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Ninth Circuit OKs Gender Pay Lawsuit Based on “Retention Raises”

Jennifer Freyd was a fully tenured psychology professor at the University of Oregon. A graduate of Stanford and Cornell, she specialized in trauma studies, taught students, oversaw a research lab, edited a preeminent journal, and served on several University committees. She filed a lawsuit asserting that the University paid her significantly less than her male colleagues of equal rank and seniority.

While working at the University, other educational institutions reached out to her in an effort to persuade her to leave but she let them know she was not interested. Her husband also worked for the University of Oregon, and she wanted to continue her work there. Other institutions also reached out to her male colleagues at the University to recruit them. The University of Oregon responded to these recruitments by providing “retention raises” to these professors as an incentive to stay. Because Freyd was uninterested in leaving, the University of Oregon did not offer her a “retention raise.” As part of an unrelated records request, Freyd saw the salaries of the Psychology department; she was paid between $14,000 and $42,000 less per year than her male colleagues. She believes the “retention raises” accounted for much of the disparity. In her analysis, she found that even female faculty who were more receptive to offers from other institutions did not benefit in the same way from these raises.

After a federal district court dismissed the case, the Ninth Circuit revived Freyd’s Equal Pay Act claim. The University argued the male professors performed different research, ran different labs, obtained funding from different sources, and sat on different committees, making their work easily distinguishable from Freyd’s. However, the circuit court concluded a reasonable jury could decide that the male comparators “perform a common core of tasks” and did substantially the same work. Each individual taught, researched, advised students, and participated in University committees. The court stated it was unable “as a matter of law to pronounce their responsibilities so unique that they cannot be compared for purposes of the Equal Pay Act.” To ensure the Act is “broadly remedial” and will be workable across industries, the appellate court held it should be presented to a jury.