Freyd v. University of Oregon, No. 19-35428 (9th Cir. 2019)(appeal pending)

On September 30, 2019, the AAUP filed an amicus brief in the Ninth Circuit Court of Appeals in support of Professor Jennifer Freyd, who sued the University of Oregon (UO) for pay discrimination based on significant pay disparities with male faculty members. The district court had dismissed the suit based, in part, on findings that Dr. Freyd and her male colleagues did not perform equal work, and that the reasons for the pay differentials did not have a disparate impact on women. AAUP’s amicus brief provides an overview of gender-based wage discrimination in academia, explains that the common core of faculty job duties of teaching, research, and service are comparable, and rebuts the finding of the district court that the pay differentials were justified.

The case arose because Dr. Freyd is paid substantially less than her male colleagues in the psychology department who hold the same positions as full professors, have less seniority, and are no more accomplished. In 2016, the UO psychology department conducted a self-study finding that the department faced a “significant equity problem with respect to salaries at the full professor level.” The UO psychology department also conducted an external review of UO’s salary structure, which noted the “gender disparity in faculty salaries at the full professor level” and recommended that the department “continue pressing for gender equity in terms of pay at the senior levels of the faculty.” Both reviews traced the disparity back to retention raises given to professors who pursued outside offers of employment. While UO policy provides for gender equity adjustments, UO failed to adjust Dr. Freyd’s salary.

Dr. Freyd brought an action in the United States District Court for the District of Oregon, Eugene Division claiming that UO discriminated against her in violation of the Equal Pay Act, Title VII of the Civil Rights Act, Title IX, the Equal Protection Clause of the United States Constitution, the Equal Rights Amendment of the Oregon Constitution, and related state laws. The district court held that Dr. Freyd and her male colleagues did not perform equal work, based on differences in their grant funding and administrative duties. The court also concluded that their work was not comparable because faculty had “academic freedom” to “remake their job.” Finally, the court held that the retention raises granted to male faculty did not create a disparate impact on female professors. Dr. Freyd filed an appeal with the Ninth Circuit, and AAUP filed an amicus brief in support of her appeal.

AAUP’s amicus brief begins by outlining the broader context of unequal pay in academia. “The wage disparity in Professor Jennifer Freyd’s case is an example of the ongoing gender-based salary inequalities in the academic profession, generally, and for women full professors in doctoral institutions, in particular.”  Rebutting the district court’s holding that Dr. Freyd and her male colleagues do not perform equal work, the amicus brief explains the well-established definition of faculty work in the AAUP 1940 Statement of Principles on Academic Freedom and Tenure:

Since 1940, colleges and universities across the US, including UO, have adopted the AAUP’s definitions of faculty work and thus have established the relevant standards of the academic profession—namely that the common core of faculty job duties are teaching, research, and service. Professor Freyd and the comparator full professors in the department do not perform identical work. They do perform “substantially equal work” and “work of comparable character” by carrying out their common core duties through a variety of teaching, research, and service activities, as is the norm in the academic profession.

Citing the seminal role that AAUP has played in establishing and defining academic freedom, the brief refutes the district court’s reliance on academic freedom to justify the unequal pay. “Academic freedom does not enable faculty to create different jobs with unequal work. . . . Academic freedom is a condition of employment that all faculty hold in common to enhance their ability to engage in teaching, research, and service. It is not a weapon to be wielded as a justification for gender-based inequalities.” Finally, the brief argues that the UO retention raise practice is not a valid defense to the discrimination claims, particularly as “UO policy provides for gender-equity adjustments, [but] the Psychology Department and the UO administration failed to make such adjustments to rectify the disparate impact of its retention raises.”