19 Trial Lawyer • Summer 2022 By Jennifer Middleton OTLA Guardian In 2014, Jennifer Freyd, a 30-year professor at the University of Oregon, made a public records request for employee emails for a survey. To her surprise, the spreadsheet she received included salary information. The numbers were impossible to ignore. Four men in her department, Psychology, who had the same job (full professor) but were significantly junior to her, earned between $18,000 and $50,000 more than she did. This was true even though every year that the university had undertaken merit reviews to determine raises, she was scored among the top performers in her department. When Freyd had been hired at the University of Oregon decades earlier, she didn’t know she could negotiate her pay. Jennifer Middleton She trusted what they offered her was fair. Over the years, though, she would learn from time to time what her colleagues were earning, and it felt terrible. She would go to her department head, who responded with a small raise. Freyd would think the issue had been remedied, only to learn a few years later it had recurred. None of the small raises was enough to fully correct for the inequity with men whose pay was leaping ahead of hers. After she received the salary data in 2014, Freyd again went to her department head. He performed a regression analysis showing that when controlling for years in rank, men in the department earned on average $30,000 more per year than their female counterparts. The department head took this data to the deans of the college. This time, they flatly refused to address the problem or even to simply give Freyd — whom the department head called “our most glaring inequity case” — a raise. Freyd came to me with this data and asked about an Equal Pay Act case. I had to caution her that equal pay cases are notoriously difficult to win. That turned out to be even more true than I had anticipated. A 2021 victory at the Ninth Circuit in her case, though, together with Oregon’s 2020 amendments to its state equal pay statutes, have helped to give a little more teeth to the legislatures’ promises of fairness and nondiscrimination when it comes to compensation. The concept of “equal pay for equal work” sounds deceptively simple. Shouldn’t all people who hold the same positions earn the same amount? This is true for federal judges, after all – it doesn’t matter how long you’ve been on the bench, it doesn’t matter how busy your docket might be, it doesn’t matter whether you are in the District of South Dakota or Southern District of New York. All district court judges are paid the same. The same is true for state judges. As soon as a real employment marketplace becomes involved, however, the picture gets muddier. Shouldn’t seniority matter? What about merit? Should a person with more credentials or experience in the field be paid more than those without? The Federal Equal Pay Act begins by listing a few factors that can be a basis for differences in pay — seniority, merit and quality or quantity of production. It goes from there to provide a gaping hole of a defense: “or any factor other than sex.” This affirmative defense has historically allowed employers to come up with nearly any reason under the sun for a wage differential, perpetuating the wage gap the law was intended to narrow. Oregon amended its equal pay statute See Equal Pay p 20 Equal Pay for Equal Work
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