for me equal rights advocates and a coalition of other and i'd like to reserve four minutes for rebuttal which leaves me eight minutes to speak at the moment so i'd like to focus my argument on the district court errors in usurping the role of the jury in two respects st by ignoring disputes the fact and taking inferences in favor of the defendant in its interpretation of equal work under the equal pay act and then in making the same errors in considering professor fried's disparate impact i'm starting with the question who are the language of the statute is equal to or the performance of which requires equal skill effort and responsibility and which are performed under similar working conditions that statutory language makes clear that the jobs to be compared can involve different they can involve different roles so long as they were wire that you have a common core of tasks in it for the substantially equal but then that's that's the st thing the after show but you also have to show that whatever is outside that or in the end because danny whether any additional task  about one job not the other make the two jobs of students that differ so as i see it what you've said absolutely convinces me that there's a common core pastor but there's also different things this is very different things about their jobs and that's what great question in their public mind from the st is once you get to that level of a common core of tasks and weighing the difference is that a question for the trier of fact those are the kinds of questions that should have gone to the jury  you know in these type of vision you know basically the top of the top of the food chain of professors and so i always assume and i think you know i'm trying to think of what other i think i'm not an academic and so i not terribly familiar with  you have got a law school a lot of the same type of arguments that you make here but there but i mean we all worked in law firms or most of us did you know and they're not they're very different they're very they're in fact it's almost like the role of actually partner such that built into it is in order to be a equity partner in a law firm and specialty you have to have you have to have us you have to have a specialty you have to gauge it and because of that you might have labor when they were part of that makes a certain amount sound like a little bit like equity partners right they have a very very different focus every single one of i guess what it takes to make all of us so how does that does that just mean that these are not the kind of people that could be substantially or not women lest simply because they are women courts are to construe and apply the law so as to fill that fundamental purpose now with a compassionate kind of related to my earlier question is there any types of there they have a label that we tasked with their so unique that you can't that it would be very difficult to show that somebody was substantially similar even though they have the same label but they have a lot of built in uniqueness that's the thing i'm struggling with your it seems like if there is such a category tenured professor the unique aspects of what they bring to these jobs would likely be one of those but is there is there even such a thing or it was equal pay out in every type of job perhaps as to be here and two judges who sit on the same bench about have very different dockets were nurses who work on the same unit and have very different patients both of those jobs and the job of professor analyzed but how is that not the very fact this lost in other words there's a difference between giving the court undisputed facts and whether or not those facts then create the question back for the jury to decide whether these are substantially the same or not why why does the judge get to decide these tests then the work that these people are doing are saying just because they have that most concerns me about this case of course is the has to do with the retention raises yes and that and whether there is some kind of cause and effect between retention raises and discrimination on the basis of x there's a couple of different arguments there  of them are based on more money and studies that are much broader than the university of oregon suggesting that men to be more movable and that women are less are less mobile only yet in the academic context either because of children or because  argument that women are unable to come up with their own with with an outside job and the plane to begin with if you know council that i'm surprised to hear you take such a strong stance on that because you have internal studies conducted by various people in the psychology department professor fried herself the department chair professor meyer and others that that that did that did the number of aggression analyses and then tried to explain the differences between the salaries of the women pointed out that when he looked at the studies if he put back into the mix helen neville who was the highest paid person in the in the department for many many years up until her retirement  and our presence here there is a ok now to council because because the base is too small because you have to sample sizes too small a population is too small data set is too small and and we and we know that the population as a matter of law we do because when the when this court has looked at statistical analysis if it has generally determined that as a matter of law i would point out for example that the  something where you can focus on this is why so perhaps if your experts were able to present evidence of women fundamentally are not capable of finding outside jobs and there's data that might be look at the bottom line and say we have an impact you must look at what actually causes the impact and as the undisputed facts in this record show the impact of the impact here or whatever  impossible to discern from all of the factors that the decision makers go through in making making a retention decision do we need this person do we have the money is the work matter is this somebody person or do we want to give them a pass is somebody who's got one foot out the door already and all the all of the factors were discussed in the various declarations they were all in disputed as to the  partial summary judgment and one of the questions that that was raised there was if you have the impact if you just go forward and fix it and the answer is that's not enough you can't just say that there is a differential in the ways  wages and then turn around and as a public audie try to remedy similarly decades of affirmative action cases as a public you are not either legally required or that the job has the same level of responsibility and one of our primary one of one of our very important arguments in this case is that the nature of the federal funding imposes that's really different on the holders of large federal grants and that is exactly one of the factors that the oregon statute requires to be considered responsibility includes the kind of accountability that can impose this and of course as the affirm of the sense side of this but i don't see where i think you've made that argument in the briefing the district court didn't reach that there is other argument in regard to other claims it seems to me same analysis that the equal pay act in the us but the but our motion was based on the differences in the jobs and that's the prime and oh yeah right so if we it's to be clear so if we if we were not to if we are thinking that the district court should not have impact claims you do present the the retention raises as as a practice in a defensive as a defense right as a practice as job related business ses i do think you're i think the arguments joined on that if i recall from the brief and it's the retention raises were actually raised raised by the plaintiff is part of her claim so our response is to follow the structure that is required by the or the skills effort and responsibility exercised by the different compared or are substantially equal and that the lower court erred in arrogating decision for itself so for example on the service component the district court didn't even consider that professor frye had one university wide open work for the extent and importance of her service contributions to the university that is absolutely material and undisputed evidence that she exerted more effort in that component of her job than her comparing her state and a jury should be given the opportunity to consider that and and others on the question of th statistic all analysing if judged by b correctly pointed out there are substantial admissions in the record of the department itself the statistical disparities in the department the pay gap and that it's claim but we also submitted the affidavit of labor economist cahill who came to the same conclusions the defendants submitted their own expert but that expert didn't even claim that the  canaille was looking at in terms of the population of the department was too small or too few observations so we don't even have the dueling experts problem here we have one expert who found uncontroverted in humans decisions and so i'm considering that junior faculty at least with then this isn't a psychology department and i'm sure maybe maybe across the university no your honor it doesn't call for locks to pay because one of the considerations at the university of oregon in setting salar detailed and it's in the record but the department does these determinations every time races are available and so people fall in different places on that merit analysis and that determines the so it's not lockstep it's merit determinant determined and the criteria for what goes into a consideration strong merit can change over time depending on the needs of the university and you don't think that  well your honor it's not job related so in that way it can't be an affirmative defense under the husband not job related because it seems to me i like the reason the reason that they're trying to poach you waste because you're such an awesome professor that person that they're famous they would fit very well with their program and cetera and those are all related to their current job it's their current job that and it's i don't i don't think that it's i don't think you can say because the result that these offers all in that same sort of individual might get paid for doing a different at a different university just simply by definition isn't related to the job that they're doing currently for the university of oregon and there are still don't see how that's what  we know that across the board out there that women make less than men and so others built in sort of discrimination in salaries and so if we just allow people to only pay people to pay people what they currently make based on what they made the pass that will continue to carry forward that gender discrimination is very different thing to say that the reason that a university is giving you the sweet offer is is based off of some sort of treated differently than men when they feed retention races and that they're more reluctant to go out on the market in the st place for a variety of gender reason for they don't even need to go to society writ large you have evidence