POSTED BY HANK REICHMAN

The AAUP has filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of Jennifer Freyd, who sued the University of Oregon (UO) for gender discrimination based on significant pay disparities with male faculty members. A district court had dismissed her suit based, in part, on findings that she and her male colleagues did not perform equal work, and that the reasons for the pay differentials did not have a disparate impact on women. The district court, in ruling against Freyd, also claimed that the pay differential was justified by the “academic freedom” of faculty.

“Academic freedom is a condition of employment that all faculty hold in common to enhance their ability to engage in teaching, research, and service,” the brief declares.  “It is not a weapon to be wielded as a justification for gender-based inequalities.”

The brief provides an overview of gender-based wage discrimination in academia, explains that the core faculty job duties of teaching, research, and service are comparable, and rebuts the finding of the district court that the pay differentials were justified. The brief also argues that UO’s retention raise practice was not a valid defense to the discrimination claims, since UO policy provides for gender-equity adjustments but the university didn’t make any after boosting the pay of male faculty.

The following are excerpts from the brief (with citations and footnotes removed).  To read the entire brief go here.

Summary of Argument

The wage disparity in Professor Jennifer Freyd’s case is an example of the ongoing gender-based salary inequalities in the academic profession, generally, and for women full professors in doctoral institutions, in particular. AAUP’s reported faculty salary data shows a persistent pattern of wage inequality between male and female university and college professors. As AAUP’s most recent Report on the Economic Status of the Profession concludes, “[W]omen remain underrepresented at the most senior and highest paying posts, and their aggregate position has barely budged in ten years. A great deal of work remains in the quest for equity and inclusion in higher education.” Professor Freyd’s individual claim of wage discrimination should be evaluated within this broader context of higher education, including the persistence of gender-based inequities. . . .

This amicus brief argues that the standards and principles of the academic profession as defined by AAUP should inform the interpretation of “equal work” under the EPA [Equal Pay Act] and the “work of comparable character” standard under the Oregon equal pay law. . . .  Colleges and universities across the US, including University of Oregon (“UO”), have adopted AAUP’s definitions of faculty work and thus have established the relevant standards of the academic profession – namely that the common core of faculty job duties are teaching, research, and service. Further, AAUP and the academic profession define “academic freedom” as an essential working condition that enables faculty to carry out their common core job duties of teaching, research, and service.

The district court erred in finding that Professor Freyd could not prove a prima facie case of “equal work” under the EPA or “work of comparable character” under the Oregon equal pay law. The court failed to evaluate faculty work within the standards of the academic profession that define faculty core job duties as being teaching, research, and service. Further, the district court based its conclusion on its erroneous view that academic freedom enables faculty to “change their job duties” or “‘remake their job.’”  Academic freedom does not enable faculty to create different jobs with unequal work. Rather, academic freedom is a unifying condition of employment for faculty, which enables them to carry out their common core of job duties of teaching, research, and service. The district court’s misuse of academic freedom to justify sex-based wage inequality would make it virtually impossible for faculty to bring a successful prima facie case of “substantially equal work” under the EPA or “work of comparable character” under the Oregon equal pay law. . . .

Argument

The wage disparity in Professor Freyd’s case is an example of the ongoing gender-based salary inequalities in the academic profession, generally, and for women full professors in doctoral institutions, in particular. Professor Freyd’s individual claim of wage discrimination, therefore, should be evaluated within the broader context of persistent gender-based inequities in higher education.

Academic institutions across the country have adopted policies meant to foster equality and inclusiveness among the faculty, staff, and student body. Yet, a persistent wage gap between male and female faculty members is evident in both public and private institutions and across disciplines. These pay disparities are widespread and fall within a larger pattern of gender-based wage differentials found in the wider labor market —a subject of Congressional concern since at least the 1940s. After decades of failed attempts to pass legislation curbing unequal pay in American workplaces, Congress amended the Fair Labor Standards Act in 1963 by passing the Equal Pay Act, a law designed to correct a centuries old problem of gender-based wage discrimination in the labor market. One year later, Congress passed Title VII of the Civil Rights Act of 1964 to address discriminatory employment practices that are based on factors including “sex.” Until then, few laws explicitly dealt with the myriad forms of discrimination against female workers across the economy. More common were “protective” labor laws restricting women’s freedom to work in certain professions, establishments, and at certain hours. Turning its attention to education, Congress passed Title IX of the Education Amendments Act of 1972 prohibiting gender-based discrimination in educational institutions that receive federal funds.

Long before these laws were enacted, however, AAUP had registered its concern about discrimination against women in the academy and in 1918 established the Committee on Women in the Academic Profession (Committee W). Since the late 1970s, AAUP has been collecting gender-specific faculty salary data that shows a persistent pattern of wage inequality between male and female university and college professors. Investigations into various issues adversely affecting female faculty have resulted in AAUP standards and principles for sound academic policies relating to discrimination, family responsibilities and academic work, partner accommodations and dual career appointments, faculty child care, and sexual harassment. In its report, AAUP Faculty Gender Equity Indicators 2006, AAUP concluded that “women face more obstacles as faculty in higher education than they do as managers and directors in corporate America.”

AAUP publishes annual reports on the economic status of the profession. The AAUP 2018-2019 annual report explains the continuing gender-based salary inequities over the last ten-year period:

[S]alaries for women faculty members continue to lag behind those of men. On average, women in full-time faculty positions were paid 81.6 percent of the salaries of men in full-time positions during the 2018–19 academic year. That figure stood at 80.8 percent in the analogous table from 2008–09. The AAUP has been tracking gender differences in salary since the mid-1970s, and the progress toward equity has been exceedingly slow.

The AAUP 2018-2019 report explains that gender-based inequality is particularly pronounced at doctoral universities. “The proportion of women who are full professors increased only slightly over ten years, primarily because of their continuing underrepresentation at that rank in doctoral universities.” Salary inequity “is highest (nearly 11 percent) for women full professors at doctoral universities, where both the salaries and the numbers of faculty are the highest.”

The 2018-2019 report concludes:

In sum, the post recessionary years have brought continued slow progress toward gender equity within the full-time faculty. Yet women remain underrepresented at the most senior and highest paying posts, and their aggregate position has barely budged in ten years. A great deal of work remains in the quest for equity and inclusion in higher education. . . .

Amicus AAUP urges this Court to consider the widespread endorsement and use of AAUP standards and principles that define the work of faculty. Universities and colleges broadly recognize AAUP as the authoritative source for the standards of the profession of faculty in higher education. Here, the definition of “equal work” or “substantially equal work” must consider the policies and practices of the college or university involved in the case, as well as the standards and principles of the academic profession more broadly.

The AAUP 1940 Statement of Principles on Academic Freedom and Tenure (“1940 Statement of Principles”) has been endorsed by the Association of American Colleges and Universities and, over subsequent decades, by more than 250 academic professional organizations and institutions. Since 1940, colleges and universities across the country, including UO, have adopted AAUP’s definitions of faculty work and thus have established the relevant standards of the academic profession —namely that the common core of faculty job duties are teaching, research, and service. Further, the academic profession defines “academic freedom” as an essential working condition that enables faculty to carry out their common core job duties of teaching, research, and service. As stated in the 1940 Statement of Principles, “Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning.”

These standards of the academic profession as defined by AAUP should inform the interpretation of “equal work” under the EPA. The EPA does not require proof of identical work. Rather, the EPA requires equal pay for “substantially equal work,” which is what faculty members do in their core job duties of teaching, research, and service. This is consistent with the judicial standard that defines “substantially equal” work based on a “common core” of tasks, along with a determination of whether any additional job duties make two jobs “substantially different.” . . .  The fact that faculty teaching, research, and service entail a variety of courses, research methods/projects, and service activities does not make the work substantially different. The variety in teaching, research, and service activities from year to year is an inherent characteristic of the common core job duties of faculty. . . .

In 1993, AAUP’s Committee on Teaching, Research, and Publication issued a report, The Work of Faculty: Expectations, Priorities, and Rewards, to “assess the current state of public discussion regarding the duties and obligations of the professoriate.” The report clarified “the roles of teaching, scholarship, and service for faculty, their institutions, and the public welfare.” In describing the work of faculty, the report emphasizes the unified and integrated nature of the faculty job duties of teaching, research, and service:

Faculty workload combines teaching, scholarship, and service; this unity of components is meant to represent the seamless garment of academic life, and it defines the typical scholarly performance and career . . . . All of these are vital components of the work of faculty. Ideally they reinforce each other . . . .

The report further describes faculty “workload” as the “total professional effort, which includes the time (and energy) devoted to class preparation, grading student work, curriculum and program deliberations, scholarship (including, but not limited to, research and publication), participation in governance activities, and a wide range of community services, both on and off campus.”

The 1993 AAUP report also explains that carrying out the core duties of teaching, research, and service entails a diverse range of potential activities. Teaching, “a basic activity of the professoriate,” includes classroom and laboratory instruction, academic advising, and training graduate students in individualized research. Research includes “discovery and publication,” as well as “a broader concept of scholarship that embraces the variety of intellectual activities and the totality of scholarly accomplishments.” Service, “an important component of faculty work,” includes work on the curriculum, shared governance, academic freedom, and peer review “as contributions to the shaping and building of the institution.”

Thus, AAUP standards and principles accepted by universities and colleges describe the common core duties of teaching, research, and service, emphasizing the unified and integrated nature of these components, including the mutually reinforcing nature of these core duties. At the same time, faculty members do not perform identical work. The core duties of teaching, research, and service may be carried out through a variety of teaching, research, and service activities. Indeed, individual faculty members will not perform identical work from one year to the next, as they teach various courses, initiate new research projects, or become involved in different service activities. The standards and principles of the academic profession include the expectation that teaching, research, and service workloads will go up or down for individual faculty members from year to year, depending on factors such as departmental teaching needs, changes in levels of research funding, or institutional service needs.

It is also the norm that faculty members move in and out of administrative roles, for example, as chair of a department or director of an institute for some period. While taking on such an administrative role, the faculty member will continue to engage in the core faculty job duties of teaching, research, and service. In some instances, an administrative role as department chair or institute director may be considered part of the service obligations of a faculty position. In recognition of the additional time entailed in carrying out such administrative roles during that period, the faculty member may teach fewer courses or receive an additional stipend. Filling the administrative role, however, does not alter the common core of faculty members’ job duties in teaching, research, and service. Moving in and out of positions such as department chair or research institute director is simply an expected and normal part of being a faculty member.

. . . the UO Psychology Department’s policies and practices are consistent with the standards of the academic profession in defining the common core duties of teaching, research, and service and academic freedom to carry out those duties. Professor Freyd and the comparator full professors in the department do not perform identical work. They do perform “substantially equal work” and “work of comparable character” by carrying out their common core duties through a variety of teaching, research, and service activities, as is the norm in the academic profession.

The district court erred in finding that Professor Freyd could not prove a prima facie case of “equal work” under the EPA or “work of comparable character” under the Oregon equal pay law. The court failed to evaluate faculty work within the standards of the academic profession that define faculty core job duties as being teaching, research, and service. Further, the district court erred in describing academic freedom as enabling faculty to “change their job duties” or “‘remake their job.’” The district court used its inaccurate definition of academic freedom to conclude that Professor Freyd could not prove her prima facie case of “work of comparable character” under the Oregon equal pay law. By extension, the court concluded that Professor Freyd could not prove a prima facie case under “the stricter ‘substantially equally and similarly situated’ test required by the [federal] Equal Pay Act.”

The district court’s analysis fails to understand that academic freedom is an essential condition of the core job duties of faculty teaching, research and service. Academic freedom does not enable faculty to create different jobs with unequal work. Rather, academic freedom is a unifying condition of employment for faculty, which enables them to carry out their common core of job duties of teaching, research, and service. Academic freedom enables faculty to experiment with different teaching and research methods, teach new courses, explore new research ideas, and take on service activities that respond to the needs of the department or university.

The district court’s misuse of academic freedom to justify sex-based wage inequality threatens irreparable damage to academic freedom, the EPA, and the Oregon equal pay law. Academic freedom is a condition of employment that all faculty hold in common to enhance their ability to engage in teaching, research, and service. It is not a weapon to be wielded as a justification for gender-based inequalities. Further, the court’s misapplication of academic freedom would
make it virtually impossible for faculty to make a successful prima facie case of “substantially equal work” under the EPA or “work of comparable character” under the Oregon equal pay law. Applying the district court’s analysis would mean that faculty at the same rank and in the same department do not engage in “substantially equal work” or “work of comparable character” anytime they teach different courses, pursue different research projects, use different research methodologies, or serve on different departmental service committees. This analysis flies in the face of reason and is inconsistent with federal and state equal pay legal standards. Certainly, Congress did not intend to exclude an entire profession from the gender equality requirements of the EPA. Rather, applying the Supreme Court’s approach in Corning Glass, the federal “substantially equal work” and state “comparable work” standards should be interpreted consistently with the standards of the academic profession. . . . .