March 29, 2021
The University of Oregon wholeheartedly supports the principle of gender equity in pay and all aspects of university life. We also understand that our employees—of all genders—are our most important resource and we are committed to doing all we can, consistent with the law, to retain them. It is because of these twin commitments that the UO today filed a petition for en banc review with the Ninth US Circuit Court of Appeals in Freyd v. University of Oregon.
The UO petition requests that the entire Ninth Circuit review the split decision of a three-judge panel to allow Professor Jennifer Freyd to proceed to trial on three of her ten counts in order to clarify and correctly apply controlling legal precedent.
The UO is committed to following federal and state equal pay laws and adheres to the principle that a person's race, gender, nationality, sexual orientation, religion, or other protected status should not play a role, directly or indirectly, in their compensation. This commitment is demonstrated in a recently completed comprehensive gender equity study, commissioned jointly by the administration and UO’s faculty union, which confirmed that there are no systemic biases in the UO’s pay practices unfairly denying women on UO’s tenure-track faculty equal pay. This study came decades after gender discrimination claims against UO were dismissed after a nine-month trial in Penk v. Oregon State Board of Higher Education.
The entire panel in Freyd concluded that Professor Freyd had not offered evidence of intentional discrimination. However, the university's petition for a rehearing argues the decision of a two-judge majority, allowing the plaintiff to proceed to trial, misapplied the law. Their decision did not engage in the critical analysis required by longstanding precedent to look beyond a “common core” of tasks all faculty members undertake and examine whether the unique demands of the individual workplaces of senior faculty members with divergent research and program interests make those unique faculty members’ jobs not substantially the same. The university also seeks review of the majority’s ruling—again contrary to longstanding precedent—that the university’s practice of attempting to compete with outside offers for recruited faculty members must be presented to a jury to determine whether it is legally justified The two-judge majority of the Ninth Circuit ignored decades of clear authority. These errors of law will hamstring efforts by the university to retain their most eminent professors and cause great financial harm to the university.
At the core of the decision by the two-judge majority was a determination that the five faculty members being compared all share a “common core” of tasks in their jobs. UO’s petition challenges the court’s failure (as required by precedent) to look beyond that common core and conduct the required analysis of whether the day-to-day work, tasks, and obligations of each faculty member truly make their jobs “substantially equal” as a matter of law. All five faculty members in this case perform strikingly different day-to-day work.
The University of Oregon is proud of Professor Freyd and her contributions to the field of psychology; however, we cannot allow that admiration to eclipse the fact that the Ninth Circuit's decision is bad law that could come back to haunt the university, our students, and the taxpayers of Oregon. If this decision is allowed to stand, it could limit the ability of all universities to fairly compensate and retain faculty and staff of all genders. We believe that Professor Freyd, whose salary was in the top 9 percent of all tenure-track faculty in the College of Arts and Sciences prior to her retirement this year, was fairly compensated and fully supported as a scientist and member of the faculty of the university.
While we will pursue our legal options in the Ninth Circuit, we will also continue efforts to find a path to resolve the remaining issues in this litigation. No one is well served by a legal battle between the university and a respected faculty member who has given much to the university and its students.