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.
