21 Trial Lawyer • Summer 2022 sors had, and the raises they secured to keep them at UO comprised nearly all of the difference in pay. When I first considered Freyd’s case, I feared this would be an easy “factor other than sex.” Throughout her 30-plus years at the UO, Freyd had never sought a position at another university to negotiate a retention raise. What she saw taught her that women who sought retention raises were seen as disloyal, while men were seen as go-getters. Freyd’s observation is consistent with research on women and negotiation, which has found it is more risky for women to negotiate for higher pay than it is for men. Disparate impact When I was considering Freyd’s potential case, I woke up in the middle of the night with a realization we could bring a type of claim that would solve the “factor other than sex” problem. The data showed exactly what we would need for a disparate impact claim under Title VII: an employment policy that, though neutral on its face, has a disproportionate impact on (here) women. The Supreme Court recognized disparate impact claims under Title VII in 1971. A disparate impact theory is one of the very few legal tools available to challenge systemic inequities that might not be based in overt bias, but have the effect of disadvantaging one group. The Ninth Circuit upheld our disparate impact theory, holding that the statistical evidence we presented was enough to get to a jury. The court made clear Freyd wasn’t challenging the practice of giving someone a raise to keep them from being poached by another employer. She simply made the point that when the university does that, the law requiring equal pay means it also has to look at co-workers who do comparable jobs and also have similar seniority and merit, and give them a raise as well. A jury could find that was a viable practice that would eliminate the disparities in pay between men and women. Forbes magazine had covered Freyd’s case from the beginning. When it was dismissed at summary judgement, the magazine gloated that the case “dispelled myths” about the gender pay gap, calling the fact that women face a pay gap when compared to men “misleading.” After the Ninth Circuit reversed, the magazine detailed the opinion and closed by advising corporate America that, “This decision should prompt a fresh look at how ‘retention raises’ are used not just in academia but in corporate settings as well.” Jennifer Middleton is an attorney at Johnson Johnson Lucas and Middleton. She represents employees and individuals in discrimination and civil rights claims against employers, schools, and governments. Middleton contributes to OTLA Guardians at the Guardians Club level. Her office is located at 975 Oak St., Ste. 1050, Eugene OR 97401. She can be reached at jmiddleton@justicelawyers.com or 541-683-2506.
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