Appealing on Zoom

UO gender discrimination case argued in Ninth Circuit

The most recent hearing in a three-year gender discrimination lawsuit against the University of Oregon was conducted on the new courtroom normal: Zoom.

The arguments in the Ninth Circuit Court of Appeals were broadcast on YouTube. Only the lawyers and judges were present at the hearing — Jennifer Freyd, who brought the suit in 2017, had to watch like everyone else.

“That was very disappointing,” Freyd says. “I could watch it along with anyone in the public, but I had no special access or presence.”

Freyd, a prominent and respected tenured UO psychology professor and researcher, sued the university in federal court under the Equal Pay Act, among other statutes. It requires that men and women doing “substantially similar” work must be equally paid.

Freyd’s lawyers say in the lawsuit that she was paid between $14,600 and $42,200 less per year than four male professors in the Department of  Psychology, though she had been at the university between nine and 21 years longer. The university says that their jobs can not be compared because the higher-paid professors had different duties.

The university argued that the difference in pay was the result of retention raises — a common practice in academia to leverage outside offers for a raise to remain at the institution. Freyd said that these raises discriminate against female professors, presenting a case study of 21 male and five female tenure-track professors that showed the women were less likely to receive a retention raise that was enough to make them stay, while the men received more in salary and research funding when they stayed than the women did.

After two years in court, the U.S. District Judge Michael McShane sided with the university and dismissed the case on a motion for summary judgment — meaning the judgment was made without a full trial or input from a jury — saying that Freyd’s male co-workers perform “significantly different” work than she does, and that the retention raise data was based on too small a sample.

Freyd quickly appealed. The Ninth Circuit Court of Appeals ruling may have reverberating effects for women all over the West Coast.

Freyd began fighting for a pay raise in 2014. An external review of the psychology department determined that female full professors were paid on average $30,000 less per year than male full professors when controlling for rank. 

Freyd’s department head Ulrich Mayr wrote Andrew Markus and Hal Sadofsy, the College of Arts and Sciences then-dean and associate dean, in 2016 to recommend a “retroactive promotion raise” for Freyd, who was being paid $18,000 less than the next most senior professor. She met with the deans in January 2017, and her requests were rejected, Freyd says.

She then contacted lawyer Jennifer Middleton to make it clear to the university “that this really has to be fixed,” she says.

“I really didn’t think I’d end up having to file a lawsuit,” Freyd says, thinking they would offer to settle. UO spokesperson Kay Jarvis says that the university was in “the process of discussing a resolution of Professor Jennifer Freyd’s claims when she made the choice to move forward with the lawsuit.”

The judge ruled against Freyd.“It was shocking,” Freyd says. “I don’t get my day in court? Don’t get to go to a jury and and tell them what, you know — this was stunning to me.”

After the dismissal, Freyd’s case got traction with women’s and civil rights campaigns; 48 groups filed a friend of the court brief in support of Freyd, and Jennifer Reisch, representing Equal Rights Advocates, argued in court alongside Freyd’s attorney. 

The American Association of University Professors filed a separate brief, saying that the court did not “evaluate faculty work within the standards of the academic profession” and that it misinterpreted academic freedom as the ability to create your own job.

“The district court’s misuse of academic freedom to justify sex-based wage inequality would make it 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,” the AAUP stated.

Jarvis says via email that Freyd “is not discriminated against, and that her salary is different from the professors she selected as comparators because they do different things.” 

“We have great respect for Professor Freyd as a scholar,” Jarvis says, “but agree with the federal district court which found there was insufficient evidence to demonstrate her salary is unfair or the result of unlawful discrimination.”

Whether that is true was the subject of the hearing in the Ninth Circuit. Freyd appealed on the basis that the question of whether her job was comparable to that of her coworkers was a subject for a jury, not the judge.

The appeal was heard by a panel of three circuit judges, all Republican appointees — including Judge Lawrence VanDyke, who was appointed by President Donald Trump in January and confirmed by a narrow vote in the Senate despite receiving a “not qualified” rating from the American Bar Association.

VanDyke questioned why professors should not be considered to have “substantially equal” jobs because their work looks different from professor to professor, comparing the job to an equity partner in a law firm. 

“They have a very different focus, every single one,” VanDyke said. “In fact, that’s what it takes to make full professor. Does that just mean that these are not the kind of people that can be substantially equal or not?”

Middleton said that professorial jobs have a common core of research and teaching, and whether the differences are significant is a matter for a jury to decide. 

Paula Barran argued on behalf of the university, saying that the case was correctly dismissed by the district court. “They have studied something different from what anybody else is studying. They go out and they have something new and different to say about whatever the topic is. And they have each created their own way of effectuating the requirements of the job, including the plaintiff,” she said. 

Due to the conservative makeup of the court, Freyd was expected to have an uphill battle, but Judge Jay Bybee asked the university tough questions about retention raises, and Judge Kathleen Cardone only broke in once to ask, “Why does the judge get to decide that these tasks, that the work that these people are doing, are the same just because they have undisputed facts in front of it?”

If the district court ruling is upheld, it could make it much harder for professional women to bring pay discrimination suits in the future.

“If the standard for even being able to bring a claim is that you have to do an identical job as the man next to you and be paid less, then the logic doesn’t apply to a wide range of different professions,” Middleton says.

“An appeals court decision really constrains the ability of every judge in the Ninth Circuit,” says Bill Harbaugh, a tenured UO economics professor who has chronicled the case on his blog UO Matters. More than 60 million people in nine western states and two territories live in the Ninth Circuit.

Cheyney Ryan, a UO emeritus professor of philosophy and law, says the university’s lawyers were making “the argument that they sought to convince the judge” without an academic context. “I think any faculty member would say this is absurd because they make judgments on faculty performance all the time,” he says. “When you’re considered for raise, the first question is, ‘How do you compare with other people like you?’”

The Ninth Circuit doesn’t have a deadline to rule on the case, but both Freyd and the university say they expect a decision in the coming months. Even a ruling in Freyd’s favor is not necessarily a win for her. “They’ve reversed the district court and then we go back to trial, or they affirm the district court,” Middleton says. 

If the Ninth Circuit confirms the lower court’s ruling, Freyd can still have the case reviewed by all the Ninth Circuit judges or appeal to the U.S. Supreme Court, but Middleton says they will determine next steps after the ruling.

Jennifer Middleton is an attorney with Johnson, Johnson, Lucas and Middleton, the law firm EW co-owner Art Johnson retired from.

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