20 Trial Lawyer • Summer 2022 Equal Pay Continued from p 19 in 2019 in an effort to address exactly this weakness in the law. The amendments to ORS 652.210 made several significant changes (perhaps most important, covering wage disparities based on race, sexual orientation, disability and other characteristics, in addition to sex), but among them was elimination of the “factor other than sex” defense. Now, instead of allowing an employer to point to just about any reason to justify why it’s paying a woman less than a man doing comparable work, the burden is on the employer to prove the reason for the disparity falls into one or more of a list of acceptable reasons. These include the original provisions in the federal law — seniority, merit and quality or quantity of production — as well as location, travel, education, training and experience. Unless an employer can show how these factors account for compensation disparities, it must equalize the woman’s pay to the man’s. The new Oregon law was not yet in effect when Freyd came to me, though. I thought the “factor other than sex” defense would be the most troublesome issue for her case. But it turned out to be something even more fundamental: what is “equal work”? Equal work By arguing that no one at Freyd’s level did “equal work,” the University thought it would be able to evade the requirements of the law entirely for highly autonomous, professional workers, none of whom have the same day to day duties. Even though the men who made more than Prof. Freyd were all full professors in the same department at the same university with the same expectations for their work and measured by the same criteria for purposes of merit reviews and salary determinations, the university argued they all did fundamentally different work. They taught different classes, wrote on different topics and performed different service roles within the university. Judge McShane wholeheartedly agreed and dismissed Freyd’s case on summary judgment. A conservative panel of the Ninth Circuit reversed in a published opinion that commentators have said is shaping pay bias cases. The Ninth Circuit made clear that equal work under the Equal Pay Act does not require identical jobs, but rather a “common core of tasks.” It faulted the dissent for failing to construe the Equal Pay Act as broadly remedial, commenting that, “the granularity with which the dissent picks through the facts would gut the Equal Pay Act for all but the most perfunctory of tasks.” The opinion opens up new possibilities for whom workers might compare themselves to when they are wondering if their pay rates are fair. These possibilities are even broader for workers who choose to sue under the new state law. In Oregon, workers do not have to prove they do “equal work” to someone else being paid more; the standard instead is “comparable work.” Oregon courts have yet to define exactly what “comparable work” means, except to make clear it is broader than the federal standard. The door is wide open for more cases in Oregon challenging unfair and unequal pay rates between workers who might not be doing the same job, but whose responsibilities are sufficiently “comparable.” Retention raises The Ninth Circuit reversed Judge McShane on another issue, as well, that could be sowing even broader systemic change. When Freyd’s department head did a regression analysis of faculty salaries, he found the gender gap nearly disappeared when he controlled for another factor, retention raises. Male professors in the department had shopped themselves out for competing offers far more often and more effectively than the female profes-
RkJQdWJsaXNoZXIy Nzc3ODM=