Recently retired University of Oregon psychology professor Jennifer Freyd is one step closer to bringing her pay equity lawsuit against the university to trial after years of convincing the Ninth Circuit Court of Appeals that her case deserves to be heard. Freyd v. University of Oregon is a landmark case which — should UO win — would “gut” the Equal Pay Act for most professionals seeking to settle their pay discrimination cases in the future, according to the Ninth Circuit Court of Appeals majority opinion.
A four-year battle
Freyd filed the lawsuit in March 2017, after learning that men of her own rank and seniority in the department were making tens of thousands of dollars more in salary than she was, according to an outside study conducted by ECONorthwest economist Kevin Cahill. She said she tried to resolve the situation internally for three years, but resorted to suing the university when her deans told her nothing could be done.
Freyd took her case to the Eugene U.S. District Court under the Equal Pay Act, Title VII of the Civil Rights Act, the U.S. and Oregon constitutions and other related laws. In May of 2019, Federal Judge Michael McShane dismissed Freyd’s claims on summary judgement, meaning he did not need a trial to decide that Freyd did not do equal work to her male comparators. The university and the district court agreed that Freyd could not prove that her work was equal to or better than her peers because they conducted different types of research and sat on different committees.
Psychology Department Chair Ulrich Mayr called Freyd’s pay gap “glaring” in a 2016 letter to UO College of Arts and Sciences deans Hal Sadofsky and Andrew Marcus that unsuccessfully attempted to convince the two to give a retroactive promotion raise to Freyd.
Freyd appealed the decision, and the Ninth Circuit Court of Appeals partially agreed that Freyd held the same “common core” of tasks as her male colleagues. Nonetheless, the court argued that the pay disparities were not due to outright gender discrimination by the university, but to retention raises — salary bonuses given to faculty members being pursued by other universities as an incentive for them to stay.
In March 2021, the Ninth Circuit Court found that Freyd had enough evidence to proceed with a lawsuit against UO for pay discrimination. The university’s request for hearing by the full Ninth Circuit was denied in April 2021, opening a 90-day window for UO to seek Supreme Court review. However, according to a letter from Vice President and General Counsel Kevin Reed, the university does not intend to take this to the Supreme Court and will instead proceed to trial.
A settlement conference is scheduled for June 29, and then a trial date will be set. Freyd’s attorney Jennifer Middleton described this as a victory.
“I think it's encouraging that the University of Oregon is willing to come to the negotiating table now,” Middleton told the Emerald. “I'm looking forward to having a frank conversation with them about how to resolve this case.”
Pay disparity from retention raises
The Ninth Circuit did not deny that men were making more money than women in the psychology department; however, the court attributed the pay gap to the university’s practice of retention raises.
A 10-year external review of the UO psychology department conducted by Cahill showed a “significant equity problem with respect to salaries at the full professor level” because of how the university conducts its retention raises. The analysis revealed that 81% of retention raises in the department granted from 2007 through 2017 went to male faculty. Once retention raises were taken out of the equation, the pay gap between men and women went away.
In a statement to the Emerald, the university said Cahill’s study showed an “anomaly” and that the majority of retention packages campus-wide have been negotiated with women and faculty of color over the past five years.
“Mr. Cahill’s analysis is on a set of only around 20 retention cases that occurred in a single department at the university over a decade,” the statement read. “This is simply too small of a data set to draw a reliable conclusion on a matter of such importance.”
According to a declaration to the District Court, Cahill said the study analyzed every retention raise offered to tenure-track faculty in the psychology department over a decade. Twenty-one out of the 26 retention raises were given to men and only five to women, which Cahill said resulted in a “highly statistically significant” pay gap between men and women.
UO spokesperson Saul Hubbard said the university’s stance on this issue is also reflected in Reed’s letter — that UO believes and operates knowing that discrimination is wrong and is prohibited on the basis of gender. Reed said in a letter that the “most successful” faculty members in the psychology department happen to be male and so a gender imbalance in retention raises was “fully justified.”
Freyd proposed that the university change its current practice of retention raises by offering individuals of the same rank and seniority a raise when one person in the department is offered one for retention purposes. This would equalize the salary disparity between men and women, she said, as studies show that men have traditionally received and considered more outside offers than women.
The university rejected this idea, saying it fundamentally disagrees that retention practices are impacted by gender bias. UO echoed Ninth Circuit Judge Lawrence VanDyke’s statement that Freyd’s proposed solution would hinder its ability to compete with universities and cause a “brain drain,” meaning all the best faculty would leave if retention raises were conducted in this manner.
In a statement to the Emerald, the university wrote that the proposed alternative was “unworkable and unaffordable.” UO Law Professor Beatrice Dohrn said this is no excuse.
“In pure legal terms, ‘can't afford’ is never a justification for discrimination. More importantly, it's a pathetic argument to say it's too expensive to not discriminate,” she said. “The university's making all these efforts about diversity, equity and inclusion; well, this is equity.”
‘Gutting’ the Equal Pay Act
Ninth Circuit Court Judge Jay Bybee wrote in the court's majority opinion that a UO victory in this case would “gut the Equal Pay Act for all but the most perfunctory of tasks.” According to Middleton, the university’s proposed argument would not only affect university faculty but virtually all professions.
“The same idea would carry over to most professional jobs,” Middleton said. “There might be two different criminal defense lawyers, but they work on different cases, they work in different jurisdictions... nobody's job is identical, unless maybe you're on a factory floor.”
In her 34 years as a UO professor, Freyd said she was constantly compared to her colleagues through required performance evaluations, merit review processes and promotion processes.
“I had a meeting with the deans when they gave me a series of reasons that they didn't want to change my salary, and nothing remotely like this idea of different jobs came up,” Freyd said. “So my experience was very disorienting and almost gaslighting, like: ‘What do you mean? You're always comparing me.’”
In a statement to the Emerald, the university said that while the Equal Pay Act applies to faculty, Freyd must prove that her work is equal to the four higher-paid faculty members she compared herself to in the department. Freyd argued that she had the same job duties as her comparators, and the university maintained that there were significant differences in their work. The Court of Appeals determined that it would be best for a jury to decide.
Dohrn said the university’s argument is outrageous and she believes it is “selling out.”
“I don't understand the university taking an anti-civil rights position like this,” she said. “And I frankly don't understand them getting away with it in the sense that women don't speak up more and make more of a fuss about it.”
A new chapter
In January 2020, Freyd wanted to retire from the university and dedicate more of her time to the Center for Institutional Courage, a nonprofit organization she founded that aims to create more equitable and accountable institutions. But the organization wasn’t the sole motivation for her retirement.
“The way the University of Oregon has, at times, failed to make me feel welcome has played a role in my own decision making about what's best for me and how I can most help the world,” she said.
But when she attempted to accept her retirement package, there was a catch. The university would only allow her to accept the package if she dropped her suit. But after 68 faculty members, students, research assistants and equity coordinators wrote a letter to the Board of Trustees, the university reversed its decision and allowed Freyd to continue with the suit and accept the package.
Even if that decision had not been overturned, Freyd said she never seriously entertained the idea of dropping the suit. She believed it had become much bigger than her and that dropping it would negatively impact many others.
“I felt [UO’s arguments] were threatening the well-being of my students, and that was very painful to see,” she said. “I don't want to have my institution promoting interpretations of the law that, should they prevail, will cause harm to equity and justice to so many women.”
Though it’s painful to directly experience these inequalities, Freyd said her expertise in the field of institutional betrayal, a term she coined, has allowed her to “have a certain emotional distance” from the case.
“I sometimes am able to work through that by saying, ‘Well, this is data. This is something I can learn from,’” Freyd said. “It doesn't take away that what happened was hurtful, and it's not the way I normally would want to get information, but it is something I can at least tell myself.”
Dohrn and economics professor Bill Harbaugh were set to present a motion to the UO Senate in April 2021, which, if passed, would state that the senate opposes any further efforts by the university to limit the availability of the Equal Pay Act’s protections in professional settings.
“The Administration previously announced that it would consider seeking review by the US Supreme Court in this event,” the motion read. “Regardless of the ultimate outcome, should the effort to gain further review of the 9th Circuit decision be successful, the University of Oregon’s name, reputation and brand will be forever associated with a position on the wrong side of history.”
The motion was rescinded after Reed clarified the university’s position in a letter to the UO Senate one day before the meeting. In the letter, he wrote that the resolution would be “misplaced” as UO would not take the judgment to the Supreme Court and instead proceed to trial.
Although the motion was never voted on, Freyd said she was inspired by the 90-plus people who co-sponsored it.
“When I found the motion, it was humbling to read such beautiful language and to see that people cared about equity in the way that they do, and in fairness and justice,” Freyd said. “What I study now is institutional courage, and it's institutional courage not coming from leadership at the highest levels, but the grassroots. In solidarity, people can change things.”