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 Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh 

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

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

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

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

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Rob Wiley, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.