9th Circuit Oral Argument Held in Important Equal Pay Act Case
By Julie Gafkay, IANGEL Director
May 16, 2020
On May 12, 2020, the US Court of Appeals for the Ninth Circuit heard oral arguments in the case of Freyd v. University of Oregon, et al. While oral argument was scheduled to take place in Portland, Oregon at the Pioneer Courthouse, it was actually conducted by videoconference, due to COVID-19. The live streaming of the argument provided an opportunity for those interested to view oral arguments from their own homes. The Freyd case involves important legal issues under the Equal Pay Act.
The case was brought by Jennifer Freyd, a Professor in the Psychology Department at the University of Oregon. Professor Freyd brought suit under the Equal Pay Act, among other claims, because she was paid substantially less than her male colleagues in the same department who held the same position, with less seniority and had no more accomplishments than her. Studies conducted within the Psychology Department demonstrated pay inequity at full professor level, attributed primarily to retention raises given to professors who pursued outside offers of employment. The increases in pay to retain professors had a disparate impact on women who were less likely to seek employment elsewhere, which would typically require relocation. The District Court disagreed and dismissed the case holding Professor Freyd and her male colleagues did not perform equal work and the retention raises did not create a disparate impact on female professors. The case was appealed to the US Court of Appeals for the Ninth Circuit. IANGEL joined 47 other organizations as amici curiae in support of Professor Freyd.
The case was heard before the Honorable Jay S. Bybee and Lawrence VanDyke of the Ninth Circuit and the Honorable Kathleen Cardone, sitting by designation, from the US District Court, Western District of Texas. Appearing on behalf of Professor Freyd (Appellant) was her counsel, Jennifer Middleton, with amici counsel from Equal Rights Advocates, Jennifer A. Reisch. Counsel for Appellant were heavily questioned by the Honorable Lawrence VanDyke on whether positions such as full time Professor are so unique as to be too difficult to show substantially equal work. In response amici counsel argued substantially equal work should be broadly interpreted to capture the purpose of the Equal Pay Act, which is to eradicate the practice of paying women less, simply because they are women. Amici counsel further argued the Court should look at the overall job content to determine whether positions are substantially equal for purposes of the Equal Pay Act.
Counsel for the University of Oregon (Appellee), upon being questioned by Judge Bybee, disputed the implication of Appellant’s argument that women move less which causes fewer pay increases. Counsel for the University further argued there was no admissible evidence that women are not able to seek employment outside the University and get retention raises. In rebuttal argument, amici counsel concluded, saying the facts in this case show sex discrimination.
Update: On March 15, 2021, the United States Court of Appeals for the Ninth Circuit reversed the district court’s grant of summary judgment, finding genuine issues of material fact on the Plaintiff’s Equal Pay Act and disparate impact claims under Title VII. Professor Freyd’s case will now be remanded to the District Court where she will be permitted to pursue these claims.
Further reading:
“IANGEL Joins Amicus Brief to Support Equal Pay”
in our Network News
Recording of Livestreamed Argument
Audio and video
Case Name: Jennifer Freyd v. University of Oregon, et al.
Case Number: 19-35428