President Schill and GC Kevin Reed’s work sets important legal precedent on equal pay for faculty

And fortunately that precedent is the exact opposite of what they’d hoped for when they spent UO’s money on a losing fight against Professor Jennifer Freyd’s equal pay lawsuit. Some snippets from Law 360 below.

My favorite part is “Counsel for the University of Oregon did not respond to an interview request.” That attorney would of course be Paula Barran, who sent me this failed takedown threat over my mockery of her use of the “bodily fluids” defense, presumably with GC Reed’s encouragement.

A Year Later, 9th Circ. Ruling Is Shaping Pay Bias Cases

A Ninth Circuit holding that workers in a university setting can be compared for the purposes of bringing federal pay discrimination claims, and that a jury can decide whether such workers are similar enough, continues to influence pay bias cases a year later, attorneys said.

A year ago Tuesday, a Ninth Circuit majority panel revived Jennifer Freyd’s Equal Pay Act claim against the University of Oregon, reversing a lower court decision that the psychology professor and four male colleagues were too specialized for comparison.

Since then, the published opinion has come up in at least 20 cases.

“I’ve gotten calls from lots of lawyers from all over the country who are now pursuing claims for clients who didn’t think they had viable claims before,” said Jennifer Middleton of Johnson Johnson Lucas & Middleton, who represented Freyd.

Freyd sued the University of Oregon, its president and another school official in 2017, claiming they violated the Equal Pay Act and other laws by paying her $14,000 to $42,000 less annually than four comparable male colleagues who did equal work.

To bring an Equal Pay Act claim, a person must first establish that there is a pay disparity with a comparable worker of a different sex who performed equal work.

“The evidence here is not so one-sided as to mandate this conclusion as a matter of law,” the majority said. “Viewing the evidence in the light most favorable to Freyd, a reasonable jury could find that Freyd and her comparators perform a ‘common core of tasks’ and do substantially equal work.”

The holding that workers in academia can be compared is significant, attorneys said. At least a handful of workers have brought pay discrimination cases against universities in the past few years.

… Counsel for the University of Oregon did not respond to an interview request.

The case is Jennifer Freyd v. University of Oregon et al., case number 19-35428, in the U.S. Court of Appeals for the Ninth Circuit.

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25 Responses to President Schill and GC Kevin Reed’s work sets important legal precedent on equal pay for faculty

  1. cdsinclair says:

    This administration’s definition of equity covers mask wearing, but not pay equity.

    It must suck to be on the wrong side of history.

    Now we need someone to challenge the administration’s application of the Oregon Equal Pay Act. They trot out the “these jobs are not comparable” line regularly and then wonder why legislators don’t see them as honest actors. Maybe if we followed the letter (and spirit) of their laws we would get more resources from the state.

    • old guy, hard scientist says:

      The appeals court simply said she should have her day in court before a jury; IT DID NOT say her lower pay broke any laws, just that a jury should decide that.
      I followed the case quite closely for the 3-4 years, and read all the documents available in the public domain. I had hoped the case would resolve whether or not pay differentials created by retention offers were illegal…..because perhaps men and women were/are treated differently in the ‘retention offer game’. Unfortunately it never got to that point.
      The appeals court also said that an alternative exists to retention offers. But the alternative [ increase the salary of everyone similarly situated to anyone who gets a salary increase due to a retention offer] is unworkable. Imagine how departments would measure accomplishments for that ; welcome to the world of citation metrics, etc. ,even if the $$ existed to do it. So be careful what you wish for.
      I thought both sides did a poor job[ a non lawyer opinion]; to the extent that what UOMatters calls the ‘body fluid defense’ really means that people who get lots of outside $$ generally end up being paid better…. well, YES they do…..just ask any molecular biologist or chemist. Ask the AAU selection committee: they look at grant $$, citations, and honors in deciding who they let in. Maybe even who they retain as members.

      • uomatters says:

        The gist as I understand it is that Pres Schill and GC Reed claimed (among other things) that equal pay law could not be applied to faculty because each professor – even in the same dept – had a job that was incomparably unique. If this absurd claim was true it’s hard to see how *any* pay differences could be justified, and the appeals court ruled against UO. UO then settled out of court. I think the legal term for this is “they lost”. Fwiw I agree that getting grants can be part of what makes an excellent professor – how important varies with research interests – and yes I have had grants that used “bodily fluids” or as economists prefer to call it, spit.

        • Slowly Boiled IT Duck says:

          I’m hardly an admin fan, but having been on the wrong end of a lawsuit, I can assure you that settling has nothing to do with fairness or justice.

          It’s all a bit easier to take with a laugh:

          • just different says:

            Universities, unlike most other defendants, don’t settle unless they absolutely have to. So yeah, some justice was served in this case.

      • t800 says:

        Here’s the thorny issue about retention offers.

        Are men and women treated differently in the retention game because women are more likely to have a spouse who also works at UO and hence they don’t go looking for outside jobs because of the dual job market.

        So yes, you could argue women systemically are hurt in their individual earnings by the dual search problem. At the same they are systematically helped and have their household earnings helped by UOs spousal hiring program. So should they be able to sue over one area where broadly university policies hurt their individual earnings potential when they are also broadly helped in a different margin increasing their household earnings. 100 percent of the females in a department I know of had spousal hires arranged, and this is only true for 1/4 of the males hired.

        So how do we consider the retention and spousal hiring issues when they interact with each other.

        • Slowly Boiled IT Duck says:

          Retention offers were never a good idea, and in the current environment, would be avoided entirely by management with any sense. If employees can get more money elsewhere, they should, and a counteroffer simply impedes their happier life elsewhere.

          Likewise, if you (as an employee) can find better circumstances elsewhere, you should. That’s the whole point of a free market. If you have family, it’s a moral obligation. But the first whiff your employer should have of that is when you give your (irreversible) notice.

          • t800 says:

            Should the university help arrange spousal hires?

            If retention offers aren’t a good idea, why are spousal hires a good idea, especially when they are selectively used? It seems the like the central admin are moving away from them, and I think part of that are these lawsuits around disparate treatment.

            • Slowly Boiled IT Duck says:

              This is difficult, and I have no good answers. Outside of academia and Hollywood, spousal hires are practically unheard of, and in many contexts considered to be inappropriate or even corrupt.

              They made more sense in an earlier day, when the spouses were far more likely to be at very different levels in their fields. With more equality, it seems harder to justify giving one spouse a “freebie” in the hiring process (even if those second spouses are sometimes an absurdly good deal).

              As you allude, the current legal liability for this sort of thing might ultimately kill it. It’s just too risky.

              • Heraclitus says:

                Pretty sure second spousal hire is only a thing in Utah. Sorry, couldn’t resist.

          • Dog says:

            Retention offers based on just salary increase indeed is not a good idea because that incentives professors to constantly look for other jobs. Retention offers based on increased support (resources/internal grants, equipment, graduate students) however, is a reasonable way to go and might be even be a better deal for some.

            About 10 years ago, I was offered an opportunity to double my Eugene/UO salary. That opportunity was located in Florida. I respect the moral obligation so I stayed in Eugene …

            • old guy, hard scientist says:

              Hi Dog; do you believe that deans and provosts likewise have a moral obligation to accept their previous Prof salary [ updated for time passed, of course] when they return to the faculty ranks after having served as dean/provost? If UO tries to hire a SR prof from another school, can UO offer a higher salary than top profs already here?
              Does UO have any ethical obligation in terms of salary to high preforming professors? If yes, how does it identify them?
              What kind of negotiation do you approve of?
              I once worked at a Research U that had a written ethics policy that said the U should pay profs a fair salary for their accomplishments: of course that U made salary retention offers all the time. And ignored profs who did not negotiate in this way, regardless of their accomplishments; and richly rewarded SR Admins when they returned to the faculty ranks. of course.

              • Dog says:

                well that’s a lot to answer ..

                1. I am not sure that institutions either recognize or understand the concept of the moral obligation.

                2. Yes I belief that deans/provosts etc when they return to normal faculty ranks should return to their previous salary scale. But I wouldn’t call that a moral obligation.

                3. When any college recruits what they think is talent, academic, administrative or even coaching, offering a high salary is standard practice.

                4. The UO definitely does not know what constitutes an ethical obligation. How does one fairly measure high performance? Again, I don’t think this is in the realm of “ethics” – it seems to me to be market based. Now that raises a broader question – is the Free Market system ethical? I would argue its not because it is intrinsically unfair since performance can not be measured very objectively. Why does bottled water cost more than a can of beans? Yet, I ramble about nothing,

                5. Doesn’t matter what I approve of — dogs have no voice. I am merely saying that there is more than just salary that is available as part of a retention negotiation. I know of one particular case of someone that left the UO to go to a college in florida at a reduced salary but a significant increase in research infrastructure and support. Most academics should know that salary is not everything they need to do a better job,

                6. Written ethics policy means nothing without accountability to that code.

                • old guy, hard scientist says:

                  Hi Dog; you certainly do have a voice!
                  My collection of little questions was to broaden the landscape of how rewards flow to faculty, or not. In my experience individual faculty hold complex and often contradictory views on the right/wrong/wisdom/etc of various means by which people get paid better at Univs. Never been a fan of golden parachute professors, who get higher salaries after being a dean,etc…..but its perfectly legal, if not wise. My own advice to a young prof [ rarely requested] is to learn quickly what their discipline defines as excellence, and DO IT best you can……,because outside job offers will be necessary to make a good living in the academy. So one must ignore what one’s present dept calls ‘the job’ if it deviates from the more global norm, and know what is required to compete for jobs elsewhere. and be prepared to negotiate with outside offers. oh yeah, and dont sue.

                • Dog says:

                  Previously I raised issues about the ethics of the free market. I have been in higher ed long enough to remember
                  the time when students were not thought of as commodities or customers. I think when the market approach to everything swept into higher ED (I would say around the year 2000 but could have been earlier) I think the whole notion of adequate faculty support (including salary) just got warped to dogshit …

                • old guy, hard scientist says:

                  Research universities have long required negotiation with outside offers to get well paid, except Golden Parachute professorships[ returning to faculty ranks from being Chair, Dean, etc. ].

                  As a newly minted full prof in 1980, I met with the provost to ask if my salary could be increased to a more fair level. I made my case. My dept was trying to hire a new chap, whose work overlapped mine, who was very,very good; indeed he and I had coauthored a synthesis paper that is still very well cited and used today, a Science Citation Classic no less. I approached the provost after my dept chair told me that the new hire’s 30% higher salary than mine was just a fact and, no, my tiny 8% raise upon promotion would not be increased; the new guy and I were very comparable in all the measures one might use, similar age and time in the academy, etc. The chair made it quite clear that a bigger raise and maybe research funds were dependent upon my ability/willingness to leave the U; that power was all of it: Outside offers. He called me a fool for not already realizing that fact.
                  I was pretty upset and went higher up the food chain.

                  The provost had soothing words, was very kind, and really asked me only one question of substance: He too wanted to know about my latest outside job offer. In this he agreed with the chair. I actually had just turned down an outside offer from a canadian research U; but I refused to use it as to negotiate, because I did not want that job.
                  So i dont think Univs have changed mush at all in the role of outside offers.

          • anon says:

            BUT, BUT, You might really like UO, Eugene and want to be there.
            Your moral obligation to yourself and colleagues is to show UO what it must pay to build/retain a great research faculty.. you do that by bringing them evidence of what your scholarship is worth in the market place. Seems pretty simple. You do great scholarship of course, but an outside offer is the most noticed signal.

            • Dog says:

              In an ideal world yes, but for the last many years the UO is highly donor driven in terms of a great research facility. Currently if your research is outside the Knight Campus, I don’t see how you can build critical mass no matter how many outside offers you

              And what exactly is the market place for research? What NSF funds, NIH, philanthropists? I have no clue.

            • Dog says:

              and, throughout this thread, I think the idea of moral obligation is being bandied about at will. Moral obligations are generally best tested in extreme times (and may only apply in such times), Personally, I feel no moral obligation to my colleagues or my institution (perhaps to my research fields).

              However, “colleagues” next to me in foxholes do require a moral obligation and I would also expect reciprocity there,

            • just different says:

              Maybe I’m missing something, but if you really want to be at UO for whatever reason, isn’t it disingenuous to pretend you aren’t by soliciting outside offers? OTOH, why should liking a particular location make you worth less to an employer? What does that have to do with the value you bring to the organization?

              • Dog says:

                I have never solicited an outside offer – I have been recruited
                by others several times, always with significantly better salary
                offers than that which was available at the UO. Like I said before, salary is not everything …

                • uomatters says:

                  So it’s true that Dog only stays at UO because he appreciates the excellence of UO’s senior administrators?

                • old guy, hard scientist says:

                  In your words: ” always with significantly better salary
                  offers than that which was available at the UO. Like I said before, salary is not everything …”

                  Of course salary is not everything! Physical, cultural environment plus the combination of colleagues………..all play roles, big ones in choice of where to work.
                  BUT one must be careful about the ‘salary available at UO’ idea. If the UO salary for a neuroscientist, evolutionist, chemist, physicist at the top levels is ~250-375K , why should someone of similar accomplishment in the same field settle for less. I chose these 4 because UO is willing to pay very high wages for these people. Are the salaries in the knight campus higher than elsewhere in comparative fields?
                  The president of one of my universities returned to the faculty ranks and accepted a salary equal to the highest paid faculty member in her/his new department. pretty unusual since presidents usually negotiate much higher salaries when they become just a prof.

                  I dont agree with anon about display function of outside offers, but I disagree with you about the virtue of not using outside offers to negotiate; I spent my career NOT using outside offers to negotiate, and it was a mistake I regret.

                • Anonymous says:

                  yes UO matters that is exactly right and such loyalty is best manifest by my consistently gigantic raises …

                • Dog says:

                  Are the salaries in the knight campus higher than elsewhere in comparative fields?

                  That is an interesting question and is worthy of a UO matters investigation although I don’t think much data is available now.

                  Personally, I believe they would be higher. On the other hand I can see the UO arrogantly stating that were are no
                  competitive fields to those in the KC.