Jennifer Freyd v. University of Oregon ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIFER JOY FREYD, No. 19-35428
Plaintiff-Appellant,
D.C. No.
v. 6:17-cv-00448-
MC
UNIVERSITY OF OREGON; MICHAEL
H. SCHILL; HAL SADOFSKY,
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted May 12, 2020
Portland, Oregon
Filed March 15, 2021
Before: Jay S. Bybee and Lawrence J. VanDyke, Circuit
Judges, and Kathleen Cardone,* District Judge.
Opinion by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge VanDyke
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
2 FREYD V. UNIVERSITY OF OREGON
SUMMARY**
Employment Discrimination
The panel reversed in part and affirmed in part the district
court’s grant of summary judgment in favor of the University
of Oregon and other defendants in an action brought by a
professor under the Equal Pay Act, Title VII, Title IX, and
Oregon law.
Jennifer Freyd, a Professor of Psychology, alleged that the
University paid her several thousand dollars less per year than
it paid four of her male colleagues, despite their being of
equal rank and seniority.
Reversing the district court’s summary judgment on the
Equal Pay Act claim, the panel held that on such a claim, the
plaintiff has the burden of establishing a prima facie case of
discrimination by showing that employees of the opposite sex
were paid different wages for equal work. The plaintiff must
show that the jobs being compared (not the individuals
holding the jobs) are substantially equal. The panel
concluded that, viewing the evidence in the light most
favorable to Freyd, a reasonable jury could find that she and
her comparators performed a common core of tasks and did
substantially equal work.
Declining to certify questions to the Oregon Supreme
Court, the panel reversed the district court’s summary
judgment on Freyd’s claim under Or. Rev. Stat. § 652.220,
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FREYD V. UNIVERSITY OF OREGON 3
which prohibits employers from paying wages to any
employee “at a rate less than that at which the employer pays
wages to employees of the opposite sex for work of
comparable character, the performance of which requires
comparable skills.” Under Oregon law, “comparable work”
is a more inclusive standard than equal work, and requires
that the two jobs “have important common characteristics.”
The panel concluded that Freyd raised a genuine issue of
material fact under § 652.220 for the same reasons she did so
under the Equal Pay Act.
The panel reversed the district court’s summary judgment
on Freyd’s disparate impact claim under Title VII. The panel
held that to make a prima facie case of disparate impact, a
plaintiff must show that a facially neutral employment
practice has a significantly discriminatory impact on a group
protected by Title VII. The plaintiff must also establish that
the challenged practice is either not job related or is
inconsistent with business necessity. Even if the practice is
job related and consistent with business necessity, though, the
plaintiff may still prevail by showing that the employer
refuses to adopt an available alternative practice that has less
disparate impact and serves the employer’s legitimate needs.
The panel concluded that, first, Freyd challenged a specific
employment practice of awarding retention raises without
also increasing the salaries of other professors of comparable
merit and seniority. Second, she put forth evidence that this
practice caused a significant discriminatory impact, and a
reasonable jury could find that her statistical analysis showed
a prima facie case of disparate impact. The panel agreed with
the Seventh Circuit that where a sample is small but the
results nevertheless indicate a disparity, the granting of
summary judgment in favor of the defendant is premature.
4 FREYD V. UNIVERSITY OF OREGON
The panel further held that the University did not establish a
business necessity defense as a matter of law.
The panel affirmed the district court’s summary judgment
on Freyd’s claims for disparate treatment under Title VII and
her claims under Title IX, Or. Rev. Stat. § 649A.030, and the
Oregon Equal Rights Amendment.
Dissenting in part and concurring in part, Judge VanDyke
wrote that the district court’s judgment on all claims, except
Freyd’s Or. Rev. Stat. § 652.220 claim, should be affirmed.
Judge VanDyke wrote that the market-driven practice of pay
disparities based on retention raises does not violate federal
and Oregon laws prohibiting sex discrimination.
COUNSEL
Jennifer J. Middleton (argued) and Caitlin V. Mitchell,
Johnson Johnson Lucas & Middleton PC, Eugene, Oregon;
Whitney Stark, Albies & Stark LLC, Portland, Oregon; for
Plaintiff-Appellant.
Paula A. Barran (argued), Shayda Zaerpoor Le, and Donovan
L. Bonner, Barran Liebman LLP, Portland, Oregon, for
Defendants-Appellees University of Oregon and Hal
Sadofsky.
Cody M. Weston (argued), Stephen F. English, and Nathan R.
Morales, Perkins Coie LLP, Portland, Oregon, for
Defendant-Appellee Michael H. Schill.
FREYD V. UNIVERSITY OF OREGON 5
Jennifer A. Reisch (argued), Equal Rights Advocates, San
Francisco, California; Kelly M. Dermody and Michelle A.
Lamy, Lieff Cabraser Heimann & Bernstein, San Francisco,
California; for Amicus Curiae Equal Rights Advocates,
47 Organizations, and 57 Professors.
Glenn Rothner, Rothner Segall & Greenstone, Pasadena,
California; Risa Lieberwitz, Donna Young, Aaron Nisenson,
and Nancy Long, American Association of University
Professors, Washington, D.C.; for Amicus Curiae American
Association of University Professors.
OPINION
BYBEE, Circuit Judge:
Jennifer Freyd is a Professor of Psychology at the
University of Oregon (“the University”). Although she is a
well-recognized academic and pioneer in trauma studies, the
University pays Freyd several thousand dollars less per year
than it does four of Freyd’s male colleagues, despite their
being of equal rank and seniority. Freyd alleges that this
gender disparity in pay is department wide and is caused by
the University’s practice of granting “retention raises” to
faculty as an incentive to remain at the University when they
are being courted by other academic institutions. She further
claims that female professors at the University of Oregon are
less likely to engage in retention negotiations than male
professors, and when they do, they are less likely to
successfully obtain a raise.
Freyd sued the University alleging violations of, inter
alia, the Equal Pay Act, Title VII, Title IX, and Oregon law.
6 FREYD V. UNIVERSITY OF OREGON
The district court granted summary judgment in favor of the
University on all counts, finding that Freyd had failed to raise
any genuine issue of material fact. Freyd v. Univ. of Or.,
384 F. Supp. 3d 1284 (D. Or. 2019).
We reverse in part and affirm in part.
I. FACTUAL AND PROCEDURAL HISTORY
A. Professor Freyd
Jennifer Freyd is a Professor of Psychology at the
University of Oregon.1 She holds a PhD from Stanford
University and taught at Cornell University before moving to
the University of Oregon in 1987. Professor Freyd is “a
leader in the field on the psychology of trauma,” where “[f]or
two decades she has been one of the main theoretical
contributors and intellectual forces.” She has authored
several books and written hundreds of articles, most in peer-
reviewed academic journals, on the topic of institutional
trauma. Her colleagues describe her as “one of the most
esteemed members in the Psychology Department.”
At the University, Freyd is the principal investigator at the
Freyd Dynamics Laboratory where she conducts empirical
studies related to the effects of trauma. In that position, she
is responsible for running the laboratory and supervising
doctoral candidates, undergraduate students, and the lab
manager. She finances the laboratory through private
1
“Because this case comes to us on defendants’ motion for summary
judgment, we take all facts in the light most favorable to [Freyd], the
nonmoving party.” Hopkins v. Bonvicino, 573 F.3d 752, 760 n.2 (9th Cir.
2009).
FREYD V. UNIVERSITY OF OREGON 7
donations. She also serves as the editor of the Journal of
Trauma & Dissociation, “one of the most influential journals
in the cross-disciplinary field of trauma research.” In that
role, she is responsible for writing editorials, selecting
articles, and “supervis[ing] an editorial assistant, [seven]
associate editors, 65 editorial board members, and dozens of
ad hoc reviewers.” She has also served on the editorial board
for multiple other journals, and has worked as a guest
reviewer for several foundations and journals.
Freyd has served in a variety of roles at the University.
From 2014 through 2016, she served as a member of the
University’s Committee to Address Sexual and Gender Based
Violence. In that role, she drafted policy proposals,
administered campus-wide surveys, and wrote a substantive
report on gender violence at the University. She was also the
“central architect of the new reporting policy for sexual
violence on campus.” This service role “took an enormous
amount of [her] time.”
In addition, Freyd does “significant amounts of briefing,
teaching, and consulting work for entities outside the higher
education context, for example, for the United States Military
and the National Park Service.” She has worked as a
consultant on twenty-two criminal and civil trials, and has
consulted with a United States Senator and the White House.
B. How the University Sets Salaries
The Psychology Department of the University of Oregon
adjusts tenure and tenure-track faculty salaries using two
different mechanisms. First, faculty may seek a merit raise
based on job performance. To obtain a merit raise, faculty
must submit to a review of their performance over the
8 FREYD V. UNIVERSITY OF OREGON
preceding three years. During this review, faculty are
assessed based on the contributions they have made in the
areas of research, teaching, and service.
Second, professors may seek a retention raise if they are
being recruited by another academic institution. In these
instances, the University considers the following five factors
in determining whether it wishes to extend the professor a
retention raise:
• expected productivity and potential of the faculty
member to make a significant contribution to the unit
and the university,
• the weight of evidence indicating imminent departure
in the absence of a salary adjustment,
• any previous retention increases awarded to the
faculty member,
• implications for internal equity within the unit, and
• strategic goals of the unit, school or college, and
university.
Freyd states that although she receives “initial probes” from
other universities about once a year, she has never engaged in
a retention negotiation nor received a retention raise. She
was happy at the University, her husband was employed
there, they were raising a family, and she was not willing to
misrepresent her willingness to accept a position elsewhere
and leave the University of Oregon.
FREYD V. UNIVERSITY OF OREGON 9
C. Evidence of Gender Disparities in Pay
In 2014, as part of an unrelated public records request,
Freyd unintentionally received salary information for the
Psychology Department faculty. She noticed that she was
making between $14,000 and $42,000 less per year than four
of her male colleagues with whom she was of comparable
rank and tenure.2 The four men—referred to in the litigation
as “the comparators”—were Ulrich Mayr, Gordon Hall, Phil
Fisher, and Nicholas Allen.
1. Ulrich Mayr
Ulrich Mayr was the Psychology Department’s Head
between 2014 and 2017. In that role, he was responsible for
“day-to-day personnel and human resource matters,
misconduct investigations, managing the faculty review
process, and negotiating with faculty seeking retention
offers.” Freyd, 384 F. Supp. 3d at 1291. As Department
Head, Mayr did not teach classes. Mayr has editorial
responsibilities on academic journals. Mayr has received two
retention raises.
2. Gordon Hall
Gordon Hall has been a Professor of Psychology at the
University since 2001. From 2008 until 2017, he served as
the Associate Director of the Center on Diversity and
Community (CoDaC). In that role, he was responsible for
planning and presenting workshops, assisting faculty in
obtaining financial and other support, and representing
2
The five were classified as “senior faculty member[s]” in the clinical
division of the Psychology Department.
10 FREYD V. UNIVERSITY OF OREGON
CoDaC in university-wide meetings. He reports that the role
occupied “a significant and substantial amount of [his] time.”
Hall has editorial responsibilities on academic journals. Hall
has received two retention raises.
3. Phil Fisher
Phil Fisher has been a Professor of Psychology at the
University since 2008. He served as the Director of Clinical
Training from 2014 through 2017. That position required
him to oversee training in psychotherapy, organize weekly
seminars, monitor curriculum, and interface with accrediting
agencies. He is also the founding director of the University’s
Center for Translational Neuroscience. In that role, he is
responsible for ensuring funding, managing and supervising
staff, overseeing the budget, and making strategic decisions
for the Center.
Much of Fisher’s research is funded by federal grants, so
Fisher also spends much of his time applying for and
administering those grants. “Serving as a principal
investigator or co-principal investigator of a grant imposes
substantial administrative and professional responsibilities,”
including “obtaining appropriate institutional reviews and
approval, performing the work, monitoring the work
performed by others, exercising oversight on project
personnel and sub-awards” and “manag[ing] submission of
facilities and administrative charges to the funding agency.”
He has engaged in at least one retention negotiation.
4. Nicholas Allen
Nicholas Allen has been a Professor of Psychology at the
University since 2014. He is the Director of the Center for
FREYD V. UNIVERSITY OF OREGON 11
Digital Mental Health, which, like Freyd’s laboratory, is
privately funded. Like Fisher, however, some of Allen’s
other research is funded through federal grants, for which he
must prepare and submit annual progress reports, manage
students and researchers, “do media,” and manage “the
ethical aspects of the research in accordance with federal
requirements.” His research involves use of brain scanning
machinery and biological samples, which requires oversight
from technical staff. Allen has editorial responsibilities for
academic journals. He has engaged in at least one retention
negotiation.
D. Connecting Retention Raises to Pay Disparities
After obtaining the salary information and noticing the
disparity in pay, Freyd conducted her own regression analysis
on the data, comparing salary to years since PhD.3 She
noticed a marked disparity in pay between the genders: out of
fourteen full professors in the Psychology Department, six
out of the eight male professors (75 percent) fell above the
regression line, while five out of six female professors
(83 percent) fell below it. In April 2015, Freyd and two other
female psychology professors, Dare Baldwin and Holly
Arrow, conducted a second regression analysis on this data.
This second analysis presented similar results.
In the spring of 2016, the Psychology Department
engaged in a mandatory annual self-study. The self-study
3
A regression analysis is “a common statistical tool . . . designed to
isolate the influence of one particular factor—[e.g.,] sex—on a dependent
variable—[e.g.] salary.” EEOC v. General Tel. Co. of Nw., Inc., 885 F.2d
575, 577 n.3 (9th Cir. 1989) (quoting Sobel v. Yeshiva Univ., 839 F.2d 18,
21–22 (2d Cir. 1988)) (alterations in original).
12 FREYD V. UNIVERSITY OF OREGON
revealed further information about the pay disparity. The
study showed that the Psychology Department faced “a
significant equity problem with respect to salaries at the Full
Professor level,” with an annual average difference in salary
between male and female full professors of $25,000. The
self-study concluded:
[T]his state of affairs appears to have emerged
mostly as a result of retention raises playing a
central role in Full Professors achieving
competitive salaries. Faculty who have not
pursued multiple outside offers across time,
have fallen progressively and significantly
behind in salary. In fact, when we control the
number of years since the last major
hiring/retention negotiation, the gender
difference completely disappears.
The study also noted that of the twenty retention negotiations
the Psychology Department had engaged in from 2006
through 2016, “only [four] affected female faculty, and only
[one] of the successful retention cases was a woman,” despite
the fact that the percentage of female faculty in the
department was around 50 percent. The study observed that
“[i]n the past, the university occasionally provided substantial
funds to address equity problems. However, this has not
happened for about ten years. Thus, currently there are no
tools available to address the equity problems that
Psychology is facing.”
Several months later, in December 2016, Psychology
Department Head Mayr conducted his own regression
analysis. This analysis included multiple variables, including
years since PhD, years in rank, gender, and years since a
FREYD V. UNIVERSITY OF OREGON 13
professor’s last major negotiation. Mayr found that when he
controlled for retention negotiations, the gender differential
in pay decreased from $22,000 to $5,000. He sent his results
to Andrew Marcus and Hal Sadofsky, the Dean and Associate
Dean of the College of Arts and Sciences, with the comment
that the “imbalance [between male and female full professor
salaries] is difficult to ignore,” in particular when considering
lifetime cumulative effects. After offering several
suggestions for addressing the problem, Mayr expressed
“hope [that] we can immediately address our most glaring
inequity case,” Jennifer Freyd, and he recommended a
“retroactive promotion raise” to “bring her salary to parity
with the next-highest paid, male full professor.”
Additional evidence came forth in December 2018, after
this lawsuit was filed. Freyd retained economist Kevin Cahill
to analyze “whether gender differences exist with respect to
the salaries of full professors, and the degree to which any
observed differences can be attributed to retention raises.”
Cahill based his analysis on the base salary of each full
professor in the Psychology Department from 2007 through
2017, which amounted to a data set that included 125 data
points. Cahill performed a regression analysis on this data
and determined with a 99 percent degree of confidence “that
female full professors earned, on average, approximately
$15,000 less than their male counterparts, controlling for
years in rank and time trends.”4 But when Cahill controlled
for retention raises, “gender no longer was a
statistically-significant determinant of full professor salaries.”
Cahill concluded that this evidence “strongly suggests that the
4
Academic publications typically consider a 95 percent confidence
or higher to be statistically significant.
14 FREYD V. UNIVERSITY OF OREGON
gender discrepancy in full professor salaries can be attributed
to retention raises.”
In January 2019, the University retained Debra Jones
Ringold, Professor of Marketing at the Atkinson School of
Management at Willamette University, to evaluate Cahill’s
analysis. Although Professor Ringold did not conduct her
own statistical analysis, she questioned Cahill’s conclusions,
arguing that because Cahill did not “examine the conditions
under which retention raise negotiations are triggered and
consummated,” he failed to rule out alternative causes of the
correlation between gender and retention raises he found.
Ringold argued that the study had “no probative value”
because of the “very small size of the study population.”
E. Procedural History
In January 2017, after Mayr forwarded his analysis, Freyd
met with Marcus and Sadofsky to discuss the data5 and
request a retroactive merit raise to compensate for the pay
inequity the retention raises had caused. In response,
Sadofsky conducted his own analysis and “concluded [that
Freyd’s] compensation was not unfairly, discriminatorily, or
improperly set.”6 Accordingly, she was denied a raise.
5
This did not include the Cahill study or Ringold analysis, which had
not yet been completed at this time.
6
In his declaration prepared for this suit, Dean Sadofsky stated that
he continued to hold the view that Professor Freyd had not been treated
unfairly. He offered a detailed account of various factors that go into
faculty salaries at the University, including state funding and external
grants. Sadofsky offered additional context to show that Freyd’s salary
relative to her colleagues had changed over time and would have been
quite favorable when measured in other time periods; the small number of
FREYD V. UNIVERSITY OF OREGON 15
Two months later, in March 2017, Freyd filed a
complaint, which she later amended, against the University,
Sadofsky, and Marcus in the District of Oregon. She asserted
various causes of action under the Equal Pay Act, 29 U.S.C.
§ 206(d); Title VII, 42 U.S.C. § 2000e-2; Title IX, 20 U.S.C.
§ 168(a); the Equal Protection Clause of the United States
Constitution, U.S. Const. amend. XIV; the Equal Rights
Amendment of the Oregon Constitution, Article 1, § 46;
Oregon Revised Statute § 659A.030; Oregon Revised Statute
§ 652.220; and breach of contract.
The district court granted summary judgment for the
defendants on each claim. It concluded that Freyd failed to
raise a genuine issue of fact as to her Equal Pay Act and
§ 652.220 claims because she could not show that she and the
comparators performed substantially equal or comparable
work. Freyd, 384 F. Supp. 3d at 1290–95. The district court
further concluded that Freyd’s Title VII disparate-impact
claim failed as a matter of law because (1) Freyd had
presented insufficient statistical evidence of a disparate
impact and, alternatively, (2) the university established that
the challenged practice was job related and a business
necessity. Id. at 1296–98. As to the Title VII disparate
professors in her cohort and their own movements in and out of the
University affected her statistics.
He also observed that “[r]etention raises have a distorting effect” but
are necessary “if the University is to retain faculty who bring in
substantial external funding.” He regarded the causal correlations
demonstrated by Professors Freyd and Mayr as “too simplistic and
incomplete.” He concluded that because “[f]aculty pay is based on many
factors other than seniority, . . . Prof. Freyd is well and fairly compensated
by standards of her department, the college, the University, and even the
profession.”
16 FREYD V. UNIVERSITY OF OREGON
treatment, § 659A.030, Title IX, and Oregon constitutional
claims, the district court concluded that Freyd had failed to
present any evidence of discriminatory intent. Id. at 1295. It
concluded that Freyd lacked standing to bring the contracts
claim, and that the individual defendants were entitled to
qualified immunity on the equal-protection claim, which was
only brought against them and not the University. Id.
at 1298–1300. Freyd brought a timely appeal.7
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal under 28 U.S.C.
§ 1291.
We review grants of summary judgment de novo. Animal
Legal Def. Fund v. U.S. FDA, 836 F.3d 987, 988 (9th Cir.
2016) (en banc) (per curiam). Under Federal Rule of Civil
Procedure 56(a), summary judgment is appropriate if the
pleadings and supporting documents “show[] that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute is genuine when “a reasonable trier of fact
could resolve the issue in the non-movant’s favor.” Fresno
Motors, LLC v. Mercedes Benz USA, 771 F.3d 1119, 1125
(9th Cir. 2014). In making this assessment, we must resolve
all inferences in Freyd’s favor and view the evidence in the
light most favorable to Freyd. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
7
Freyd has not appealed the district court’s decision on the equal-
protection and contract claims.
FREYD V. UNIVERSITY OF OREGON 17
III. ANALYSIS
A. The Equal Pay Act
The Equal Pay Act mandates that
No employer . . . shall discriminate . . .
between employees on the basis of sex by
paying wages to employees . . . at a rate less
than the rate at which he pays wages to
employees of the opposite sex . . . for equal
work on jobs the performance of which
requires equal skill, effort, and responsibility,
and which are performed under similar
working conditions, except where such
payment is made pursuant to (i) a seniority
system; (ii) a merit system; (iii) a system
which measures earning by quantity or quality
of production; or (iv) a differential based on
any other factor than sex.
29 U.S.C. § 206(d)(1). “In an Equal Pay Act case, the
plaintiff has the burden of establishing a prima facie case of
discrimination by showing that employees of the opposite sex
were paid different wages for equal work.” Stanley v. Univ.
of S. Cal., 178 F.3d 1069, 1073–74 (9th Cir. 1999). To make
this showing, the plaintiff must demonstrate that the jobs
being compared—not “the individuals who hold the
jobs”—are “substantially equal.” Id. at 1074. “Substantially
equal” does not necessarily mean “identical.” See Forsberg
v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1414 (9th Cir. 1988)
(quotation marks and citations omitted); cf. Hein v. Or. Coll.
of Educ., 718 F.2d 910, 917 (9th Cir. 1983) (reasoning that if
a claim could be defeated by showing that the plaintiff had
18 FREYD V. UNIVERSITY OF OREGON
additional duties, employers could easily subvert the intent of
the Equal Pay Act). Instead, “the crucial finding on the equal
work issue is whether the jobs to be compared have a
‘common core’ of tasks.” Stanley, 178 F.3d at 1074 (quoting
Brobst v. Columbus Servs. Int’l, 761 F.2d 148, 156 (3d Cir.
1985)). Once a plaintiff establishes a common core of tasks,
“the court must then determine whether any additional tasks,
incumbent on one job but not the other, make the two jobs
‘substantially different.’” Id. (quoting Brobst, 761 F.2d
at 156). “The question of whether two jobs are substantially
equal is one that must be decided on a case-by-case basis.”
Hein, 718 F.2d at 913.
The record here contains extensive evidence about the
work that Freyd and her four comparators do. A jury could
find—as the district court did, and as the dissent proposes—
that Freyd and her comparators’ jobs are rendered unequal by
the differences in the research that they do, centers that they
run, and funding that they obtain. Yet the evidence here is
not so one-sided as to mandate this conclusion as a matter of
law. Instead, viewing the evidence in the light most favorable
to Freyd, a reasonable jury could find that Freyd and her
comparators perform a “‘common core’ of tasks” and do
substantially equal work.
First, the district court arrived at its conclusion on this
issue by contrasting the individual responsibilities of Freyd,
Mayr, Hall, Fisher, and Allen, including the separate
laboratories or projects they supervised. See, e.g., Freyd,
384 F. Supp. 3d at 1291 (analyzing Hall’s work at CoDaC);
id. at 1292 (assessing Fisher’s responsibilities managing
federal grants); id. at 1293 (commenting on Allen’s position
as the director of the Center for Digital Mental Health). But
“[i]t is the overall job, not its individual segments, that must
FREYD V. UNIVERSITY OF OREGON 19
form the basis of comparison” in assessing the comparability
of occupations. Gunther v. Washington County, 623 F.2d
1303, 1309 (9th Cir. 1979) (internal citations omitted); cf.
Buntin v. Breathitt Cty. Bd. of Educ., 134 F.3d 796, 799 (6th
Cir. 1998) (“Whether the work of two employees is
substantially equal ‘must be resolved by the overall
comparison of work, not its individual segments.’”) (quoting
Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981));
EEOC v. Cent. Kan. Med. Ctr., 705 F.2d 1270, 1272 (10th
Cir. 1983), rejected on other grounds by McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 134 n.10 (1988) (“An
employer may not ‘escape the Act’s reach by drawing overly
fine distinctions in the tasks at issue.’”) (quoting Berman v.
S. Davis Cmty. Hosp., 538 F.2d 859, 861 (10th Cir. 1976)).
A reasonable jury could find that Freyd, Fisher, Allen,
and Hall share the same “overall job.”8 As full professors in
the Psychology Department, Freyd and those three
comparators all conduct research, teach classes, advise
students, and “serve actively on departmental, college, and
university committees and in other roles in service to the
institution.” They also “contribute to the University’s goals
regarding equity and inclusion” by participating in relevant
associations and organizations. Although Freyd and her
comparators all perform each of these functions, it is also true
8
Mayr may be different because he was Department Head from 2014
through 2017. His administrative work consumed a great deal of his time;
he did not teach classes, and the record does not show that he conducted
research, obtained funding, or ran a center as did Freyd and the others.
See Hein, 718 F.2d at 914–16 (finding a full-time coach’s work
substantially equal to that of a professor who did some coaching, but not
substantially equal to that of a professor who did not coach at all). For
this reason, our discussion of Freyd’s comparators in the following section
refers only to Hall, Allen, and Fisher.
20 FREYD V. UNIVERSITY OF OREGON
that they do not teach the same courses, or supervise the same
doctoral students, or manage the same centers. In this
respect, they are not identical. But we are unable as a matter
of law to pronounce their responsibilities so unique that they
cannot be compared for purposes of the Equal Pay Act. See
Hein, 718 F.2d at 914–17 (finding job of men’s basketball
coach substantially equal to plaintiff who taught classes,
coached various women’s sports, and served as an advisor
and to plaintiff who spent 5/9 of her time coaching and 4/9 of
her time on administrative duties).9 Indeed, as Dean
Sadofsky explained, the University itself regularly makes
such comparisons in determining faculty salaries. He
believes Freyd is “well and fairly compensated” under
Department and University standards and that any differences
in compensation have not been “affected by any gender bias.”
The dissent complains that we emphasize a “superficial”
common core of tasks and downplay the “obvious”
differences between Freyd and her male comparators.
Dissenting Op. at 40. The differences are not so obvious,
however, that for purposes of the Equal Pay Act, we can
discern them without recourse to the finder of fact, the jury.
9
The dissent faults us for relying on Hein because the court there
relied on the clearly erroneous standard of review and made a statement
in dicta that it may have approached the analysis differently if reviewed
de novo. Dissenting Op. at 44 n.3 (citing Hein, 718 F.2d at 913, 915,
917–18). We do not believe the standard of review applied undercuts our
conclusion here, as in Hein we were reviewing the district court’s
judgment and factual findings after a bench trial. Hein, 718 F.2d at 912.
De novo review at a bench trial and summary judgment are different; there
is no requirement to take the facts in the light most favorable to the non-
moving party at a bench trial. Thus, the dissent places undue weight on
this statement regarding a hypothetical de novo review and ignores the
court’s subsequent statement that “sufficient evidence supports the district
court’s determination that the two jobs had substantially equal
responsibility.” Hein, 718 F.2d at 915.
FREYD V. UNIVERSITY OF OREGON 21
A couple of examples demonstrate the problem. The
district court found relevant that Fisher founded and runs the
Center for Translational Neuroscience. See Freyd, 384 F.
Supp. 3d at 1292. In that role, he is responsible for ensuring
funding, managing and supervising staff, overseeing the
budget, and making strategic decisions. But Freyd likewise
is the founder and principle investigator at Freyd Dynamics
Labs. In that role, she is responsible for managing staff and
students, raising funds, budgeting, and drafting and
submitting conference presentations. Fisher and Freyd’s
centers are different, and this difference may justify a
variance in the salary of their supervisors, but a reasonable
jury could find these roles do not make Fisher and Freyd’s
jobs “substantially different.” Stanley, 178 F.3d at 1074.
The district court also gave weight to the fact that Hall
was the Associate Director of CoDaC from 2008 to 2017. Id.
at 1291–92. In that role, he was responsible for planning and
presenting workshops, assisting faculty in obtaining financial
and other support, and representing CoDaC in meetings. But
Freyd served as an appointed member to the University
Committee to Address Sexual and Gender Based Violence
from 2014 through 2016, a role which “took an enormous
amount of [her] time” and included drafting policy proposals,
administering campus-wide surveys, and writing a report.
Again, we do not believe we can determine as a matter of law
whether these two service roles makes Hall and Freyd’s jobs
substantially different.
The district court also focused on the fact that Freyd’s
research is privately funded, while her comparators
administer federal grants. Id. at 1291–94. The record shows
that administering a federal grant is a labor-intensive
endeavor. In his declaration, Fisher explained that the
22 FREYD V. UNIVERSITY OF OREGON
administrator of a federal grant is responsible for “obtaining
appropriate institutional reviews and approval, performing the
work, monitoring the work performed by others, . . .
understanding and adhering to all sponsor-imposed terms and
conditions as well as University policies and procedures
related to the specific type of work . . . prepar[ing] and timely
submit[ting] reports, signoffs and approvals . . . [and]
manag[ing] submission of facilities and administrative
charges to the funding agency.” But according to Freyd,
obtaining private funding requires similar efforts, and she
must perform almost all of these same tasks as the principal
investigator at her privately funded lab. We cannot say on
this record that, as a matter of law, the differences between
public funding and private funding are so great that an
academic who obtains public funding does not do work that
is substantially equivalent to an academic who obtains private
funding.
The dissent complains that we have to compare “actual
job duties,” Dissenting Op. at 42, and that once we consider
“the full picture of duties and skills,” id. at 47, we must
conclude that “the jobs cannot be substantially equal as a
matter of law,” id. at 47. We have two brief responses. First,
the granularity with which the dissent picks through the facts
would gut the Equal Pay Act for all but the most perfunctory
of tasks. The Equal Pay Act, however, is “broadly remedial,”
and should be so “construed and applied” as to be “workable
across the broad range of industries covered by the Act.”
Corning Glass Works v. Brennan, 417 U.S. 188, 198–99, 208
(1974); see Rizo v. Yovino, 950 F.3d 1217, 1226–28 (9th Cir.
2020) (en banc). Second, the dissent’s conclusion that two
faculty members in the same department cannot be compared
is inconsistent with the fact that the University’s own
administrators regularly make these comparisons for purposes
FREYD V. UNIVERSITY OF OREGON 23
of setting salaries.10 The question is not whether faculty
members can be compared, but how they compare, and the
latter comparison is one fraught with judgment, not law. That
is why former Department Chair Mayr urged the University
to correct “our most glaring inequity case,” while Assistant
Dean Sadofsky claimed Professor Freyd was “well and fairly
compensated.” We do not have the tools to resolve the
dispute without intruding on the civil jury’s function.
* * *
Based on the record before us, a reasonable jury could
find that Freyd and her comparators did substantially equal
work. Accordingly, the district court’s grant of summary
judgment on this claim was in error.
B. Oregon Revised Statute § 652.220
Oregon Revised Statute § 652.220 prohibits employers
from “[p]ay[ing] wages to any employee at a rate less than
that at which the employer pays wages to employees of the
10
The dissent argues that the “broad guidelines for setting salaries in
the Department apply to all tenure-track faculty,” Dissenting Op. at 46,
and cites to policies from other University Departments, see also
Dissenting Op at 42 n.2, apparently taking that to mean that the
Psychology Department’s merit review process applies university-wide.
While Departments’ individual policies may have identical or similar
language to assess their professors, there is no indication in the record
before us, nor in the policies the dissent has identified that the University
has ever compared professors across Departments for the purposes of
salary or promotion. We do not argue that all full-time professors at the
University have substantially similar jobs—merely that on summary
judgment, we cannot say as a matter of law that Freyd and her
comparator’s jobs as full-time tenure-track professors in the same
department are so dissimilar that we cannot compare them.
24 FREYD V. UNIVERSITY OF OREGON
opposite sex for work of comparable character, the
performance of which requires comparable skills.” Or. Rev.
Stat. § 652.220(1)(b) (2017). The Oregon courts have held
that “comparable work” is a more inclusive standard than
equal work; it “does not require equality but that two items
have important common characteristics.” Bureau of Labor &
Indus. v. City of Roseburg, 706 P.2d 956, 959 n. 2 (Or. Ct.
App. 1985); see also Smith v. Bull Run Sch. Dist. No. 45,
722 P.2d 27, 29 (Or. Ct. App. 1986) (“It is not difficult for a
plaintiff to make a prima facie case under [Or. Rev. Stat.
§] 652.220(1)(b).”). Like the Equal Pay Act, § 652.220 also
offers employers an affirmative defense if they can show that
difference in compensation is “based in good faith or factors
other than sex.” Or. Rev. Stat. § 652.220(2)(b).
Freyd has asked us to certify to the Oregon Supreme
Court several unanswered questions about § 652.220.
Specifically, she requests that we ask the Oregon Supreme
Court (1) to define the term “work of comparable character,”
(2) to determine whether a retention raise is a “factor other
than sex,” and (3) to determine whether a retention raise is
permissible under a revised version of the law.
Oregon law allows the Oregon Supreme Court to answer
questions of law certified to it by this court so long as the
question “may be determinative of the cause then pending in
the certifying court and as to which it appears to the
certifying court there is no controlling precedent in the
decisions of the Supreme Court and the intermediate appellate
courts of this state.” Or. Rev. Stat. § 28.200 (2019). But the
decision to certify a question to a state “rests in the sound
discretion of this court.” In re Complaint of McLinn,
744 F.2d 677, 681 (9th Cir. 1984). Here, certifying Freyd’s
FREYD V. UNIVERSITY OF OREGON 25
questions to the Oregon Supreme Court would be of limited
utility, so we decline to do so.
Freyd brought this suit under the 2017 version of
§ 652.220. The statute was substantially revised in 2019.
One notable change by the Oregon legislature was to remove
the broad “factor other than sex” affirmative defense from the
statute. Or. Rev. Stat. § 652.220 (2019). And the statute’s
definition section now defines the term “work of comparable
character” as “work that requires substantially similar
knowledge, skill, effort, responsibility and working
conditions in the performance of work, regardless of job
description or job title.” Or. Rev. Stat. § 652.210(13) (2019).
Because of these changes to the law, the Oregon Supreme
Court’s answers to Freyd’s first two certified questions would
be relevant only in this case and other cases brought under the
old version of the law. And because Freyd’s lawsuit was
brought under the 2017 version, the answer to the third
question would be irrelevant here. For these reasons, we
decline to certify these questions to the Oregon Supreme
Court.
Instead, we will resolve Freyd’s § 652.220 claim
ourselves. Because Oregon courts have declared that
“comparable work” is a more inclusive standard than
“substantially equal work,” see City of Roseburg, 706 P.2d
at 959 n.2, we conclude that Freyd has raised a genuine issue
of material fact under § 652.220 for the same reasons she has
done so under the Equal Pay Act. Accordingly, the district
court’s grant of summary judgment on this claim was
erroneous.
26 FREYD V. UNIVERSITY OF OREGON
C. Title VII Disparate Impact
“[T]o make a prima facie case of disparate impact under
Title VII, the plaintiff[] must show that a facially neutral
employment practice has a significantly discriminatory
impact upon a group protected by Title VII.” Paige v.
California, 291 F.3d 1141, 1144 (9th Cir. 2002) (internal
quotation marks omitted). “This showing consists of two
parts: the plaintiff[] must demonstrate 1) a specific
employment practice that 2) causes a significant
discriminatory impact.” Id. at 1145. The plaintiff must also
establish that the challenged practice is either (a) not job
related or (b) “[in]consistent with business necessity.”
42 U.S.C. § 2000e-2(k)(1)(A)(i) (2018). Even if the practice
is job related and consistent with business necessity, though,
a plaintiff may still prevail “by showing that the employer
refuses to adopt an available alternative practice that has less
disparate impact and serves the employer’s legitimate needs.”
Ricci v. DeStefano, 557 U.S. 557, 578 (2009) (internal
citations omitted).
Here, the district court granted summary judgment on
Freyd’s disparate-impact claim on two grounds. First, it held
that Freyd’s evidence was insufficient as a matter of law to
sustain a prima facie case of disparate impact. Freyd, 384 F.
Supp. 3d at 1297. Second, it held that even if Freyd had
made out a prima facie case, the University was entitled to an
affirmative defense because (1) the challenged practice was
job related and consistent with business necessity and
(2) “Freyd has not put forth an alternative practice that would
effectuate the University’s legitimate business goal of
retaining top talent in its Psychology Department.” Id.
Because we conclude that each of these conclusions are
FREYD V. UNIVERSITY OF OREGON 27
erroneous, we reverse the district court’s grant of summary
judgment on this claim.
First, Freyd has challenged a specific employment
practice. “Plaintiffs generally cannot attack an overall
decisionmaking process in the disparate impact context, but
must instead identify the particular element or practice within
the process that causes an adverse impact.” Stout v. Potter,
276 F.3d 1118, 1124 (9th Cir. 2002). Here, Freyd does not
challenge the general practice of awarding retention raises, as
the University alleges. Instead, she challenges the practice of
awarding retention raises without also increasing the salaries
of other professors of comparable merit and seniority.
Freyd’s theory of pay equity would not forbid the University
from taking account of market factors, as evidenced by the
salaries other universities were willing to pay to lure
Oregon’s faculty elsewhere. Rather, she argues that when a
competing offer is made to a faculty colleague, it
demonstrates that Oregon is out of step with respect to salary,
and a retention raise should be offered to all comparable
faculty members. And she argues, and has offered some
evidence backed by statistics and studies, that female faculty
members, for a variety of reasons related to gender, are less
willing to move and thus less likely to entertain overtures
from another institution. That puts them at a disadvantage
vis-a-vis their male colleagues.
Second, Freyd has put forth evidence that this specific
employment practice causes a significant discriminatory
impact. For a plaintiff to rely on statistical evidence to
establish a prima facie case of disparate impact the “statistical
disparities must be sufficiently substantial that they raise such
an inference of causation.” Stout, 276 F.3d at 1122 (quoting
Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 995 (1988)).
28 FREYD V. UNIVERSITY OF OREGON
Freyd offered two different sets of statistical evidence to
support her claim of disparate impact. First, she submitted
the Cahill analysis, which found that female professors
earned an average of $15,000 less than male professors, and
that the evidence “strongly suggests that [this disparity] can
be attributed to retention raises.” Second, she presented data
showing that (1) the University enters into retention
negotiations with female professors less often, and (2) when
these negotiations are had with female professors, they are
less likely to be successful. Her claim is that, for reasons
related to gender, female faculty are less likely to seek,
receive, or be receptive to competing offers, and thus the
retention bidding practice favors male faculty. Her evidence,
if credited, means that the problem is not that the University
does not negotiate retention raises with female faculty, but
that, relative to their male colleagues, female faculty receive
fewer competing offers. The University is rewarding faculty
who receive competing offers, and that favors male faculty.
The self-study data indicates, when taken in the light most
favorable to Freyd, that there is gender bias in the availability
of outside offers to female faculty. In its 2016 self-study, the
Psychology Department noted that only four of the twenty
retention negotiations the University entered into with
psychology professors from 2006 through 2016 were with
female professors, while sixteen were with male professors,
despite the department having a roughly equal number of
male and female professors.11 And only one of the four
11
The Psychology Department also noted that “[d]etailed analyses of
all past retention cases among faculty indicate that the greater tendency of
male faculty to engage in retention negotiations plays an important role in
a gender-related salary gap among [] full Professors.” It also
acknowledged that “there is strong evidence of a gender bias in the
FREYD V. UNIVERSITY OF OREGON 29
retention negotiations with female professors was successful,
while nine of the sixteen with male professors were.12
The district court found as a matter of law that Freyd’s
statistical evidence was insufficient to sustain a claim of
disparate impact. It reasoned that “[r]egardless of what
Professor Freyd’s expert says as to the reliability of the
sample size, the rule in the Ninth Circuit is that ‘[s]tatistics
are not trustworthy when minor numerical variations produce
significant percentage fluctuations.’” Freyd, 384 F. Supp. 3d
at 1296 (citing Contreras v. City of Los Angeles, 656 F.2d
1267, 1273 n.4 (9th Cir. 1981)); see also Morita v. S. Cal.
Permanente Med. Grp., 541 F.2d 217, 220 (9th Cir. 1976)
(small samples have “little predictive value and must be
disregarded”). This conclusion was, of course, the criticism
leveled at Freyd’s study by Dean Sadofsky and at the Cahill
Study by the University’s expert, Ringold. We do not think
that we can resolve this dispute among the experts. Although
“the probative value of any statistical comparison is limited
by the small available sample,” Stout, 276 F.3d at 1123, we
have not drawn a bright line to determine the adequacy of a
data set. Cf. Watson, 487 U.S. at 994–95 (noting that
formulations for assessing statistical evidence of disparate
impact “have never been framed in terms of any rigid
availability of outside offers and the ability to aggressively respond to
such offers.”
12
In her brief, Freyd states that twenty-six retention negotiations have
occurred from 2007 through 2017, with fourteen out of twenty-one
negotiations with male professors ending successfully and two out of five
with female professors ending successfully. We cannot find this data in
the record. Instead, we rely on the findings from the 2016 Psychology
Department self-study. These numbers might be slightly more outdated
than Freyd’s, but they are supported by the record.
30 FREYD V. UNIVERSITY OF OREGON
mathematical formula”). There is a danger in formulating a
strict rule about data sets when, as here, the data may also
contain a qualitative component. Our prior cases stated a
general principle about the reliability of small data sets, but
it did not establish a firm rule about denominators. And
although there must be some floor for the sample size a party
must evaluate in order to reach statistical significance, this is
not an appropriate case in which to set such a floor; at least
not on this record, where the expert witnesses themselves
disagree about sample size’s relevance. See City of Pomona
v. SQN N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014)
(“A factual dispute is best settled by a battle of the experts
before the fact finder, not by judicial fiat. Where two credible
experts disagree, it is the job of the fact finder, not the trial
court, to determine which source is more credible and
reliable.”).
Furthermore, we should observe that in each of the cases
cited above, we noted the limited probative value of the small
sample size, but none of those decisions ultimately rested on
that issue alone. See, e.g, Stout, 276 F.3d at 1123 (concluding
that even if the data were reliable, it did not reveal a disparate
impact because the percentage of women selected was
roughly proportional to the percentage of female applicants);
Contreras, 656 F.2d at 1272 (discounting plaintiff’s the
statistical evidence because the results “were not statistically
significant when tested at a .05 level of significance”);
Morita, 541 F.2d at 219–20 (criticizing plaintiff’s small
sample size, but denying plaintiff’s claim because plaintiff
failed to satisfy an essential element of the claim).
The number of data points surely goes to the probative
value of Freyd’s evidence. But that is a matter for the experts
to debate and the jury to resolve. See Bouman v. Block,
FREYD V. UNIVERSITY OF OREGON 31
940 F.2d 1211, 1225 (9th Cir. 1991) (“Whether the statistics
are undermined or rebutted in a specific case would normally
be a question for the trier of fact.”). We think that a
reasonable jury could find that Freyd’s statistical analysis
shows a prima facie case of disparate impact. Despite the
relatively small data set, the Cahill study was conducted at a
markedly high level of statistical significance. And while the
dissent argues that the statistics from the Psychology
Department’s own self-study do not demonstrate statistical
significance, Dissenting Op. at 56–57, the evidence of
retention negotiation disparities13 appears to satisfy the “four-
fifths rule,” a standard promulgated by the Equal
Employment Opportunity Commission, which “states that a
selection practice is considered to have a disparate impact if
it has a selection rate for any race, sex, or ethnic group which
is less than four-fifths (4/5) (or eighty percent) of the rate of
the group with the highest rate.” Stout, 276 F.3d at 1124(internal quotation marks omitted). We agree with the
Seventh Circuit that where a sample is small but the results
nevertheless indicate a disparity, the “granting of summary
judgment in favor of [defendant] on this issue by the District
Court was premature.” Fisher v. Transco
Services-Milwaukee, Inc., 979 F.2d 1239, 1245 (7th Cir.
1992).14
13
We also note that these statistics were significant enough to the
Department leadership that it noted the retention raises were the potential
cause of an equity issue.
14
We are puzzled by the dissent’s critical comments about the
statistical analysis prepared by the Psychology Department in its 2016
self-study. Dissenting Op. at 57 (stating that the study “was conducted by
professors and employees of the Psychology Department—not experts in
the field of mathematics, statistics, or economics.”). We think we do not
trespass the boundaries of our expertise with the observation that the tools
32 FREYD V. UNIVERSITY OF OREGON
The district court held, alternatively, that “even if
Professor Freyd had made out a prima facie case for disparate
impact, summary judgment would still be appropriate”
because the University established a “business necessity”
defense. Freyd, 384 F. Supp. 3d at 1297. This conclusion is
in error, for two reasons. First, there is conflicting evidence
about the need for retention raises and whether the retention
raises are job-related.15 Second, the district court assessed the
of “mathematics, statistics, [and] economics” are commonly used in other
disciplines, including psychology. We are not aware of any legal principle
that would allow us to disparage an academic department’s self-study on
the grounds that we did not think its faculty qualified to conduct such a
study. These questions go to the weight of the evidence, not its
admissibility, and should be left for the jury to resolve.
15
Dean Sadofsky defended the University’s practice of compensating
faculty “where there is compelling evidence that a preemptive action is
necessary to prevent the loss of a valued faculty member.” On the other
hand, Professor Louis Moses, former Psychology Department Head,
criticized the University’s retention policy as counterproductive:
[It] effectively punish[es] [a faulty member] for not
going on the job market. In doing so the administration
sends a message to faculty that the only way to receive
a large salary raise is to pursue an outside offer, thereby
encouraging individuals to game the system by
shopping themselves around as a way to negotiate an
increase. Encouraging behavior of this kind is costly in
terms of time, resources, and energy; not only for the
faculty member involved and the competing
universities, but also for the department and UO
administration when they need to respond to the
competition.
The Psychology Department’s own self-study also expressed skepticism
regarding retention raises, noting that “it is not obvious that the frequency
of retention negotiations is a strong indicator of overall productivity.”
FREYD V. UNIVERSITY OF OREGON 33
wrong practice. Freyd is not challenging the practice of
awarding retention raises; she challenges the practice of
awarding retention raises to some professors without
increasing the salaries of other professors of comparable
merit and seniority. And as explained below, Freyd has
proffered an alternative practice that may be equally effective
in accomplishing the University’s goal of retaining talented
faculty. Thus, we cannot say as a matter of law that the
University’s policy and practice represents a business
necessity.
Even if we thought the University’s policy represented a
business necessity, Freyd may show that there is a viable
alternative practice that would serve the University’s needs.
See Ricci, 557 U.S. at 578; Albemarle Paper Co. v. Moody,
422 U.S. 405, 425 (1975). “Factors such as the cost or other
burdens of proposed alternative selection devices are relevant
in determining whether they would be equally as effective as
the challenged practice in serving the employer's legitimate
business goals.” Watson, 487 U.S. at 998. Freyd has
proposed, as an alternative to the current practice, that “when
[the University] gives a retention raise to a Psychology
professor, it should evaluate the resulting salary disparity
with others in the same rank with comparable merit and
seniority, and give affected individuals a raise.” The record
contains conflicting evidence as to whether this alternative
would be equally as effective as the current practice in
serving the University’s legitimate business goals. On one
hand, current University policy already mandates
consideration of “implications for internal equity” when
determining whether to grant a professor a retention raise.
And as the University’s former interim president Scott
Coltrane testified, the University has engaged in this
alternative practice in the past, granting other professors
34 FREYD V. UNIVERSITY OF OREGON
equity raises when another professor the school deemed to be
less distinguished was offered a retention raise.16 But on the
other hand, the University argues that this alternative practice
would increase its costs, which is inconsistent with its
“limited budget and an obligation to spend that budget
responsibly.” And Coltrane testified that, in his view, when
the alternative practice was used in the past, “[n]obody was
happy in the end,” because the budgetary restraints forced the
University to give each professor a smaller raise than she
believed she deserved. This conflicting evidence raises a
genuine issue of material fact as to the adequacy of Freyd’s
proposed alternative policy.17
* * *
On this record, there is at least a genuine issue of material
fact as to whether Freyd established a prima facie case of
disparate impact. The district court erred in granting
summary judgment on this claim.
16
The dissent appears to assert that we should not credit these
statements because of the contradictory facts regarding costs and other
administrative burdens. Dissenting Op. at 59–61. But at summary
judgment, we must take the record in the light most favorable to Freyd and
therefore must credit these conflicting facts.
17
The dissent reveals its strong preference for a “market-driven
practice.” Dissenting Op. at 39; see also id. at 57–59. This is a policy
question better addressed to the need for Title VII. A “business necessity”
defense is not the same as a guarantee of a free market. See Rizo, 950
F.3d at 1223, 1230 (discussing the Supreme Court’s rejection of “market
force theory” in Corning Glass Works v. Brennan, 417 U.S. 188 (1974)).
FREYD V. UNIVERSITY OF OREGON 35
D. Title VII Disparate Treatment
To establish disparate treatment under Title VII, a
plaintiff “must offer evidence that ‘gives rise to an inference
of unlawful discrimination,’ either through the framework set
forth in McDonnell Douglas Corp. v. Green or with direct or
circumstantial evidence of discriminatory intent.” Vasquez v.
County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003)
(alteration marks omitted) (quoting Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)). The
McDonnell Douglas framework contains three, burden-
shifting steps. McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973). At the first step, the plaintiff must make
a prima facie case of discrimination, which requires a
showing that “(1) [s]he is a member of a protected class;
(2) [s]he was qualified for h[er] position; (3) [s]he
experienced an adverse employment action; and (4) similarly
situated individuals outside h[er] protected class were treated
more favorably.” Fonseca v. Sysco Food Servs. of Ariz., Inc.,
374 F.3d 840, 847 (9th Cir. 2004) (quoting Peterson v.
Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)).
Once a prima facie case has been shown, the burden then
shifts to the defendant to show a legitimate,
nondiscriminatory reason for the challenged actions. See
McDonnell Douglas, 411 U.S. at 802. The burden then
returns to the plaintiff, who must show that the proffered
nondiscriminatory reason is pretextual. See id. at 804. While
intent is not relevant to a disparate impact theory of recovery,
the disparate treatment theory does require proof of
discriminatory intent. Garcia v. Spun Steak Co., 998 F.2d
1480, 1484 (9th Cir. 1993) (citing Watson, 487 U.S. at 988).
Freyd has not presented evidence sufficient to raise a
genuine issue of material fact concerning disparate treatment.
36 FREYD V. UNIVERSITY OF OREGON
She has not presented “direct or circumstantial evidence of
discriminatory intent.” Vasquez, 349 F.3d at 640. She has
also not presented evidence sufficient to establish a prima
facie case under the McDonnell Douglas framework because
she has not shown that similarly situated individuals outside
of her protected class were treated more favorably than her.
Freyd’s comparators engaged in retention negotiations with
the University and were granted substantial salary increases
as a result. Freyd has never engaged in retention
negotiations. Though the University did deny Freyd a raise
in 2017, the raise Freyd sought at that time was a retroactive
equity raise. There is no evidence that her comparators ever
received—or even sought—retroactive equity raises. Under
university policy, equity raises and retention raises are
distinct. Applications for equity raises and retention raises
are assessed differently, through different processes that
weigh different criteria.
Because equity raises and retention raises are not
comparable, we cannot say that Freyd’s comparators were
treated “more favorably” than was Freyd in this context.
Thus, she cannot establish a prima facie case of disparate
treatment, and the district court’s grant of summary judgment
was proper on this claim.
E. Oregon Revised Statute § 659A.030
Oregon Revised Statute § 659A.030 prohibits “an
employer, because of an individual’s . . . sex . . . to
discriminate against the individual in compensation or in
terms, conditions or privileges of employment.” Or. Rev.
Stat. § 659A.030(1)(b) (2017). Oregon courts assess
659A.030 claims under the same framework as they do Title
VII disparate treatment claims. See Dawson v. Entek Int’l,
FREYD V. UNIVERSITY OF OREGON 37
630 F.3d 928, 934–35 (9th Cir. 2011). Because summary
judgment was proper on Freyd’s disparate treatment claim, it
was also proper on her § 659A.030 claim.
F. Title IX
Title IX mandates that “[n]o person in the United States
shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681 (2018). Freyd
alleges that the University violated Title IX by “knowingly
and intentionally pa[ying] Professor Freyd less than men in
the same job because of her sex” and “fail[ing] and refus[ing]
to rectify this sex discrimination when made aware of it.” As
with her Title VII disparate treatment claim, because Freyd
has presented no evidence of intentional discrimination, there
is no genuine issue of material fact here. We affirm the
district court’s grant of summary judgment on Freyd’s Title
IX claim.
G. The Oregon Equal Rights Amendment
The Oregon Equal Rights Amendment mandates that
“[e]quality of rights under the law shall not be denied or
abridged by the State of Oregon or by any political
subdivision in this state on account of sex.” Or. Const. Art.
I § 46. Because Freyd has presented no evidence of
intentional discrimination, she cannot prove that the
University denied her equality of rights “on account of” her
sex. Cf. Klein v. Or. Bureau of Labor & Indus., 410 P.3d
1051, 1061 (Or. Ct. App. 2017) (defining the phrase “on
account of” in the context of anti-discrimination statutes to
mean “‘by reason of’ or ‘because of’”). We affirm the
38 FREYD V. UNIVERSITY OF OREGON
district court’s grant of summary judgment on Freyd’s state
constitutional claim.
IV. CONCLUSION
We conclude that Freyd has presented a genuine issue of
material fact under the Equal Pay Act and Or. Rev. Stat.
§ 652.220 and for disparate impact under Title VII. We thus
reverse the district court’s grant of summary judgment for
those claims. But because we find that Freyd has not
presented a genuine issue of material fact for her claims for
disparate treatment under Title VII, and her claims under
Title IX, Or. Rev. Stat. § 659A.030, and the Oregon Equal
Rights Amendment, we affirm the district court’s grant of
summary judgment for those claims.18 Nothing we have said
here should be taken as reflecting our judgment on the merits
of the claims we are remanding to the district court.
Each party must bear its own costs.
REVERSED IN PART; AFFIRMED IN PART.
18
The University has moved to strike mention of Allen’s updated
declaration from the record, as well all argument depending on it. It has
also moved to strike some social science scholarship referenced in the
opening brief. Because we did not consider nor rely on either of these
materials in making this decision, striking this evidence would have no
bearing on the outcome of this case. We DENY the motion.
FREYD V. UNIVERSITY OF OREGON 39
VANDYKE, Circuit Judge, dissenting in part and concurring
in part:
Jennifer Freyd is far from the typical employee arguing
that she is being treated differently based on her sex. She is
not merely a professor of Psychology, or even just a tenured
professor of Psychology. She is a full professor of
Psychology at the University of Oregon—the top echelon,
crème-de-la-crème of her academic field. She is, one might
say, in the big leagues of her profession. According to
Dr. Freyd herself, her job at her elite level of academic
achievement is marked by “considerable discretion and
autonomy in developing and executing a unique research
agenda and professional profile,” and “[n]o two people will
exercise their discretion and autonomy in the same way.”
Just as we see with top professional athletes or the very
best attorneys in their field, competition is fierce for leading
academic talent. Universities understandably attempt to
poach top dons from other schools by offering better pay and
other benefits and opportunities, and the professors’ home
institutions are often required to make comparable offers
(called “retention raises”) to keep their own outstanding
people—especially those who are willing to seriously
entertain an offer to change institutions.
This case effectively challenges that market-driven
practice as violative of a host of federal and Oregon laws
prohibiting sex-based discrimination.1 If Freyd is correct
1
The majority criticizes what it characterizes as my “strong
preference for a ‘market-driven practice.’” My preferences are unrelated
to my pointing out the obvious here. The fact that an employment practice
is “market-driven” may not necessarily exempt it from Title VII, but it is
40 FREYD V. UNIVERSITY OF OREGON
that—even in this elite context, where the defining
characteristic of professors at this level is their
uniqueness—pay disparities based on retention raises can
permit a jury to award damages for sex discrimination, then
employers will predictably be incentivized to abandon a tool
for retaining top talent and revert to lock-step pay. Worse,
unless all of the federal circuits agree with ours (always an
unlikely proposition), another predictable result of today’s
decision is that universities in the Ninth Circuit will be unable
to compete economically to retain their best professors, and
we could see a corresponding brain drain in universities in the
western states.
Of course, if this were required by our laws prohibiting
sex discrimination, then so be it. But it isn’t. The district
court was correct that, for professors at this level, “a
university is more akin to the National Baseball League than
it is to a traditional employer.” Freyd v. Univ. of Or., 384 F.
Supp. 3d 1284, 1288 (D. Or. 2019). Only by emphasizing a
superficial “common core of tasks” shared by full professors
and downplaying all of the obvious differences that have
made them stand-outs in their profession can the majority
conclude that “a reasonable jury could find that Freyd and her
comparators … do substantially equal work” for purposes of
the Equal Pay Act. The majority also errs in its consideration
of Freyd’s Title VII disparate impact claim, relying on
irrelevant statistical data to find a genuine issue of material
unquestionably relevant to whether it is prohibited. While it is perhaps
true that a “‘business necessity’ defense is not the same as a guarantee of
a free market,” it is certainly true that every business necessity is,
ultimately, market-driven. Even the majority cannot avoid market-driven
concepts when discussing the University’s business necessity defense
(“the need for retention raises” and “job-related” have no meaning apart
from a job market).
FREYD V. UNIVERSITY OF OREGON 41
fact and then indulging the academic fiction that the
University’s retention raise practice may not serve a business
necessity. I disagree with these conclusions, and therefore
respectfully dissent.
I. The Equal Pay Act
The Equal Pay Act prohibits an employer from
discriminating between employees of different sexes for
performing “equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are
performed under similar working conditions.” 29 U.S.C.
§ 206(d)(1). Individuals of different sexes perform “equal
work” for purposes of establishing a prima facie case under
the Equal Pay Act if “the jobs [being compared] are
substantially equal.” Forsberg v. Pac. Nw. Bell Tel. Co.,
840 F.2d 1409, 1414 (9th Cir. 1988) (alteration in original)
(citation omitted). In considering the substantial equality of
jobs, we look to whether the jobs share a “common core of
tasks” and “whether any additional tasks, incumbent on one
job but not the other, make the two jobs ‘substantially
different.’” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1074
(9th Cir. 1999) (citation omitted).
The majority here faults the district court for focusing on
the differences in job responsibilities of Freyd and her male
comparators and instead highlights high-level similarities and
“examples” of characteristics shared by the jobs to conclude
“that Freyd and her comparators perform a ‘“common core”
of tasks’ and do substantially equal work.”
I think the majority misapplies the standard. It initially
asserts that a reasonable jury could find Freyd and her male
comparators have the same “overall job” because they all
42 FREYD V. UNIVERSITY OF OREGON
conduct research, teach classes, fulfill service roles, and work
toward the University’s equity and inclusion initiatives. The
primary basis for the assertion that they all have the same
“overall job,” however, is the Department’s “Tenure-Track
Faculty Professional Responsibilities” document—i.e., a
Department policy document setting out job descriptions for
professors in Psychology. The problem with the majority’s
reliance on this policy document is that this court is required
to compare actual job duties—not job descriptions—in
determining whether the relevant jobs are substantially equal.
See Spaulding v. Univ. of Wash., 740 F.2d 686, 697 (9th Cir.
1984) (asserting “[a]ctual job performance and content, rather
than job descriptions, titles or classifications, is
determinative” when comparing jobs for purposes of the
Equal Pay Act), overruled on other grounds by Atonio v.
Wards Cove Packing Co., 810 F.2d 1477 (9th Cir. 1987) (en
banc). Furthermore, this policy document applies to assistant
professors, associate professors, and full professors in the
Psychology Department—a much broader comparison group
that does not have, and Freyd does not argue they have,
substantially equal jobs.2
2
The majority’s reliance on this policy document demonstrates a
deeper flaw in its approach to the Equal Pay Act. The Psychology
Department isn’t the only department at the University to use the “Tenure-
Track Faculty Professional Responsibilities” document to set
expectations for its professors. The Physics and Classics Departments,
for example, have adopted nearly identical job expectations in their
own professional responsibilities documents. See Department of
Physics Tenure-Track Faculty Professional Responsibilities
(“Physics Policy”), U NIV . OF O R . 1–4 (Mar. 3, 2017),
https://provost.uoregon.edu/files/phys_ttf_prof_resp_final_03_03_2017
.pdf; Department of Classics Tenure-Track Faculty Professional
Responsibilities (“Classics Policy”), UNIV. OF OR. 1–4 (Mar. 3, 2017),
https://provost.uoregon.edu/files/clas_ttf_prof_resp_final_03_03_2017.
pdf. Like Freyd and her male comparators, all tenure-track professors in
FREYD V. UNIVERSITY OF OREGON 43
When looking at the actual job responsibilities of Freyd
and her male comparators as set out in the record, it is not
true that “Freyd and her comparators all perform each of the[]
functions” set out in the Department’s professional
responsibilities document—i.e., research, teaching, advising
students, performing service roles, and contributing to equity
and inclusion initiatives—as the majority contends. Ulrich
Mayr and Gordon Hall, for example, taught few—if
any—classes between 2014 and 2017, because their roles as
Physics and Classics are expected to conduct research, teach classes,
and advise students. Compare, e.g., Department of Psychology Tenure-
Track Faculty Professional Responsibilities (“Psychology
Policy”), UNIV. OF OR. at 1 (Mar. 3, 2017),
https://provost.uoregon.edu/files/psych_ttf_prof_resp_final_03_03_201
7.pdf (asserting full-time tenure-track faculty should “spend 40% of their
effort on research, 40% on teaching, and 20% on service over the
academic year”), with Classics Policy at 1 (same), and Physics Policy at 1
(same for tenure-track faculty at rank of professor). Like Freyd and her
comparators, Physics and Classics professors are directed to “serve
actively on departmental, college, and university committees and in other
roles in service to the institution.” Psychology Policy at 4; Physics Policy
at 4; Classics Policy at 4. And those professors must “contribute to the
University’s goals regarding equity and inclusion,” Physics Policy at 4,
Classics Policy at 4, just like Freyd and her male colleagues, Psychology
Policy at 4. Applying the majority’s incorrect reasoning, one would have
to conclude that a reasonable jury could find Freyd’s job is substantially
equal to that of all tenure-track professors in the Physics and Classics
Departments because their responsibilities can be compared to Freyd’s—at
least at a 30,000-foot level based on the generic job requirements set out
in these professional responsibilities documents. Although the majority
claims it “do[es] not argue that all full-time professors at the University
have substantially similar jobs,” where would it draw the line? Freyd’s
job could be substantially equal to that of an associate professor of
Physics, but not to that of an associate professor of Biology? Or Freyd
could establish substantial job equality with an assistant professor of
Classics, but not a full professor of Anthropology? The logical
implications of the majority’s analysis are breathtakingly expansive.
44 FREYD V. UNIVERSITY OF OREGON
department head and Associate Director (then Interim
Director) of CoDAC, respectively, consumed so much of
their time. Hall also conducted very little of his own
scholarly research during that time due to his commitments
with CoDAC. There is likewise no evidence in the record
that Phil Fisher’s job included any responsibilities related to
the promotion of the equity and inclusion goals of the
University.
The majority contends that the “granularity with which
the dissent picks through the facts would gut the Equal Pay
Act for all but the most perfunctory of tasks.” But a case-
specific evaluation of the actual job performance and content,
based on a review of the overall job, is exactly what the Equal
Pay Act requires. Gunther v. County of Washington,
623 F.2d 1303, 1309 (9th Cir. 1979) (“To make this showing,
actual job performance and content, not job titles,
classifications or descriptions is determinative. It is the
overall job, not its individual segments, that must form the
basis of comparison, and, because job duties vary so widely,
each suit must be determined on a case-by-case basis.”
(internal citations omitted)). The majority can only reach its
conclusion here by a high-level over-generalization of the
jobs held by Freyd and her comparators to conclude that a
jury could find the jobs substantially equal.3
3
The majority cites Hein v. Oregon College of Education, 718 F.2d
910, 914–17 (9th Cir. 1983) in support of the proposition that it cannot as
a matter of law hold that the responsibilities of the professors here are
incomparable for purposes of the Equal Pay Act. In doing so, it explains
that Hein found substantial job equality between a male educator (who
spent three-quarters of his time teaching and one-quarter coaching) and
two female educators, one of whom spent two-thirds of her time on
teaching and one-third on coaching, and the other who spent five-ninths
of her time in athletics with both coaching and administrative duties. But
FREYD V. UNIVERSITY OF OREGON 45
the court in Hein relied heavily on the clearly erroneous standard of
review in its qualified finding and noted that its approach might be
different under a de novo review. Hein, 718 F.2d at 913, 915, 917–18
(“Although we might accept this proposition [that the institutional
importance of a basketball coach translates into clearly different job
responsibilities] were it presented to us de novo, sufficient evidence
supports the district court’s determination that the two jobs had
substantially equal responsibility.” (emphasis added)). It ultimately
vacated judgment and remanded with respect to those female educators
because the district court excluded comparisons to male faculty who might
be making less than the plaintiffs. Id. at 916, 918. For another similarly
situated plaintiff in Hein, the court determined that the finding of
substantially equal jobs was clearly erroneous because that plaintiff did
not coach at all, and “[u]nder the Equal Pay Act, jobs requiring different
skills are not substantially equal.” Id. at 914. This case therefore presents
numerous distinctions from Hein. Here, the majority is not reviewing the
district court’s ruling for clear error, which circumscribed the review in
Hein. This record also does not contain such a specific breakdown of time
spent on different duties. And if it did, it would reveal that Freyd and her
comparators did not have substantially equal jobs. Cf. Hein, 718 F.2d
at 914 (“[T]he differences in job content between the positions held by
Dr. Hein and Mr. Boutin were not inconsequential. A coaching job
plainly requires skills that a noncoaching job does not.”).
Despite these differences, the majority seems to conclude that because
female professors in Hein were able to demonstrate—after a bench
trial—substantial job equality with a male educator also in the Physical
Education Department, Freyd could likewise establish substantial job
equality with male full professors in the Psychology Department. But
equating Freyd to the female plaintiffs in Hein merely because they all
share the same broad title of “professor”—and ignoring the fact that the
Hein plaintiffs held positions at a different level, in a different department,
and at a different college than Freyd—contradicts Ninth Circuit precedent,
which the majority quotes from Hein. See Majority Opinion at 18 (“The
question of whether two jobs are substantially equal is one that must be
decided on a case-by-case basis.” (emphasis added) (quoting Hein,
718 F.2d at 913)). So it’s not as if Hein precludes us from determining
whether two jobs are substantially equal as a matter of law. To the
contrary, since Hein, this court has affirmed a district court’s grant of
46 FREYD V. UNIVERSITY OF OREGON
The majority also claims I’m saying that two faculty
members in the same department cannot be compared—
apparently ever. Not so. It is not that two faculty members
in the same department could never be compared, as there are
undoubtedly situations when professors’ jobs can be
compared for purposes of the Equal Pay Act. See, e.g., Hein,
718 F.2d at 914–18. The key here is the unique nature of the
“full professor” positions specifically held by Freyd and her
four comparators, making them not substantially equal and
more like NFL or MLB players. Further, the majority’s
reference to the fact that the University “regularly amake[s]
these comparisons [of professors’ jobs] for purposes of
setting salaries” is not particularly compelling, because the
broad guidelines for setting salaries in the Department apply
to all tenure-track faculty in that department—not just its full
professors. Unless the majority thinks all tenure-track
professors in the Department have substantially equal
jobs—which Freyd wisely doesn’t argue—its argument
proves too much.
summary judgment on an Equal Pay Act claim on the basis that the jobs
being compared were not substantially equal as a matter of law. See, e.g.,
Forsberg, 840 F.2d at 1416 (determining two jobs were not substantially
equal—despite that they “performed the same function for the company”
and “involv[ed] superficially similar tasks”—because “[l]ooking beyond
the surface similarities to the underlying skills required in performing the
two jobs leaves no doubt that plaintiff’s claims of sex-based pay
discrimination must fail”). Accordingly, Hein does not support the
proposition that the differences in the responsibilities of the professors
here cannot be adjudicated for purposes of the Equal Pay Act as a matter
of law, as the majority contends.
FREYD V. UNIVERSITY OF OREGON 47
When the majority compares the actual job duties of
Freyd and her male comparators, it largely focuses on the
similarities between Freyd and two of her comparators in
discrete aspects of their jobs: (1) the fact that both Freyd and
Fisher run research laboratories and (2) the fact that both
Freyd and Hall took on significant service roles to the
University. Ironically, the majority does exactly what it just
chastised the district court for doing—comparing “individual
segments” of the positions held by Freyd and her male
comparators instead of their “overall job[s].” See Gunther,
623 F.2d at 1309. Notwithstanding this error, I do agree that
Freyd and her comparators share some of the same basic job
requirements. Freyd, Fisher, and Allen each run their own
research center. Freyd and Allen both teach courses, and
Freyd, Mayr, Hall, and Allen all have editorial
responsibilities on journals.
But considering only the minimum qualifications for full
professor is not reflective of the full picture of duties and
skills required of each individual position. Cf. Forsberg,
840 F.2d at 1416–17 (looking beyond “two jobs involving
superficially similar tasks” to determine that they “require[d]
qualitatively different skills in their performance” and
therefore, were not substantially equal). While these
similarities may establish that Freyd and her comparators
share a “common core of tasks,” our analysis cannot end
there. We are instead required to analyze “whether any
additional tasks, incumbent on one job but not the other,
make the two jobs ‘substantially different.’” Stanley,
178 F.3d at 1074 (citation omitted). As a result, it made
sense for the district court to focus on the differences in job
duties because if those differences make up a significant
enough portion of the jobs being compared, the jobs cannot
be substantially equal as a matter of law. To properly assess
48 FREYD V. UNIVERSITY OF OREGON
the differences in actual job duties between Freyd and her
comparators, I will compare Freyd’s job to that of each of her
comparators.
A. Ulrich Mayr
Ulrich Mayr, the head of the Psychology Department,
does not do substantially equal work as Freyd. The majority
essentially concedes as much in footnote eight of the opinion.
The requirements of the department head position—managing
the Department, handling faculty grievances, running
scientific misconduct investigations, participating in retention
negotiations, and conducting the tenure and faculty review
process—consume nearly all of Mayr’s working time and are
responsibilities that Freyd does not share. Freyd even agreed
“that the department head duties, in particular, are different
from the duties of the job of a full professor.” Because the
vast majority of Mayr’s job consists of department head tasks
that are not part of the content of Freyd’s job, Mayr’s work is
qualitatively different from, and thus not substantially equal
to, Freyd’s work.
B. Gordon Hall
Gordon Hall’s work is likewise not substantially equal to
Freyd’s. The majority reaches a different conclusion,
however, by classifying Hall’s position as Associate Director,
and then Interim Director, of CoDAC as a mere “service role”
and then arguing that Freyd also took on a “service role” as
a member of the University Committee to Address Sexual
and Gender-Based Violence. Based on that reasoning, the
majority could not determine as a matter of law whether
Hall’s and Freyd’s “two service roles makes Hall and Freyd’s
jobs substantially different.” But, again, the majority misses
FREYD V. UNIVERSITY OF OREGON 49
the ball here, impermissibly comparing “individual segments”
of Hall’s and Freyd’s work—i.e., their service roles, not their
jobs as a whole—to conclude that Hall and Freyd do
substantially equal work.
By considering these positions in the context of all of the
job responsibilities borne by Hall and Freyd, it is clear that
their overall jobs are not substantially equal. Hall’s
responsibilities with CoDAC consumed at least half of his
working time, sometimes more, and thus significantly
reduced the portion of his job spent teaching and conducting
his own direct research. While the majority homes in on
Freyd’s statement that she spent an “enormous amount of
[her] time” working with the University Committee to
Address Sexual and Gender-Based Violence, she also
reported spending “extensive time and effort” running her
research lab and additional time supervising and meeting with
lab members; was “very involved in the development of the
field of trauma research”; invested “significant time and
energy” teaching trauma courses and working with students
and faculty who disclosed their own traumatic experiences in
the teaching setting; did “a substantial amount of advising
and mentoring” of graduate students; and engaged in
“significant amounts of briefing, teaching, and consulting
work for entities outside the higher education context.”
Because Freyd—in her own words—asserts that her
position requires her to devote a significant amount of time to
each of these many tasks, the record simply does not support
that she could have spent anywhere close to 50% or more of
her time on her service work with the University Committee
to Address Sexual and Gender-Based Violence, even viewing
the evidence in the light most favorable to her. In addition to
the very different responsibilities imposed by these two jobs
50 FREYD V. UNIVERSITY OF OREGON
overall, the specialized skills required to accomplish even the
two discrete “service roles” relied on by the majority—i.e.,
knowledge of diversity, equity, and inclusion initiatives and
phenomenon (for Hall’s role) versus experience with sexual
and gender-based trauma (for Freyd’s role)—are clearly very
different. As a result, Hall’s overall job (at least half of
which was devoted to equity and inclusion work) is
qualitatively different than Freyd’s job (made up of varying
tasks related to the field of trauma), and therefore the two are
not substantially equal. See Gunther, 623 F.2d at 1309–10
(concluding that prison matrons did not do substantially equal
work as male prison guards where the matrons spent “as
much as 50% of their working time” on clerical work,
whereas the male guards “spent very little time performing
clerical work,” and the prisoner-to-guard ratio was
significantly higher for male guards).
C. Phil Fisher
Phil Fisher does not do substantially equal work as Freyd,
in particular because part of his work is done directly for (and
is compensated by) Harvard University, and he spends a
substantial amount of time administering large federal
research grants, which Freyd does not. Harvard University
pays approximately 20–30% of Fisher’s salary in exchange
for his work at Harvard. By nature of Fisher doing a portion
of his job for an entirely different university, the department
head could only generically describe this part of his work as
having to do with “policy, advising, [and] research
coordination” and having “some synergy” with Fisher’s work
for the University of Oregon. But the department head didn’t
“need to have an exact description” of Fisher’s work for
Harvard, he explained, because he doesn’t “have to oversee
that work.”
FREYD V. UNIVERSITY OF OREGON 51
In addition to the considerable time devoted to his work
for Harvard, Fisher invests “a very large part of [his] time” in
applying for and administering federal research grants, having
been awarded over $9 million in grant funding during his
decade at the University. He has historically submitted five
or six grant applications per year, each of which can take
anywhere from weeks to months to prepare and consume a
substantial portion of his time. After receiving these grants,
Fisher bears substantial administrative responsibilities,
including ensuring that time spent on a project is
appropriately allocated to the grant, all of the expenses
charged to the grant are allowable and reasonable, all of the
reports satisfy the government’s requirements and are timely
submitted, and he and his staff have complied with all of the
relevant federal laws and conditions imposed on the grants.
In describing the duties imposed by administering large
federal grants, the department head reiterated that these grants
require significant reporting requirements, negotiating budget
changes with the government, complying with data security
requirements, and “a lot of really nasty overhead.”
The majority asserts that, “according to Freyd,” her
responsibilities associated with obtaining private funding for
her research are similar to those of her male comparators who
manage large federal grants to conduct their research, and so
it cannot say as a matter of law that the difference in funding
sources means Freyd does not do substantially equal work as
her male comparators. The majority bases this assertion on
Freyd’s briefing, which argues that the underlying tasks
required of her male comparators to manage federal grants
are similar to the duties she bears in managing her research
lab. But as noted above, Freyd, Fisher, and Allen each run
their own research lab—presumably bearing similar
administrative burdens associated with actually managing
52 FREYD V. UNIVERSITY OF OREGON
that laboratory—but Fisher and Allen also manage significant
federal grants. So obtaining and managing large federal
grants imposes significant and very different duties for Fisher
and Allen in addition to the normal administrative duties of
running their labs. This conclusion is supported by the fact
that, as opposed to the numerous responsibilities borne by
Fisher and Allen as a result of the millions of dollars in
external grant funding that they received and oversee, Freyd’s
only funding-related responsibilities, as she describes them,
appear to be raising private donations and overseeing the
budget, accounting, and grant approvals for the
approximately $285,000 in cumulative private donations she
has received for her lab in over a decade. These are not
similar responsibilities.
Considering the composition of responsibilities
comprising Fisher’s job as a whole, including the significant
portions devoted to his work for Harvard and to applying for
and administering federal grants, results in the conclusion that
Fisher does work that is not substantially equal to Freyd’s
work.
D. Nicholas Allen
Nicholas Allen does not do substantially equal work as
Freyd because Allen, like Fisher, administers a number of
large federal grants to facilitate his research and serves as the
current Director of Clinical Training, roles which make up a
substantial portion of his work and which require different
responsibilities and skills than Freyd’s work. In over four
years since Allen joined the University, he has obtained,
individually and with others, over $8.8 million in federal
grant funding. He was also awarded another large grant from
the National Institute of Mental Health for an upcoming
FREYD V. UNIVERSITY OF OREGON 53
project on suicide prediction. Allen assumes primary
responsibility for the preparation of three or four grant
applications on average each year, each of which, as noted
above, may take anywhere from weeks to months to prepare
and which cumulatively consume a substantial portion of his
time. After receiving the federal grants, Allen is responsible
for satisfying the complex, time-consuming administrative
requirements associated with managing such grants. His
grant-related responsibilities are generally similar to Fisher’s
grant-related responsibilities described above. As discussed
in relation to Fisher’s work, Freyd does not bear the same
responsibilities associated with obtaining and managing
federal grant funding.
In 2017, Allen also assumed the position of Director of
Clinical Training. In addition to overseeing the preparation,
training, and supervision of clinical psychology doctoral
students, organizing weekly seminars, and working with
accrediting agencies, Allen is responsible for leading the
Department of Psychology’s re-accreditation process with the
American Psychological Association (“APA”). This
burdensome process—one that has consumed hundreds of
hours in preliminary work alone—involves conducting a self-
study of the University’s clinical program, hosting an on-
campus visit and interviews, and implementing any required
follow-up from the APA. In contrast, Freyd has not served as
the Director of Clinical Training and does not bear any of
these responsibilities.
Given the substantial portion of Allen’s job that is
devoted to administering large federal grants and serving as
the Director of Clinical Training—both of which come with
duties and skills not required of Freyd’s job—Allen’s job is
not substantially equal to Freyd’s job.
54 FREYD V. UNIVERSITY OF OREGON
* * *
Based on the significant differences in responsibilities
constituting Freyd’s job relative to those of each of her male
comparators’ jobs, Freyd and each of her male comparators
do not do substantially equal work. Thus Freyd cannot
establish a prima facie case under the Equal Pay Act.
Accordingly, I would affirm the district court’s grant of
summary judgment on her Equal Pay Act claim.
II. Oregon Revised Statute § 652.220
Oregon state law prohibits an employer from engaging in
salary discrimination between employees of different sexes
who perform “work of comparable character, the performance
of which requires comparable skills.” Or. Rev. Stat.
§ 652.220(1) (2017). This “comparable” work standard is
more inclusive than the “equal work” standard under the
Equal Pay Act. Smith v. Bull Run Sch. Dist. No. 45, 722 P.2d
27, 29 (Or. Ct. App. 1986). “Comparable” work only
requires that the jobs being compared “have important
common characteristics.” Bureau of Labor & Indus. v. City
of Roseburg, 706 P.2d 956, 959 n.2 (Or. Ct. App. 1985).
Because the minimum qualifications of a full professor
may establish a “common core of tasks” shared by Freyd and
her male comparators, such “common core of tasks”—while
not sufficient to establish substantial equality among jobs for
purposes of the federal Equal Pay Act—may demonstrate
sufficient “common characteristics” shared by the jobs for a
reasonable jury to conclude Freyd and her male comparators
do “comparable” work for purposes of Or. Rev. Stat.
§ 652.220(1) (2017). I therefore agree with the majority’s
FREYD V. UNIVERSITY OF OREGON 55
conclusion that the district court erred in granting summary
judgment to the University on this claim.
III. Title VII Disparate Impact
“A plaintiff establishes a prima facie case of disparate
impact by showing a significant disparate impact on a
protected class caused by a specific, identified, employment
practice or selection criterion.” Stout v. Potter, 276 F.3d
1118, 1121 (9th Cir. 2002). In concluding that there is at
least a genuine issue of material fact as to whether Freyd
established a prima facie case under her disparate impact
claim, the majority credits two sets of statistical data provided
by Freyd as demonstrating a “significant discriminatory
impact” on female professors of Psychology.
As an initial matter, the majority interprets the data
relating to the number of female Psychology professors (as
opposed to male Psychology professors) engaging in
retention negotiations and the number of “successful”
negotiations resulting therefrom to mean that female faculty
receive fewer competing offers. But this data only states that
“of the 20 retention cases, only 4 affected female faculty, and
only 1 of the successful retention cases was a woman (the
percentage of female faculty in our department is currently
about 49%).” This does not necessarily mean that female
faculty receive fewer competing offers; it simply shows that
the female faculty who engaged in retention negotiations, as
known to the authors of the self-study, totaled four out of
twenty. Freyd concedes that she does not know any women
who have left the University in the last ten years where the
University could have retained them with a better retention
offer. And she has also stated that “[o]ne of the things that I
think is really important to understand is that the most
56 FREYD V. UNIVERSITY OF OREGON
common way … this [outside recruitment] occurs is there is
an initial probe, and if that probe is rejected, that tends to be
the end of it, and I rejected those probes.” (emphasis added).
So even when considering in the light most favorable to
Freyd, this data simply shows that fewer female faculty have
engaged in retention negotiations. Freyd’s explanations
indicate that such data does not encompass the total
availability of outside offers to female faculty.
Moreover, the choice of female faculty to accept or reject
the Department’s retention-based counter-offers does not
support the conclusion that the Department’s failure to adjust
salaries of other professors (who have not been offered
retention raises) caused a significant disparate impact on
female professors. The decision to accept or reject an
outstanding retention offer is in the sole discretion of the
professor who received the offer and may be made for many
different reasons. The University can lead a professor to the
offer, but it can’t make the professor accept it. The majority
claims that rewarding faculty who receive competing offers
favors male faculty, but the fact that female psychology
professors may choose to decline to accept the University’s
counter-offers is partially dependent on the independent
actions of female professors. It does not follow that female
professors were the subject of a significant disparate impact
because a greater percentage of them elected not to accept a
retention offer.
These “statistics” are thus completely useless to the
question at hand. Nonetheless, the majority chalks this up to
a “dispute among the experts” “that we can[not] resolve.”
This is incorrect. Unlike the regression analyses conducted
by Dr. Cahill, a labor economist—there is no expert
interpreting or analyzing this data set of twenty retention
FREYD V. UNIVERSITY OF OREGON 57
negotiations. Instead, the majority plucked this information
from the Psychology Department’s 2016 self-study that was
conducted by professors and employees of the Psychology
Department—not experts in the field of mathematics,
statistics, or economics. The small sample size (i.e., four
women out of twenty total professors engaging in retention
negotiations and only one in four accepting the offer),
together with Freyd’s failure to demonstrate that these figures
are statistically significant, further undermines the reliability
of these statistics. Cf. Stout, 276 F.3d at 1123 (“A sample
involving 6 female applicants in a pool of 38 applicants is
likely too small to produce statistically significant results.”);
Bouman v. Block, 940 F.2d 1211, 1225–26 (9th Cir. 1991)
(warning that “it is the combination of small sample size and
small success rate that calls into question the statistical
significance of a violation of the [four-fifths] rule”).4 To that
end, this data comparing the number of retention negotiations
and resulting “successes” experienced by female and male
professors does not establish a prima facie case of disparate
impact.
Even if Dr. Cahill’s separate regression analyses were to
establish a prima facie case of disparate impact, the
University has demonstrated that its practice of offering
retention raises to externally recruited professors, without
also providing raises to other professors of comparable merit
and seniority, is both “job related … and consistent with
business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). This
4
The majority questions this critique of the University’s self-study,
but the point is not to dispute the University’s qualifications in conducting
such a study. Rather, it is that due to the small sample size, mere
satisfaction of the four-fifths rule is not sufficient without also a showing
of statistical significance. Bouman, 940 F.2d at 1226.
58 FREYD V. UNIVERSITY OF OREGON
is independently sufficient to defeat Freyd’s disparate impact
claim. First, the University’s retention practice is job-related.
A practice is “job related” if “it actually measures skills,
knowledge, or ability required for successful performance of
the job.” Assoc. of Mexican-Am. Educators v. California,
231 F.3d 572, 585 (9th Cir. 2000) (quoting Contreras v. City
of Los Angeles, 656 F.2d 1267, 1271 (9th Cir. 1981)). A
retention raise is the result of a retention negotiation that may
only be triggered by an external offer or pursuit of a faculty
member by an outside institution. Other institutions seek out
professors in the Department because of the experience the
professors have gained from, and their successful
performance in, their current job at the University. For
example, Hall was recruited by the University of Michigan
specifically because they were about to embark on a very
similar accreditation process to the one that Hall had just
completed for the University of Oregon.
Many of the retention negotiations in the Department are
prompted by external offers to faculty who have amassed
large federal grants in their current positions. And the
Department takes the amount of grant funding that a
professor receives into account under its guidelines and
procedures to determine merit raises, reviews, promotion, and
tenure. When the Department assesses whether to make a
retention offer to an externally recruited faculty member, it
generally undertakes a merits evaluation of that faculty
member and considers “whether the faculty member’s
contributions to the department and the field are worthy of
further investment[,]” among other factors. This separate
analysis conducted by the Department is also clearly related
to the job experience and job performance of the faculty
member and therefore related to the member’s current job.
FREYD V. UNIVERSITY OF OREGON 59
Awarding retention raises to only those professors who
receive external offers or are recruited by other universities
is also a “business necessity.” Freyd acknowledges that the
University must “have world-class scientists doing world-
class research” to support its mission as a renowned research
institution. But if one high-quality professor leaves the
University, others that work closely with that individual or
engage in significant grant activity together may also leave.
An exiting professor may take grant and other external
funding with them—funding that supports a portion of the
University’s infrastructure, graduate student stipends and
tuition, and the salary for research assistants, among other
expenses. The purpose of the retention-raise policy is to
ensure that the University is not “priced out of the market”
and has a way to recruit and retain these high-caliber
professors.
But the ability to do so depends on available resources.
At times, the University has been unable even to match the
external offer made to a professor, much less fund additional
raises for other professors. In addition, these retention
situations often occur under some time pressure with a short
window of opportunity. Determining whether the University
has the budget both to extend a viable retention offer and
provide raises to other professors of comparable merit and
seniority would likely cause the University to lose out on
professors under a tight timeline for negotiation. As a result,
the University’s practice of granting retention raises without
also providing raises to other faculty of comparable merit and
time in rank is a “business necessity.”
Freyd has also failed to separately establish a claim of
disparate impact by presenting an alternative employment
practice that the University refused to implement. See
60 FREYD V. UNIVERSITY OF OREGON
42 U.S.C. § 2000e-2(k)(1)(A)(ii). Freyd’s proposed
alternative practice is that, when the Department awards a
retention raise, it should also give raises to other professors
in the same rank with comparable merit and seniority. Freyd
argues— and the majority credits—that the University has
taken this approach in the past, and this practice is consistent
with Department policies on retention raises. But we must
consider cost and other administrative burdens in determining
whether the alternative practice “would be equally as
effective as the challenged practice in serving the employer’s
legitimate business goals.” Watson v. Fort Worth Bank &
Tr., 487 U.S. 977, 998 (1988) (O’Connor, plurality).
Significantly, the example that Freyd provides—and the
majority highlights—of the University previously applying
this alternative practice was during a time when the
University employed a completely different budget model,
and the dean of each department had control over that
department’s budget. Even back then, only certain
departments followed this practice, while others paid their
star faculty as much as they could and hoped that the other
professors would eventually reach that level. Freyd does not
provide any evidence that the University could currently
afford to grant raises across the board when one of their
faculty is offered a job elsewhere, nor does she suggest any
criteria for determining which professors are considered of
“comparable merit and seniority” to warrant such raises. This
approach poses serious financial concerns for the University,
as well as concerns that it could hinder the University from
effectively pursuing externally recruited faculty in time-
sensitive situations. This alternative employment practice
would not serve the University’s legitimate business interest
FREYD V. UNIVERSITY OF OREGON 61
in retaining highly valued, externally recruited faculty.5
Thus, Freyd cannot establish a case for disparate impact
under any of her proffered legal theories, and I would affirm
the district court’s grant of summary judgment on this claim.
IV. Title IX and the Oregon Equal Rights Amendment
Freyd raises claims under Title IX and the Oregon Equal
Rights Amendment, but the only arguments that she asserts
in her opening brief on appeal with respect to these claims are
the same theories under which she brings her Title VII and
Oregon Revised Statute § 659A.030 claims. Because her
Title VII and Oregon Revised Statute § 659A.030 claims
5
The majority claims that we must credit conflicting facts about
Freyd’s proposed alternative practices when reviewing in a light most
favorable to Freyd. But even on summary judgment, “[t]he plaintiff’s
proposed alternative(s) must be ‘equally effective’ as the defendant’s
chosen policy at serving the defendant’s interest(s), taking into account
‘[f]actors such as the cost or other burdens’ that alternative policies would
impose.” Hardie v. Nat’l Collegiate Athletic Ass’n, 876 F.3d 312, 320
(9th Cir. 2017) (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642,
661 (1989), superseded by statute on other grounds, 42 U.S.C. § 2000e-
2(k), as recognized in Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive
Cmtys. Project, Inc., 576 U.S. 519, 542 (2015)). Freyd has not shown
how her proposed alternative is equally effective, especially considering
the additional costs and burdens. See Hardie, 876 F.3d at 321 (“We find
Hardie has failed to establish that the pre-2011 policy would be equally
effective as the current policy in serving the NCAA’s legitimate
interests.”); MacPherson v. Univ. of Montevallo, 922 F.2d 766, 773 (11th
Cir. 1991) (“Plaintiffs in this case never presented evidence to show that
requiring the University to pay the A.A.C.S.B. ‘market rate’ to longer-
serving professors is economically possible for the University.”).
62 FREYD V. UNIVERSITY OF OREGON
fail,6 her claims under Title IX and the Oregon Equal Rights
Amendment likewise fail. Any alternative theories or
arguments supporting these claims have been waived. See
Greenwood v. FAA., 28 F.3d 971, 977 (9th Cir. 1994) (“We
review only issues which are argued specifically and
distinctly in a party’s opening brief.”); see also Miller v.
Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986)
(declining to consider “matters on appeal that are not
specifically and distinctly argued in appellant’s opening
brief”). Accordingly, I agree with the majority’s conclusion
to affirm the district court’s grant of summary judgment on
these claims.
* * *
For the reasons set forth herein, the district court’s grant
of summary judgment on all claims—except Freyd’s Oregon
Revised Statute Section 652.220 claim—should be affirmed.
I therefore respectfully dissent.
6
I concur in Section III, Parts D and E, of the majority’s opinion
regarding Freyd’s Title VII disparate treatment claim and her Oregon
Revised Statute § 659A.030 claim. I also concur in denying Freyd’s
Motion to Certify and the University’s Motion to Strike.