Attorneys representing psychology professor Jennifer Freyd and the University of Oregon argued their cases to the 9th U.S. Circuit Court of Appeals on May 12. Freyd’s lawyers argued that the pay discrimination lawsuit against UO should not have been dismissed by the U.S. District Court last May, while UO’s attorneys defended the court’s decision.
The arguments at Tuesday’s hearing largely revolved around what constitutes “substantially similar work.” According to the Equal Pay Act, one of the laws under which the case is filed, wage discrimination is prohibited among men and women who perform jobs that “require substantially equal skill, effort and responsibility.”
The hearing was the latest step in a case that has been in litigation for more than three years. Freyd initially filed suit against UO in March 2017 when she analyzed pay within the Psychology Department and found she earned less than her male counterparts of the same or lower positions.
In a statement issued through her attorney, Freyd called the difference in pay over her career “demoralizing and humiliating.” Freyd also said, “As someone who has reached a certain level of professional achievement, I feel a sense of responsibility to speak the truth of my experience.”
Saul Hubbard, a representative of the university, said in a statement to the Daily Emerald that Freyd’s salary “is different from the professors she selected as comparators because they do different things.”
Related: “Psychology professor appeals dismissal in equal pay lawsuit with UO”
Jennifer Middleton, Freyd’s attorney, argued that the U.S. District Court should have allowed the case to be heard by a jury, who would in turn have decided if tenured professors within the same department conduct substantially similar work.
Paula Barran, who argued for UO, said that because one of the requirements for professors to receive tenure is that they contribute to their field of study in a unique way. Therefore, the work of any two tenured professors is not directly comparable.
Further, UO’s attorney argued that factors other than sex contributed to pay differences. One such factor is retention raises, pay increases professors may request if another institution is trying to recruit them away from UO. Freyd had never requested such a raise, according to court documents.
In response to the university’s argument that tenured professors couldn’t be compared because of their unique roles, Middleton cited a 1985case wherein the Court of Appeals ruled that a transit coordinator performed substantially similar work to a sewer plant superintendent and other, in that all were employed by the city in supervisory positions. Freyd’s attorney argued that the case set the precedent that work didn’t have to consist of the same tasks to warrant equal pay.
The three appeals court judges will decide the fate of Freyd’s case. If they side with Freyd’s argument, the case will return to the district court for trial. Otherwise, Freyd’s only recourse will be appealing for a rehearing or Supreme Court review — both of which are rarely successful.
University of Oregon Psychology Professor Jennifer J. Freyd. (Courtesy of Jennifer Freyd)