UO’s attempts to dismiss Freyd lawsuit include redefining “Professor”

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

4/8/2019 update: 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?

Nevertheless she is persisting. Oral arguments on Freyd case April 11, 2PM.

Psychology professor Jennifer Freyd spent several years documenting that she was significantly underpaid relative to her full professor peers in the psychology department, and getting agreement from her department chair and external reviewers on the facts, but still not getting a significant raise. So in March 2017 she filed a pay discrimination lawsuit in federal court.

Now, two years later, complaints have been made, motions and affidavits have been filed, depositions heard, and the case is finally scheduled for an oral argument on UO’s effort to dismiss, in front of Judge Michael McShane. Lengthy docket here, full of embarrassing quotes from administrators and lawyers past and present. Yes, of course Scott Coltrane is still blaming it on the union.

Next week’s hearing:

Scheduling Order by Judge Michael J. McShane: Based upon the schedule of the Parties, the Oral Argument regarding Motion for Summary Judgment 56 and Motion for Summary Judgment 65 set for 4/2/2019 is reset for 4/11/2019 at 02:00PM in Eugene Courtroom 2 before Judge Michael J. McShane. Ordered by Judge Michael J. McShane.

Were Professor Freyd an incompetent male business school dean, or an incompetent male president, or an incompetent male football coach, or an incompetent male chief spokesman, the general counsel’s office would have offered a generous settlement years ago. I can’t imagine what the holdup is here. No, it couldn’t be that, could it?

University’s Barran Liebman lawyers lose discrimination case to Jennifer Middleton

This is not about UO and Jennifer Freyd. It’s Willamette University, in a Title IX case brought by members of the women’s rowing team. In both cases the plaintiffs are represented by Jennifer Middleton of Eugene’s Johnson, Johnson, Lucas and Middleton LLC, and the universities by Paula Barran et al of Portland’s Barran Liebman LLC.

The case against UO is proceeding. Willamette just settled. They will pay the rowers $140K, and Middleton’s firm (and another firm) $215K. No info on what the Barran Liebman charged Willamette, or is charging UO. UO docket here, Willamette docket here. I haven’t checked to see if Ms Barran tried to blame that one on a union too.

UO lawyers blame pay gap on the faculty union, students support Freyd

After taking an extra month – what’s the hurry when you bill by the hour – UO’s lawyers finally filed a response to Professor Freyd’s gender discrimination lawsuit. The case is now set for jury trial on Sept 17, 2018. Docket here, UO’s response here.

It looks like UO’s lawyers, Paula A. Barran and Shayda Zaerpoor Le of Portland’s Barran Liebman LLP, are going to fall back on the “blame it on the union” legal strategy:

That’s stretching the truth, even for lawyers. Nothing in the Collective Bargaining Agreement prevents the university administration from giving faculty additional raises for any reason, and certainly not for gender equity! And if there were, would it be legally enforceable? I doubt it. In any case the negotiated raises are floors, not ceilings.

And what in the world is a “standard across-the-board merit raise”? I’m no employment lawyer, but apparently UO’s lawyers didn’t read the contract, which gives a pretty clear explanation of how across-the-board and merit are different things.

Meanwhile ~60 UO Psychology grad students have written a letter supporting Prof. Freyd. Letter with signatures here:

Wednesday, June 7, 2017

Open Letter to Dr. Jennifer J. Freyd

Dear Dr. Jennifer J. Freyd,

We, the undersigned graduate students in the UO Department of Psychology, would like to take this opportunity to thank you.

Knowledge of the wage disparity you have endured stirred many emotions in us, including sadness, frustration, anger, fear, and hurt. While we each have our own experiences around this issue, we want to let you know that we appreciate you bringing to light a pervasive issue that is often dismissed and demanding that this discrimination be remedied.

In addressing gender discrimination, you have indirectly given much to us graduate students. Not the least of which is hope. Hope for a life in which such discrimination is a thing of the past. And hope that we, in our own ways, can fight for equality in all forms for ourselves and our colleagues.

Therefore, we sincerely express our support and gratitude.

Thank you.

With appreciation,

UO Psychology Graduate Students

UO hires Barran & Liebman’s Shayda Le, pleas for more time on Freyd lawsuit

From the docket here:

ORDER: Granting Defendant’s Unopposed Motion for Extension of Time to Answer 6 . Answer is due by 5/18/2017. Ordered by Judge Michael J. McShane. (cp) (Entered: 04/17/2017)

Attorney Shayda Le of Portland’s Barran Liebman law firm is the same lawyer our administration hired, along with partner Edwin Harden, to defend Shelley Kerr and Robin Holmes against the lawsuit from UO counselors Karen Stokes and Jennifer Morlok over then Interim GC Doug Park’s effort to get them to give the GCO Jane Doe’s confidential counseling records, during Doe’s lawsuit against UO over the basketball rape allegations. I forget how much we paid out to settle that one.

GC Kevin Reed also hired her and Harden to investigate the “Halloween party incident”. That report is here. The commenters were not impressed with it.

Meanwhile, Freyd’s lawyer is Jennifer Middleton of Eugene’s Johnson, Johnson and Schaller law firm. Middleton was one of Jane Doe’s lawyers.

Female professors outperform men in service – and it hurts their careers

From Colleen Flaherty in Insidehighered:

Women shoulder a disproportionately large workload at home in ways that might disadvantage them professionally. But are female professors also “taking care of the academic family” via disproportionate service loads? A new study says yes and adds to a growing body of research suggesting the same.

“We find strong evidence that, on average, women faculty perform more service than male faculty in academia, and that the service differential is driven particularly by participation in internal rather than external service,” the study says. “When we look within departments — controlling for any type of organizational or cultural factor that is department specific — we still find large, significant differences in the service loads of women versus men.”

All that matters because service loads “likely have an impact on productivity in other areas of faculty effort such as research and teaching, and these latter activities can lead directly to salary differentials and overall success in academia,” the paper says. “In the urgency to redress not only differences in time use but compensation imbalances, as well, the service imbalance is one that deserves to rise to the forefront of the discussion.”

“Faculty Service Loads and Gender: Are Women Taking Care of the Academic Family?” published in Research in Higher Education, was written by Cassandra M. Guarino, professor of education and public policy at the University of California, Riverside, and Victor M. H. Borden, professor of educational leadership and policy studies at Indiana University at Bloomington. …

OK, so maybe this isn’t the best time to bring it up, but don’t forget to fill out the UO Senate Service Survey here.

Nevertheless, she persisted

Full disclosure: I know and work with many of the people on both sides of this lawsuit, and while I will try to keep my opinions to a minimum, I doubt I’ll be completely successful.

Jack Moran of the RG has the story on the lawsuit by Psychology professor Jennifer Freyd against UO, alleging gender discrimination in pay:

Psychology professor sues University of Oregon, says she’s paid ‘substantially less’ than male colleagues

The University of Oregon is being sued by a longtime psychology professor who alleges that she’s being paid substantially less than several less-experienced male colleagues, in violation of the federal Equal Pay Act.

Jennifer Freyd’s suit, filed Tuesday morning in U.S. District Court in Eugene, also includes claims alleging disparate treatment and impact, sex-based discrimination under the Equal Protection Clause and Title IX violations.

“For years, I have tried to work within my department and the college to help the UO live up to its own policies of non-discrimination,” Freyd said in a statement issued by her attorneys. “Women all over the country and in all kinds of jobs earn less than their male counterparts. It’s past time for the UO to recognize and address this problem in its own salary practices.”

The suit asserts that professor salaries in the psychology department are supposed to be determined by seniority and merit, and alleges that UO officials are aware of pay differences between their male and female psychology professors.

University spokesman Tobin Klinger said UO officials are aware of Freyd’s allegation and plan to “look closely at the case in the coming days.”

“Although professor Freyd’s pay places her in the top 13 percent of all tenure track faculty at the UO, we are committed to paying our faculty commensurate with their achievements,” Klinger said.

Freyd’s current salary is $155,237 and she receives benefits totaling another $70,545, bringing her total compensation to $225,782, according to data provided by Klinger. …

Oh no, Mr. Klinger. A university that is currently paying its football coach $3.6M a year, its former football coach another $3.6M, ~$400K a pop to assistant coaches both drunk and sober, and which has a very well paid President, Provost, and Deans, etc., should probably avoid bringing up the fact that one of its most internationally known professors, in the midst of a long and very successful career of teaching and research at what is probably UO’s top ranked research department, with an admirable record of attracting top graduate students and placing them well, is paid only $155K.  This is not going to help the new Knight Campus recruit top faculty of either gender.

Perhaps Mr. Klinger is just following orders from higher-up, to try and poison the potential jury pool against Freyd by pandering to our state’s anti-education sentiments. Which makes me wonder just how high a price our administration is willing to pay – or should I say make our university pay – to try and win this. So let’s hope that this attack is just Klinger going off the farm.

The RG story goes on to note that Prof. Freyd has gone through many careful steps to demonstrate gender discrimination in her department and try and resolve this without a lawsuit. Her department head (a man, if that matters) has documented this discrimination with a regression that shows that psychology’s female full professors are paid an average of $22K less than males, when accounting for the sort of standard research productivity measure that our administration favors (the H-Index):

Yes it’s a small n, but it’s run on the entire relevant population, not a sample.

The department head’s full letter to the dean’s office is here. He goes on to explain the systematic reasons that gender differences in lives and careers mean that female professors are less likely to pursue outside offers and get retention raises from UO, and that UO has not implemented procedures to address the gender wage gap that can result. He asks the administration to therefore give Freyd the appropriate raise, or at least a fraction of it.

Apparently that request was ignored or rejected. The RG:

Meanwhile, the psychology department completed its own study during the spring of 2016 that addressed a range of topics and found male professors are paid an average of about $25,000 more per year than their female counterparts, according to the suit. That study was provided to deans in the UO’s College of Arts & Sciences.

The UO then appointed a committee to evaluate the psychology department. A report from the group noted gender pay disparities and recommended the department should continue “pressing for gender equity in terms of pay at the senior levels of the faculty,” the lawsuit says.

Ulrich Mayr, the psychology department’s head, emailed the College of Arts & Sciences’ deans in December requesting they address Freyd’s salary, which he characterized as “our most glaring inequity case,” according to the suit. Mayr asserted Freyd’s pay is as much as $50,000 below where it should be, the lawsuit says.

The College of Arts & Sciences announced raises in January. Freyd earned standard pay increases but no additional raise based on requests that she and Mayr had made, according to the suit.

Andrew Marcus, dean of the College of Arts & Sciences, and Hal Sadofsky, the associate dean, met with Freyd on Jan. 18. They told her that they would not address sex discrimination in her pay, and “belittled her comments” by saying that only three men in her department earned more than her, the lawsuit says.

There are those who will argue that this gender gap is simply the competitive market at work. Those people must have failed undergraduate microeconomics. Eugene’s labor market for research active PhD’s is not a competitive market. It’s a local monopsony in which the employer, UO, exercises considerable market power. We covered this in week 8, but if you skipped that lecture check the textbook for the implications for wage discrimination.

Other links: Professor Freyd’s law firm is the well known Johnson, Johnson, Lucas and Middleton of Eugene. They’ve posted the following:

Press Release http://justicelawyers.com/distinguished-uo-professor-files-suit-alleging-discriminatory-pay-practices/

Complaint: http://justicelawyers.com/wp-content/uploads/001-0-170321-COMPLAINT.pdf

Timeline of events showing the efforts by Professor Freyd since 2014 to address the gender gap, without having to take UO to court. http://justicelawyers.com/wp-content/uploads/FINAL-Timeline-UO-Freyd-Discrimination.pdf

Oregonian report: UO psychology professor accuses school of pay discrimination

Klinger repeats his ill-advised comments.