Prejudice, Discrimination, and Intentionality - December 2021 Update

On 15 March 2021 the Ninth Circuit revived my lawsuit, setting good precedent with their decision.  In July I accepted a $450,000 settlement from the University of Oregon.  There were numerous press reports about both of those developments

All this is documented here: https://www.jjfreyd.com/equalpay

On 16 December 2021, Law360 published an interview I provided regarding my thoughts about the case.  I am excerpting here only some of my words.  For the full published report go to:

Prof. In Equal Pay 9th Circ. Win Talks Equal Work, Case Toll, by Daniela Porat, Law360, 16 December 2021.

The Law360 article is behind a paywall.  You may be able to access the article through a university or employer or organizational subscription.  Or you can request to purchase a subscription. Currently Law360 indicates they allow a free 7-day trial subscription.  Also they included this statement with the article:  "For a reprint of this article, please contact reprints@law360.com."  

I am excepting only my own comments here.  In the published article my answers were presented in response to five questions.  I have included here my answers to three of those five questions and I have put in bold those comments that I feel are the most central to my experience with this case.

1. In response to a question about the district court's conclusion that I did not perform substantially similar work as your male colleagues, I said:

People are very good at rationalizing discrimination.

I don't feel he recognized me for the eminent person I was. When he compared me to these men, I think this was fundamentally a problem because he clearly recognized them as superstars.

One of the things in his opinion said … something like I am a good scholar and an excellent teacher. And I read that I thought, who is [the district judge] writing about? It sounded like a stereotype of women to me that I'm a good scholar and an excellent teacher when the two adjectives were completely mixed up. I'm a good teacher. … I'm an excellent researcher.

In the decision there was a comment that I had more than 30 publications. This is a highly, highly misleading thing to say … You don't say about someone who has over 200 publications she has more than 30. … [It] painted a different picture of who I am.

The university's lawyer painted a case of these men doing research that sounded like real science because they used big machines and measured bodily fluids. Those words … to some extent got picked up in the opinion.

That's not how science works. ... You judge based on, "Is the method in which you collect data appropriate for the scientific question?" … There's no sense in which it's harder or more important or anything else to measure some spit in someone's mouth than interviewing somebody who's been raped. I mean, other than sexism.

2. In response to a question about the role of retention raises on pay inequity I said:

The data are clear that retention raises are gendered in that men are more willing to seek them, more likely to be able to receive them and employers are more willing to respond with retention offers. [Note added: See this analysis for instance.]

I can understand why you might want to be responsive to outside offers if you want to retain somebody. Fine. But then you have a process to adjust equity in the aftermath.

It is similar to asking people about their prior salaries in that what you're really doing is letting marketplace discrimination justify your own repeated discrimination.

3. In response to a question about what contribution my case made to equal pay rights for women I said:

My perspective here is not as a lawyer, but just a person trying to get paid fairly.

It is my impression that the way the Equal Pay Act law was written has allowed judicial interpretations that I would say are overly narrow … It has made it harder for women to use the Equal Pay Act to get equal pay. Some states have recognized this by creating their own laws that use clearer language about how the comparison should be a broader concept.

I think [the decision helped] establish that the Equal Pay Act does apply to women in professions or jobs that are not, almost in a superficial sense, exactly, exactly the same. I don't even know what those jobs are, maybe like two bus drivers on the same bus route … Most jobs probably are not like that.

The other thing was the disparate impact part. … Intentions matter, but what matters even more is the impact of one's actions and that it's still discrimination even if the particular mechanism wasn't designed consciously to be discriminatory.

I know legally there's this idea that somehow things are unintentional or intentional, but psychologically, I think there's all these other combinations. … What I wish is that we understood intentionality with a little more nuance. And we said once there is a disparate impact, if it's not corrected in a timely manner, that is intentional.

January 2021 Updates

January 5 - The correspondence posted here is referenced in this Open Letter to the University of Oregon Board of Trustees.

January 13- Now there is an “Open letter to the University of Oregon Board of Trustees in support of Dr. Jennifer Freyd and gender equity in the Department of Psychology” from Professor Holly Arrow and 69 co-signers

January 18 - An article about this situation is published:  Between a Lawsuit and Retirement, by Colleen Flaherty, Inside Higher Ed, 18 January 2021. 

January 19 - The UO GC conveys that the UO has had a change of heart. I then told my colleagues that The University of Oregon let me know that it has decided to alter the Early Retirement Incentive Program (ERIP) waiver requirement to exclude from any release any claims that are actively being litigated as of the time the ERIP program was initiated.  This means I can participate in the retirement program without having to drop my gender discrimination lawsuit.  I am appreciative of the UO for making this change and I am particularly grateful to my colleagues and supporters in the psychology department and beyond.  Together we will pursue equity and justice.

January 21 -  U of Oregon Will Allow Professor Suing It to Retire, by Colleen Flaherty, Inside Higher Ed, 21 January 2021.

President Schill to Jennifer Freyd on 21 December 2020

From: Mike Schill
Sent: Monday, December 21, 2020 1:20 PM
To: Jennifer Freyd
Subject: RE: From Jennifer Freyd to Mike Schill

Dear Jennifer,

Thank you for this email.  As I did with your prior email, I am going to refer this to our Office of Investigations and Civil Rights Compliance since it contains allegations of discrimination.  

As you know, we are currently in the midst of litigation concerning some of the matters that you reference in your email.  On the advice of my legal counsel I do not feel that it is appropriate for me to address the substance of your email.

I wish you and  your family a great holiday and I hope that next year will be a year of happiness and good health for you and them.

Best,

Mike

Michael H. Schill
President and Professor of Law
University of Oregon

Jennifer Freyd to President Schill on 17 December 2020

From: Jennifer Freyd
Sent: Thursday, December 17, 2020 2:49 PM
To: 'Mike Schill'
Subject: RE: From Jennifer Freyd to Mike Schill

Dear Mike,

Thank you for your reply to my email regarding the 2021 retirement incentive.  You write that you would like me to "be treated the same as any other faculty member who is eligible to participate in the program."

I’m heartened by your wish.  At the same time, I ask you to appreciate that this stated wish rings hollow for me. I have been asking for decades to be paid “the same as” male psychology faculty of my rank.  Now the UO defends itself in federal court for paying me less than the men by claiming that I am not “the same” – that I have a “different” job.  I am curious how one would justify a stated desire to treat me “the same” on this occasion, but not in regard to my salary.

Unfortunately, despite your wish that I be treated “the same” regarding the retirement incentive, that is not at all what is occurring. No other UO faculty member, as far as I know, is being forced to choose between taking the retirement incentive and continuing a civil rights lawsuit that has been in court for years. 

I will return to the specific topic of how I am being singled out, but first it is important to note that there is nothing “the same” about offering each faculty member a different amount of money to retire. This is precisely how the 2021 incentive works, given that a year’s salary varies greatly among faculty.  I understand you are applying “the same” formula to each eligible faculty member but it is a formula that creates different incentive packages for each faculty member and that increases compensation inequalities and inequities.  You could instead have offered each eligible employee a flat amount that is “the same” across employees. Some other universities are taking this approach with their retirement incentive packages.

Second, the civil rights release requirement is not equitable.  I trust you are aware of the difference between equality and equity, because this is such an important distinction for leaders who care about reducing discrimination and inequity. Ending discrimination requires both meeting the specific needs of the disadvantaged (e.g. wheelchair ramps, progressive taxation, reparations, and affirmative action) and ultimately removing the barriers that create that disadvantage (concepts captured by this meme: https://www.diffen.com/difference/Image:Equality-equity-justice-lores.png ).  The civil rights release requirement has profoundly different implications for people who are already discriminated against versus those who are not.  The victims of discrimination are being asked to choose between their right to pursue justice in court versus take the incentive.  Those who are privileged are not forced to make such a choice.  This is inequitable.  An equitable policy would, at a minimum, allow people to pursue their civil rights without having to forego a benefit otherwise available to them.

Returning to the impact of the program on me, the specific requirement to release claims already in court is uniquely injurious to me. One needs a comparator for something to be the "same as.” The fact that the rules regarding on-going lawsuits only impact me means at a practical level that any rule pertaining to on-going lawsuits is necessarily targeted at me.  There is no meaning to “the same” when you have an n of 1.    But there is real meaning to be targeted. 

Fortunately, as the releases are not to be signed by anyone for some time, you can still fix this harmful stance. The release required by the university can be revised to exclude civil rights claims, limited to new cases, or revised to be specific to claims associated with the incentive program itself. Such a change would still satisfy your stated desire that all be treated “the same.” 

In summary, the 2021 retirement incentive in fact violates your stated desire of equality (given different employees are offered different amounts of money) and even more egregiously violates equity (given the differential meaning of the release for victims of discrimination).  Indeed the program increases inequality and inequity.  This is not a move toward a university sincerely attempting to reduce inequality, inequity, or discrimination.  In addition to these general problems with the policy, it is particularly injurious to me. Due to my unique circumstance – my status as an n of 1 – unless you revise the release requirement, it would require I drop an ongoing civil rights lawsuit in order to get a retirement benefit to which I would otherwise be eligible.  This creates for me a harmful new experience at the UO of inequity.  It is a new injury.  No other UO employee is being injured or retaliated against in this way.

Changing the approach to the release requirements of the retirement incentive to alleviate these problems is an opportunity available to you now to promote equity at the University of Oregon, an opportunity which I hope you will take.  As you consider taking this opportunity to move toward equity for the benefit of the University, I specifically ask you as our university’s leader and a member of our faculty to let me know: If I do not drop my lawsuit will the university — your university— deny me my right to receive the 2021 retirement benefit?  

Jennifer

Jennifer J. Freyd, PhD
Professor of Psychology, University of Oregon
Editor, Journal of Trauma & Dissociation
Affiliated Faculty, Women's Leadership Lab, Stanford University
Founder and President, Center for Institutional Courage

President Schill to Jennifer Freyd on 14 December 2020

From: Mike Schill
Sent: Monday, December 14, 2020 1:58 PM
To: Jennifer Freyd
Subject: RE: From Jennifer Freyd to Mike Schill

Dear Jennifer, 

I appreciate your reaching out to me and I hope that you are doing well during these difficult times. 

Thank you for sharing your information about the recent department analyses regarding pay equity.  I will forward your email to the Office for Investigations and Civil Rights Compliance for that group’s review.  I want to ensure that it has a full opportunity to consider the concerns you have raised and can evaluate it with the methodology the University has adopted in compliance with Oregon’s recent statutory changes on compensation.  Thank you for bringing this to my attention.

Second, I do understand and sympathize that the decisions whether to accept the early retirement incentive are complicated, and particularly so in your individual situation.  It is, of course, my expectation that you be treated the same as any other faculty member who is eligible to participate in the program, and it is my understanding that human resources and legal counsel are doing so.  Given the pending litigation, I believe it best to leave such conversations to counsel. In the meantime, I will reiterate my expectations with human resources that you have the information you personally need to make the right decision for yourself. 

Best wishes for the holidays.

Mike

Michael H. Schill
President and Professor of Law
University of Oregon

Jennifer Freyd to UO President Schill on 11 December 2020

From: Jennifer Freyd
Sent: Friday, December 11, 2020 11:58 AM
To: Mike Schill
Subject: From Jennifer Freyd to Mike Schill

Dear Mike,

I am writing to ask you to reconsider a decision that was relayed to me denying me my right to both pursue justice and take part in a retirement incentive program recently offered to all eligible faculty.

As you know, in 2014 I discovered a statistically significant gender pay inequity for full professors in the department of psychology.  As the pay inequity grew with seniority, I also saw that I was particularly impacted.  I immediately took this to department leadership.  Over the next two years we discussed these issues in the department.  There was no meaningful dispute about the salary facts nor that it was a concern.  Indeed, the department put into its own written self-study document information about a substantial pay inequity that needed to be remedied. This information was then also raised by an external review committee.  By late summer 2016 my dept head wrote to the deans at CAS expressing concern over the gender pay inequity, particularly as it impacted me, and asked that it be address.  I was called into a meeting with the deans in January 2017 in order to be told that the department head’s request was denied.  In March of 2017 I filed a lawsuit in federal court over the pay inequity.  In May of 2019 the district court granted the UO’s motion for summary judgment, primarily on the grounds that my job was “different” than that of the men paid more than me. 

Because this decision struck me as a miscarriage of justice both for me and other women (including the UO’s own students and faculty), I appealed to the Ninth Circuit.  I was not the only person who considered the decision an error that would potentially cause harm to many people.  The AAUP filed an amicus brief in support of my appeal.  Forty-eight other organizations signed a second amicus brief in support of my appeal.  A hearing was held at the Ninth Circuit in May 2020 and we are waiting for a ruling.  This case has profound implications for me and many other women.

I want to make sure you know that the Department of Psychology has recently distributed among faculty a report of current equity considerations, concluding that there remains a substantial pay inequity for full professors in the department. The report indicates: “there are substantial gender differences among associate professors (7.4-8.1k) and full professors (16.8-17.5k) favoring males.” This new report was written more than 4 years after the department head’s 2016 letter to the deans about such a situation.  It appears the pay inequity in psychology has not been corrected at all by the university.

I am not the only one impacted by this discrimination – numerous other women are impacted – but as the most senior woman the pay discrepancy for me versus what the regression line indicates I would be paid as a man is particularly pronounced.  The department head provided several graphs that I am pasting here.  Whether the department looks at pay by years since PhD --

Or pay by years in rank –

 

 

 

 

 

 

 

 

 

 

 

the department head’s graphs make clear that I am paid $45,000 to $60,000 less in gross salary than would be expected by the regression line for men.  (There is in addition the substantial loss toward my retirement contributions.)

While waiting for the Ninth Circuit decision, I received an email on November 16 offering me a financial package in exchange for my retiring from the UO in June of this year.  As the UO’s continued unwillingness to pay me fairly creates an extremely unwelcoming environment for me, I would consider the retirement incentive . When I next inquired to HR about the specific terms of the retirement agreement, I was directed to a website with an example agreement letter that included a release on all claims against the UO. 

Unsure if this would include my current litigation, I requested through my attorney that my current litigation be explicitly excluded from a general release that I was otherwise willing to sign.  My request was flatly denied.

I was shocked by this as the required release feels to me both discriminatory and retaliatory.  Discriminatory because releasing civil rights claims clearly is going to have more impact on women and other individuals who are more likely to have been discriminated against than on more privileged individuals.  Retaliatory because as far as I know I am the only faculty member at the UO with a civil rights suit in court. 

The message of the UO’s stance to date is clear:  if you pursue your civil rights in court, you will be denied benefits that others are provided.  Mike, to me this is tantamount to saying: “Jennifer drop your lawsuit now or lose your early retirement benefit.” Not only is the denial decision harmful to me, it is harmful to all women at the UO. Ultimately this denial will be harmful to the institution itself.

I am writing to you now asking you to reconsider this decision in the name of justice and for the good of the University of Oregon and its many women students, faculty, and staff. 

Jennifer

Jennifer J. Freyd, PhD
Professor of Psychology, University of Oregon
Editor, Journal of Trauma & Dissociation
Affiliated Faculty, Women's Leadership Lab, Stanford University
Founder and President, Center for Institutional Courage