Judge McShane dismisses Professor Freyd’s pay discrimination lawsuit

5/3/2019 update: The EW’s Camilla Mortenson has a brief report on the case here. The full opinion is at http://uomatters.com/wp-content/uploads/2019/05/093-19-05-02-Opinion-Order.pdf. The full docket is here.

4/11/2019 update. Arguments about to start. More later.

4/8/2019 update: UO’s attempts to dismiss Freyd lawsuit include redefining “Professor”

Full disclosure: I am not a lawyer.

But having now spent a little more time with the docket, I see that in addition to the retention raise issue mentioned below, our administration’s lawyers are pursuing another interesting and potentially more troubling strategy in their argument for dismissal.

If I understand it, they are arguing that there is no such job as Professor. Instead, there are different professor jobs, each with different responsibilities. So different that every professor should really be in their own separate, unique, incomparable job classification. Presumably they also think these classifications should change annually, or at least with the NSF grant cycle.

This argument means that there can be no such thing as pay discrimination for professors, because there are no two professors with the same job classification. Therefore Judge McShane must dismiss this case. Brilliant.

While universities have been mistakenly lumping all these different professor jobs under the category of professor for centuries (albeit with subcategories for rank and discipline) now is the time to put a stop to this professor thing, and the University of Oregon is just the place to do it! Presumably our administration’s new Faculty Tracking Software will help with the slice and dice.

As I mentioned, I’m not a lawyer, or even a legal historian. However it seems to me that an opinion from the judge agreeing that this argument is grounds for dismissing the case, if sustained, would be a precedent with wide ranging effects, making it nearly impossible for anyone in a professional job with varying job responsibilities to ever win a pay discrimination case.

You can read UO’s outside attorneys Paula A. Barran, Shayda Zaerpoor and Donovan L. Bonner of Barran Liebman LLP laying out their arguments in this motion to dismiss. A snippet:

They’ve even persuaded a few UO people with the job title soon to be formerly known as  Professor to give sworn affidavits that support this argument. Other professors swear that it is bullshit. Check the docket here.

Suggestions for our new job titles are welcome in the comments.

4/7/2019: Gender gaps in outside offers and retention, Freyd lawsuit

Oral arguments in Prof Freyd’s gender pay discrimination lawsuit against UO are this Thursday at 2PM (lengthy docket here). The crux of the case, as I understand it, is whether a gender gap in salaries that results from a gender gap in retention and outside offers, rather than intentional gender discrimination, is illegal.

The timely report by Harvard’s Collaborative on Academic Careers in Higher Education (COACHE), here, bears directly on the existence of these gender gaps. (Thanks to a reader for forwarding this link.) Some snippets:

Further, the study’s insights into the negotiation process are suggesting some troubling gender gaps. For example, among those who didn’t ask for a counteroffer, men are more likely than women to receive one, anyway; among those who do ask for a counteroffer, women are more likely to be denied.

Higher ed’s “counteroffer culture” has real costs. Faculty are expected to cultivate outside offers before they can ask for a better deal at home. This requirement pushes them out the door: we are finding that nearly 1 in 3 faculty who left had originally sought the offer only to renegotiate the terms of their employment.

Universities have a “home-field advantage” in retaining dual-career couples. Retentions were nearly twice as likely as departures to have a spouse employed at the same institution. The implications for women are particularly acute: 48% of women versus 21% of men ranked spousal employment as a primary factor in their decision to stay or leave.

COACHE’s mission is interesting:

… a research-practice partnership (RPP), committed to improving the academic workplace and advancing the success of a talented and diverse faculty. We accomplish this by providing comparative, actionable insights on what faculty need to do their best work. We derive these insights from survey and institutional data that we collect and analyze under the highest standards of research. We share these insights with a community of practice in academic affairs who are, like us, committed to making academic leadership more adaptive and governance more strategic.

They partner with about 250 universities to conduct surveys on faculty matters, at quite reasonable costs:

Faculty Job Satisfaction Survey

The Faculty Job Satisfaction Survey offers academic affairs administrators unique insights into the faculty experience. The survey captures faculty sentiment with regard to teaching, service and research, tenure and promotion, departmental engagement and collegiality, and other aspects of the academic workplace.

Faculty Retention & Exit Survey

The Faculty Retention & Exit Survey involves COACHE partners in the only comparative study of faculty retentions and departures. The results show the implications of certain policies and offer insight into the causes, costs, and conduct surrounding faculty exit.

I wonder why the UO administration is so eager to blow money on things like Academic Analytics and now Faculty Tracking Software, but unwilling to participate in efforts like these?

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47 Responses to Judge McShane dismisses Professor Freyd’s pay discrimination lawsuit

  1. thedude says:

    Universities also have a home field advantage in hiring couples. Often 1 person that is marginally qualified for a job and is overpaid gets hired because the other is a star and might be underpaid. But people only get mad one part is underpaid, and you don’t see the campus suing that they are overpaying part of the couple.

    Likewise, the university doesn’t hook up non dual phd households with jobs or careers. People like the benefits that come when the university solves their dual search but get they can’t have their cake and eat it too….

    • not entirely true says:

      Non-phd spouses get hooked up all the time. It’s actually a big contributor to admin bloat. By passing through extra money to a non-phd spousal seat warmer it keeps phd salary comparitors lower throughout the department, and is thus a cheaper investment for the University.

  2. Lemur says:

    Actually, the university does have someone whose job it is to help faculty partners (including those without PhDs) find jobs. Her name is Rhonda Smith.

    https://provost.uoregon.edu/dual-career-support

  3. Deplorable Duck says:

    Just to tie the threads together, this is where our General Council earns his generous salary. His job is to win this lawsuit, or proclaim loudly to the top brass that it likely will not be won and should be settled. Those are the only acceptable outcomes. He’s here to protect UO from these legal risks.

    A few might argue that the lawsuit has merit, and UO should lose. I’m not of that opinion, but in any case, nothing could be less relevant in a court of law than the merits of the case. Produce, GC, or begone!

    • not entirely true says:

      On any case of substance GC will usually punt to a subcontracted firm for a very generous fee. Your tuition dollars at work!

  4. prof from another says:

    “Suggestions for our new job titles are welcome in the comments.”

    Distinguished Professor or Regents Professor, with a rigorous selection process, and limited numbers per yr; OSU limits the number to 2. .Every other R1 school I know has these ranks, restricted to their ‘best faculty’. and they usually come with a defined salary increase. These sit along side endowed chairs to retain great faculty. They sit outside yearly salary increases, and promotion salary increases. They should be hard to get, but unrelated to retention offers.

    • anon and on and on says:

      Isn’t that a big part of the Knight Professorships? There aren’t a huge number of them (and of course they’re not Regius Professorships or the like) but named chairs are one tier and the Knight chairs are thought of as being above that tier. Our department had one Knight Professor, but when he retired six or seven years ago the spot went to someone else, not our own department. I just don’t know the selection process for those titles and exactly what they bring in terms of bumps, so any of y’all who do, chime in please.

      • prof from another school says:

        Yes, endowed chairs are of multiple types, and some pay more than others. They are often quite specific as to discipline, being based on private funds. I don’t know how your system works, or the criteria for competing to be a Knight Prof. But the ones I know of are of limited term, like 5 yrs, and renewable, perhaps for a long time if productivity remains high .
        Generally Regents profs or Distinguished profs get a bump in base salary itself, and are not dependent upon endowed funds. And they cant be taken away. For example,University of Oklahoma has several types of these [ under different names], and even reward teaching excellence this way; their top-tier is a Research Professorship[ a friend had one].

        Mostly I wanted to register disagreement with Bill’s critical take on the idea of considering faculty as doing different jobs, and thus being paid differently; Research Uinvs do it all the time.

  5. Hippo says:

    I agree that almost every instance of fitting a least squares line to observational data for a purpose other than data summary is devoid of “supported methodology”. (Yeah, two-stages, instruments, etc won’t save you, despite what the economists want you to believe.). I look forward to the University administration eschewing all instances of this pseudoscience since they swear in court they agree! No more garbage regressions on faculty data, thank you very much.

  6. Eyeroll says:

    I’d love to know how much the UO administration is spending to fight this case rather than settle it. Unless their goal is actually to prevail in un-defining “professor” for purposes that cannot be ethical, I can’t see the advantage to going to court with this.

    Kind of reminds me of JH’s incredible claim in (I think) 2007 that professors’ job descriptions “didn’t require them to publish” (!) so the UO could legitimately refuse to indemnify a faculty member in a civil suit generated by something published in an academic article.

    Still working to dissolve the professoriate

    • Hippo says:

      Ha, I remember the “publishing is not an official duty” line.

      As for this lawsuit, as far as I can tell, it doesn’t have much merit; the argument seems to be based on a least-squares line fit on observational data with a handful of points in it. See my comment above about the possibility of causal inference from such data. This isn’t dispositive one way or another about gender discrimination, which is quite possible given what I see with my own eyes, but I don’t think the argument being put forward is a persuasive one.

      What I would like to see is that if the University chooses to advance an argument in court, it commit to its own policies being consistent with the argument.

      As I write above, the University should refrain from shitty inferences based on least-squares lines. From what I can tell, that is exactly how they are making the so-called equity adjustments. Similarly, I have no idea what is the secret sauce the Academic Analytics or whatever they are called is using to track us, but I suspect the methodology is garbage. Since the University has declared it has no tolerance for unsupported inference methods in court, I would like to see them stick to that in their actions on campus.

      • thedude says:

        Casual inference on a singe observation (a person’s salary) is impossible.

        I don’t the goal of wage decompositions is causal in this setting. Its just an observation breakdown similar to summary statistics.

  7. Merits of the case aside, if McShane embraced the legal logic that the title “professor” encompasses a class with varying responsibilities (as Bill put it, “So different that every professor should really be in their own separate, unique, incomparable job classification.”), then this ruling might open a loophole in the new Equal Pay Act (https://www.govdocs.com/oregons-equal-pay-act-to-take-effect-jan-1-2019/) for equal pay within a given job.

    Specifically, the law defines work of “comparable character” as requiring “substantially similar knowledge, skill, effort, responsibility and working conditions in the performance of work, regardless of job description or title.” Depending on what it says (I can’t access the ruling yet), it might be precedent to indicate that two professors at the same rank and years in service, etc., still can be paid different amounts because their work is not of “comparable character”.

    • Andy Stahl says:

      Bingo, Elliott. You hit the nail on the head:

      “When applied to a university setting, the notion of “equal pay for equal work” has unique complexities that are not found in other institutions. First, the notion of academic freedom spawns an environment where those working in the same discipline may choose to follow different paths of knowledge and pursue endeavors that create unique value to the institution. While education is core to the function of each department within a university, individual professors are given broad latitude to pursue research, obtain and manage grants, publish written work, and take on leadership roles in the university and the broader community.”

  8. Anonymous says:

    It sounds like Kevin and his crew will be partying big-time down at the Faculty Club tonight …. Oh, right, I guess not. :)

  9. Hippo says:

    Why didn’t both parties just wait for the current round of equity adjustments, where the bogus regression models being attacked by the university In this case are being used to justify pay adjustments?

  10. Anonymous says:

    This is a true indication of the University’s stance on gender equity and a sorry comment on this judge. The University has once again employed its immense resources into making sure gender equity will never happen here.

    • uomatters says:

      I just told a female colleague and co-author that, according to Judge McShane’s opinion, I should be paid more than she is because I use sophisticated “brain imaging and scanning technology, which requires specialized expertise and the supervision of technological staff” in my research, while she does not.

      Her response? “I use something far more sophisticated than brain imaging technology. My brain.”

      Touché.

      (see https://scholar.google.com/citations?user=P-TjHbEAAAAJ&hl=en)

  11. Ulrich Mayr says:

    I can only hope that nobody on our campus is celebrating about this outcome. Even the winning side has probably spent hundreds of thousands of dollars in lawyer fees and the resulting emotional upheaval and distrust in our institution among many faculty and graduate students cannot be in anybody’s interest.

    This situation could have been avoided if we had a mechanism that allows highly meritorious faculty to get substantial pay bumps outside retention situations. We all should put pressure on the administration AND the union to work towards such a solution.

    • uomatters says:

      Thanks Ulrich.

      For the record, the union raises are floors, not ceilings. The union has repeatedly told the administration in person, by email, and in at least one formal letter that they have no objections to raises for any faculty above the minimum amounts required by the CBA.

      • thedude says:

        No objections is one thing. Will they file a grievance similar raises were not given out elsewhere is a big question too?

      • Classified Employee says:

        How many, many times have classified employees been told that they cannot start at a higher step than the bottom one because “the Union won’t let us”.

        Lies, lies, and more lies.

        Now the faculty are getting it, too.

    • Anonymous says:

      I find this outcome so incredibly depressing. That my institution would work so hard to undervalue the work of one of its faculty is gut-wrenching. To me, it suggests that the university is okay that things like retention raises, spousal hires, and other negotiated parts of a contract are inequitably applied across and within units, which will continue to amplify pay differences among people who are, in my mind, performing similar duties (teaching, research, service).

      • uomatters says:

        Having been at the hearing and heard the administration’s lawyer Paula Barran, and read the statements in the docket that the university’s lawyers solicited from administrators and some faculty, I can confirm that the extent the administration has been willing to go to undervalue and attack Freyd’s work – during this case and before – has indeed been gut-wrenching, depressing, and unfortunately part of a long history of contempt for the faculty and what we do.

        I’ll add that, according to google scholar’s metrics, Prof Freyd is UO’s 39th most productive faculty member – and about 10 of those ahead of her are dead or retired. https://scholar.google.com/citations?hl=en&user=eviUYRUAAAAJ

        • just different says:

          Could UO Matters post the hearing minutes? These seem to only be available through PACER.

      • Dog says:

        being a broken record again

        1. The UO is run by the spreadsheet mentality

        2. All of us faculty are merely interchangeable pieces on a spreadsheet [either for teaching assignments, research metrics, service metrics, whatever] – we are merely items that allows for
        this checklist mentality to proceed

        3. None of us have any individual value added aside from our ability to be a check list item.

        4. We have departed from being a University of dignity a very long time ago.

        • prof from another school says:

          Hi Dog[ and Bill]; Why don’t you take up the Ulrich Mayr[ and my, see above] challenge and design a system to boast salaries for ‘highly meritorious faculty’ without outside job offers? With specific monies built into the CBA.
          My experience says that it will be tough, and faculty agreement as to criteria will prove elusive[ ie, what counts as ‘highly meritorious?]. I have strong opinions as to what counts as highly meritorious [ translation… for NRC ranked disciplines… use the “highly prestigious” category of honors from NRC. period.], but I assume many UO faculty would disagree [ strongly].
          My experience with deans and Provosts and Presidents over many yrs [ ~40] is that nothing trumps outside job offers or the fear that a desired faculty might leave , backed up by the accomplishment to do that, in getting a boast to one’s salary. Ok, maybe a Sr Admin returning to the faculty ranks is almost as good[ lets call this a Golden Parachute Professorship; they appear completely legal]

          I am not surprised her lawsuit failed; I too read most of the docket [ not the Pacer -only parts] and it did not strike me as strong. But then I am not a lawyer; Just a male faculty member who was mistreated in salary for decades, who also did not use outside offers to boast salary, and who finally just left.

          • Dog says:

            I think the main problem is that we don’t know how to decide
            what qualifies as a ‘highly meritorious faculty’ – under the previously described spreadsheet mentality that consumes us here, all of us would be equally highly meritorious since none of us are valued.

            Personally I think highly meritorious = some integrated synthesis of one’s research contributions (citations, H-score, i-score) to various fields (more than one is better) ; one’s grant activity; how many PHD students one has graduated; how many undergraduate Honor’s thesis one has supervised; teaching diversity (how many different kinds of courses have you taught and how many levels); national service and finally has one done anything that has locally impacted the University (in my case, I mostly built (with some help) the UO’s first wireless network (which became campus wide in the year 2003 – far before other campuses) …

            but none of this integration is ever done – instead we submit our silly annual reports stating the shit you did for that year, and these are never integrated.

            In addition, since all UO faculty are treated like interchangeable parts, then as soon as one is declared meritorious we will probably get a union mandate that all are meritorious since we all have to be the same.

            The biggest hammer a faculty person has is the amount of overhead generated in a year (fwiw – my record was about 300 K in one year – I mention this because I vividly recall being better “noticed” that particular year as some one the UO shouldn’t loose
            and I got my largest percentage raise ever, that year (about 15% – this was long before we had a union).

            So the bottom line at the research university is that as a faculty member, your really no body unless you bring in research overhead – and even if you have done that for say 10 years in a row, in the following years of possible downtime, you return to being Dr. Zero …

            • Ulrich Mayr says:

              This is a hard problem, but not much harder than any of the other evaluations of someone’s combined contributions that academic administrators/faculty deal with all the time (i.e., at tenure, promotion, or retention situations). And I am not sure I agree with Dog that we do not integrate when making these judgements–I feel this is exactly what we are doing.

              I strongly believe we need a mechanism that allows departments to propose substantial pay raises for select faculty in the full-professor range who have an excellent record (as documented for example through PTRs) and who have not kept up with their peers because they did not seek outside offers. Maintaining or establishing gender equity should be an additional, but not the only criterion.

              Before unionization, departments occasionally received sizeable pots of money that could be, and actually were used exactly in this manner (in fact, JJF had been a main beneficiary of such increases). The knowledge about the, albeit sporadic availability of such funds made everybody feel better about retention increases as they indirectly pulled others up as well. Without such a mechanism retention raises can only spur others to seek retentions as well.

              The main obstacle towards such a solution is the difficulty of conjuring up the political will from both administrators and the union to agree to set money aside for such a process within the CBA. For years now I have been told that we can’t do anything like this because we need to await the outcome of the ongoing equity study (even though it was never clear to me that this study has anything to do with the problem we are discussing here). Now that this seems finally (almost) done, I hope we can make real progress on this front.

              • Ulrich for provost!

              • Dog says:

                here is my own data on annual raises as a full professor
                analyze any way you like – note that the zero raises came when faculty salaries were effectively frozen. Note also I have had 3 PTRs in the below table and none of those years were associated with a particularly good raise , well maybe one was, for being meritorous
                I have identified those years with an asterisk

                2000 15.7% (the year I got noticed as referred to above)
                2001* 2.7%
                2002 6.1%
                2003 3%
                2004 0
                2005 5.6%
                2006 0
                2007* 8.7%
                2008 8.5%
                2009 0
                2010 10.8%
                2011 6.9% (step 1 of 1 of CAS external equity procedure)
                2012 0
                2013* 4.8%
                2014 14% (cumulative union stuff that most got)
                2015 0
                2016 2%
                2017 2.6%
                2018 2 %

              • Go California? says:

                Anyone familiar with the UC salary scale/step system? In theory it is a regular, standardized merit review, devised with much faculty input. Seems better than having a rarified ‘distinguished professor’ club.
                One link: https://academicaffairs.ucdavis.edu/step-plus-system

        • Darby says:

          RE Dog’s
          #2 Above: This is precisely how classified staff is treated.
          #3 also applies.
          #4 So very sad.

  12. Inquiring Minds says:

    Why can’t we like/not like remarks any more? Or is it just me?

    • uomatters says:

      Somebody was logging in from various VPN’s around the world and and downvoting things by the dozens. This is why we can’t have nice things.

      • Fishwrapper says:

        Thumbs down. (Not at you, but towards the jerks.)

      • Deplorable Duck says:

        Kind of flattering that anyone even thinks this is worth doing. I guess.

        Personally I prefer it this way. Make the haters respond with complete sentence(s)…

  13. Environmental necessity says:

    Judge McShane is a careful and thoughtful judge, faithful to the law.

    If you are angry, direct your ire at Freyd’s attorneys.

    Or maybe the fact that the law is not fair.

    • just different says:

      If you say so. I’ve heard that if you’re filing an equity/discrimination lawsuit against UO, you should do it in Portland. McShane’s track record sets an awfully high bar for plaintiffs to demonstrate discrimination and an awfully low one for UO’s arguments.

      • Anonymous says:

        If you say so. That is not what I have heard, and, obviously the n here is too small to speak meaningfully of things like a “track record” regarding UO discrimination cases. But feel free to elaborate. Which cases do you think would have been treated differently in Portland?

        • just different says:

          Feel free to disagree. Any case can turn out differently if it actually goes to trial.

  14. Go California? says:

    to Anon re. UC system-
    Okay, but what about their salary step system? It seems like a regular and transparent mechanism that would be better than the current random merit scramble at UO.

    • Anon says:

      Hi GoCal; I don’t know enough about the UC step system, or the UO systems [ aka , scrambles]. Why not ask Scott Coltrane?, who must know both. My experience is limited to less formal systems [ ie, no steps in rank]: just ‘COLAs and merit’ yearly + promotion raises; Plus endowed chairs, retention offers, and special ranks like Distinguished prof .

  15. I do not identify as a Duck says:

    Here’s the link to the petition supporting JJF’s appeal to the 9th Circuit Court of Appeals, where she will hopefully kick UO’s ass and save the rest of us from the ridiculous assertion that each professor is so unique that “equal work” does not exist. We are each special, in our own undercompensated way.
    https://docs.google.com/forms/d/e/1FAIpQLSer53wNni-ihHNHBswr7ZTFt5wH-GsPX1kR2ZbQm_Q-sWgVfw/viewform

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