A Raft of Pay-Gap Lawsuits Suggests Little Progress for Academic Women. Why Is That?

Last week, five female professors at Rutgers University filed a lawsuit in state court accusing their institution of paying them tens of thousands of dollars less than their male colleagues. Days earlier, Princeton University agreed to a settlement, worth nearly $1.2 million, after a U.S. Department of Labor review found that 106 female full professors had been paid less than their male counterparts between 2012 and 2014. And in September, four female professors at Northern Michigan University settled their own pay-discrimination lawsuit for $1.46 million.

The University of Arizona resolved a pair of similar cases in 2019, doling out $190,000 to a trio of female former deans and $100,000 to an associate professor, all of whom alleged they’d been underpaid. And the University of Denver settled in 2018 with seven female law professors to the tune of $2.66 million.

To understand the raft of pay-discrimination lawsuits, The Chronicle spoke to Jennifer A. Reisch, who represented the lead plaintiff in the Denver case and argued on behalf of a professor at the University of Oregon who awaits a ruling on her own gender-discrimination case. Reisch, the former legal director for the nonprofit gender-rights organization Equal Rights Advocates and a current consulting counsel there, talked about the many forces working against pay equity. This interview has been edited for length and clarity.

What do you make of the Rutgers case?

It’s an example of a much broader and widespread and ongoing pattern of gender- and race-based salary inequities in academia, and especially among female professors in institutions that have doctoral programs and professional programs. It’s the tip of the iceberg in terms of the gender-based wage disparities that we see across the labor market, up and down, in virtually every occupation and industry, regardless of whether women have no high-school diploma or they have several years of post-doctoral experience. In fact, wage disparities between men and women actually grow the higher the education level of the workers.

The differences in pay at the faculty level for full professors sometimes represent a $10,000 or $15,000 difference. Over the course of women’s entire careers, the average woman is losing over a million dollars to the gender-wage gap. That, of course, is not always explained purely by overt or intentional discrimination, but is the product of multiple factors, ongoing practices, and policy gaps that we have in our law across the country.

One of the things that I’ve seen about these university cases is that there are a lot of hiring and compensation and evaluation practices that have been in place for years without much critical examination of who they are systematically disadvantaging. Especially, I think, since 2013, when we marked the 50th anniversary of the federal Equal Pay Act and looked around and sort of saw that, “Geez, we are nowhere near achieving pay equity over all for women and men.”

When you break it down and look at specific groups of women — Black women, Latinx women, and Native American women — you’re seeing even more gross disparities. The positions that women of color hold in the departments, and even the types of schools that they tend to teach at, offer less pay. Even when they make it all the way to the top of the top of their profession, there’s still this persistent disparity.

It’s a confluence of different factors in our economy, and somewhat due to occupational segregation, in terms of fewer women being in the, quote-unquote, “hard sciences” and engineering professions. The fact that we don’t really question why it is that the labor as a scholar and teacher of a professor in certain science fields is inherently worth more than the scholarship and labor of someone in the humanities, for example.

Since we marked the 50th anniversary of the federal Equal Pay Act, we have seen an uptick in pay-discrimination suits.

But that uptick doesn’t necessarily mean there’s been progress in closing the gap, right?

I think the uptick is a reflection of people starting to ask questions. Especially since 2015, there has been a real wave of new laws passed at the state level to either mandate or at least increase protections against retaliation relating to pay — if not mandate pay transparency, then at least increase protections for workers who seek information about their own pay and how it compares to others. I think there’s been an increasing attention given to this issue, such that more and more women are actually starting to ask around, like, “Hey, wait a minute,” coming together around either the virtual or actual water cooler and starting to talk about these things.

In the University of Denver case, a lot of the arguments that we heard had to do with this practice of matching or exceeding people’s salaries when they were hired laterally. And there’s a lot of discussion of that practice, sort of, “There’s nothing we can do if universities want to compete in the marketplace. They have to be able to do that.” In the Oregon case, the university said that the differences in pay were not due to differences in seniority or merit, but to this practice of giving retention raises to professors who went to the university and said, “I have an offer from somewhere else, and if you don’t match it or beat it, I’m leaving.”

The court in that case basically accepted that was a legitimate and nondiscriminatory practice, when in fact, there’s all kinds of studies showing that women in academia and elsewhere are kind of damned if they do and damned if they don’t. If they do try and negotiate or ask for a retention raise — which they’re less likely to do for all kinds of reasons, including that they are often primary caregivers of children and they can’t just up and leave — they are not often rewarded with the raise that they’re asking for and certainly don’t get the level or amount of a raise that a similarly situated man would.

Someone might look at the annual data from the American Association of University Professors consistently showing that female faculty members make less than their male counterparts and ask why we don’t see even more of these lawsuits. What are female faculty members who pursue a lawsuit up against?

They’re up against all the things that anybody is up against when they’re thinking about, “What are the plus-minuses and risks of suing my employer?” If they don’t have tenure, certainly they are highly vulnerable. Unfortunately, even though retaliation is obviously illegal, that doesn’t mean it doesn’t happen, and if it happens, it can be economically really devastating and can make it very difficult for people to succeed and advance. There’s the fact that many women still don’t know discrepancies exist, especially at private universities where there’s really no transparency around pay. The only way you really find out is through the grapevine.

The differences start off so modest. Are you really going to file a lawsuit over a $500 difference in pay, a $1,000 difference in pay? The problem is that the longer you stay at an institution and the more times you go through a review process, there’s usually going to be a kind of exponential or cumulative effect.

The Equal Pay Act itself does require a worker to be able to show that she is doing substantially equal work that requires equal skill, effort, and responsibility. Universities have often been able to get claims thrown out by pointing to distinctions that often actually don’t really mean something different. A lot of courts essentially just allow an employer to basically say, “It’s due to whatever.” And as long as the “whatever” is not specifically sex-related, that’s it. The entire Seventh Circuit has approved the market-forces defense that, frankly, is the exception that ends up swallowing the rule. You’re able to point to, “This is the way it is because the market is this way.” It’s like, “Well, yeah, the market is what’s reproducing this disparity.” It’s sort of circular, and yet a lot of courts have allowed it, even though I think it’s contrary to Supreme Court precedent.

Do you think this growth in cases is going to continue, particularly in the pandemic era?

I tend to think not, because there are going to be so many economic issues happening for people. It’s possible, I guess, that in the immediate wake of all these furloughs and then people being rehired, people in that context may realize, “Wait a minute, hold on. You’re offering my job back for X, but I hear that you just rehired so-and-so for more.”