Gender Pay Litigation on the Rise

Gender Pay Litigation on the Rise
Saul Ewing Arnstein & Lehr's Higher Education Highlights Summer 2018
Carolyn Pellegrini
Saul Ewing Arnstein & Lehr's Higher Education Highlights Summer 2018

In May, a federal district court judge in Colorado approved a conciliation agreement between the Equal Employment Opportunity Commission (EEOC) and the University of Denver’s Sturm College of Law, ending a lawsuit alleging violation of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 and requiring a payout of almost $2.7 million.  The headline-grabbing resolution is just one example of an increasing number of pay equity suits.

In the University of Denver suit, seven female law professors alleged that they were paid, on average, approximately $20,000 less than their male counterparts each year - and in one instance $75,000 less per year.  The women also alleged that the law school acknowledged the pay disparity in a 2012 memo, but took no remedial action.

In addition to a $2.7 million payout, the law school agreed to:

  • revise its discrimination and equal opportunity policy;
  • adopt a policy statement encouraging employees to report discriminatory conduct;
  • work with an outside consultant to enhance equity;
  • annually publish salary and compensation information to faculty; and
  • contract a labor economist to conduct an annual study of pay equity at the law school.  

Though labeled "non-monetary" pieces of a settlement, engaging outside experts for years to come will represent a substantial cost.

The University of Denver is not alone.  

This resolution comes on the heels of an expanding suit against the University of Arizona, which asserts that women were being paid $70,000-80,000 less than their male counterparts.  Likewise, in February, the University of Cincinnati paid $212,500 to settle an equal pay suit with a retired geography professor who was paid $14,000 less than her male counterpart when hired, and more than $65,000 less by the time she retired.

As gender pay lawsuits continue to rise, particularly in the higher education context, institutions should get proactive about discovering and remedying pay inequity now before a lawsuit hits.  Pay equity audits present a solid solution for identifying disparities.  But institutions must be willing to accept and examine the results, which they may find surprising. Why?  Higher education is unique.  Employee groups may be structured in a way that unintentionally masks disparities.  Plus, there are an array of non-salary compensation items that may tip the scales, such as stipends for travel and research. These intricacies mean that equity cannot be determined by simply plugging salaries into a spreadsheet—the analysis is more nuanced.  Using an attorney experienced in these higher-education-specific audits is recommended to ensure accuracy, but also to protect privilege where possible.