Update: Pres Schill and GC Reed relent on Freyd, after bad publicity and pressure

1/19/2021 update, posted with permission:

Sent: Tuesday, January 19, 2021 3:18 PM
Subject: Re: PsychList: Inside Higher Ed reports on Jennifer Freyd’s Open Letter to UO Board of Trustees (and the support she has received for this)

Dear Colleagues,

Today I learned that the University of Oregon (UO) has decided to alter the Early Retirement Incentive Program (ERIP) waiver requirement to exclude from any release any claims that are actively being litigated as of the time the ERIP program was initiated.  This means I can participate in the retirement program without having to drop my gender discrimination lawsuit.  I am appreciative of the UO for making this change and I am particularly grateful to my colleagues and supporters in this department and at the university and beyond.  Together we will pursue equity and justice.

With many thanks,

Jennifer

The language General Counsel Kevin Reed and President Schill had been insisting on:

Release:  In exchange for the above, Employee knowingly, willingly, and voluntarily releases the University, its agents, employees, officers, trustees, directors, and assignees from any and all claims, charges, obligations, duties, grievances or other complaints arising out of or relating to Employee’s employment with the University and/or resignation. This release includes but is not limited to internal grievances, claims for wages, monies, damages, attorneys’ fees, emotional distress, stress, discrimination, physical injuries, bodily injury, medical expenses, breach of contract, and reinstatement to employment.  This release also includes any claim under state, federal, or local law or authority, including but not limited to any claim for additional compensation in any form and any claim arising under any Oregon or federal statutes pertaining to wages, condition of employment, wrongful discharge, retaliation or discrimination in employment. This release includes but is not limited to claims arising under Title VII of the Civil Rights Act, the American with Disabilities Act (ADA), Oregon’s Family Leave Act and Family and Medical Leave Act, the Equal Pay Act, Oregon Revised Chapters 652, 653, 654, and 659A, the Post Civil War Acts (42 USC §§ 1981-1988), the Fair Labor Standards Act, the Occupational Safety and Health Act, the Vietnam Era Veterans Readjustment Assistance Act, the Uniformed Services Employment and Reemployment Rights Act, the Age Discrimination in Employment Act (ADEA), the Older Workers Benefit Protection Act (OWBPA) and Executive Order 11246, all as amended, all regulations under such authorities, and any contract (either expressed or implied, oral or written), tort, or other common law theory which might apply.  This release applies to any and all claims whether known or unknown, suspected or unsuspected, including negligence, breach of contract, and strict liability.  Pursuant to the full settlement, satisfaction and release of any and all actual and potential claims provided in this Agreement, Employee agrees not to file a grievance or claim of any kind or nature whatsoever against the University for any reason related in any way to any dispute or to any other matters released herein. 

The new language is not yet posted on the HR website. More on the retirement incentive plan here.

1/18/2021 update: Nevertheless she persisted, so they threw her under the bus again

Inside Higher Ed has a report here. While UO has now agreed to modify the retirement incentive plan and allow retirees to cut their taxes by spreading out the payments, UO and General Counsel Kevin Reed continue to insist on this vindictive legal waiver clause in the retirement incentive plan, which affects only professor Jennifer Freyd. Other universities require retirees to waive the right to sue about the plan – not give up their right to pursue existing civil rights lawsuits:

Between a Lawsuit and Retirement
A longtime professor wants to retire. Her university says she has to drop her pay-based gender discrimination suit first.

.After 33 years at the University of Oregon, Jennifer Freyd, professor of psychology, would like to accept the retirement package she and some of her senior colleagues were recently offered.
Yet the university says she can’t accept the deal unless she drops her ongoing pay equity lawsuit.

The clock is ticking: the deadline for accepting the package is Feb. 5. Freyd asked the university to grant her an exception to the requirement that would-be retirees release the university from all legal claims, as she is, to her knowledge, the only eligible faculty member currently suing the university. In other words, she argued in a recent open letter to Oregon’s Board of Trustees, the release of liability requirement is uniquely injurious to her — and “a new form of discrimination for all those with a history of discrimination.” …

1/5/2021: UO Psychology Professor Jennifer Freyd (currently suing our administration for gender discrimination, and recently selected for the Association for Women in Psychology’s 2021 Christine Blasey Ford Woman of Courage Award) has written an open letter to the UO Board of Trustees about UO’s decision to require her to sign a statement releasing *all claims* against the university, in order to be eligible for UO’s retirement incentive scheme. As her letter notes:

This chilling requirement is both a new injury for me — as I was invited to participate and then later told I could participate only if I drop my lawsuit — and a new form of discrimination for all those with a history of discrimination. The victims of discrimination are being asked to choose between their right to pursue justice in court versus take the incentive. Those who are privileged are not forced to make such a choice.

The fair solution would be simple, and would allow her to continue her case in the 9th Circuit Court without a new financial opportunity cost. That case deals with important matters that could drastically limit the ability of professional women and minorities to use the Equal Pay Act for redress:

Change the release on the retirement incentive program from a release of all claims to a release of claims about the retirement incentive program itself.

But it seems President Schill has already rejected this:

Open Letter to the University of Oregon Board of Trustees
From Jennifer J. Freyd, PhD, Professor of Psychology
5 January 2021

Dear Trustees,

I am writing to share my concern about the UO’s handling of gender inequity among faculty, particularly in the Department of Psychology. I have worked at the University of Oregon for 33 years, and I deeply care about our institution. As I imagine you know, I have a lawsuit pending against the UO for the gender-based discrimination in pay I have experienced. In this letter, I hope to share my expertise from the perspective of a faculty member who has been impacted by these inequities and as a scholar of institutional response to gender discrimination.

I am concerned that in recent years, the UO has been responding in ways that increase rather than decrease inequities and that create more rather than less discrimination. I will summarize three examples of this pattern. (Further details, including my recent correspondence with President Schill, are provided here: https://jjf-archive.blogspot.com/ )

1. The University has failed to address a substantial pay inequity throughout the Department of Psychology that the department documented over four years ago. In early 2016 the psychology department provided a self-study document to the university describing a substantial pay inequity for full professors that puts women at a disadvantage. In August 2016 the psychology department head wrote a letter to the Deans of CAS conveying grave concerns over the inequity and requesting it be addressed, particularly in my case as the person experiencing the most egregious inequity. After the Deans refused to address the inequity, I filed a lawsuit in early 2017. As I recently explained to President Schill (correspondence archived https://jjf-archive.blogspot.com/), based on data provided by the department head in December 2020, in the past four years the inequity across the whole department has only grown.

2. The University has defended itself against my pay discrimination lawsuit through an argument that throws all academic women — including the UO’s own faculty and students — under the bus. The UO’s defense claims that I have a different job than the male professors in our department who are paid more, and therefore we cannot be protected by equal pay laws. This claim of different jobs contradicts 33 years of being explicitly compared to the other full professors in my department on the same criteria during merit review processes. The potentially devastating impact of this different jobs defense on academic women (and perhaps women in other professions too) should it become precedent led the American Association of University Professors (AAUP) to file an amicus brief. It also led a group of 47 women’s and civil rights groups, including Equal Rights Advocates, the ACLU Women’s Rights Project, and the National Women’s Law Center, to file an amicus brief. (The briefs are posted here: https://justicelawyers.com/womens-and-civil-rights-groups-file-briefs-supporting-professor-jennifer-freyds-equal-pay-act-case/ ) As the brief from the AAUP noted, if the decision for summary judgment is not reversed it would be “virtually impossible for faculty to bring a successful prima facie case of “substantially equal work” under the EPA or “work of comparable character” under the Oregon equal pay law.”

3. This year the University has invited some of us to partake in a retirement incentive program that embeds pay inequity into the program by basing incentive amount on current salary. In addition the program currently requires participants to release the UO from all claims. This chilling requirement is both a new injury for me — as I was invited to participate and then later told I could participate only if I drop my lawsuit — and a new form of discrimination for all those with a history of discrimination. The victims of discrimination are being asked to choose between their right to pursue justice in court versus take the incentive. Those who are privileged are not forced to make such a choice. Furthermore, the requirement that I drop my lawsuit in order to participate in the retirement program is uniquely injurious to me as I am, as far as I know, the only person with an ongoing lawsuit eligible for the incentive.

Each of these actions or inactions that push the institution towards greater inequity can be reversed through courageous leadership. For example, if the University took the following actions, it could not only stop harming its community in the ways I describe above, it could become a national leader in the fight towards equity (living up to one of the UO’s stated core values).

Solutions (a start, not the end):

1. University-level action to close the gender pay gap among professors in the Psychology department.

2. Withdraw the harmful and misleading argument that professors at a shared rank in the same department are not entitled to the protections of federal and state equal pay laws because every professor is unique, and instead pledge to support equity rather than inequity.

3. Change the release on the retirement incentive program from a release of all claims to a release of claims about the retirement incentive program itself.

4. Support sustained education for university leadership, faculty, and staff on the dynamics of discrimination and inequity along with ways to ensure equity, diversity, and inclusion.

I care deeply about the UO, which is why I am always trying to make it a better place for my colleagues and students. I know that with your help it can better live up to its mission to be a university that treats all its members equitably.

Sincerely,

Jennifer J. Freyd

Jennifer J. Freyd, PhD
Professor of Psychology, University of Oregon
Affiliated Faculty, Women’s Leadership Lab, Stanford University
Founder and President, Center for Institutional Courage