Jennifer Freyd v. University of Oregon

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.