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Freyd v. University of Oregon, No. 19-35428 (9th Cir. March 15, 2021)

On March 15, 2021, in a case in which the AAUP filed an amicus brief, the Ninth Circuit Court of Appeals ruled in favor of Jennifer Freyd, finding that she had alleged sufficient facts to proceed with a suit against the University of Oregon for pay discrimination based on significant pay disparities with male faculty members. The lower court had dismissed the suit based, in part, on findings that Freyd and her male colleagues did not perform equal work, and that any disparate impact on women was justified. The 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 explains that the pay differentials were not justified. The Court of Appeals reversed and remanded the case for trial, finding that the jobs of the relevant female and male faculty could be found “comparable” for legal purposes, that the retention raises resulted in a disparate impact on women, and that the university could have avoided the disparate impact by revisiting the pay of comparable faculty when the retention raises were given.

The case arose because 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 Freyd’s salary.

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 Freyd and her male colleagues did not perform equal work or comparable work, that the retention raises did not create a disparate impact on female professors, and that any disparate impact was justified. Freyd filed an appeal with the Ninth Circuit, and the 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 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.

Finally, the brief argued that the retention raise practice had a discriminatory impact that could have been corrected by the University. As the AAUP report, Salary-Setting Practices that Unfairly Disadvantage Women Faculty, explains, where colleges and universities use retention raises, they can correct for gender-based wage disparities by giving “attention to internal equity in pay-setting. One solution would be to review internal equity analyses whenever pay adjustments are made to meet outside offers.” Id. The brief pointed out that OU had such a policy, yet it failed to institute it: “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.”

The appeals court decision did not mention the AAUP amicus but did follow its reasoning. In particular, the court found that the jobs of the female and male faculty were “comparable” for legal purposes.

a reasonable jury could find that Freyd and her comparators perform a “‘common core’ of tasks” and do substantially equal work. . . .[and that they] share the same “overall job.” As full professors in the Psychology Department, Freyd and those three comparators all conduct research, teach classes, advise students, and “serve actively on departmental, college, and university committees and in other roles in service to the institution.”

The court also found that the University could have avoided the discriminatory impact of the retention raises by revisiting the pay of comparable faculty when the retention raises were given. The court explained:

Freyd is not challenging the practice of awarding retention raises; she challenges the practice of awarding retention raises to some professors without increasing the salaries of other professors of comparable merit and seniority. And as explained below, Freyd has proffered an alternative practice that may be equally effective in accomplishing the University’s goal of retaining talented faculty.  . . . Freyd has proposed, as an alternative to the current practice, that “when [the University] gives a retention raise to a Psychology professor, it should evaluate the resulting salary disparity with others in the same rank with comparable merit and seniority, and give affected individuals a raise.”

Finally, the court found that the small statistical sample available did not preclude a finding that there was statistical evidence of pay discrimination. Therefore, the court reversed the lower court’s dismissal of Freyd’s Equal Pay Act claim and her claims for discrimination under Title VII and Oregon law.