Pres Schill & GC Kevin Reed promise not to ask SCOTUS to gut Equal Pay Act at least for now, in response to Senate Resolution

May 2 2021 update:

The resolution that was to be considered by the Senate this Wed had 90 or so faculty and senate co-sponsors. The gist was:

2.1 Therefore be it moved that: The University Senate declares its belief that university professors should not be excluded from the protection of the Equal Pay Act, and in particular that if women professors believe that the policies and procedures followed by any university have resulted in them receiving lower pay for equal work, they should have the right to present their case in a court of law and to challenge policies and procedures that result in inequitable pay. 

2.2 Be it also moved that: The University Senate rejects the suggestion that it is a legitimate “business necessity” to engage in practices with discriminatory results, as the university has argued in this case with respect to retention raises. 

2.3 Be it finally moved that: The University of Oregon Senate asks the University President to direct its counsel not to seek further review, and the senate wants all to know that the University of Oregon Administration’s and its attorney’s efforts to create a legal precedent that would prevent faculty and other professionals from using the Equal Pay Act to sue for redress of discrimination are not done in our name. [Emphasis in original.]

At 8PM Tu, the evening before the 3PM Wed vote, the administration’s GC Kevin Reed sent the Senate the email here, saying:

The core of the resolution seems directed at persuading the university not to pursue further review of the summary judgment decision in the United States Supreme Court. Such persuasion is misplaced, as the university has decided to proceed to trial in this matter and not to seek Supreme Court review at this stage. [emphasis added]

Given that the goal of the motion had been achieved (for now at least) the chief co-sponsors, myself and Beatrice Dohrn (Law), decided to withdraw the motion for now as moot and we explained this to the Senate.

April 23 2021 update: Full 9th Circuit rejects UO Administration’s latest attempt to stop Freyd discrimination suit from going to trial

4/23/2021 update: 

Appealing this to the SCOTUS would seem like a stretch for UO’s lawyers, but they seem to have an unlimited budget for outside attorneys so who knows. Meanwhile the UO Senate will be voting next Wed on a resolution asking our Administration to give up these appeals so as to not further sully UO’s brand, and just let Professor Freyd take her case to trial.

March 15, 2021 update: Prof Freyd gets an easy revise and resubmit as appeals court rejects attempt by UO lawyers Paula Barran, Kevin Reed and Pres Schill to gut the Equal Pay Act

Full opinion here by the Honorable Jay Bybee, joined by Kathleen Cardone, both G.W. Bush appointees. The dissent was from Trump appointee Lawrence VanDyke.

The efforts by the UO administration to set a precedent that would gut the equal pay act by arguing no two professional jobs can be compared have been rejected. The case now goes back to Judge McShane for a jury trial. Here’s hoping that President Schill finally decides to settle this before inflicting more shame and billable hours on UO.

Some snippets:

Reversing the district court’s summary judgment on the Equal Pay Act claim, the panel held that on such a claim, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that employees of the opposite sex were paid different wages for equal work. The plaintiff must show that the jobs being compared (not the individuals holding the jobs) are substantially equal. The panel concluded that, viewing the evidence in the light most favorable to Freyd, a reasonable jury could find that she and her comparators performed a common core of tasks and did substantially equal work.

and

The panel concluded that, first, Freyd challenged a specific employment practice of awarding retention raises without also increasing the salaries of other professors of comparable merit and seniority. Second, she put forth evidence that this practice caused a significant discriminatory impact, and a reasonable jury could find that her statistical analysis showed a prima facie case of disparate impact. The panel agreed with the Seventh Circuit that where a sample is small but the results nevertheless indicate a disparity, the granting of summary judgment in favor of the defendant is premature.

which does get to the difference between statistical inference and conditional population means. The other complexities of regression analysis are explained in a single footnote:

3 A regression analysis is “a common statistical tool . . . designed to isolate the influence of one particular factor—[e.g.,] sex—on a dependent variable—[e.g.] salary.” EEOC v. General Tel. Co. of Nw., Inc., 885 F.2d 575, 577 n.3 (9th Cir. 1989) (quoting Sobel v. Yeshiva Univ., 839 F.2d 18, 21–22 (2d Cir. 1988)) (alterations in original).

Full disclosure: I haven’t read the whole thing, comments welcome.

May 12, 2020 update: 9th Circuit to hear oral arguments in Freyd case May 12, on Zoom

UO’s payments to Barran-Liebman (not just this for this case) are running about $280K a year:

12/21/15Barran Liebman Attorneys $               690
2/9/16Barran Liebman Attorneys $            1,230
2/9/16Barran Liebman Attorneys $            1,230
2/15/16Barran Liebman Attorneys $            4,272
2/15/16Barran Liebman Attorneys $            4,272
2/29/16Barran Liebman Attorneys $            2,070
2/29/16Barran Liebman Attorneys $            2,070
6/1/16Barran Liebman Attorneys $               240
6/2/16Barran Liebman Attorneys $          13,890
6/13/16Barran Liebman Attorneys $               570
6/15/16Barran Liebman Attorneys $          43,932
6/20/16Barran Liebman Attorneys $          29,423
6/30/16Barran Liebman Attorneys $               510
6/30/16Barran Liebman Attorneys $        109,382
10/10/16Barran Liebman Attorneys $               175
10/10/16Barran Liebman Attorneys $               175
10/12/16Barran Liebman Attorneys $               650
10/12/16Barran Liebman Attorneys $               700
10/12/16Barran Liebman Attorneys $               700
10/12/16Barran Liebman Attorneys $               650
12/22/16Barran Liebman Attorneys $            7,808
12/22/16Barran Liebman Attorneys $          11,035
12/22/16Barran Liebman Attorneys $            7,808
12/22/16Barran Liebman Attorneys $          11,035
2/10/17Barran Liebman Attorneys $          19,000
2/13/17Barran Liebman Attorneys $          19,000
3/31/17Barran Liebman Attorneys $               390
3/31/17Barran Liebman Attorneys $               390
4/13/17Barran Liebman Attorneys $          14,592
4/13/17Barran Liebman Attorneys $            1,910
4/13/17Barran Liebman Attorneys $          14,592
4/13/17Barran Liebman Attorneys $            1,910
6/29/17Barran Liebman Attorneys $            6,641
6/29/17Barran Liebman Attorneys $            6,379
6/29/17Barran Liebman Attorneys $               930
7/11/17Barran Liebman Attorneys $          11,011
7/14/17Barran 1/5/17 – Claim 1704-02 $            5,000
7/14/17Barran 1/5/17 – Claim 1704-02 $          14,000
11/20/17Barran Liebman Attorneys $          49,517
12/4/17Barran Liebman Attorneys $               250
12/4/17Barran Liebman Attorneys $          64,724
2/13/18Barran Liebman Attorneys $          44,431
2/19/18Barran Liebman Attorneys $          23,393
4/11/18Barran Liebman Attorneys $          52,962
4/11/18Barran Liebman Attorneys $          44,077
4/11/18Barran Liebman Attorneys $               120
4/11/18Barran Liebman Attorneys $            2,550
4/11/18Barran Liebman Attorneys $            1,650
5/23/18Barran Liebman Attorneys $            2,610
6/20/18Barran Liebman Attorneys $        117,413
7/10/18Barran Liebman Attorneys $        133,860
7/11/18Barran Liebman Attorneys $            6,216
7/12/18Barran Clm 1706-06 $          24,075
7/12/18Barran Clm 1706-06 $        (24,075)
11/12/18Barran Liebman Attorneys $          10,658
11/26/18Barran Liebman Attorneys $            1,770
12/10/18Barran Liebman Attorneys $            1,680
12/31/18Barran Liebman Attorneys $            1,580
1/22/19Barran Invoices July – Oct 2018 $            3,060
2/4/19Barran Liebman Attorneys $               490
2/19/19Barran Liebman Attorneys $            8,950
3/22/19Barran Liebman Attorneys $          15,949
4/15/19Barran Liebman Attorneys $            4,330
4/29/19Barran Liebman Attorneys $            2,910
5/29/19Barran Liebman Attorneys $            2,114
    
Total   $        967,522

May 10, 2020 update:

(Note: All my posts on this case are here, including the most recent take down threat from UO’s Lawyer Paula Barran, here. Haven’t heard a peep from her since.)

The link is at https://www.ca9.uscourts.gov/media/live_oral_arguments.php and I assume on Tuesday they’ll have a link to live-streaming at the Pioneer Courthouse (Portland). Court opens at 9AM and this is the third case, so it will probably start sometime after 9:40, although for the circuit court arguments Judge McShane inexplicably kept a full courtroom waiting for 20 minutes, so who knows.)

Cases are heard by a randomly drawn subset of three appeals court judges, and this panel includes recent Trump appointee Lawrence VanDyke. Wikipedia reports on his nomination process:

The nomination was to the seat being vacated by Judge Jay Bybee, who previously announced his intention to take senior status on December 31, 2019.[13] Six retired justices of the Montana Supreme Court publicly opposed VanDyke’s nomination.[14]

VanDyke received a “not qualified” rating from the American Bar Association. ABA evaluators conducted 60 anonymous interviews with lawyers, judges, and others who had worked with VanDyke. The ABA published a scathing critique of VanDyke in a letter to the Senate Judiciary Committee; that letter asserted that interviewees described VanDyke as “‘arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice'” of law.[15] The ABA added that “‘There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful'”.[16]

The Senate confirmed him 51-44.

The second member is Kathleen Cardone, a G.W. Bush appointee whose most cited opinion regards labor law and progressive discipline. She found for the employer.

The third member of the panel is the Honorable Jay Bybee, of whom wikipedia notes:

While serving in the Bush administration as the Assistant Attorney General for the Office of Legal CounselUnited States Department of Justice, he signed the controversial “Torture Memos” in August 2002. These authorized “enhanced interrogation techniques” that were used in the systematic torture of detainees at Guantanamo Bay detention camp beginning in 2002 and at the Abu Ghraib facility following the United States’ invasion of Iraq in 2003.

He was confirmed by the Senate before his role in the torture memos was revealed.

Dec 3, 2019: Updates on Prof Jennifer Freyd’s pay discrimination lawsuit

1: The UO administration could have followed the Psychology department head’s advice and given her a $15K raise 4 years ago. But instead the lawyers that run UO wanted a lawsuit. Her department colleagues are now circulating a letter of support, here:

2: A month later, and UO’s lawyer Paula Barran still hasn’t followed through on her threat to send my ISP a DMCA take-down notice over my posting a clip of her bio sketch:

The Article includes a screenshot of Ms. Barran’s profile on the Barran Liebman LLP website. Barran Liebman LLP has copyrighted the material on its site and does not grant UO Matters the right to use its copyrighted material. If Barran Liebman LLP’s copyrighted material has not been removed from the UO Matters site within five (5) days, my clients will file a DMCA Takedown Notice.

Presumably her lawyer explained to his “Top Point Getter” client that the fair-use copyright exemption includes parody:

3: Speaking of parody, Barran, Zaerpoor Le, and Bonner have finally filed UO’s response to Freyd’s appeal in the Ninth Circuit, here. Barran has, sensibly, dropped her Kubrickesque rants about “bodily fluids”. Now they are “biological samples”:

4: Meanwhile, Barran convinced the Honorable Judge McShane to make Prof Freyd pay President Schill $3,537.15 in court costs, and the University of Oregon and Hal Sadofsky $7,145.12. Ruling here. Last time GC Kevin Reed did this, in the Bowl of Dick’s case, he paid HLGR’s Bill Gary about $50K to get UO’s costs reduced by about $12K. I’m not sure how many billable hours Barran collected from UO for this, but these things aren’t about the money, they’re about using institutional power to intimidate potential plaintiffs from filing discrimination lawsuits.

5: Barran also seems to have dropped her claim that one of the comparator faculty Freyd identified was better than Freyd because “he just secured – while this case was pending – a $3 million grant from the Gates Foundation for his work.”

That wasn’t true. The Gates Foundation is admirably transparent:

The truth, corroborated by an email from Prof. Allen, is this:

He was a co-investigator on a grant from the Gates Foundation, but the grant was obtained by colleagues at Berkeley. He had a small subcontract. He also noted that the grant had very little to do with the digital sensing work.

I’m sure I’m going to get a grateful letter from Barran, or her attorneys, thanking me for pointing out these problems with her prior arguments.

6: The real problem with Barran’s brief is that it reiterates the UO administration and President Schill’s argument, which McShane’s opinion accepted whole-hog, that professors’ jobs are not just different from each other, but so impossible to compare that no female professor will ever be able to identify comparator male professors, and therefore will never be able to win a gender discrimination lawsuit. I’m guessing this is not what the Congress had in mind when they wrote the law against gender discrimination.

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30 Responses to Pres Schill & GC Kevin Reed promise not to ask SCOTUS to gut Equal Pay Act at least for now, in response to Senate Resolution

  1. Cheyney Ryan says:

    “Amiable, affluent liars”–this is how Larry Tribe, my constitutional law prof at Harvard Law, described the typical over-priced hired-gun attorneys–in urging us NOT to become one of them. I think of his description always in dealing with Barran Liebman, the administration’s go-to firm in dealing with discrimination complaints. Their use of this firm in defending themselves against complaints like Jennifer Freyd’s may be understandable-if their goal is to win at all costs, regardless of truth, justice, and honesty. What is unforgivable is employing Barran Liebman–as the adm does–and at great expense to the university–as allegedly neutral investigators of the complaints brought their own administrators. I suppose there is a place in the law for Barran Liebman, as there was a place for Roy Cohn. But not conducting allegedly neutral investigations.

  2. uomatters says:

    Bybee to Barran – I’m a judge. I took a statistics class once. Do you really want me deciding which of 2 statistical analyses is correct?

  3. uomatters says:

    Barran – you have to look at the decisions that lead to the disparate impact. (She hasn’t mentioned bodily fluids, yet.)

  4. uomatters says:

    It would have been way cheaper for society and for UO to have simply let this go to trial. One judge, 12 jurors at $12 a day. Fewer billable hours.

  5. uomatters says:

    Barran – no one is arguing that the fact that a professor is getting outside money to pay their salary changes their job. Really, I thought it was pretty clear she argued just that in front of McShane.

  6. prof from another school says:

    uom, a question? What do you think of Freyd’s lawyer declaring that getting an outside job offer is not an indicator of quality of one’s work that can be used to create pay differentials? This strikes me as complete nonsense, and I can guarantee that when UO tries to poach a faculty member from another school, all involved, including faculty, are aware that the department likely will have to pay above what UO usually pays.
    I don’t know if this case should go to a jury, but there is damn nonsense coming from both sides[ suing schill and the dean personally!!].
    What a mess. and I have read all the public documents in the case.
    I personally think Freyd should have been given the raise yrs ago, based on the quality of her scholarship, independent of grant getting record, etc.. BUT research universities often do not pay attention to accomplishments short of election to NAS [ or equivalent] in the absence of grants, but UO seems particularly naïve about how to build a quality faculty.
    I predict that Freyd will not prevail, even if it goes to trial.

    • uomatters says:

      Here’s some actual data on retention offers, from Harvard’s COACHE survey (which UO has refused to particpate in). https://coache.gse.harvard.edu/blog/findings-first-ever-multi-institutional-survey-faculty-retention-exit-infographic
      .
      “Further, the study’s insights into the negotiation process are suggesting some troubling gender bias. 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 education’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.”

      • prof from another says:

        I am aware of this survey[ I originally sent you the link!]. But to declare that outside offers are not job related, as freyd’s lawyer did, is still nonsense. And Freyd could not come up with any alternative procedures that made any financial sense.
        I still predict her lawsuit will fail.

      • Dog says:

        ah yes
        sqrt(grace) = merit pay

    • Anonymous says:

      what do you mean nigh-eve; we only hire excellent faculty (honestly) and we make sure that we fine tune our metrics to reveal said excellence …. If that is not quality, then I don’t know what is –

      • uomatters says:

        The metrics debate has moved on. The admin no longer cares about research citations and has stopped collecting student satisfaction numbers. Now it’s all about grace. There’s going to be a special app in the faculty tracking software to mine your zoom and canvas meetings for signs of grace. Brad Shelton is puzzling out whether your pay cut should be inversely proportional to demonstrated graceiness, or to ln(graceiness). The union is pushing for a quadratic term, with a negative coefficient.

  7. Publius says:

    Dear U of O Matters –

    Do we know how much the U of O administration has paid Barran Liebman for all this?

  8. It's classified. says:

    It never ceases to amaze me what the administration has money for when it has no money for the people educating kids, and maintaining the campus.

  9. Dr. Arbuthnot says:

    Sample from what population?

  10. uomatters says:

    Schill and Reed are considering appealing this appeal. OPB report here: https://www.opb.org/article/2021/03/16/university-of-oregon-faculty-equal-pay-jury-trial/

    • just different says:

      Of course they are. Universities ALWAYS think it’s in their interest to fight to preserve “discretion,” otherwise known as “no accountability for capricious and unfair decisions.”

  11. crazytalk says:

    Think about the steps of a typical outside offer:
    a) You’re pretty good at something
    b) Some school is actually looking (or you have a buddy willing to play the game)
    c) They ask you if you’re interested in moving
    d) You have to say YES before they will generate the actual offer email that the administration takes seriously
    e) If you have no interest in moving because you like your home institution, you have to LIE to use this option
    f) Then you have to CONTINUE LYING to several people at two institutions while everybody does counteroffers
    g) If LYING gives you heartburn and anxiety, you have to endanger your health
    h) If LYING does not give you heartburn and anxiety…..well, interesting for someone who does academic work

    So, if you actually like your home institution, and you choose to not lie about considering a move, you can’t get a raise regardless of how good you are. If you don’t mind lying and even kind of like it, you have an unfair advantage and our institution pays you more for it. Crazy.

    • uomatters says:

      Comment of the year. Contact our swag office for your complimentary UO Matters coffee cup.

    • Dog says:

      this is why its a game … and endless self-promotion is one of the
      keys to winning …. many local examples to choose from

  12. anon says:

    Is an ex-dean or ex-provost getting paid 50-100K/yr MORE than anyone else in the dept also a game worth negative comment?

    • Anonymous says:

      of course they

      ex Provost Banavar is making 200K more than the
      average full professor salary in his host department

  13. Publius says:

    This set of bills from Barran Liebman hides the true amount they are charging the university. They have been found engaging in such deceptions before so that adm’s do not jabe to reveal the true cost of pursuing legal actions like this. I am hoping to have a more accurate estimate soon which I will share when I get it.

  14. charlie says:

    Things ain’t going the flagship’s way. First, the 9th Circuit tells them to drop dead. Then, thousands of tickets for the OlyTrials are being refunded due to covid. From my understanding, only 15% stadium capacity will be allowed for this boondoggle in June. But, Kate said today that if OR can’t get it together, the entire state can go into lockdown, meaning no Oly Trials.

    How ’bout this? Move this thing back to Mt. SAC in Walnut, CA, where it was originally to have been held. For some odd reason, California has a far stronger collective immune system that OR. Makes far more sense to go somewhere that isn’t on the verge of shutting down…

    • CSN says:

      Los Angeles County CA is averaging about 400 cases a day right now with 10 million in population. Lane County OR is about 60 cases/day with 400k population.

      This math checks out, though I doubt it’s about the immune system.

  15. prof from another says:

    The senate resolution is a mess. The appeals court took no position on the merits of the lawsuit and only said the merits should be decided by a jury. The senate agues for that procedure …. sort of….but really goes much further in arguing that salary differences created by retention raises ARE illegal …..because the senate believes they differentially hurt women and can not be justified in any legal way. So the senate has decided to try the case itself, and the verdict is in: Freyd wins.

    Perhaps it is the senate that is acting foolishly.

    I doubt UO applies retention raises much differently than other Research Universities. So the real claim is that ALL RESEARCH UNIVERSITIES are doing something bad and illegal by using retention raises to retain top faculty , and must stop. Take that AAU.

    • just different says:

      A lot of discriminatory practices were both widespread and “technically” legal before they were recognized as violating the principle of equal rights, which is ultimately what’s really important.

      Jennifer Freyd is morally right about this and it’s only a matter of time before ALL RESEARCH UNIVERSITIES come around. It’s disgraceful that Schill and Sadofsky are choosing to be on the wrong side of history just to retain their “discretion” about how much to pay people. For a while, anyway.

      • prof from another says:

        be careful what you wish for. if universities are required to measure faculty for comparisons just in case someone has an outside offer, and the retention process results in a boost in salary for said faculty member…..resulting in a boost for all faculty of similar VALUE [ this is a fantasy, but..] then……well, metrics will rule the day. I invite you to propose the measure.

  16. Cheyney Ryan says:

    What is the administration’s position?

    Here is Kevin Reed, in his typically snarky response to UOM/Senate resolution:

    “The university did not argue that the “Equal Pay Act’s requirement of nondiscrimination does not apply to professors of the same rank and seniority, because their jobs are not similar enough,” as stated in the resolution. … The university simply pointed out the substantial differences between the daily job duties of Prof. Freyd and the four male professors she chose as her comparators.”

    Here is a summary of what the Adm has argued in the case:

    “Paula Barran, who argued for UO, said that because one of the requirements for professors to receive tenure is that they contribute to their field of study in a unique way. Therefore, the work of any two tenured professors is not directly comparable.”

    Obviously Barran’s claim that professors’ work is not comparable conflicts with Reed’s contention that there are substantial differences between what Jennifer does and the others–which is a comparison.

    Part of the problem is that Paula Barran is, to put it bluntly, an idiot who argues whatever comes into her mind if it promotes the interests of those who are paying her. I suspect the U of O Adm has already paid Paula Barran well over half a million dollars for her nonsense. For God’s sake, settle this case.

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