APU Legal Studies Original

Gender-Based Pay Discrimination in Higher Education: Part II

Note: This article is part 2 of a two-part series that discusses three recent cases involving gender-based pay discrimination law for faculty in higher education.

In my previous article, I discussed two lawsuits involving gender-based pay discrimination, brought by female faculty members. A third case, Davidson-Schmich v. University of Miami, also concerns an issue of gender-based pay discrimination.

Davidson-Schmich v. University of Miami

gender-based pay discrimination Miami part 2 Deel
Davidson-Schmich v. University of Miami was another case involving gender-based pay discrimination.

The decisions from the Ninth and Fourth Circuits with regard to the Freyd and Spencer cases are in some ways difficult to reconcile with another case, Davidson-Schmich v. University of Miami. This case went to trial just last year. It involved a political science professor, Dr. Louise Davidson-Schmich, who discovered what she believed to be evidence of gender-based pay discrimination in her place of employment at the University of Miami, according to Forbes.

Davidson-Schmich was hired at the university as an assistant professor in 2000 at a base pay of $50,000. In 2006, she earned a promotion to associate professor and her pay was subsequently increased to roughly $72,500.

That same year, an external applicant, Dr. Gregory Koger, was hired as an assistant professor in Davidson-Schmich’s same department. However, his starting salary was $81,000. So after six years of work with the university and one promotion in rank, Davidson-Schmich still made less than a male professor hired from outside the university into a lower-ranking position.

Four years later, Dr. Koger was promoted to associate professor, the same rank that Davidson-Schmich earned in 2006. Koger’s salary after the promotion was set to roughly $90,500, but Davidson-Schmich’s pay, at the time, was still at approximately $80,000.

Six years later, in 2016, both Davidson-Schmich and Koger earned their penultimate promotions to full professor. Following these promotions, Koger’s salary was adjusted to roughly $137,500 while Davidson-Schmich’s was bumped to approximately $109,500.

Clearly, there was a significant pay disparity between these two faculty members across many years and several ranks. But why?

In discovery, the university indicated that the reasons for the disparity were gender-neutral and non-discriminatory. They alleged that at the time of Koger’s hire:

  • He had more teaching experience than Davidson-Schmich.
  • He had an attractive pending book deal.
  • He aggressively negotiated his starting salary.

Presumably, his elevated pay had simply been maintained throughout the tenure of both faculty members. Both professors had received positive performance reviews and merit raises during the time periods in question.

After Davidson-Schmich noticed this disparity in pay between herself and Koger, as well as some differences with other faculty members’ salaries, she contacted the Equal Employment Opportunity Commission (EEOC). The EEOC then launched an investigation. Afterward, the EEOC concluded that there was reasonable cause to suspect that the school had violated both the EPA and Title VII of the CRA.

After attempts at conciliation with the university failed, the EEOC filed a lawsuit against the university. Davidson-Schmich followed with her own private lawsuit against the school as well.

The case was tried in the U.S. District Court for the Southern District of Florida. At trial, the jury found in favor of the University of Miami. The arguments from the university’s lawyers seemed to rely on the idea that there were compelling, non-discriminatory reasons for the disparity in pay between Davidson-Schmich, Koger, and other faculty, such as experience, publications, and other credentials, according to Insurance Journal.

Related: Employment Discrimination Regarding Dress and Grooming Codes

Gender-Based Pay Discrimination and Different Approaches to Analysis

Clearly, there are different approaches to analyzing gender-based pay discrimination claims from university faculty. The Freyd and Spencer cases seem to suggest that claims of gender-based pay discrimination could prevail where statistically significant disparities exist, but not when the positions of employees who are being compared differ in even minor ways.

However, with the Davidson-Schmich case, the court seemed to go a step further in saying that pay disparities even within identical positions or ranks could be legally defensible if a non-discriminatory explanation for differences in pay exists.

One additional pattern worth noting is that in both Spencer and Davidson-Schmich, the plaintiffs seemed to fixate in their arguments on a very small comparative set of just one or two faculty – whereas Freyd’s statistical analysis cast a much wider net. So this difference might also help to explain the some of the distinction in rulings.

Moving forward, these lawsuits, taken together, strongly suggest that gender-based pay discrimination for faculty in higher education must meet very stringent standards for truly compelling evidence if they are to be successful.

Gary Deel

Dr. Gary Deel is a Faculty Member with the Wallace E. Boston School of Business. He holds an A.S. and a B.S. in Space Studies, a B.S. in Psychology, a J.D. in Law, and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for the University, the University of Central Florida, Colorado State University and others.

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