Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 13 industries are naturally more amenable to this kind of defense than others. For example, several court have noted how difficult it can be to compare professionals in academic fields, although recent developments have cast some doubt on the reliability of those conclusions. in Freyd v. University of Oregon , 85 the district court acknowledged the unique complexities that attach to the notion of “equal pay for equal work” in the university setting . 86 The court noted that the nature of the academic setting allowed different professors within the same discipline to choose to follow different paths of knowledge and to pursue endeavors that create different and unique value to the institution . 87 Moreover, a university must offer competitive salaries in order to attract top faculty while at the same time maintaining a fair compensation system for all professors . 88 However, in 2021, the Ninth Circuit reversed that aspect of the district court’s decision, holding that a reasonable jury could hold that plaintiff and her comparators share the same “overall job,” noting that they are all full professors in the Psychology Department and “all conduct research, teach classes, advise students, and ‘serve actively on departmental, college, and university committees and in other roles in service to the institution.’” 89 The Ninth Circuit also noted that the university itself regularly compares faculty members when making salary decisions. Responding to an argument in a dissenting opinion, the court held that “the granularity with which the dissent picks through the facts would gut the Equal Pay Act for all but the most perfunctory of tasks. The Equal Pay Act, however, is ‘broadly remedial,’ and should be so ‘construed and applied’ as to be ‘workable across the broad range of industries covered by the Act.’” 90 In Miller v. Sam Houston State University , 91 the District Court for the Southern District of Texas held that a tenure-track Assistant Professor had failed to establish that her job responsibilities were substantially similar to her chosen comparator, another Assistant Professor in the same field, because her comparator had elevated job responsibilities and was a licensed psychologist with clinical supervisory responsibilities . 92 That decision was also reversed in 2021, however, and even reassigned to a different district court judge, after the Fifth Circuit called into question the comments and actions of the district employees of different sex performing equal work on jobs requiring equal skill, effort, and responsibility under similar working conditions were paid differently.” But, relying on an earlier Federal Circuit case, the court held that this showing was not sufficient to establish a prima facie case because plaintiffs must also show that the “pay differential between the similarly situated employees is ‘historically or presently based on sex.’” Id. at 1254 (quoting Yant v. U.S. , 588 F.3d 1369, 1372 (Fed. Cir. 2019)). According to the court, the plaintiffs had pointed to no evidence that the pay differential was based on sex and that they could not “satisfy this requirement merely through an inference drawn from the statutory elements of the prima facie case under the EPA.” Id. The Gordon court’s decision drew a sharp dissent from Judge Reyna, who argued that the court’s “based on sex” requirement “imposes an extra-statutory requirement onto the EPA plaintiff's prima facie case.” Id. at 1255. 85 Freyd v. Univ. of Or. , 384 F. Supp. 3d 1284 (D. Or. May 2, 2019). In that case, a university professor of psychology alleged that she was paid less than other professors at the same University for performing the same work. Plaintiff had become concerned that the salary inequities in her department were related to gender and, in particular, that her salary was below that of male professors in the same department with less seniority. Id. at 1289. However, the University decided not to offer her a raise after concluding that she was compensated at a higher rate than the majority of professors in the College of Arts and Sciences and that any discrepancy with respect to her salary versus her male colleagues was attributable to retention raises and significant differences in job duties. Id . 86 Id. at 1288. 87 Id. 88 Id. In particular, senior professors and professors who take on introductory courses and devote extra time to advising and other roles that make up the bread and butter of a university education, may be paid according to a pay scale that has not kept up with the market demand that influences how much a university has to pay to attract top talent. Id. The district court then analyzed plaintiff’s comparators in detail, holding with respect to each one that the differences in their job duties and other related activities, as well as their frequency and success with respect to the submission of grant applications, justified the salary discrepancies among those professors. Id. at 1291-94. 89 Freyd v. Univ. of Or. , No. 19-35428, 2021 WL 958217, at *7 (9th Cir. Mar. 15, 2021). 90 Id. at *8. 91 Miller v. Sam Houston State Univ. , No. H-15-CV-2824, 2019 WL 4758357 (S.D. Tex. Sept. 30, 2019). Plaintiff alleged that her salary was less than 90% of that of her male comparator, who was one year behind her on the tenure-track. Id. at *9. 92 Id . The comparator had obtained his license ten years prior to plaintiff. The university showed that during the time that plaintiff did not have that license, it was required to devote extra resources to assist her, such as assigning a licensed psychologist to help supervise her students. Id. The district court concluded: “[b]ecause [comparator] did not require those extra resources in supervising his students, their work was not equal.” Id.