The appeals court also found that a litany of concrete differences underscored that the female professor did not perform work equal to that of her higher paid male comparators.
While a female professor’s decision to choose as comparators two of the highest-paid professors at the university established the existence of a wage differential for her Equal Pay Act claim, that same decision precluded her from showing they performed equal work requiring equal skill, effort, and responsibility, the Fourth Circuit stated, observing that “professors are not interchangeable like widgets.” And here, the male comparators taught in different departments than the professor, as well as at different class levels, and worked more hours. Affirming summary judgment against her EPA and Title VII claims, the court also noted that the pay differential was based on a factor other than sex: As former administrators, the comparators’ pay was set as a prorated portion of their previous salaries. The court affirmed the lower court’s grant of summary judgment to the university (Spencer v. Virginia State University, March 18, 2019, Richardson, J.).
The sociology professor earned about $70,000 per year, a median salary when compared to the men who were also full professors in the Department of Sociology, Social Work, and Criminal Justice. In her lawsuit against the university, however, the professor compared her pay to two former university administrators who each earned over $100,000 per year as professors in other departments. Asserting that she was paid less because she is a woman, she sued under the EPA and Title VII and the district court granted summary judgment for the university.
Equal work? On appeal, the Fourth Circuit first rejected her contention that all university professors perform equal work because they all perform the same essential tasks—preparing syllabi and lessons, instructing students, tracking student progress, managing the classroom, providing feedback, and inputting grades—which require the same skills: studying, preparing, presenting, discussing, and so forth. “But these tasks and skills,” observed the court “are shared by middle-school teachers and law-school professors, pre-algebra teachers and biomedical-engineering professors.”
Finding her bird’s-eye view particularly unpersuasive given the inherent features of academia, the court pointed out that various considerations influence the hiring, promotion, and compensation of different professorial jobs such as the differences in skill and responsibility attendant to different jobs. For instance, the court pointed out, due to differences in skill along with market forces that highly compensate engineers, the university systematically pays engineering professors more than humanities professors.
Litany of differences. Further, said the court, a “litany of concrete differences” underscored that the professor did not perform work equal to that of her comparators. Not only did the comparators teach in different departments—and Fourth Circuit precedent recognizes that differences between academic departments generally involve differences in skill and responsibility—the professor taught mainly undergraduate courses while the comparators taught more graduate courses and one supervised doctoral dissertations. The comparators also regularly worked more hours than the professor.
Overpaid relative to all professors. And while the professor’s expert argued that the comparators were significantly overpaid in comparison to the professor, the court found this not only irrelevant but a bit misleading as the expert also asserted that they were overpaid relative to all professors, both men and women. As to the expert’s attempt to identify a general disparity between the pay of men and women at the university, he failed to uncover any statistically significant disparity within each school, which, said the court, undermined the professor’s claimed inference of discrimination.
Factor other than sex. Even if she could meet her initial burden, the university established that the salary difference was based on a factor other than sex. The university generally paid former administrators who became professors “9/12ths” of their administrator salary, a practice that rested on the theory that professors work nine months out of the year while administrators work year-round and here there was no dispute that the wage differential at issue resulted from the university setting the comparators pay at 75 percent of their previous salaries as administrators.
Although the professor argued that the university’s practice only applied to administrators who were previously tenured faculty, the court observed that even if the university erroneously applied its practice to overpay the comparators, “such an imprudent decision would still serve as a non-sex-based explanation for the pay disparity.” While the Equal Pay Act is a powerful tool, it must be “tempered by adherence to its provisions,” said the court, noting that “Doing so requires that the work performed by the plaintiff and her comparators be equal and that the wage disparity not be based on a factor other than sex.” Here, her claim failed on both requirements.
Title VII claim. Turning to the professor’s Title VII sex-based wage discrimination claim, the court pointed out that the university provided a legitimate, nondiscriminatory explanation for the pay differential—its practice of paying former administrators 9/12ths of their previous salary—and the professor failed to show this was pretextual. Although she argued that the university misapplied its policy to the comparators, the court again noted that even if it did erroneously or purposely misapply the policy, this was not proof of unlawful discrimination.
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