Freyd v. University of Oregon, No. 19-35428 (9th Cir. 2021)Annotate this Case
Plaintiff, a Professor of Psychology at the University of Oregon, filed suit against the University, alleging claims under the Equal Pay Act, Title VII, Title IX, and Oregon law. Plaintiff claims that there is a gender disparity in pay that is department wide and is caused by the University's practice of granting "retention raises" to faculty as an incentive to remain at the University when they are being courted by other academic institutions. Plaintiff also alleges that female professors at the University are less likely to engage in retention negotiations than male professors, and when they do, they are less likely to successfully obtain a raise. The district court granted summary judgment for the University on all counts.
The Ninth Circuit concluded that the district court erred in granting summary judgment on the Equal Pay Act claim because a reasonable jury could find that plaintiff and her comparators did substantially equal work. Furthermore, plaintiff has raised a genuine issue of material fact under Oregon Revised Statute 652.220 for the same reasons she has done so under the Equal Pay Act. The panel also concluded that the district court erred in granting summary judgment on the Title VII disparate impact claim where there is at least a genuine issue of material fact as to whether plaintiff established a prima facie case of disparate impact. However, plaintiff cannot establish a prima facie case of disparate treatment because equity raises and retention raises are not comparable and the panel could not say that plaintiff's comparators were treated "more favorably" than was plaintiff in this context. Consequently, summary judgment was also proper on plaintiff's claim under Oregon Revised Statute 659A.030. The panel also affirmed the district court's grant of summary judgment on plaintiff's Title IX claim and state constitutional claim.
Court Description: Employment Discrimination. The panel reversed in part and affirmed in part the district court’s grant of summary judgment in favor of the University of Oregon and other defendants in an action brought by a professor under the Equal Pay Act, Title VII, Title IX, and Oregon law. Jennifer Freyd, a Professor of Psychology, alleged that the University paid her several thousand dollars less per year than it paid four of her male colleagues, despite their being of equal rank and seniority. Reversing the district court’s summary judgment on the Equal Pay Act claim, the panel held that on such a claim, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that employees of the opposite sex were paid different wages for equal work. The plaintiff must show that the jobs being compared (not the individuals holding the jobs) are substantially equal. The panel concluded that, viewing the evidence in the light most favorable to Freyd, a reasonable jury could find that she and her comparators performed a common core of tasks and did substantially equal work. Declining to certify questions to the Oregon Supreme Court, the panel reversed the district court’s summary judgment on Freyd’s claim under Or. Rev. Stat. § 652.220, FREYD V. UNIVERSITY OF OREGON 3 which prohibits employers from paying wages to any employee “at a rate less than that at which the employer pays wages to employees of the opposite sex for work of comparable character, the performance of which requires comparable skills.” Under Oregon law, “comparable work” is a more inclusive standard than equal work, and requires that the two jobs “have important common characteristics.” The panel concluded that Freyd raised a genuine issue of material fact under § 652.220 for the same reasons she did so under the Equal Pay Act. The panel reversed the district court’s summary judgment on Freyd’s disparate impact claim under Title VII. The panel held that to make a prima facie case of disparate impact, a plaintiff must show that a facially neutral employment practice has a significantly discriminatory impact on a group protected by Title VII. The plaintiff must also establish that the challenged practice is either not job related or is inconsistent with business necessity. Even if the practice is job related and consistent with business necessity, though, the plaintiff may still prevail by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. The panel concluded that, first, Freyd challenged a specific employment practice of awarding retention raises without also increasing the salaries of other professors of comparable merit and seniority. Second, she put forth evidence that this practice caused a significant discriminatory impact, and a reasonable jury could find that her statistical analysis showed a prima facie case of disparate impact. The panel agreed with the Seventh Circuit that where a sample is small but the results nevertheless indicate a disparity, the granting of summary judgment in favor of the defendant is premature. 4 FREYD V. UNIVERSITY OF OREGON The panel further held that the University did not establish a business necessity defense as a matter of law. The panel affirmed the district court’s summary judgment on Freyd’s claims for disparate treatment under Title VII and her claims under Title IX, Or. Rev. Stat. § 649A.030, and the Oregon Equal Rights Amendment. Dissenting in part and concurring in part, Judge VanDyke wrote that the district court’s judgment on all claims, except Freyd’s Or. Rev. Stat. § 652.220 claim, should be affirmed. Judge VanDyke wrote that the market-driven practice of pay disparities based on retention raises does not violate federal and Oregon laws prohibiting sex discrimination.