20 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP conditions.”144 Other states apply a “comparable character,” standard, or other standards that are arguably more or less lenient than the “equal work” or “substantially similar work” standards.145 The exact meaning of these standards is far from a settled matter, even with respect to the federal EPA, which has been in place since 1963. Actual Job Duties or Content. The requirement that a plaintiff show that they performed the same or similar work as their chosen comparators is often the most significant obstacle to a plaintiff’s prima facie case. Some industries are naturally more amenable to this kind of defense than others. For example, several courts have noted how difficult it can be to compare professionals in the academic and medical fields. For example, in Goulet v. University of Mississippi,146 a university professor alleged she was underpaid compared to her male colleagues, even though she was the highest paid non-chair faculty member in her department. She sought to maintain her equal pay claim by pointing to faculty members in other departments as comparators, arguing that “her contract is not with the Department of Biology, but rather with the university and the Department of Biology is part of the university, not a stand-alone entity.”147 The court held that this argument was contrary to the law in the Fifth Circuit because “[d]ifferent job levels, different skill levels, previous training and experience: all may account for unequal salaries in an environment free from discrimination.”148 With respect to one comparator who was the former chair of plaintiff’s department, the biology department, but now worked as a professor in the university’s School of Pharmacy, the court observed: “This professor . . . is therefore not even in the same school as the plaintiff, much less the same department, and he works under a different supervisor.”149 Plaintiff’s arguments with respect to comparators in the Department of Chemistry and Biochemistry were similarly rejected because they work “in a different department and under a different supervisor than the plaintiff.”150 This is consistent with the Ninth Circuit’s conclusion in Freyd v. University of Oregon, even though the court in that case reversed the district court’s grant of summary judgment in favor of the employer.151 The district court in that case acknowledged the unique complexities that attach to the notion of “equal pay for equal work” in the university setting, noting that the nature of the academic setting allowed different professors within the same discipline to choose to follow different paths of knowledge and to pursue endeavors that create different and unique value to the institution.152 The Ninth Circuit later reversed that aspect of the district court’s decision, holding that a reasonable jury could hold that plaintiff and her comparators share the same “overall job,” noting that they are all full professors in the Psychology Department and “all conduct research, teach classes, advise students, and ‘serve actively on 144 See Cal. Lab. Code § 1197.5(a). 145 See, e.g., Md. Code Ann. Lab. & Empl. §§ 3-304(b)(1)(i). 146 Goulet v. Univ. of Miss., No. 3:22-cv-89-NBB-JMV, 2023 WL 4707134 (N.D. Miss. July 24, 2023). 147 Id. at *2 (internal quotations omitted). 148 Id. (quoting Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1138 (5th Cir. 1983)). 149 Id. at *3. 150 Id. 151 Freyd v. Univ. of Or., 990 F.3d 1211, 1221 (9th Cir. 2021). In that case, a university professor of psychology alleged she was paid less than other professors at the same university for performing the same work. Plaintiff had become concerned that the salary inequities in her department were related to gender and, in particular, that her salary was below that of male professors in the same department with less seniority. Freyd v. Univ. of Or., 384 F. Supp. 3d 1284, 1289 (D. Or. May 2, 2019). However, the university decided not to offer her a raise after concluding that she was compensated at a higher rate than the majority of professors in the College of Arts and Sciences, and that any discrepancy with respect to her salary versus her male colleagues was attributable to retention raises and significant differences in job duties. Id. 152 Freyd v. Univ. of Or., 384 F. Supp. 3d 1284, 1288 (D. Or. May 2, 2019). The court also held that a university must offer competitive salaries in order to attract top faculty while at the same time maintaining a fair compensation system for all professors. Id. In particular, the court held that senior professors and professors who take on introductory courses and devote extra time to advising and other roles that make up the bread and butter of a university education, may be paid according to a pay scale that has not kept up with the market demand that influences how much a university has to pay to attract top talent. Id. The district court then analyzed plaintiff’s comparators in detail, holding with respect to each one that the differences in their job duties and other related activities, as well as their frequency and success with respect to the submission of grant applications, justified the salary discrepancies among those professors. Id. at 1291-94.
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