Paul L. Caron
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Tuesday, March 16, 2021

9th Circuit Revives Tenured University Of Oregon Professor's Equal Pay Claim That She Makes $14,000-$42,000 Less Than Her Male Counterparts

Following up on my previous post, Federal Judge Cites Retention Bonuses Paid To Male University Of Oregon Faculty As Justification For Female Professor's Lower Pay:  The Recorder, Trump Judge’s Dissent Would ‘Gut’ Equal Pay Act, 9th Circuit Maj. Ruling Says:

Oregon LogoA dissent from a Trump-appointed circuit judge in a pay discrimination case would effectively “gut” the Equal Pay Act if applied, according to a majority opinion from the U.S. Court of Appeals for the Ninth Circuit.

In a 61-page opinion Monday, the California appeals court revived in part a psychology professor’s claims that the University of Oregon had discriminated against her by paying her between $14,000 and $42,000 less than some of her male counterparts. [Freyd v. University of Oregon, No. 19-35428 (9th Cir. Mar. 15, 2021)]

Jennifer Joy Freyd alleged that the university violated several state and federal civil rights laws including the Equal Pay Act by offering her significantly less compensation than male members of her department. She asserted that the university’s practice of offering retention raises to some professors without also increasing the salaries of their peers of comparable merit and seniority contributed to the alleged inequity.

U.S. District Judge Michael McShane of the District of Oregon granted summary judgement on all claims in favor of the university on the grounds that Freyd’s Equal Pay Act claims failed to raise a genuine issue of fact. The judge found that she did not show that she performed substantially equal or comparable work to her male colleagues.

In the majority opinion, the Ninth Circuit panel determined that the case ought to be decided by a jury. ...

In a dissent, Judge Lawrence VanDyke of the Ninth Circuit, nominated to the court by President Donald Trump, noted that Freyd is “in the big leagues of her profession,” and the market-driven practice of pay disparities based on retention raises does not violate federal and state laws.

“Just as we see with top professional athletes or the very best attorneys in their field, competition is fierce for leading academic talent,” VanDyke wrote. “Universities understandably attempt to poach top dons from other schools by offering better pay and other benefits and opportunities, and the professors’ home institutions are often required to make comparable offers (called ‘retention raises’) to keep their own outstanding people—especially those who are willing to seriously entertain an offer to change institutions.”

Inside Higher Ed, Court: Professor's Equal Pay Case May Proceed:

Dissenting partially from his two fellow appeals panel colleagues, Judge Lawrence J. VanDyke said he agreed with the district court’s earlier determination that pay disparities based on retention raises do not violate federal or state laws against sex discrimination. A major part of Freyd’s case, meanwhile, is that market-based retention raises have been shown to disproportionately benefit men over women.

Freyd, who is retiring from the university this week, said in a statement, "I am pleased to report that the court recognized that the [federal] Equal Pay Act applies in professional settings and that courts cannot break down jobs into tiny pieces. They recognized our claim that practices like retention raises can result in discrimination that is against the law."

Update #1:  Brian Leiter (Chicago), 9th Circuit's Equal Pay Act Decision Could Have Ramifications for Retention Offers to Faculty:

[I]f Professor Male turns down an offer from Harvard for an extra 40k in salary, Professor Female (in the same department, doing the same general kind of work, who previously had been paid the same as Professor Male) may have an equal pay claim even if she never got a Harvard offer.

Update #2:  The Oregonian, Appeals Court Revives UO Professor’s Suit Alleging ‘Glaring’ Gender Pay Gap

(Hat Tip: Victoria Schwartz)

https://taxprof.typepad.com/taxprof_blog/2021/03/9th-circuit-revives-tenured-university-of-oregon-professors-equal-pay-claim-that-she-makes-14000-420.html

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