Under the Equal Pay Act, an employer must pay both men and women equally if they perform equal work.  That raises the question of what equal work means.  The statute itself helps with this question a little bit.  The text of the statute states that work is considered equal if the performance of both jobs requires “equal skill, effort, and responsibility” in addition to both jobs being “performed under similar working conditions.”  But still, what does that actually mean in the real world?

Freyd v. University of Oregon, a recent 9th Circuit case involving a University Professor, addresses that question head on.  In that case, Professor Freyd, a female, was one of fourteen full professors in the Psychology Department at the University of Oregon.  She has been working at the University since 1987.  In 2014, Professor Freyd discovered that she was making between $14,000 and $42,000 less than four of her male colleagues in the same department.  Additionally, in Spring 2016, the Psychology Department did a mandatory annual self-study, which revealed that the average difference in salary between male and female professors was $25,000 in favor of the male professors.  The study concluded that this pay difference was due to retention bonuses paid to male professors far more than female professors.  In March 2017, Professor Freyd sued under the Equal Pay Act.  

The University of Oregon defended the case, in part, by arguing that Professor Freyd did not perform equal work to the other male professors she argued were paid more than her.  Therefore, according to the University of Oregon, the Equal Pay Act did not apply.  So, what were these differences?  Well, all of the professors had different individual responsibilities, ran different programs and received different forms of funding:

[T]he district court arrived at its conclusion on this issue by contrasting the individual responsibilities of Freyd, Mayr, Hall, Fisher, and Allen, including the separate laboratories or projects they supervised. See, e.g., Freyd, 384 F. Supp. 3d at 1291 (analyzing Hall’s work at CoDaC); id. at 1292 (assessing Fisher’s responsibilities managing federal grants); id. at 1293 (commenting on Allen’s position as the director of the Center for Digital Mental Health).

Freyd v. Univ. of Oregon, — F.3d —, No. 19-35428, 2021 WL 958217 at *7 (9th Cir. March 15, 2021).  In other words, because Professor Freyd did not found and run the exact same centers or organizations and did not receive money from the same sources, the jobs were different.  

Can such granular differences, as a matter of law, really render the jobs of two full psychology professors different?

No.  

The 9th Circuit Court of Appeals rejected that argument from the University of Oregon and reversed the district court who had ruled in favor of the University.  The 9th Circuit said that the individual segments of a job were not the proper focus when assessing whether jobs were equal under the Equal Pay Act.  Instead, the Court held that it was the overall job that mattered and whether or not a jury could find that the two jobs had a common core of tasks.  It is worth quoting what the Court said at length:

A reasonable jury could find that Freyd, Fisher, Allen, and Hall share the same “overall job.”8 As full professors in the Psychology Department, Freyd and those three comparators 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.” They also “contribute to the University’s goals regarding equity and inclusion” by participating in relevant associations and organizations. Although Freyd and her comparators all perform each of these functions, it is also true that they do not teach the same courses, or supervise the same doctoral students, or manage the same centers. In this respect, they are not identical. But we are unable as a matter of law to pronounce their responsibilities so unique that they cannot be compared for purposes of the Equal Pay Act.

Freyd, 2021 WL 958217, at *7.  This is an important decision from the 9th Circuit because it puts to rest this idea that small differences in a job or that high-level professional or academic jobs are not subject to the EPA.

If you believe that you are not paid the same as someone of the opposite sex, you should contact an employment law attorney to discuss your case.

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Photo of Robert J. Wiley Robert J. Wiley

Robert J. Wiley is the founder and owner of Rob Wiley, P.C.  Mr. Wiley is board certified as a specialist in labor and employment law by the Texas Board of Legal Specialization.  Mr. Wiley graduated with honors from Tulane Law School and received…

Robert J. Wiley is the founder and owner of Rob Wiley, P.C.  Mr. Wiley is board certified as a specialist in labor and employment law by the Texas Board of Legal Specialization.  Mr. Wiley graduated with honors from Tulane Law School and received his undergraduate degree from Vanderbilt University.

1. If you were not practicing labor and employment law what would you be?

I cannot imagine doing anything other than the job I have now.  Maybe I would be a union leader or work for a nonprofit.

2. What skills do you most value as an employment attorney?

Being an employment lawyer, you have to have two specialized sets of skills.  On one hand, you have to be able to draft motions in court that are extremely complicated and technical.  On the other hand, you have to turn around and be able to explain these complicated and technical legalities to individuals who are not lawyers.

3. When did you decide to become a lawyer?

I think that I have always wanted to be a lawyer.  My parents would tell you that I seemed predestined to be a lawyer.

4. What is the biggest mistake you see clients make?

Not hiring a lawyer!  Whether you’re complaining to the EEOC, going to court, attending a hearing with the Texas Workforce Commission unemployment division, or anything else legal, you really need to hire a lawyer.  Even if you do not hire my law firm, you need to get a lawyer to represent you.

5. What is your favorite employment law?

My favorite employment law is Title VII of The Civil Rights Act of 1964.  This law, passed over fifty years ago, remains one of our most important laws today. The Civil Rights Act set the stage for the Americans with Disabilities Act, the Age Discrimination in Employment Act, and numerous other employment laws protecting individuals from discrimination.  The Civil Rights Act was also an act of bipartisanship.  I think that our current government could learn a lot from the determination of our government’s leaders in the 1960’s.

6. What one employment issue would you argue before the Supreme Court?

I would argue that arbitration agreements are unconstitutional because they deprive citizens of the right to a jury.  I believe that the right to a jury, enshrined in the Seventh Amendment, is just as important as freedom of speech, freedom from unlawful search and seizure, or the right to bear arms.

7. Who is your favorite Supreme Court justice?

Ruth Bader Ginsburg.  I hope she never resigns and she lives forever.

8. What would you say to HR of a company about how to treat employees?

Treat employees who bring heartfelt complaints with dignity.  Try to find truth, rather than inevitably siding with management over subordinate employees. Human Resources has the ability to defuse a potential lawsuit by doing the right thing.  Retaliating against the employee because they complain about discrimination or ill treatment will only make matters worse.

9. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

While I was an undergraduate in Nashville, I briefly worked as a tour guide.

10. What is the secret to your success?

The attorneys who work for me.