“Show Me the Money”: Salary Equity in the Academy

By Donna R. Euben

January 2003

This article first appeared in the July-August 2001 issue of Academe, the magazine of the American Association of University Professors (AAUP). It has been reprinted here with permission from the publisher of Academe, and the author, Donna Euben, Staff Counsel, American Association of University Professors.

Are women being paid less than men? Some recent court cases reveal unequal treatment.

The Bible values a man at “fifty shekels of silver” and a woman at only thirty. Although
today’s money is different, the financial gap between women and men persists. At many
campuses, women continue to be paid less and promoted more slowly than their comparably
qualified male colleagues. The AAUP’s Annual Report on the Economic Status of the Profession
indicates that in 2000 - 2001, women faculty, on average, received 91 percent of what their male
colleagues were paid. Corroborating the AAUP’s data are three other recent studies on wage
disparities between comparably qualified men and women professors, which identify the average
salary gap as ranging from 6.2 - 8 percent.

Winn Newman, the eminent labor and employment lawyer, defined wage inequity as
meaning “simply that women or minorities are paid less for the work they do than men or nonminorities,
because of their sex or minority status and not because of the jobs they perform.”
Such gender-based salary inequity in higher education appears alive and well:

• In January, the Minnesota State Colleges and Universities system settled for a
  rumored $830,000 a class-action suit filed by about three hundred women
  professors at St. Cloud State University, who alleged that they had been paid
  less and promoted more slowly because of their gender.
• The University of Cincinnati AAUP chapter is currently in arbitration with
  the University over the finding, by a study the chapter commissioned, that
  women professors receive salaries up to 4.85 percent less, on average, than their
  male colleagues.
• In 1998, the University of South Florida settled for $144,000 a pay-discrimination
  lawsuit brought by five women professors. The professors relied on a
  study that found that female full professors were paid, in 1997, an
  average of $8,380 less than their male counterparts.

This article reviews some of the continuing challenges for the higher-education community
in achieving salary equity, as illuminated (or made murkier) by recent legal cases. It also suggests
issues that institutions — faculty members and administrators — might consider when undertaking
salary-equity studies.

The Law

Most courts are wary of interfering with the unique nature of academic decision making. One
federal appellate court described this concern as fear of “engag[ing] in a tired-eye scrutiny” of
academic employment decisions. Another federal district court recently expressed “slight unease”
at “thrashing around in the sacred grove of academe looking for possible race or gender
bias.” Courts have properly recognized that“[q]uestions of promotion and compensation in
the academic world are rarely as straightforward as they sometimes are in the commercial world.”
Nevertheless, colleges and universities are not, as another federal appellate court put it,
“immunized” against “charges of employment bias.” Legally, they must protect faculty from
gender-based salary inequities.

In seeking to rectify gender-based wage disparities, faculty rely mainly on two federal
laws: the Equal Pay Act (EPA) and Title VII of the Civil Rights Act. Executive Order 11246,
which President Lyndon Johnson issued in 1965, also prohibits discrimination by federal contractors,
which includes many colleges and universities. In addition, many states and some localities have
anti-discrimination laws and “baby” EPAs. The EPA bars gender discrimination in wages,
requiring equal pay for equal or “substantially similar” work in public and private institutions. To establish a claim, a professor must prove that a university or college pays a higher salary to a
colleague of the opposite sex for performing work that is, as the U.S. Supreme Court has
explained, equal in “skill, effort, and responsibility, and which [is] performed under similar working
conditions.” At the same time, the law allows for salary differences between women and men
based on a number of “affirmative defenses,” including merit, seniority, and factors “other than sex.”

Title VII protects individuals from discrimination by an employer, including most colleges
and universities, on the basis of sex, race, color, national origin, or religion. The law specifically
prohibits discrimination “against any individual with respect to his compensation . . . because of
such individual’s . . . sex.” The U.S. Supreme Court has explained that Title VII bars “not only
overt discrimination, but also practices that are fair in form, but discriminatory in operation.”
The Bennett Amendment to Title VII incorporates the EPA’s affirmative defenses into Title
VII’s prohibition against wage discrimination based on gender. Recent litigation brought under
these laws has highlighted the challenges involved in achieving salary equity in higher
education. To whom, for example, is an allegedly underpaid female professor to compare herself?
What is the proper role of market forces in setting salaries? Can merit-pay and promotion
systems be “infected” with gender discrimination? Are public colleges and universities “immune”
from claims by individual professors under federal anti-discrimination laws? When might
“reverse discrimination” claims by male professors lead to salary-equity adjustments?

Point of Reference

Identifying a comparably qualified “male comparator” has proved difficult for many
women seeking relief from underpayment. In particular, to whom should a woman professor
compare herself when no comparably qualified male colleagues exist in her department?

In 1989 Barbara Lavin-McEleney, who teaches criminal justice, faced such a quandary. She
first expressed concern to the Marist College administration about her salary when the school
newspaper reported that the average professor’s salary was about $4,000 more than she received.
In 1996, after having obtained no satisfactory response, she sued the college for pay discrimination
under Title VII, the state anti-discrimination law, and the EPA. At trial, both the college’s and
the professor’s experts found a salary differential between her and comparable men, but they
disagreed on whether the difference was“statistically significant.” The jury awarded her
about $120,000 on her EPA claim, and the college appealed. On appeal, the college contended that
Lavin-McEleney inappropriately compared herself to a “hypothetical” male comparator, rather than
to an actual male colleague in her department.(1) There were, however, no assistant professors of
equivalent seniority in her department.

The court disagreed with the college, noting that Lavin-McEleney had identified two male
comparators who had positions “substantially equivalent” to hers. The comparators were not in
her department but in the psychology department of the social and biological sciences division, the
same division in which Lavin-McEleney taught. In its reasoning, the court relied on expert
testimony that departmental differences within divisions were not associated with differences in
salary. The court affirmed the jury verdict in favor of the professor, concluding that she
properly identified a specific male comparator, even though the comparator was outside of her
department.

Market Forces

As far back as the early twentieth century, some administrations argued that the market
justified salary differences between women and men. So, for example, in 1917, when a survey by the AAUP’s Committee on the Status of Women in the Academic Profession found that
47 percent of coeducational institutions of higher education and 27 percent of women’s colleges
“frankly admitted that women are given less salary and lower rank than men for the same
work,” some administrators defended the salary inequities as dictated partly by the market.
Today, some administrations and faculty unions make similar “market defense” arguments. Their
doing so, however, risks perpetuating marketbased salary disparities among women and men.
As the AAUP women’s committee explained in its 1992 report, Salary-Setting Practices That
Unfairly Disadvantage Women Faculty:

“[M]arket-determined wages and discrimination that merits correction are by no means mutually
exclusive. The prices or salaries that a market sets depend on supply and demand. If persons
operating on the demand side of the market — those with the power to make salary offers and
to hire — behave in a discriminatory manner because of societal tradition, and if competition
is not rigorous enough to eliminate such discriminatory behavior, then the market itself
will produce discriminatory results.”

Courts have recently considered whether the “market rate” is a valid measure upon which to
base faculty salaries, and the results have been mixed. In 1998, the Nevada Supreme Court
relied on market theory to justify a salary differential between a white female professor,
Yvette Farmer, and a comparably qualified black male professor at the University of Nevada.()2

She applied for an assistant professorship in sociology, with an advertised salary range
between $28,000 and $34,000. Under a “minority bonus policy,” which allowed a department to
hire an additional faculty member following the initial placement of a minority candidate, the
university first hired as an assistant professor in the sociology department a black male candidate
who was comparably qualified to Farmer. He was offered $35,000 a year, with a $5,000
increase upon completion of his doctorate.Farmer was hired the following year at an annual salary of $31,000, with a $2,000 raise after completion of her dissertation.

Farmer and her colleague started with an initial pay differential of $7,000 upon completion
of their dissertations, which continued to widen because of the male professor’s additional year
of teaching and differences in merit increases. At trial, Farmer won a jury verdict of $40,000
against the University of Nevada for several legal claims, including violation of the EPA.

On appeal, the university asserted that because only 1 percent of its faculty were black
and 87 percent were white, and because women made up 25 - 29 percent of the faculty, it should
hire a black man before a white woman to reduce this racial imbalance. Farmer argued that
the wage disparity between her and the black male professor was impermissibly grounded in
gender discrimination. The court, however, agreed with the university
that “qualified minority applicants, who are in short supply, can command premium salaries on
the open market.” It reasoned that the search committee simply “elected to avoid an all-out
bidding war with other educational institutions” by offering the male candidate a salary commensurate,
in part, with his “overall marketability.” The court further observed that the chemistry
department had “recently hired a female chemist at a higher salary than a male with similar
credentials in order to diversify its faculty. . . . Market forces dictate higher salaries for female
Ph.D.s in chemistry due to a shortage of qualified women.” The court thus concluded
that the pay disparity between Farmer and her black male colleague was permissible based, in
part, on market factors.

Another court recently rejected one university’s reliance on the market to justify a lower salary
for a woman professor.(3) Eastern Michigan University settled a federal EPA case brought
by Pamela Speelman, a professor of industrial technology, who contended that she was the
second-lowest-paid professor in her department from 1991 - 1997, despite having a higher
rank and more seniority than four of her male colleagues. She alleged that her starting salary
was below the “target” salary scale, while those of all the male professors were higher than the
target scale.

The court noted that Speelman, on average,“taught more students and had larger class sizes”
than her male colleagues. Moreover, “she had an additional responsibility as sole female mentor
for female students.” The court rejected the university’s assertion that the male academics
could command higher salaries in non-academic positions in the market, which justified their
higher salaries. As part of the 2000 settlement, EMU raised Speelman’s salary to $55,551 a year,
which matched the pay level of her highest-paid male colleagues.

Merit-Pay Debate

The question whether merit pay, like the market rate, replicates or exacerbates genderbased
salary inequities also dogs the academic community. As faculty and administration grapple
with this issue, the debate is being played out both in court and at the bargaining table.

In 1995, Dorothy Kovacevich, a specialeducation professor, sued Kent State University,
claiming, among other allegations, violation of the federal EPA and Title VII. At trial in 1997,
she introduced evidence that she was paid $5,999 less than a comparably qualified male
colleague. A jury awarded her close to $12,000 under the federal EPA, but the trial judge
promptly overturned the award. The trial court also ruled that Kovacevich had failed to state a
proper claim under Title VII.

When she appealed, the federal appellate court ruled on her EPA claim that sufficient
evidence existed for a jury to have found that “her lower salary was a result of gender
discrimination.”(4) The court further ruled that Kovacevich had properly stated a Title VII
gender-based wage-discrimination claim at trial based, in part, on the EPA analysis. The case was
sent back to the lower court for proceedings consistent with the appellate court’s rulings.

The university had argued on appeal that any differences in salary between Kovacevich and her male comparators were “due to the school’s merit system and across-the-board percentage increases.” Kovacevich’s evidence, however, suggested that gender discrimination was imbedded in KSU’s merit-pay system. The court noted that
“rather than a neutral system of merit based on anonymous peer evaluations, the merit award
system was driven largely by an opaque decisionmaking process at the administrative level [that]
did not necessarily reflect peers’ assessment of applicants’ performances, and rewarded men
disproportionately to women.”

The court also found persuasive Kovacevich’s own research on the disparity in merit payments
awarded to her department’s men and women professors, which indicated that from 1988 to
1992 “forty percent of males in her department received above-average merit awards while only
twenty-three percent of its female faculty did so.” She also found that her male colleagues
were “disproportionately represented among the top salary-earners in her department, even
though women made up forty-seven percent of the faculty.”

Promotion Lag

Yet another issue facing colleges and universities is whether the promotion system
itself is biased. Women professors may have lower salaries because they often advance more
slowly than their male colleagues. According to Mary Gray, professor of mathematics at American
University, if bias has “infected” salary, and the process for determining rank is similar to
that for determining salary, then rank, too, may be “infected.”

Gender-based promotion disparity was at issue in the November 2000 settlement between
the U.S. Department of Labor and Kent State University. In 1993, the KSU AAUP chapter filed
a complaint with the Office of Federal Contract Compliance Programs, which administers
Executive Order 11246. The executive order prohibits discrimination “because of race, color,
religion, sex, or national origin” and mandates affirmative action for minorities and women; it
applies to federal government contractors and subcontractors, including KSU and other colleges
and universities.

In filing the 1993 complaint, the chapter relied on a salary-equity study prepared by
KSU professors Robert Johnson and Dorothy Kovacevich. The study found an overall
“7.38-year gap between women and men in time spent in a lower rank.” Among the 464 men
eligible for promotion to associate professor, for example, the median time before promotion was
9.55 years, while among the 229 eligible women, the median time was 16.93 years. The delay in
the promotion to associate professor cost women faculty up to $10,000 each.

As reported in the media, the terms of the settlement provided that the university pay
$219,000 to 24 women assistant professors who had experienced delays in promotion to associate
professor between 1991 and 1993. The settlement also required the University to invite
women assistant professors who were parties to the complaint and still on the KSU faculty to
apply for promotion.

The Sovereign Immunity Hurdle

Professors at state colleges or universities who seek to challenge gender-based salary
discrimination must also grapple with the“sovereign immunity” defense. Claiming sovereign
immunity, public employers, such as colleges and universities, contend that they are immune under
the Eleventh Amendment of the U.S. Constitution from individual suits for monetary
damages under federal anti-discrimination laws. So far, however, courts have rejected these
administration efforts to defeat the application of the EPA and Title VII to public institutions of
higher education.

Reverse Discrimination

In a troubling “Catch-22,” some universities’ attempts to rectify salary gaps between men and
women professors have resulted in claims of“reverse discrimination,” especially when underpaid
male professors are excluded from applying for any salary adjustments that are offered. A
Title VII voluntary affirmative action plan that provides pay raises for women only is permissible
when, for example, such a plan is “designed to eliminate a manifest racial or sexual imbalance.”
Some male professors have challenged institutional findings of such a “manifest imbalance.”

In 1992, for example, five male professors at Virginia Commonwealth University alleged that
the pay raises totaling about $440,000 that were distributed among 172 of their female colleagues
constituted gender discrimination under Title VII. The institution’s salary study had indicated
that women were paid, on average, $1,900 less than men with the same titles. The federal district
court found that this disparity was statistically significant, but in 1996 the federal appellate
court reversed the case for further adjudication.(5)

The federal appellate court in this case questioned whether the institution’s study established
a manifest imbalance, because it failed to account for performance factors or for
professors’ prior service as administrators. In 1996, the university settled the lawsuit with the male professors.

Good Practices

Claims of gender-based wage discrimination persist in and outside of the academy. In 2000,
the Equal Employment Opportunity Commission and state fair-employmentpractices
agencies, which enforce the EPA and Title VII, received 5,357 charges of gender-based wage discrimination.

Instead of litigating, administrations and faculty should work together to design salaryequity
studies that consider all of the many factors that can account for salary differences.
Litigation should be a last resort. Legal battles over salary equity are extremely
expensive and time consuming, and they often yield mixed results for all. Such studies
can help to determine whether wage gaps are statistically significant and actually attributable
to discrimination as opposed to other causes.

The University of Louisville, the University of Colorado, and Indiana University-Purdue University, Indianapolis,
have recently undertaken voluntary salary-equity studies. And earlier this year, nine leading
research universities, including the Massachusetts Institute of Technology and
Stanford, Yale, Princeton, and Harvard Universities, announced efforts to abolish salary
and other inequities against women faculty in the fields of science and engineering.

Other institutions and faculty exploring ways to rectify salary inequities on their campuses may
want to consider the following recommendations:

• Establish starting salaries. Setting minimum salary scales sometimes helps to mitigate disparities by limiting
  the pay gap, at least among the lowestpaid faculty in each rank, that often
  emerges between men and women faculty and leads to careers of underpayment.
  For example, in January 2001 a genderequity task force made up of professors and administrators at Marquette
  University reported that “[b]eing female has the measured effect of lowering initial salary by more than $1,800 on average,” and that a “lower initial salary . . . carries through to current salary.” Of course, any minimum salaries or “target” salary scales, if established, must be followed.
• Conduct periodic salary- and promotionequity studies. Even when minimum starting salaries
  are established, disparities in pay tend to seep in over time. To avoid such disparities,
  institutions should engage in regular salary reviews. According to salary-equity
  consultant Lois Haignere, American University; North Carolina State University, Raleigh; and
  Tarleton State University have all adopted this practice. In addition, the recent
  settlement at Kent State University provided for an annual analysis of faculty promotion rates.
  As the AAUP women’s committee recommended in 1992, part of a periodic
  salary study by institutions should include review of “promotion practices to identify
  any tendency to . . . promote [women] more slowly than men.”
• Provide briefings on salary practices for new faculty. The AAUP women’s committee recommends
  that “[i]nstitutions . . .disseminate criteria for the setting of pay standards
  widely, both to those who determine salary and to all faculty members.” A
  recent settlement at St. Cloud University provided for such information sharing.
• Offer “salary-setting” seminars. Universities should brief academic decision
  makers, including department chairs, on internal procedures and policies as well
  as salary discrimination laws. Identify sources of assistance available to decision
  makers if questions arise during salary reviews.
• Create equitable merit-pay systems. Be sure that merit-pay programs have clear and objective standards that are applied consistently. The Marquette University gender-equity task force
  recommended that “all departments have written policies in place for distributing
  merit increases . . . [and] [m]onitor the system to ensure that it does not have a
  disproportionately negative effect on the salaries of women.”
• Establish inclusive eligibility criteria for equity adjustments. When undertaking salary-equity reviews,
  all professors — women and men — who are identified as underpaid should
  be eligible to participate in equityadjustment plans. Indiana University- Purdue University, Indianapolis, which
  recently found an unexplained gap of 3 percent in the salaries of men and
  women, invited all 918 faculty, librarians, and scientists to petition for salary
  review. Of the 79 applicants seeking equity adjustments from the $100,000
  salary pool, 34 reportedly received them: 19 men and 15 women, including 28
  white and 6 minority applicants.

Salary equity is a complex issue, especially in academe, and it requires attention. Commenting
on a 1999 report on gender inequity in MIT’s School of Science, Robert Birgeneau, Dean of
Science, said that although gender discrimination, including wage discrimination, at MIT was not
“conscious or deliberate… the effects were and are real…. We still have a great deal more to
accomplish before true equality and equal treatment will have been achieved.” Likewise,
faculty and administration must accomplish a great deal more to achieve gender-based salary
equity in the academy.

REFERENCES

(1) Lavin-McEleney v. Marist College, 239 F.3d 476 (2d Cir. 2001).
(2) Farmer v. University of Nevada, 930 P.2d 730 (Nev. S.Ct. 1997), cert. denied, 523 U.S. 1004 (1998).
(3) EEOC v. Eastern Michigan University, No. 98-71806 (E.D. Mich. 1999); see also Associated Press, “EMU Settles Federal Sex-Bias Case,” Detroit News (28 April 2000).
(4) Kovacevich v. Kent State University, 224 F.3d 806 (6th Cir. 2000); see also Nota Bene, “Female Professors Victorious Under Equal Pay Act,” Academe 5 (November- December 1997).
(5) Smith v. Virginia Commonwealth University, 84 F.3d 672 (4th Cir. 1996); see also Lisa Guernsey, “Pay-Equity Dispute Resolved at Virginia Commonwealth U.,” Chronicle of Higher Education (4 October 1996).

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