990 F.3d 1211
9th Cir.2021Background
- Jennifer Freyd, a tenured full Professor of Psychology at the University of Oregon, discovered she earned thousands less annually than four male full professors of comparable rank and seniority.
- The Department frequently granted "retention raises" to faculty who were recruited by other institutions; Freyd never pursued such negotiations and never received a retention raise.
- Internal analyses (2016 Psychology Department self-study and later economist Kevin Cahill’s regression) showed a male-favoring pay gap at the full-professor level that appeared to shrink when retention negotiations were controlled for.
- Freyd sued under the Equal Pay Act, Title VII (disparate impact and disparate treatment), Title IX, Oregon statutes (ORS §652.220 and §659A.030), and the Oregon Equal Rights Amendment; the district court granted summary judgment to the University on all claims.
- The Ninth Circuit reversed in part: it found genuine issues of material fact precluding summary judgment on the Equal Pay Act, ORS §652.220, and Title VII disparate-impact claims; it affirmed summary judgment on Title VII disparate-treatment, Title IX, ORS §659A.030, and the state constitutional claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equal Pay Act — whether Freyd and male comparators perform "equal/substantially equal" work | Freyd: as full professors in the same department they share a common core of duties (research, teaching, service) so a jury could find substantially equal work | Univ.: actual job duties diverge materially (running centers, grant administration, dept. head duties), so jobs are not substantially equal as a matter of law | Reversed district court; jury could find substantially equal work — summary judgment inappropriate |
| ORS §652.220 — "work of comparable character" | Freyd: Oregon’s "comparable" standard is broader than the EPA and her evidence raises a triable issue | Univ.: same factual defenses as to non-comparability and business justification | Reversed district court; genuine issue of material fact under state law |
| Title VII Disparate Impact — whether retention-raise practice causes significant sex-based impact | Freyd: retention raises favor those who entertain outside offers; women are less likely to solicit/receive such offers, producing a statistically significant adverse effect; she proposed alternatives (adjust internal salaries when retention raises are given) | Univ.: statistical sample too small/unreliable; retention raises are job-related and a business necessity to retain grant-generating talent; proposed alternative is infeasible/costly | Reversed district court; court held Freyd presented sufficient evidence to make a prima facie disparate-impact case and raised triable issues on business-necessity/alternatives |
| Title VII Disparate Treatment & Title IX — intentional discrimination | Freyd: pay disparity and internal analyses show discriminatory pattern | Univ.: no direct or circumstantial evidence of intent; differences explained by legitimate, non-discriminatory factors (retention raises, grants, admin roles); equity raise denied via ordinary review | Affirmed district court; no admissible evidence of discriminatory intent — summary judgment proper |
Key Cases Cited
- Stanley v. Univ. of S. Cal., 178 F.3d 1069 (9th Cir. 1999) (substantially equal work and common-core-of-tasks framework under Equal Pay Act)
- Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409 (9th Cir. 1988) (EPA requires case-by-case comparison of job content)
- Gunther v. Washington County, 623 F.2d 1303 (9th Cir. 1979) (overall job—not isolated segments—forms basis of comparability)
- Hein v. Or. Coll. of Educ., 718 F.2d 910 (9th Cir. 1983) (analysis of substantial equality of academic positions)
- Stout v. Potter, 276 F.3d 1118 (9th Cir. 2002) (Title VII disparate-impact prima facie showing and statistics guidance)
- Watson v. Fort Worth Bank & Tr., 487 U.S. 977 (U.S. 1988) (standards for statistical proof in disparate-impact cases)
- Ricci v. DeStefano, 557 U.S. 557 (U.S. 2009) (employer obligations and alternatives in disparate-impact context)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework for disparate-treatment claims)
- Anderson v. Liberty Lobby, 477 U.S. 242 (U.S. 1986) (summary judgment standard; inferences and reasonable juror test)
- Corning Glass Works v. Brennan, 417 U.S. 188 (U.S. 1974) (Equal Pay Act is broadly remedial; market explanations do not automatically defeat discrimination claims)