" by offering the male candidate a salary commensurate, in part, with his "overall marketability." The court further observed that the chemistry department had "recently hired a female chemist at a higher salary than a male with similar credentials in order to diversify its faculty. . . . Market forces dictate higher salaries for female Ph.D.’s in chemistry due to a shortage of qualified women." The court thus concluded that the pay disparity between Farmer and her black male colleague was permissible based, in part, on market factors.

The role of the market in setting academic salaries was also at issue in a case brought by a group of women faculty members who sued the University of Rhode Island and the university’s AAUP chapter.³ In a complicated salary structure negotiated between the local faculty union and the administration, different minimum salary scales existed for different tiers of grouped disciplines, and the different tiers "reflect[ed] the varying levels of compensation commanded on the open market." The women professors challenged the tier structure, alleging that they were discriminated against in their salaries. Although 27 percent of the faculty were women, about 31 percent of the faculty in the first two tiers were women; those tiers included the disciplines of humanities, social sciences, natural sciences, pharmacy, and economics. The third tier, which provided for higher minimum salaries, included the disciplines of accounting, engineering, computer sciences, and business and finance; women made up only 10 percent of the faculty in that tier.

The administration and the faculty union contended that the salary scales merely reflected "market rates of compensation," and that any gender-based salary disparities were therefore legitimate. In 1996 the district court accepted the market-rate argument, ruling against the women professors because their "choice of academic field and the workings of the national market . . . are basically responsible for compensatory differences . . . within the different disciplines." The federal appellate court affirmed that decision, finding that the university was "simply paying different people different salaries for different, not similar, work."

A federal district court, however, recently rejected one university’s reliance on the market to justify a lower salary for a woman professor.⁴ Eastern Michigan University settled a federal EPA case brought by Pamela Speelman, a professor of industrial technology, who contended that she was the second-lowest-paid professor in her department from 1991 to 1997, despite having a higher rank and more seniority than four of her male colleagues. She alleged that her starting salary was below the "target" salary scale, while those of all the male professors were higher than the target scale.

The court noted that Speelman, on average, "taught more students and had larger class sizes" than her male colleagues. Moreover, "she had an additional responsibility as sole female mentor for female students." The court rejected the university’s assertion that the male academics could command higher salaries in non-academic positions in the market, which justified their higher salaries. As part of the 2000 settlement, EMU raised Speelman’s salary to $55,551 a year, which matched the pay level of her highest-paid male colleagues.

Merit-Pay Debate

In 1995 Dorothy Kovacevich, a special education professor, sued Kent State University, claiming, among other allegations, violation of the federal EPA and Title VII. At trial in 1997, she introduced evidence that she was paid $5,999 less than a comparably qualified male colleague. A jury awarded her close to $12,000 under the federal EPA, but the trial judge promptly overturned the award. The trial court also ruled that Kovacevich had failed to state a proper claim under Title VII.

When she appealed, the federal appellate court ruled on her EPA claim that sufficient evidence existed for a jury to have found that "her lower salary was a result of gender discrimination."⁵ T he court further ruled that Kovacevich had properly stated a Title VII gender-based wage-discrimination claim at trial based, in part, on the EPA analysis. The case was sent back to the lower court for proceedings consistent with the appellate court’s rulings.

The university had argued on appeal that any differences in salary between Kovacevich and her male comparators were "due to the school’s merit system and across-the-board percentage increases." Kovacevich’s evidence, however, suggested that gender discrimination was imbedded in KSU’s merit-pay system. The court noted that "rather than a neutral system of merit based on anonymous peer evaluations, the merit award system was driven largely by an opaque decision-making process at the administrative level [that] did not necessarily reflect peers’ assessment of applicants’ performances, and rewarded men disproportionately to women."

In addition, the court cited a faculty report, which stated that "it is extremely difficult to demonstrate the connection between peers’ professional judgments of meritorious performance and the size of the merit awards."

The court also found persuasive Kovacevich’s own research on the disparity in merit payments awarded to her department’s men and women professors, which indicated that from 1988 to 1992 "forty percent of males in her department received above average merit awards while only twenty-three percent of its female faculty did so." She also found that her male colleagues were "disproportionately represented among the top salary-earners in her department, even though women made up forty-seven percent of the faculty."

The question of gender bias in merit pay is also an issue in collective bargaining. The California Faculty Association, the statewide faculty union for the California State University system, produced a study reporting that women professors are, on average, awarded 8 percent less in merit pay than their male colleagues. The university disputes that claim, but a fact-finding panel, made up of faculty and administration representatives, nevertheless recommended in January 2001 that the CSU faculty merit increase program be suspended because it "appears to be ill conceived and poorly administered."

Promotion Lag

Gender-based promotion disparity was at issue in the November 2000 settlement between the U.S. Department of Labor and Kent State University. In 1993 the KSU AAUP chapter filed a complaint with the Office of Federal Contract Compliance Programs, which administers Executive Order 11246. The executive order prohibits discrimination "because of race, color, religion, sex, or national origin" and mandates affirmative action for minorities and women; it applies to federal government contractors and subcontractors, including KSU and other colleges and universities. (The action was related to the Kovacevich litigation discussed above.)

In filing the 1993 complaint, the chapter relied on a salary-equity study prepared by KSU professors Robert Johnson and Dorothy Kovacevich. The study found an overall "7.38-year gap between women and men in time spent in a lower rank." Among the 464 men eligible for promotion to associate professor, for example, the median time before promotion was 9.55 years, while among the 229 eligible women, the median time was 16.93 years. The delay in the promotion to associate professor cost women faculty up to $10,000 each.

As reported in the media, the terms of the settlement provided that the university pay $219,000 to twenty-four women assistant professors who had experienced delays in promotion to associate professor between 1991 and 1993. The settlement also required the university to invite women assistant professors who were parties to the complaint and still on the KSU faculty to apply for promotion.

Professors at state colleges or universities who seek to challenge gender-based salary discrimination must also grapple with the "sovereign immunity" defense. Claiming sovereign immunity, public employers, such as colleges and universities, contend that they are immune under the Eleventh Amendment of the U.S. Constitution from individual suits for monetary damages under federal antidiscrimination laws. So far, however, courts have rejected these administration efforts to defeat the application of the EPA and Title VII to public institutions of higher education.

The U.S. Supreme Court recently addressed the issue of sovereign immunity in Kimel v. Florida Board of Regents, ruling that colleges and universities are immune from individual claims by professors for monetary damages under federal age-discrimination law.⁶ In so ruling, however, the Court recognized that "[o]lder persons, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a ‘history of purposeful unequal treatment.’" Furthermore, the Court reaffirmed that gender and race discrimination are subject to a stricter standard of review than age discrimination. But the Court did not say whether sovereign immunity shields public employers from federal gender-based wage-discrimination laws.

In Varner v. Illinois State University, a federal appellate court ruled in 2000, for the second time in the same case, that the extension of the EPA to the state was a valid exercise of congressional authority under the U.S. Constitution.⁷ The case began in 1995, when three female business professors sued the university in federal court. They alleged that their salaries were among the lowest in the business college because of their sex. The suit was certified as a class action involving 350 tenure-track and tenured female professors who were at the university from 1982 to 1996. The university sought to have the suit dismissed based on sovereign immunity, arguing that the EPA did not apply to the university under the Eleventh Amendment.

The court rejected the university’s argument, ruling that the professors could pursue their class-action EPA claim for monetary damages. The university is seeking review of the appellate court decision by the U.S. Supreme Court. Similarly, in the Kovacevich case, the federal appellate court ruled that Kovacevich was not barred by the Eleventh Amendment from suing KSU for violating the federal EPA.⁸

Administration efforts to assert sovereign immunity in Title VII gender discrimination cases involving wages are also percolating in the courts. In March 2000, for example, a federal district court rejected the University of Minnesota’s assertion of sovereign immunity in a wage discrimination case brought against it by a male professor.⁹ The university’s appeal of that ruling is pending.

Reverse Discrimination

In 1992, for example, five male professors at Virginia Commonwealth University alleged that the pay raises totaling about $440,000 that were distributed among 172 of their female colleagues constituted gender discrimination under Title VII. The institution’s salary study had indicated that women were paid, on average, $1,900 less than men with the same titles. The federal district court found that this disparity was statistically significant, but in 1996 the federal appellate court reversed the case for further adjudication.¹⁰

Some male professors have challenged institutional findings of such a "manifest imbalance." The federal appellate court in this case questioned whether the institution’s study established a manifest imbalance, because it failed to account for performance factors or for professors’ prior service as administrators. In 1996 the university settled the lawsuit with the male professors. In another reverse-discrimination case, a federal appellate court ruled in 1998 that Ian Maitland, a male professor of management at the University of Minnesota’s Twin Cities campus, could sue the university for wage discrimination under Title VII. The suit was based on a settlement entered into earlier between the university and a group of women professors, which provided for the distribution of $3 million in salary increases to underpaid women faculty members.

In 1989 Maitland challenged the settlement, claiming that only a small salary disparity existed between men and women professors. The federal district court disagreed, ruling in favor of the university. On appeal, Maitland argued that the studies carried out by the professors and the administration, both of which were used in the case, were flawed because they failed to consider rank or the market value of disciplines.

The federal appellate court reversed the district court’s decision, reasoning that the existence of the earlier court-approved salary settlement was "of little consequence."¹¹ Rather, the court ruled that because the salary studies came to "widely varying conclusions"—the professors’ study found a salary differential of between 4 and 10 percent, while the institution’s report found a pay gap of 2 percent—a question remained for trial whether a "conspicuous imbalance" existed between the salaries of men and women professors that justified the initial settlement.

Good Practices

Instead of litigating, administrations and faculty should work together to design salary-equity studies that consider all of the many factors that can account for salary differences. Litigation should be a last resort. Legal battles over salary equity are extremely expensive and time consuming, and they often yield mixed results—for all. Such studies can help to determine whether wage gaps are statistically significant and actually attributable to discrimination as opposed to other causes.

The University of Louisville, the University of Colorado, and Indiana University–Purdue University, Indianapolis, have recently undertaken voluntary salary-equity studies. And earlier this year, nine leading research universities, including the Massachusetts Institute of Technology and Stanford, Yale, Princeton, and Harvard Universities, announced efforts to abolish salary and other inequities against women faculty in the fields of science and engineering.

Other institutions and faculty exploring ways to rectify salary inequities on their campuses may want to consider the following recommendations.

Establish starting salaries

Setting minimum salary scales sometimes helps to mitigate disparities by limiting the pay gap, at least among the lowest-paid faculty in each rank, that often emerges between men and women faculty and leads to careers of underpayment. For example, in January 2001 a gender-equity task force made up of professors and administrators at Marquette University reported that "[b]eing female has the measured effect of lowering initial salary by more than $1,800 on average," and that a "lower initial salary . . . carries through to current salary." Of course, any minimum salaries or "target" salary scales, if established, must be followed.

Conduct periodic salary-and promotion-equity studies

Even when minimum starting salaries are established, disparities in pay tend to seep in over time. To avoid such disparities, institutions should engage in regular salary reviews. According to salary equity consultant Lois Haignere, American University; North Carolina State University, Raleigh; and Tarleton State University have all adopted this practice. In addition, the recent settlement at Kent State University provided for an annual analysis of faculty promotion rates. As the AAUP women’s committee recommended in 1992, part of a periodic salary study by institutions should include review of "promotion practices to identify any tendency to . . . promote [women] more slowly than men."

Provide briefings on salary practices for new faculty

The AAUP women’s committee recommends that "[i]nstitutions . . . disseminate criteria for the setting of pay standards widely, both to those who determine salary and to all faculty members." A recent settlement at St. Cloud University provided for such information sharing.

Offer "salary-setting" seminars

Universities should brief academic decision makers, including department chairs, on internal procedures and policies as well as salary discrimination laws. Identify sources of assistance available to decision makers if questions arise during salary reviews.

Create equitable merit-pay systems

Be sure that merit-pay programs have clear and objective standards that are applied consistently. The Marquette University gender-equity task force recommended that "all departments have written policies in place for distributing merit increases . . . [and] [m]onitor the system to ensure that it does not have a disproportionately negative effect on the salaries of women."

Establish inclusive eligibility criteria for equity adjustments

When undertaking salary-equity reviews, all professors—women and men—who are identified as underpaid should be eligible to participate in equity-adjustment plans. Indiana University–Purdue University, Indianapolis, which recently found an unexplained gap of 3 percent in the salaries of men and women, invited all 918 faculty, librarians, and scientists to petition for salary review. Of the seventy-nine applicants seeking equity adjustments from the $100,000 salary pool, thirty-four reportedly received them: nineteen men and fifteen women, including twenty-eight white and six minority applicants.

Salary equity is a complex issue, especially in academe, and it requires attention. Commenting on a 1999 report on gender inequity in MIT’s School of Science, Robert Birgenbeau, dean of science, said that although gender discrimination, including wage discrimination, at MIT was not "conscious or deliberate . . . the effects were and are real. . . . We still have a great deal more to accomplish before true equality and equal treatment will have been achieved." Likewise, faculty and administration must accomplish a great deal more to achieve gender-based salary equity in the academy.

Notes

2. Farmer v. University of Nevada, 930 P.2d 730 (Nev. S.Ct. 1997), cert. denied, 523 U.S. 1004 (1998). Back to Text

3. Donnelly v. Rhode Island Board of Governors for Higher Education, 929 F. Supp. 583 (D. Rhode Island 1996), aff’d, 110 F.3d 2 (1st Cir. 1997). Back to Text

4. EEOC v. Eastern Michigan University, No. 98-71806 (E.D. Mich. 1999); see also Associated Press, "EMU Settles Federal Sex-Bias Case," Detroit News, 28 April 2000. Back to Text

5. Kovacevich v. Kent State University, 224 F.3d 806 (6th Cir. 2000); see also Nota Bene, "Female Professors Victorious Under Equal Pay Act," Academe 5 (November–December 1997). Back to Text

6. 528 U.S. 62 (2000). Back to Text

7. 226 F.3d 927 (7th Cir. 2000), cert. pending (Feb. 6, 2001); see also Robin Wilson, "350 Female Professors Join a Pay-Equity Dispute at Illinois," Chronicle of Higher Education, 8 November 1996. Back to Text

8. 224 F.3d 806 (6th Cir. 2000). Back to Text

9. No. 4-93-25 (D. Minn. Mar. 29, 2000), appeal filed, No. 00-2192 (8th Cir. Apr. 29, 2000). Back to Text

10. Smith v. Virginia Commonwealth University, 84 F.3d 672 (4th Cir. 1996); see also Lisa Guernsey, "Pay-Equity Dispute Resolved at Virginia Commonwealth U.," Chronicle of Higher Education 4 October 1996. Back to Text

11. Maitland v. University of Minnesota, 155 F.3d 1013 (8th Cir. 1998). Back to Text

Donna Euben is AAUP counsel.

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