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Freyd v. University of Oregon

United States District Court, D. Oregon

May 2, 2019




         As a concept, pay equity seems simple in its application-men and women performing the same job function are entitled to the same pay without regard to their gender. The Equal Pay Act, among other state and federal laws, requires employers to adopt compensation practices to ensure that female workers are paid the same as their male counterparts for work of comparable value. It would be a violation of the law, for example, to pay a male elementary school teacher more than a female elementary school teacher if both are of the same tenure, work the same number of hours, and perform the same function of educating children.

         When applied to a university setting, the notion of “equal pay for equal work” has unique complexities that are not found in other institutions. First, the notion of academic freedom spawns an environment where those working in the same discipline may choose to follow different paths of knowledge and pursue endeavors that create unique value to the institution. While education is core to the function of each department within a university, individual professors are given broad latitude to pursue research, obtain and manage grants, publish written work, and take on leadership roles in the university and the broader community.

         A second hurdle facing pay equity in the university setting is the need of the institution to offer competitive salaries in order to attract top faculty, while at the same time being fair to senior professors whose salaries are often tied to a pay scale or a plan that has not kept up with the market. Colleen Flaherty, Decompressing Salaries, Inside Higher Ed. (February 11, 2013), (last visited May 1, 2019). The need to attract top faculty is unfortunately reciprocated by the need to prevent other institutions from poaching top faculty, particularly those who bring substantial grant money to the university. In this respect, a university is more akin to the National Baseball League than it is to a traditional employer. As a result, the academic job market is made up of those who are in demand (and can command more money during contract or retention negotiations) and those who are not. As to the latter group, this situation “means that good campus citizens who take on the introductory courses or devote extra time to advising-in other words, those who do the work that makes a college education meaningful for students-can feel they are taken for granted.” Id.

         Underlying all of this, of course, exists cultural and historical norms that have traditionally worked against women in the workplace. A university cannot claim that a man is getting paid for offering more value when equal access to the types of research, grant-writing, and leadership roles that create value have been denied to women.

         By all accounts, the plaintiff in this case, Professor Jennifer Freyd, is a remarkable teacher and a well-respected scholar. She has been a professor of psychology at the University of Oregon (the “University”) for more than thirty years. She is a national leader in the field of trauma and sexual violence, she has authored extensive publications, she attracts excellent graduate students to the psychology department, and she has won numerous awards. She is the sixteenth highest paid faculty member in her department of ninety professors.

         Professor Freyd has brought numerous claims against the university, its president, and its Dean of the Natural Sciences Department, alleging gender discrimination in the establishment of her salary when compared to four male colleagues. Professor Freyd, in opposing defendants' summary judgement motion states, “This case at its core is simple: the University of Oregon . . . pays one of its most distinguished female professors . . . far less than men in her department who do the same job and are many years junior to her. That is the essence of pay discrimination.”

         Defendants move for summary judgement, maintaining that it is undisputed that the four male professors chosen by Professor Freyd as comparators perform work duties that are significantly different than those performed by Professor Freyd. As a result, they argue that Professor Freyd has failed to present evidence of gender discrimination to support her claims.

         Even when viewed in the light most favorable to Professor Freyd, the evidence establishes that her four male colleagues perform significantly different work than that done by Professor Freyd. It would require the broadest of brush strokes to suggest that the work done by each of the professors is simply teaching; the work and the value of that work varies greatly from professor to professor. Because Professor Freyd cannot establish that she performs substantially similar work in the unique setting of a university to that of her comparators, her claims fail. Professor Fryed's disparate impact claims fail because (1) she lacks statistical evidence sufficient to demonstrate the University's practice results in a disparate impact on women and (2) the University's practice is consistent with business necessity. The individual defendants are entitled to qualified immunity and, as discussed below, her claim in contract also fails. The Defense Motion for Summary Judgement is GRANTED.


         Professor Freyd is a tenured professor in the University's Psychology Department. Professor Freyd was hired by the University in 1987 as an associate professor. She was promoted to full professor in 1992. Freyd Decl. ¶ 3, ECF No. 72. At the time of her hire, Professor Freyd was employed by Cornell University. She left Cornell for the University of Oregon because the University made her “an extremely attractive offer, ” including a tenured position, a job for her husband at the University, a large lab, and a corner office. Cornell attempted to retain Professor Freyd by offering her a larger salary, higher even than what the University offered, but Professor Freyd declined Cornell's retention offer and moved to Oregon. Barran Decl. Ex. B, at 17, ECF No. 57-2. Since 2013, Professor Freyd is a member of a collective bargaining unit of faculty members represented by United Academics union.

         Professor Freyd is a highly respected member of the Psychology Department and is known as a national leader in the field of trauma psychology. Professor Freyd has published over 30 peer-reviewed manuscripts and is well regarded as both a teacher and a member of the University community for her engagement with students and service.

         Professor Freyd became concerned that salary inequities in her department were related to gender. Specifically, Professor Freyd was concerned that her salary was below that of male professors in the Psychology Department who had less seniority than she did. She conducted her own analysis of the Psychology Department and expressed her concerns to Professor Ulrich Mayr, the head of the Psychology Department. Professor Mayr consulted administrators in the University's College of Arts and Sciences, which houses the Psychology Department. Professor Freyd requested a raise to bring her salary in line with her expected salary, predicted as a function of seniority.

         The University decided not to offer Professor Freyd a raise after concluding that Professor Freyd was compensated at a higher rate than the majority of professors in the College of Arts and Sciences and that any discrepancy between Professor Freyd's salary and her male colleagues was attributable to retention raises (which Professor Freyd never sought) and significant differences in job duties. Professor Freyd then initiated this litigation.


         A court must grant summary judgment if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is “genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The court reviews evidence and draws inferences in the light most favorable to the non-moving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).


         Professor Freyd's Claims With Respect to Pay Discrimination

         Professor Freyd brings claims of gender-based pay discrimination against the University under the following federal and state laws: The Equal Pay Act, Title VII, Title IX, the Oregon Equal Rights Amendment, ORS 659A.030, and ORS 652.220. Professor Freyd asserts that the University paid her less than four male colleagues in her department and that the University's policy surrounding retention raises has a disproportionate impact on the University's female psychology professors.

         I. Pay Equity Claims

         ORS 652.220, Title VII, ORS 659A.030, Title IX, the Equal Pay Act, and the Oregon Equal Rights Amendment all prohibit an employer from discriminating between ...

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