Those in higher education know that annual faculty pay can range from $50,000 to $250,000, which may be true for faculty in the same department teaching the same courses! Is this unlawful? Well, no, but it could be perceived that way.
We recently handled an Equal Employment Opportunity Charge for a public university where a faculty member used the Freedom of Information Act process to obtain aggregate pay and salary range information about her department.
After estimating which faculty were making what, she concluded she was the lowest-paid, making about $15,000 less than the newest hire in the department: a younger male with about 10 years less experience. She brought claims against the university—our client—for pay discrimination based on age and gender.
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On its face (and maybe to a jury), her case looked strong and our best defense was, “Well, Your Honor, their pay rates are, well, arbitrary…but not unlawful.”
Universities get themselves into these situations easily. Let’s consider other examples we’ve seen of how faculty pay gets set:
- A department receives different budgets year-to-year and has different amounts it can offer new hires any given year.
- A dean sought to woo notable professors from more prominent universities and cities with higher costs of living, and the job-hopping professors would not come with any pay cuts.
- A professor came with significant grant funding and brought exciting research to the department.
- A professor simply negotiated or countered with higher pay upon receiving their offer.
- A professor had marketable accolades, such as authored books, peer reviewed journals, awards, and other prizes.
- A professor worked in the Provost’s Office or as a chair, dean or other managing-level faculty administrator, and received a significant pay bump that they retained upon returning to teaching.
There is no doubt that formulas for setting pay are rarely used in the higher education context. Indeed, subjective considerations as to what’s important for a university at any given time drive the process. This is why one can rarely guess what one professor of civil engineering makes compared to another—the results are just plainly arbitrary.
So, how does a university defend against the perception of pay discrimination?
A university generally has to demonstrate that the pay disparity was actually based on non-discriminatory factors (in other words, factors other than professors’ protected characteristics). A university cannot simply step back when a pay discrimination claim is filed and count out the differences between the claimant and other professors in the department. Indeed, a university must “go back in time” and prove that at the time, the pay decisions were made, those decisions were based on lawful, non-discriminatory factors.
As the defense involves looking at what actually happened retroactively (and this could go back years), universities should develop procedures for departments to follow in setting pay. These procedures should require detailed documentation in how the department heads ultimately landed at a particular salary for a new hire. For instance, it should require the department leader to document all factors considered, from the yearly budget to tenure track to specific accolades to negotiation conversations.
As the Fourth Circuit said in Spencer v. Virginia State Univ., “Professors are not interchangeable like widgets. Various considerations influence the hiring, promotion, and compensation of different professorial jobs.” However, it is the university that bears the burden to prove that the salary difference was based on a “factor other than sex.” And the university must convince the court (or a jury) that “the proffered reason did in fact explain the wage disparity, not merely that it could.”
