Ninth Circuit applies broad standard for equal work

The U.S. Ninth Circuit Court of Appeals recently ruled that differences in pay for men and women in jobs that share a “common core of tasks” may trigger liability under the federal Equal Pay Act (EPA) and a similar Oregon state law that was in effect until January 1, 2019. A female psychology professor at the University of Oregon said her pay was lower than that of comparable male colleagues in the psychology department. The university justified its decision by pointing out differences in funding, types of research, and centers they oversee, but the court said a jury could find that they perform the same overall job. The professor also presented evidence that the university’s practice of granting “retention raises” to faculty who were courted by other institutions resulted in a gender disparity in pay, because few women negotiated for such raises and even fewer were successful in their negotiations. The professor alleged this practice resulted in a disparate impact on women, which violated Title VII of the Civil Rights Act. The court said a jury should look at the whole picture and resolve the professor’s claims (Freyd v. University of Oregon, 9^th Cir, March 2021).

Tips: If an employee asks for a raise, it’s wise to evaluate not only that individual request, but whether you should consider pay equity adjustments for comparable coworkers. Legislatures in California, Oregon, and Washington have passed aggressive expansions to their equal pay laws in the last few years. Compared to the federal EPA, these new state laws cover more protected statuses, allow comparisons of a wider range of jobs, and make it harder for employers to prove they had a nondiscriminatory reason for differences in pay. For more information, see our Legal Guide, Equal Pay: Avoid the Pitfalls.