Earlier this month, a federal judge in Colorado approved a 34-page consent decree between the Equal Employment Opportunity Commission and the University of Denver to resolve a case alleging violations of Title VII and the Equal Pay Act. In addition to numerous other obligations (described in more detail below), the consent decree requires the University to pay $2.66 million as back pay, compensatory damages, and attorney’s fees for a group of female law school professors. The case, which was filed by the EEOC in 2016 on behalf of several female members of the Strum Law School faculty, alleged that the Law School paid full-time women faculty substantially less than full-time male faculty for performing substantially equal work.
Specifically, the EEOC’s complaint alleged, among other things, that as of October 2013, the mean annual salary for female Full Law Professors was approximately $139,940, as compared to the mean annual salary for male Full Law Professors of approximately $159,721. It also alleged that as of October 2013, the salary of a female professor who was hired in the fall of 1976 was $75,000 less than that of a male professor, who was also hired in the fall of 1976. The Complaint included claims that the University violated Title VII by discriminating against female Full Law Professors with respect to their compensation and violated the Equal Pay Act by paying female Full Law Professors less than it pays males for performing work that is substantially equal, considering the skills, effort, and responsibilities of the job. The Equal Pay Act prohibits employers from paying employees of one sex less than employees of another sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions,” with very limited exceptions.
After more than 18 months of litigation, the parties entered into a detailed consent decree, which will be in place for up to six years. In addition to the $2.66 million payment described above, the consent decree requires the Law School to increase salaries for a group of female professors and to disclose certain salary and compensation information annually. The University is also required to hire a labor economist to complete annual compensation equity studies and an independent consultant (approved by the EEOC) to oversee various aspects of the implementation of the consent decree, including extensive training to all employees on different topics. The EEOC has the right to designate representatives to attend any of these trainings.
Other components of the consent decree include, in part: revising relevant policies, procedures, and websites; holding Consent Decree Orientation Meetings with all Human Resources employees and other employees involved in compensation decisions at the Law School; providing semi-annual reports to the EEOC of any complaints of sex discrimination in compensation; and posting a notice in the Law School for the full period of the consent decree outlining the claims in the lawsuit, the various components of the consent decree, and methods of reporting a complaint of discrimination.
The University of Denver case is the most recent settlement in a string of cases filed by the EEOC in recent years alleging that an employer’s pay practices violated the Equal Pay Act and Title VII. It serves as a reminder to leaders of higher education institutions that they should regularly review and analyze compensation information to ensure that there are no potential violations of federal law based on pay disparities between male and female employees. To the extent male and female professors are being paid differently for substantially similar jobs, there must be legitimate, job-related factors such as prior experience, educational background that is relevant to the job, or prior job performance to justify the difference. Importantly, the Ninth Circuit Court of Appeals issued a decision last month holding that prior salary cannot justify a wage differential between male and female employees under the Equal Pay Act. Determining whether jobs are substantially equal and whether there are job-related factors to justify different pay for men and women performing substantially equal jobs is extremely fact-specific and often requires complex legal analysis.