FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

J E N NI F E R J O Y F R

EYD , P laintiff-Appellant
,

v.

U N I VE R S I TY O F O R

E G ON ; M I C HAE L H. S C H I L L ; H AL S A

D O F S K Y , Defendants-Appellees

. No. 19-35428

D.C. No. 6 :17-cv-00448- MC

OPINION

Appeal from

the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Argued and Subm itted May 12, 2020

Portland, Oregon

Filed March 15, 2021

Before: Jay S. Bybee and Lawrence J. VanDyke, Circuit Judges, and Kathleen Cardone, * District Judge.

Opinion by Judge Bybee; Partial Concurrence and Partial Dissent by Judge VanDyke

* T he Honorable Kathleen Cardone, United States District Judge f o r the W estern District of Texas, sitting by designation.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 2

SUMMARY * *

Employment Discrimination

The panel reversed in part and affirm ed in part the district court’s g rant of summ ary judgm ent in favor of the University of Oregon and o ther defend a n t s i n an action brought by a professor under the Equal Pay A ct, Title VII, Title IX, and Oregon law.

Jennifer Freyd, a Prof

esso r o f P sy ch o lo g y , alleged that the University paid her several thousand dollars less per year than it paid fo ur o f her m ale colleagues, despite their being o f equal rank and seniority.

Reversing the district court’s summ ary judgm ent on the Equal Pay Act claim
, the panel held that on such a claim
, the plaintiff has the burden of establishing a prim a facie case o f discrim ination by showing that em ployees of the opposite sex

were paid d ifferent wages for equal work. The plaintiff m ust show that the jobs being com pared (not the i n d i viduals holding the jobs) are substantially e qu a l. The panel concluded that, v i ewing the evidence in the light m ost favorable to Freyd, a reasonable jury could find that she and her com p arators performe d a comm on core of tasks and did substantially equal work.

Declining to certify questions to the Oregon Sup r e m e Court, the panel reversed the district court’s summ ary j u d gme nt on Freyd’s claim under Or. Rev. Stat. § 652.220,

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 3

which p rohibits em

ployers from pa y i n g wages to any

em ployee “at a rate less than that at which the em ployer pays wages to em

ployees of the o pposite sex f or wo rk o f

com parable character, the perform ance of wh i c h requires

com parable skills.” Under Oregon law, “com p arable work” is a m o re inclusive standard than equal work, a n d requires that the two jobs “have im portant comm on ch a r a c teristics.” The panel c o n cluded that Freyd raised a genuine issue o f

m aterial fact under § 652.220 for the sam e reasons she did so under the Equal Pay Act.

The panel reversed the district court’s summ ary judgm ent

on Freyd’s disparate im

pact claim under Title VII. The panel held that to m ake a prim a facie case of disparate im pact, a plaintiff m

ust show that a facially n eutral em ploym ent practice h as a significantly d iscrim inatory im p act o n a g roup protected by Title V II. The plaintiff m ust also establish that the challenged pra ct i ce is either not job related or is i n c o n s i stent with business necessity. Even if the p ractice is jo b related and consistent with business n ecessity, though, th e plaintiff m ay still prevail by sh owi n g that the em ployer refuses to adopt an available alternative practice that has less disparate im

p act and serves the em

p loyer’s legitim ate needs. The panel concluded that, first, Freyd chal le ng ed a specific

em ploym ent practice of awarding retention raises without also increasing the salaries of other professors of com p arable

m erit and seniority. Second, she put forth evidence that this
p ra ct i ce caused a significant d iscrim inatory im pact, and a reasonable jury could f

ind that her statistical analysis showed

a prim a facie case of disparate im pact. The panel agreed with the Seventh C ircuit that where a sam ple is sm all but the results nevertheless indicate a d isparity, the gran t ing o f

summ ary judgm ent in favor of the defendant is pre mature.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 4

The panel further held that the University did not establish a business necessity defense as a m atter of law.

The panel affirm ed the district court’s summ ary judgm ent

on Freyd’s claim s for disparate treatm ent under Title VII and her claim s under Title IX, Or. Rev. Stat. § 649A.030, and the Oregon Equal Rights Am endm ent.

Dissenting in p art and concurring in part, Judge V anDyke
wrote that the district court’s judgm ent on all claim s, except Freyd’s Or. Re v

. Stat. § 6 52.220 claim
, should be affirm ed. Judge VanDyke wrote that the m arket-driven practice of p ay disparities based on retention raises does not violate federal and Oregon laws prohibiting sex discrim ination.

C OUNSEL

Jennifer J. Middleton (argued) and Caitlin V. M itchell, Johnson Johnson L ucas & Middleton PC, Eugene, Oregon; Whitney Stark, Albies & Stark LLC, Portland, Ore g o n ; for Plaintiff-Appellant.

Paula A. Barran (argued), S hayda Z aerpoor Le, and Donovan L. Bonner, Barran Liebm an L LP, Portland, Oregon, for Defendants-Appe llees University of Oregon and H al Sadofsky.

Cody M. W eston (argued), Stephen F. English, and Nathan R. M o r ales, Perkins Coie LLP, Portland, O regon, fo r Defendant-Appellee Michael H. Schill.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 5

Jennifer A. Reisch (argue d )
, E qual Rights Advocates, San Francisco, California; Ke l ly M. Derm ody and Michelle A

. Lamy, Lieff Cabraser Heim ann & Bernstein, San Francisco, California; f

o r Am icus Curiae Equal Rights Advoca t e s , 47 Organizations, and 57 Professors.

Gl enn Rothner, Rothner Segall & Greenstone, Pasade na , California; Risa Lieberwitz, Donna Young, Aaron Nisenson, and Nancy Long, Am erica n Association of University Professors, W ashington, D.C.; for Am icus Curiae Am erican Association of University Professors.

OPINION

BYBEE, Circuit Judge:

Jennifer Fr e y d is a Professor o f Psychology at the University of Oregon (“the University”)

. Although she is a well-recognized academ ic and pioneer in traum a studies, the University pays Freyd several thousand dollars less per year than it does four of Fr e y d ’s m ale colleagues, despite their being o f equal ra nk and seniority. Freyd alleges that this gender d i sp a r i ty in p ay is d epartm ent w ide and is caused by the University’s practice of granting “retention raises” to faculty as an incentive to rem ain at the University when they

are being courted by other academ ic institutions. She further claim s that f

em ale professors at the University of Oregon are less likely to engage in retention negotiations than m ale
pr o fe s s or s, and when they do, they are less likely to successfully obtain a raise.

Freyd sued the Uni v e rsity alleging violations o f, inter alia
, the Equal Pay Act, Title VII, Title IX, and Oregon law.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 6

The d istrict court granted summ ary judgm ent in favor of the University o n all counts, finding that Freyd had f ailed to raise
any g enuine issue of m aterial fact. Freyd v. Univ. of Or.
, 384 F. Supp. 3d 1284 (D. Or. 2019).

W e reverse in part and affirmin part.

I. FACTUAL AND PROCEDURAL HISTORY

A. Professor Freyd

Jennifer Frey d i s a Professor o f Psychology at the University of Oregon. 1 She holds a PhD from Stanford University and taught at Cornell University before m oving to the University of Oregon in 1987. Professor F reyd is “a leader in the field on the psychology of traum a,” where “[f]or
two decades she has been o ne of the m ain theoretical contributors an d i n tellectual forces.” She has authored several books and written hundreds of articles, m ost in peerreviewed academ ic journals, on the topic o f institutional
traum a. Her colleagues describe her as “one of the m ost esteem ed m em

bers in the Psychology Departm ent.”

At the University, F reyd is the princip al inv estigator at the Freyd Dynam ics Laboratory where she conducts em p irical studies related to the effects of traum a. In that position, she is responsible for running the lab o ra t o ry and supervising doctoral candidates
, undergraduate students, and the lab

m anager. S he finances th e laboratory through private

1 “Because t

his case com es to us on defendants’ m o tion f or summ ary judgm ent, w e take all facts i n the light m ost favorable t o [ Freyd], the

nonm o ving party.” Hopkins v. Bonvicino
, 573 F.3d 752, 760 n .2 (9th Cir. 2009).F R EYD V

. U

NI VE R S I TY O F O R

E G ON 7

donations. S h e a l s o serves as the editor of the Journal of Trauma & Dissociation
, “one of the m ost influential journals in the cross-disciplinary fi el d of traum a research.” In that role, she is responsible for writing editorials, s e l ecting articles, and “supervis[ing] an editorial assistant, [seven] associate editors, 65 editorial board m em bers, and d ozens o f ad hoc reviewers.” She has also served on the editorial board for m ultiple other journals, and has worked as a guest reviewer for several foundations and journals.

Fr e y d h a s served in a v ariety of roles at the University. From 2014 through 2 016, she served a s a m em ber of the University ’s C o m

m ittee to Address Sexual and Gender Based Violence. In that role
, she d rafted policy proposals, adm inistered cam

pus-wide surveys, and wrote a substantive report on gender violence at the University. She was also the “central archi t e c t of the new reporting policy for sexual violence on cam

p us.” This service role “took an enorm ous

am ount of [her] tim e.”

In addition, F reyd does “significant am ounts o f briefing, teaching, and consulting work for entities outside the higher education context, for exam ple, for the United States Military and the National Park Servi c e

. ” She has w orked as a consultant on twenty-two crim inal and civil tri a l s, and has consulted w ith a United States Senator and the White House.

B. How the University Sets Salaries

The P sychology D epartm ent o f the University of Oregon adjusts tenure and tenure-track faculty salaries u sin g two different m echanism s. Fi rs t , faculty m ay seek a m erit raise b as e d o n job perform ance. T o obtain a m erit raise, faculty

m ust s ubmi t to a review of their perform ance over theF R EYD V

. U

NI VE R S I TY O F O R

E G ON 8

preceding thr e e years. During this review, faculty are assessed b ased on the contributions they ha ve m ade in the areas of research, teaching, and service.

Second, professors m ay seek a retention raise if they are being recruited b y another academ ic instituti o n

. In these instances, the University considers the following f ive factors in determ ining whether it wishes to exten d the professor a retention raise:

• expected productivity and potential of th e faculty

m em ber to m ake a significant contribution to the unit and the university,

• the weight of evidence indicating imm inent departure in the absence of a salary adjustm ent,

• any pr e v i ous retention increases awarded to the faculty m em

ber,

• im plications for internal equity within the unit, and

• stra t e g ic goals of the unit, school or college, and university.

Freyd states that although she receives “initial probes” from other universities about once a year, she has n ever engaged in

a r e te n t i on negotiation nor received a retention raise. She

was happy at the Unive r si ty, her husband was em ployed there, they we re raising a fam ily, and she was not willing to

m isrepresen t h e r willingness to accept a position elsewhere and leave the University of Oregon.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 9

C. Evidence of Gender Disparities in Pay

In 2014, as part o f an unrelated publ i c r e c ords request, Freyd unintentionally received salary inform a t i o n for the Psychology Departm ent faculty. She noticed that s he was

m aking between $14,000 and $42,000 less per year than four of her m ale colleagues w ith whom she was of com p arable rank and tenure. 2 The f

our m en—referred to in the litigation

as “the com

parators”—were Ulrich Mayr, Gordon Hall, Phil Fisher, and Nicholas Allen.

1. Ulrich Mayr

Ulrich Mayr w as the Psychology Departm ent’s Hea d between 2014 and 2017. In that role, he was responsible for “da y

- t o-day personnel and hum an resource m atters,

m isconduct investigations, m anaging the f aculty review
process, and negot iating with faculty seeking retention offers.” Freyd
, 384 F. S upp. 3d at 1291. As Departm ent Head, Mayr did not teach classes. Mayr has editorial responsibilities on academ ic journals. Mayr has received two retention raises.

2. Gordon Hall

Gordon Hall has been a Pr o fessor of Psychology at the Uni ve rsity since 2001. From 2008 until 2017, he served as the Associate Director of the Center on Diversity and Comm unity (CoDaC). In th a t role, he was responsible for planning and presenting work shops, assisting f aculty in obtaining financial and other support, and representing

2 The five were classified as “senior faculty m em ber[s]” in t

h e clinical division of the Psychology Departm ent.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 10

CoDaC in university-wide m eetings. H e reports that the role occupied “a significant and substantial am ount of [his] tim e.” Hall has editorial responsibilities on academ ic journals. Hall has received two retention raises.

3. Phil Fisher

Phil Fisher has b een a Professor of Psychology at the University since 2008. He served as the Director of Clinical Training from 2014 thro ugh 2017. That position required hi m to oversee training in psychotherapy, organize weekly

sem inars, m onitor curriculum
, and interface w ith accrediting agencies. He is also the founding director of the University’s Ce nter for Translational Neuroscience. In that role, h e i s responsible for ensuring f unding, m anaging and supervising
sta ff, overseeing the b udget, and m aking strategic d ecisions for the Center.

Much of Fisher’s research is funded by federal grants, so Fisher also spends m

uch of h is tim e applyin g for and adm inistering th o se g rants. “Serving as a principal investigator or co-principal investigator of a grant im poses substantial adm inistrative and professional responsibilities,” including “ obtaining appropriate institutional reviews and
app r o v a l, perform ing the work, m onitoring the work perform ed by others
, exercising oversight on project personnel and sub-awards” and “m anag[ing] subm ission o f facilities and adm inistrative charges to the funding agency.” He has engaged in at least one retention negotiation.

4. Nicholas Allen

Nicholas Allen has been a Professor of Psychology at the Uni ve r s i ty since 2 014. He is the Director of the Center forF R EYD V

. U

NI VE R S I TY O F O R

E G ON 11

Digital Mental Health, which, like Frey d’s laboratory, is privately funded. Like Fisher, h owever, som e of A llen’s other research is funded through federal grants, for which he

m ust prepare and subm it annual progress rep o rt s , m anage students and researchers, “do m edia,” and m anage “the ethical aspects of the research in accordance wi th federal requirem ents.” H is research involves u se of brain scanning

m achinery and biological sam ples, which requires o versight from technical staff. Allen has editorial responsib i l i t ie s for

aca dem ic journals. H e has engaged in at least one retention negotiation.

D. Connecting Retention Raises to Pay Disparities

After obtaining the salary inform ation and noticing the disparity in pay, Freyd conducted her own regression analysis

on the data, c om

paring salary to years since P hD. 3 She noticed a m arked disparity in pay between the genders: out o f fourteen f ull professors in the P sychology Departm ent, six
out of the eight m ale p r o fe s s o rs (75 percent) fell above the regression line, while five out o f s i x fem ale professors (83 percent) fell b elow it. In April 2 015, Freyd and two other fem al e p sychology professors, D are Baldwin and Holly Arrow, conducted a second regression analysis on this data. This second analysis presented sim ilar results.

In the spring o f 2016, the Psychology Departm ent engaged in a m andatory annual self-s tu dy

. The self-study

3 A regression analysis is “a com m on statistical tool . . . designed to isolate the influence of one particular factor—[e.g.,] sex—on a dependent variable—[e.g.] salary.” EEOC v. General Tel. Co. of Nw., Inc.
, 885 F.2d 575, 577 n.3 (9th Cir. 1989) (quoting Sobel v. Yeshiva Univ.
, 8 3 9 F .2d 18, 21–22 (2d Cir. 1988)) (alterations in original).F R EYD V

. U

NI VE R S I TY O F O R

E G ON 12

r e v ealed further inform ation about the pay disparity. Th e study showe d th a t the Psychology Departm ent faced “a significant equity problem with respect to salaries at the Full Professor level,” with an annual average difference in salary between m ale and fem ale f ull professors of $25,00 0

. The self-study concluded:

[T]his state of affairs appears to have em erged

m ostly as a result of retention raises playing a central role in Full Professors achieving

c omp etitive salaries. Faculty who have not pursued m

ultiple ou t s ide offers across tim e, have fallen progressively and s i g nificantly behind in salary. In fact, when we control the

num ber of years since the l ast m ajor hir i n g /re t en tion negotiation, the gender difference com

pletely disappears.

The study also noted that of the twenty retention negotiations the P sychology Departm ent had engaged in from 2006 through 2016, “only [four] affected fem ale faculty, and only [one] of the successful retention cases was a wom an,” d espite the fact that the pe r c e n tage of fem ale f aculty in the departm ent was around 50 percent. T he study observed that “[i]n the past, th e un iv ersity o ccasio n ally provided substantial funds t o a d dress equity problem s. However, this has not happened f

o r about ten years. Thus
, curr ently there are no tools available to addre s s the equity problem s that Psychology is facing.”

Several m onths later, in Decem ber 2 016, Psychology Departm e nt Head Mayr conducted his own regression analysis. This analysis included m ultiple variables, including
years since PhD, y ears in rank, gender, and year s s i n ce aF R EYD V

. U

NI VE R S I TY O F O R

E G ON 13

professor’s last m ajor negotiation. Mayr found that when he controlled for retention negotiations, the gender different ial in pay decreased from $22,000 to $5,000. He sent his results
to Andrew Marcus and Hal Sadofsky, the Dean and Associate Dean of the College of Arts and Sciences, with the comm ent that the “im

balance [between m ale and fem ale full professor salaries] is difficult to ignore,” in particular when considering lifetim e cum

ulative effects. After offe r i ng several suggest i o ns for addressing the p roblem
, Mayr expressed “hope [that] we can imme diately address our m ost g laring i nequity case,” Jennifer F reyd, and he recomm ended a “retroactive prom otion raise” to “bring her s a lary to parity with the next-highest paid, m ale full professor.”

Additional evidence cam e forth in Decem ber 2018, after this lawsuit was filed. Freyd retained econom ist Kevin Cahill
to analyze “whether g ender differences exist with respect to the salaries of full p rofessors, and the de g r e e to which any observed differences can be attri b ut ed to retention raises.” Cahill based his ana l y sis o n the base salary of each full professor in the Psychology Depart m ent from 2007 through 2017, which am ounted to a d a t a set that included 125 data points. Cahill perform ed a regression analysis on th i s d a ta and determ ined with a 99 percent degree of confidence “that fe male full professors earned, on average, approxim ately $15,0 00 l e ss than their m ale counterparts, controlling for years in rank and tim e trends.” 4 But when Cahill controlled f o r r e t e n t i o n r a i s e s , “ g e n d e r n o l o n g e r w a s a statistically-sign if

i cant d et e r

m i n ant o f f

u ll p ro f esso r salaries. ” Cahill concluded that this evid e n c e “stro n g ly su g g ests th at the

4 Academ ic publications typically consider a 9 5 percent confidence or higher to be statistically significant.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 14

gender discrepancy in full professor salaries can be attributed to retention raises.”

In January 2019, the University retained Debra Jones Ringold, Professor of Marketing at the Atkinson Sc h o ol o f Managem ent at W illam ette University, to evaluate Cahill’s analysis. Although P rofessor Ringold d id not condu ct her

own statistical analysis, she questioned Cahill’s conclusions, arguing that b ecause Cahill did not “exam ine the conditions under which retention raise negotiations are triggered and

consumm ated,” h e failed to rule out alternative causes of the

corr e lation between gender and retention raises he found. Ringold a r g u ed that the study h ad “no probative value” because of the “very sm all size of the study population.”

E. Procedural History

In January 2017, after Mayr f orwarded his analysis, F reyd

m et with Marcus and Sadofsky to discuss the data 5 and request a retroact i v e m erit raise to com pensate for the p ay inequity the retention raises had caused. In re s po n s e, Sadofsky conducted h is own analysis and “concluded [that Freyd’s] com

p ensation w as not unfairly, discrim inatorily, o r im properly set.” 6 Accordingly, she was denied a raise.

5 This did not include t

he Cahill study or Ringold analysis, which h ad not yet been completed at this tim e.

6 In his declarat i o n prepared for this suit, Dean Sadofsky stated t hat he continued to hold the view that Professor F reyd h a d not been treated unfairly. He offered a detailed account o f va rious factors that go into faculty salaries at the University, including state funding and external grants. S adofsky offered additional context to show that Freyd ’s s a l ary relative to her colleagues had changed over tim e and would have been quite favorable when m easured i n o ther tim e periods; the sm all num ber o fF R EYD V

. U

NI VE R S I TY O F O R

E G ON 15

Two m o nths later, in March 2017, Freyd f i l e d a

com plaint, which she later am ended, against the University, Sadofsky, and Marcus in the District of Oregon. She asserted various causes of action under the Equal Pay Act, 29 U.S.C. § 206(d); Title VII, 42 U.S.C. § 2000e-2; Title IX, 20 U.S.C. § 168(a); the Equal Protection Clause of the United States Constitution, U.S. Const. am end. XIV; the Equal Rights Am endm ent of the Oregon Constitution, Article 1
, § 46; Oregon Revised Statute § 659A.030; Oregon Revised Statute § 652.220; and breach of contract.

The district court g r anted summ ary judgm ent f or the defendants on each claim

. It con c l u de d that Freyd failed to raise a g e nu i n e issue of fact as to her Equal Pay Act and § 652.220 claim s because she could not show that she and the

com parators perform ed substantially equal or com parab le work. Freyd
, 384 F. Supp. 3 d at 1290–95. T he district court further conclude d th at Freyd’s Title VII disparate-impact

c l a i m failed as a m atter of law because (1) Freyd h ad presented insuffi c i e nt statistical evidence of a disparate im pact and, alternatively, (2 ) the university established that the challenged practice w as job related and a business necessity. I

d

. a t 1296–98. As to the Title VII disparate

profe s s o rs i n her cohort and their o wn m ovem ents in and o ut of the University affected her statistics.

He also observed that “[r]etention raises have a distorting effect” but

are necessary “if the University is to reta i n faculty who bring in substantial external funding.” He regarded the causal correlations dem o nstrated b y Professors Freyd and Mayr as “too sim plis t i c an d incom plete.” He concluded that b ecause “[f]aculty pay is based o n m any factors other than seniority,

. . . Prof. Freyd i s well and fairly com pensated by standards of her d epartm ent, the college, the University, and even the profession.”F R EYD V

. U

NI VE R S I TY O F O R

E G ON 16

treatm ent, § 659A.030, Title IX, and Oregon constitutio n al claim s, the district court concluded tha t Fr ey d had failed to present any evidence of discrim inatory intent. Id

. at 1295. It concluded that Freyd lacked standing to bring the contr a c ts claim
, and that the individual d efendants were en t itled to qualified imm

unity on the equal-protection claim
, which was only brought against them and not the University. Id

. at 1298–1300. Freyd brought a tim ely appeal. 7

II. JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction over this app eal under 28 U.S.C. § 1291.

W e review grants o f summ ary judgm ent de novo. Animal Legal De f

. Fund v. U.S. FDA
, 836 F.3d 987, 988 (9th Cir. 2016) (en banc) (per curiam ). Under F ederal R ule of Civil Procedure 56(a), s u mm ary judgm ent is appropriate if the pleadings and supporting docum ents “show[] that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to jud g me n t as a m atter o f law.” Fed. R. Civ. P. 56(a ). A dispute is g enuine when “a reasonable trier of fact

c o u ld resolve the issue in the non-m ovant’s favor.” F resno Motors, LLC v. Mercedes Benz USA
, 7 71 F. 3 d 1 1 19, 1125 (9th C ir. 2014). In m aking this assessm ent, w e m ust resolve all inferences in Freyd’s favor and view the evidence in the l i gh t m ost favorable to Freyd. S ee Anderson v. Liber ty Lobby, Inc. , 477 U.S. 242, 255 (1986).

7 Freyd has not appealed the dis trict court’s decision o n the equalprotection and contract claim s.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 17

III. ANALYSIS

A. The Equal Pay Act

The Equal Pay Act m andates that

No em ployer

. . . shall discrim in a t e

. . . betwe e n em

ployees on the basis of sex by
p a y i n g wages to em

p loyees

. . . at a rate l e s s th an the rate at which he pays wa g e s t o

em ployees of the o pposi t e sex

. . . for equal work on jobs the perform ance of which requires equal skill, effort, and responsibility, and which are perform ed under s im ilar working conditions, except where such
paym ent is m ade pursuant to (i) a seniority syste m; (ii) a m erit system ; (iii) a system which m easures earning by quantity or quality

o f production; or (iv) a differential based o n any other factor than sex.

29 U.S.C. § 206(d)(1). “In an Equal Pay Act case, the plaintiff has the burden of establishing a prim a facie case o f discrim ination by showing that em p loyees of the opposite sex were paid different wages for equal work.” Stanley v. U niv. of S. Cal.
, 178 F.3d 1069, 1073–74 (9th Cir. 1999). To m ake thi s s h o wing, the plaintiff m u st d em onstrate that the jobs bei n g c om

pared—not “the individuals who hold the jobs”—are “substantially equal.” Id

. at 1074. “Substantially equal” does not n ecessarily m ean “identical.” See Forsberg

v. Pac. Nw. Bell Tel. Co.
, 840 F.2d 1409, 1414 (9th Cir. 1 988) (quotation m arks and citations om itted); cf. Hein v. Or. Coll. of Educ.
, 7 18 F.2d 910, 917 (9th Cir. 1983) (reasoning that if

a claim could be defeated by showing that the plaint iff h a dF R EYD V

. U

NI VE R S I TY O F O R

E G ON 18

additional duties, em

ployers could easily subvert the intent o f the Equal Pay Act). Instead, “the crucial finding on the equal work issue is whether the jobs to be com pared have a ‘comm on core’ of tasks.” Stanley
, 178 F.3d at 1074 (quoting Brobst v. Columbus Servs. Int’l
, 761 F.2d 148, 15 6 (3d Cir. 1985)). Once a plaintiff establishes a comm on core of tasks, “the court m

ust then determ ine whether any additional tasks, i n c u mb ent on one job b ut not the other, m ake the two j o b s ‘substantially different.’” Id. (quoti n g Brobst
, 761 F.2d
at 156). “The question of whether two jobs are substantially equal is one th a t mu st be d ecided on a case-by-case b asis.” Hein , 718 F.2d at 913.

The record here c ontains extensive evidence about the work that Freyd and h er f o ur co mp a r ators do. A jury could find—as the district court d id, and as the dissent proposes— that Freyd and her com

parators’ jobs are rendered unequal by the differences in the research that they d o, centers that they
run, and funding that they obtain

. Yet the evidence here is
not so one-sided as to m andate this conclusion as a m atter o f law. Instead, viewing the evidence in the light m ost favorable
to Freyd, a reasonable j ury c o u ld find that F reyd and her

com parators perform a “ ‘ comm on core’ of tasks” and do substantially equal work.

First, the district court arrived at its c o nclusion on this issue by contrasting the individual responsibilities of Freyd, Mayr
, Hall, Fisher, and Allen, including the separate laboratories or projects they supervised. See
, e.g. , Fr eyd
, 384 F. Supp. 3d at 1291 (analyzing Hall’ s wo rk a t CoDaC); id

. at 1292 (assessing F isher’s responsibi l i ti es m anaging federal grants); id

. at 1293 (comm enting on Allen’s position

as the director of the Center for Digital Mental Health). B ut “[i]t is the overall job, not its individual segm ents, that m ustF R EYD V

. U

NI VE R S I TY O F O R

E G ON 19

form the basis of com

parison” in assessing the com parability of occupations. Gunthe r v

. W ashington County
, 623 F.2d 1303, 1309 (9 th Cir. 1 979) (internal citations om itted); cf. Buntin v. B reathitt Cty. Bd. of Educ.
, 134 F.3d 796, 799 (6th Cir. 1998) (“Whether the work of two em ployees is substantially equal ‘m

ust b e resolved by the ov e r a l l

com parison of work, not its individual segm ents.’”) (quoting Odomes v. Nucare, Inc.
, 653 F .2d 2 46, 250 (6th Cir. 1 981)); EEOC v. Cent. Kan. Med. Ctr.
, 705 F .2d 1270, 1272 (10th Cir. 1983), rejected on other grounds by McLaughlin v. Richland Shoe Co

. , 486 U.S. 128, 134 n.10 (1988) (“An

em ployer m ay not ‘escape the Act’s reach by drawing overly fine distinctions in the tasks at issue.’”) (qu o t in g Berman v. S. Davis Cmty. Hosp. , 538 F.2d 859, 861 (10th Cir. 1976)).

A reasonable jury could f ind that Freyd, F isher, Alle n, and Hall share the sam e “overall job.” 8 As full professors in the Psy c h ology D epartm ent, Freyd and those three

com parators all conduct rese arch, teach classes, advise students, and “serv e actively on departm ental, college, and university commi t tees and in other roles in service to the institution.” T hey also “contribute to the University’s goals regarding equity and inclusion” by participating in r e l evant associations and o rganizations. Although Freyd and her

com parators all perform each of these functions, it is also true

8 Mayr m ay be different b ecause h e was Departm ent H ead from 2014 through 2017. His adm inistrative work consum ed a great deal of his tim e; he did not teach classes, and the record does not show that he conducted research, obtained funding, or r an a center as did Freyd and the o th ers. See Hein
, 718 F.2d at 914–16 (finding a full-tim e coach’s work substantially equal t o that of a professor who did som e coaching, but not substantially e qu a l t o that of a professor who did not coach at all). For this reason, our d iscussion of Freyd’s com parators in the f

ollowing section refers only to Hall, Allen, and Fisher.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 20

that they do n ot teach the sam e courses, or supervise the sam e doctoral students, or m anage the sam e centers. In this respect, they are not identical. But w e are unable as a matter of law to p ronounce their responsibilities so unique that they cannot be com

pared for purposes of the Equal Pay Act. See Hein
, 718 F.2d at 9 1 4–17 (finding job of m en’s b a s ketball coach substantially equal to plaintiff who t aught classes, coached var i o u s wom en’s sports, and served as an advisor and to plaintiff who spent 5/9 of h er tim e coaching and 4/9 o f her tim e on adm inistrative duties). 9 Indeed, a s Dean Sa d o fsky explained, the University itself regularly m akes such com

parisons in determ ining fa c u l ty salaries. He b el i eves Freyd is “well and fairly com pensated” unde r Departm ent and University stan d ard s an d that any d ifferences in com pensation have n ot been “affected by any g ender bias.” The dissent com

plains that we em

phasize a “superficia l”

commo n c ore of tasks and d ownplay the “obvious” differences between Freyd and her m ale com parators. Dissenting Op. at 4 0

. The differences are not so obvious, however, that for purposes of the Equa l Pa y Act, w e can discern themwithout recourse to the finder of fact, the jury.

9 The dissent faults us fo r re lying on Hein because the court there relied on the clearly erroneous standard of review and m ade a s t atem ent in dicta that it m ay h ave approach ed the analysis differently if reviewed de novo. Dissenting Op. at 44 n.3 (citing Hein
, 718 F.2d at 913, 915, 917–18). W e do not believe the standard of r eview applied undercuts o ur conclusion here, as i n H ein w e were reviewing the distric t c o urt’s judgm ent and factual findings after a bench trial

. Hein
, 718 F.2d at 912. De novo r eview at a bench trial and summ ary judgm ent are different; there is no requirem ent to take the facts in the light m ost favorable to the nonm oving party at a bench trial. T hus, the d i ssent places undue weight o n th is statem ent regarding a hypothetical de novo review and ignores the court’s subsequent statem ent that “ sufficient evidence supports t he district court’s determ inatio n that the two jobs had substantially equal responsibility.” Hein , 718 F.2d at 915.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 21

A couple o f exam

ples dem o nstrate th e p roblem

. The district court found relevant that Fisher founded and runs the Center for Translational Neuroscience. See Freyd
, 384 F. Supp. 3d at 1292. In that role, he is responsible for ensuring funding, m anaging and supervising staff, overseeing th e budget, and m aking strategic decisions. Bu t Freyd likewise is the founder and p rinciple investig a t o r at Freyd Dynam ics Labs. In that role, she is responsible for m anaging staff and students, raising funds, b udgeting, and drafting and subm itting conference pr e sentations. Fisher and Freyd’s
centers are different, and th i s difference m ay justify a variance in the salary of their supervisors, but a reasonable jury could find these roles do n o t m a k e Fisher and Freyd’s jobs “substantially different.” Stanley , 178 F.3d at 1074.

The district c o urt also gave weight to the fact that Hall

was the Associate Director of CoDaC from 2008 to 2017. Id

. at 1291–92. In that role, he was responsible for planning and presenting workshops, assisting faculty in obtaining financial and other support, and representing CoDaC in m eetings. B ut Freyd served as an appointed m em ber t o the University Co mmi ttee to Address Sexual and Gender Based Violence from 2014 through 2016, a role which “too k a n e n orm ous

am ount of [ her] tim e” and included drafting policy proposals,

a dmi n istering cam

pus-wide surveys, and writing a report. Again, w e do not believe we can determ ine as a m atter o f law whether these two service roles m akes Hall and Freyd’s jobs substantially different.

The district court also focused o n the fact that Freyd’s research is privately funded, while her com parators adm inister federal grants. Id

. at 1291–94. The record shows tha t adm inistering a federal grant is a labor-intensive endeavor. In his declaration, Fisher explained that theF R EYD V

. U

NI VE R S I TY O F O R

E G ON 22

adm inistrator of a federal grant is responsible for “obtaining

a p p r o p riate in stitu

tio n al rev iew s a

n d ap p ro v al, p erf

o rm in g t h e work, m o nitoring the w ork performed by others,

. . . understanding and adhering to all sponsor-imposed term s and conditions as well as University policies and pro ce dures related to the specific type o f work

. . . prepar[ing] and tim ely subm it [ting] reports, signoffs and approvals

. . . [and]

m anag[ing] subm ission of facilities and adm inis tr ative charges to the fun d i n g agency.” B ut according to Freyd, obtaining p rivate fu nding requires sim ilar efforts, and she

m ust perform alm ost all of these sam e tasks as the pr incipal investi g ator at her privately funded lab. W e cannot say on this record that, a s a matter of law
, the d ifferences between public funding and private fundin g a re so great that an academ ic wh o o b tains public f unding does not do work that is substantially equivalent to an academ ic who obtains p rivate funding.

The d issent com

plains that we h ave to com pare “ actual job duties,” Dissenting Op. at 42, and that once we consider “the full pi c tur e o f duties and skills,” id. at 47, we m ust conclude that “ the jobs cannot be substantially equal as a

m atter of law,” id. at 4 7

. W e have two brief responses. F irst, the g ranularity with which the dissent picks through the facts would gut the E qual Pay Act for all but the m ost perfunctory of tasks. The Equal Pay Act, however, is “broadly rem edial,” and should be so “construed and applied” as to be “workable

across the broad range o f industries c o v e r ed by the Act.” Corning Glass Works v. Brennan
, 417 U.S. 188, 198–99, 208 (1974); see Rizo v. Yovino
, 950 F.3d 1217, 1226–28 (9th Cir. 2020) (en b an c )

. Second, the dissent’s conclusion that two faculty m em

b ers in the sam e d epartm ent cannot be com pared is i n c o n sistent with the fact that the University’s o wn adm in istrato rs regu l arly m ak e th ese c o m p ariso n s f o r p urp o sesF R EYD V

. U

NI VE R S I TY O F O R

E G ON 23

o f setting salaries. 1 0 T he question is not whether fa c ul ty

m em bers can b e com

p ared, but how they com pare, and the latter com parison is one fraught with judgm ent, not law. That is why form er Departm ent Chair Mayr urged the University
to correct “our m ost glaring inequity case,” while As s is t a nt Dean Sadofsky claim ed Professor Freyd was “well and fairly

com pensated.” W e do not have the tools to resolve the dispute without intruding on the civil jury’s function.

* * *

Ba sed on the record before u s, a reasonable jury c o u l d find that Freyd and her com parators d id substantially equal work. Accordingly, the district court’s grant of summ ary judgm ent on this claim was in error.

B. Oregon Revised Statute § 652.220

Oregon Revised S tatute § 652.220 prohibits em p loyers from “[p]ay[ing] wages to any em p loyee at a rate less than that at which the em

pl o y e r pays wages to em ployees of the

10 The dissent argues that the “broad guidelines for setting salaries in the Departm ent apply to a ll t e nure-track faculty,” Dissenting Op. at 46, and c i t es to policies from other University Departm ents, see also Dissenting Op at 42 n .2, apparently taking that to m ean that th e Psychology D epartm ent’s m eri t re view process applies university-wide. W h i l e Departm ents’ individual policies m ay have identical o r sim i lar language to assess their professors, there i s no indication in the record before us, nor in the policies the dissent has identified that t he University has ever com

pared professors ac ross Departm ents for the purposes o f salary or prom otion. W e do not argue that all full-tim e professors at the University have substantially sim i lar jobs—m erely that on summ ary judgm ent, we cannot say a s a m a tter of law that Freyd and her

com p arat o r’s jobs as full-tim e tenure-track p rofessors in the same departm ent are so dissim ilar that we cannot compare them

.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 24

opposite sex for work of com parab l e character, the perform ance of which requires com parable skills.” Or. R ev. Stat. § 652.220(1)(b) (2017). The Oregon courts have held that “com

p arable work” is a m ore inclusive s t andard than equal work; it “does not require equality but that two item s have im portant comm on characteristics.” Bureau of Labor & Indus. v. City of Roseburg
, 706 P.2d 9 5 6
, 9 5 9 n

. 2 (Or. Ct. App. 1985); see also S

mith v. Bull Run Sch. D ist. No. 4 5
, 722 P.2d 27, 29 (Or. C t. App. 1986) (“It is n ot d ifficult for a plaintiff to m ake a prim a facie case under [ Or. Rev. Stat. §] 652.220(1)(b).”). L ike the Equal Pay Act, § 652.220 also offers em ployers an affirm ative defense if they can show that difference in com

pensation is “based in good faith or factors other than sex.” Or. Rev. Stat. § 652.220(2)(b).

Freyd has asked us t o certify to the Oregon Suprem e Court several unanswered q uestions about § 6 5 2.220. Specifically, sh e requests that we ask the Oregon Suprem e Court (1) to define the term “work of com parable character,” (2) to determ ine whether a reten t ion raise is a “factor other than sex,” and (3) to determ ine whether a retention raise is
perm issible under a revised version of the law.

Oregon law allows the Oregon Suprem e Court to answer questions of law certified to it by this court so long as the question “m ay be determ inative of the cause then pending in the certifying court and as to which it app e a r s t o the certifying court there is n o control l i ng precedent in the decisions of the Suprem e Court an d th e interm ed i ate appellate
courts of this state.” Or. Rev. Stat. § 28.200 (2019). But the d ec i s i o n to certify a question to a state “rests in the sound discr e t i on of this court.” In re Complaint of McLinn
, 744 F.2d 677, 6 81 (9th Cir. 1984). Here, certifying Freyd’sF R EYD V

. U

NI VE R S I TY O F O R

E G ON 25

questions to the Oregon Suprem e Court would be of lim ited utility, so we decline to do so.

Freyd brought this suit under the 20 1 7 v ersion o f § 652.220. The statute was substantially revis e d i n 2019. One notable change by the Oregon legislature was to rem o ve the b road “factor other than sex” affirm ative defense f rom the
statute. O r. Rev

. Stat. § 652.220 (2019). And the statute’s definition section now defines the term “work of com p arable character” as “work that requires substantially sim ilar kno wledge, skill, effort, responsibility and working conditions in the perform ance of w o rk, regardless of job description or job title.” O r. Rev. Stat. § 652.210(13) (2019).

Because of these changes to the law, the Oregon Suprem e Court’s answers to Freyd’s first two certified question s would be relevant o nly in this case and other cases brought under the old version o f th e law. And because Freyd’s lawsuit was brought under the 2017 versi o n , th e answer to the third question would be irrelevant here. For these reasons, we decline to certify these question s t o the Oregon Suprem e Court.

Instead, we w ill resolve F reyd’s § 652.220 cl aim ourselves. Because Oregon courts h ave declared th at “com p arable work” is a m ore inclusive standard than “substantially equal work,” see City of Roseburg
, 706 P.2d
at 959 n.2, we conclude that Freyd h as raised a genuine issue of m aterial fact under § 652.220 for the sam e reasons she has done so under the Equal Pay Act. Accordingly, the district

c o urt’s grant of summ ary judgm ent on this claim was

erroneous.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 26

C. Title VII Disparate Impact

“[T]o m ake a prim a facie case of disparate imp act under Tit l e VII, the plaintiff[] m ust show that a facially neutral

em plo ym ent practice has a significantly discrim inatory im pact upon a g roup protected by Title VII.” Paige v. California
, 291 F.3d 1141, 1144 (9th Cir. 2002) (in t e rnal quotation marks om itted). “This showing consists o f two parts: the plaintiff[] m ust dem on s trate 1 ) a specific

e mp l o y me n t p r a ct i c e th a t 2 ) c au s es a si g n i fi c a n t discrim inatory im

pact.” Id

. at 1145. T h e plaintiff m ust also establish that the challenged practice is e i ther (a) not job related or (b) “[in]consistent with busin e s s necessity.” 42 U.S.C. § 2 000e-2(k)(1)(A)(i) (2018). Even if the practice is job related and consistent with business necessity, though,

a plaintiff m ay still prevail “by showing that the em ployer refuses to adopt an available alternative practice that has less d isp arate im

pact and serves the em

p loyer’s legitim ate needs. ” Ricci v. DeStefano
, 557 U.S. 557, 578 ( 2 0 0 9 ) (internal citations om itted).

Here, the d istrict court g ranted su mm ary judgm ent on Freyd’s disparate-impact claim o n two g rounds. First, it held that Freyd’s evidence was insufficient as a ma tter of law to sustain a p rim a facie case o f disparate im pact. Freyd
, 384 F. Supp. 3d at 1297. Second, it he l d that even if Freyd h ad

m ade out a prim a facie case, the University was entitled to an affirm ative defense b ecause ( 1 ) the challenged practice was job related and consistent w ith b u siness necessity and (2) “Freyd has not put f

orth an alternative practice that would effectuate the University’s legitim ate b u siness goal o f retaining top talent in its Psychology Depart me nt.” Id

. Because we conclude th at each of these conclusions areF R EYD V

. U

NI VE R S I TY O F O R

E G ON 27

erroneous, we r e v erse the district court’s grant of summ ary judgm ent on this claim

.
First, Freyd has challenged a specifi c em ploym ent practice. “Plaintiffs generally cannot attack a n overall decisionm aking process in the d isparate im p a c t context, but

m ust instead identify the p articular elem ent or practice within the process that c au ses an adverse im pact.” Stout v. Potter
, 276 F.3d 1118, 1124 (9th Cir. 2002). He r e , Fr e yd does not challenge the general practice of awarding retention raises, as the University alleges. Instead, she challenges the practice o f awarding retention raises without also increasing the salaries of other p r o fessors of com parable m erit and seniority. Freyd’s theory of pay equity would not forbid the University from taking account of m arket factors, as evidenced by the

s al a r ies other universities w ere willing to pay to lu r e Oregon’s faculty elsewhere. Rather, she argues that when a

com peting offer is m ade to a faculty collea gu e , i t dem onstrates that Oregon is out of step with respect to salary, and a retention rais e should b e offered to all com p arable faculty m em

be r s

. And she argues, and has offered som e evidence b acked by statistics and studies, that fem ale faculty

m em bers, for a variety of reasons related to gender, are less willing to m ove and thus less likely to entertain o vertures from another institution. That puts them at a disadvantage vis-a-vis their m ale colleagues.

Second, Fr e yd has put forth evidence that this specific

em ploym ent practic e causes a significant discrim inatory im pact. For a pl a i n t i ff to rely o n statistical evidence to establish a prim a facie case of disparate im pact the “statistical disparities m

ust be sufficiently substantial that they raise such

an inference of causation.” Stout
, 276 F .3d at 1122 (quoting Watson v. Fort Worth Bank & Tr.
, 487 U.S. 977, 995 (1988)).F R EYD V

. U

NI VE R S I TY O F O R

E G ON 28

Freyd offered two different sets o f statistical evidence to support her claim of di sparate im p act. First, she subm itted the Cahill analysis, which found th a t fem ale professors earned an average o f $15,000 less than m ale professors, and that th e e vidence “strongly suggests that [this disparity] can be attributed to retention raises.” Second, she presented data

s howing that (1) the University enters into retent i o n negotiations with fem ale professors less often, and (2) when these negotiations are h ad with fem ale professors, they are less likely to b e successful. Her claim is that, for reasons related to gender, fem ale faculty a r e less likely to seek, receive, or be receptive to com pe t i ng offers, and thus the retention bidding practice favors m ale faculty. Her evidence, if credited, m eans that the problem is not that the University does not nego t i a te retention raises with fem ale faculty, but that, relative to their m ale colleagues, fem ale faculty receive fewer com

peting o ffers. The University is rewarding faculty who receive competing offers, and that favors m ale faculty.

The self-study data indicates, when taken in the light m ost favorable to Freyd, that there is gender bias in the availability of outside offers to f

em ale faculty. In its 2016 self-study, the Psychology Departm ent noted that only four o f the twenty retention negotiations th e University entered into with psychology profe ssors from 2006 through 2016 were with fem ale professors, while sixteen were with m ale professors, d espite the d epartm ent having a roughly equal num ber of

m ale and fem ale professors. 1 1 And o n ly o ne o f the four

11 T h e Psychology D epartm ent also noted t hat “[d]etailed analyses o f all p ast retention cases am ong faculty indicate that the greater tendency o f

m ale faculty to engage in retention negotiations plays an im portant r o le in

a g ender-related sal a ry gap am ong [] full Professors.” It also acknowledged that “ there is strong evidence of a gender b i as in theF R EYD V

. U

NI VE R S I TY O F O R

E G ON 29

retention negotiations with fem ale professors was successful, while nine of the sixteen with m ale professors were. 1 2

The district court f

o und as a m atter of law th at Freyd’s statistical evidence was insufficient to sustain a cl a im o f disparate im

pact. It reasoned that “[r]egardless o f what Professor Freyd’s expert says as to the rel i ab i l i ty of the

sam ple size
, the rule in the Ninth Circuit is that ‘[s]tatistics

are n o t trustworthy when m inor num erical variations produce significant percentage fluctuations.’” Freyd
, 384 F. Supp. 3d
at 1296 (citing Contreras v. City o f Lo s Angeles
, 656 F.2d 1267, 12 73 n.4 (9th Cir. 1981)); see also Morita v. S. Cal. Permanente Med. Grp ., 54 1 F.2d 217, 220 (9th Cir. 1 976) (sm all sam

ples have “little predictive value an d mu s t be disregarded”). This conclusion was, of course, the criticism leveled at Freyd’s study by Dean S adofsky and at the Cahill Study by the University’s expert, Ringold. W e do n ot think that we can resolve this d ispute am ong the experts. Although “the probative value of any statistical com par i s on is lim ited by the sm all avail able sam ple,” S tout , 276 F.3d at 1123, we have not dra wn a bright line to determ ine the adequacy of a data set. Cf. Watson
, 487 U. S. at 994–95 (noting that form ulations for assessing statistical evidence of disparate im pact “have never been fra me d in term s of any rigid

availability of outside offers and the abi l i ty to aggressively respond to such offers.”

12 I n her brief, Freyd states that twenty-six r etention negotiations have occurred from 2007 through 2017, w ith fourteen out of twen ty -one negotiations with m ale professors ending successfully and two out of five with fem ale profe s s ors ending successfully. W e cannot find this data in the record. Instead, we rely on the findings from t h e 2016 Psychology Departm ent self-study. These num bers m i gh t be slightly m ore outdated than Freyd’s, but they are supported by the record.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 30

m athem atical fo rm

ula”). There is a d anger in form ulating a strict rule about data sets when, as here, the data m ay also contain a qualitative com ponent. Our prior cases s t a t e d a general principle about the reliability of sm all data sets, but it did n ot establish a firm rule about d enom ina t ors. And although there m

ust be som e floor for the sam ple size a party

m ust evaluate in order to reach statistical significance, this is
not an approp r i a t e c a s e in which to set such a floor; at least
not on this record, where the expert witnesses them selves disagree about sam

ple size’s relevance. See City o f Pomona

v. SQN N. Am. Corp.
, 750 F.3d 1 0 3 6
, 1049 (9th Cir. 2 014) (“A fa ctu a l dispute is best settled by a battle of the experts before the fact finder, n o t by judicial fiat. Wh ere two credible experts disagree, it is the j o b o f the fact finder, not the trial court, to d eterm ine which source is more credible and reliable.”).

Furtherm o re, we should o bserve that in each of the cases cited above, w e noted the lim ited probative value of the sm all

sam ple size, but none of those d ecisions ultim ately rested on that issue alone. See
, e.g , Stout
, 276 F.3d at 1 123 (concluding that even if the data w ere reliable, it did not reveal a disparate im pact because the percentage of wom en selected was roughly proportional to the percentage o f fem ale applicants); Co ntreras , 656 F.2d at 1272 (discounting plaintiff’s the statistical evidence because the results “were not statistically significant when tested at a .05 level of significance”); Morita
, 541 F.2d at 219–20 (criticiz i n g plaintiff’s sm all

sam ple size, b ut d enying plaintiff’s claim because pl a i ntiff failed to satisfy an essential elem ent of the claim ).

The nu mb e r of data p oints surely goes to the probative value of Freyd’s evidence. But that is a m atter for the experts t o d eb a t e and the jury to resolve. See Bouman v. Block
,F R EYD V

. U

NI VE R S I TY O F O R

E G ON 31

940 F.2d 1 211, 1225 (9th Cir. 1991) (“Whether the statistics

are underm ined or rebutted in a specific case would norm ally be a question for the trier of fact.” )

. We think that a

rea s o nable jury could find that F reyd’s statistical analysis shows a prim a facie case of disparate im pact. Despite the relatively sm all data set, the Cahill study was conducted at a

m arkedly high level of statistical significance. And while the dissent argues that the statistics f rom the Psy c h o l o gy Departm ent’s own self-study do not dem onstrate statistical significance, Dissent ing Op. at 56–57, the evidence o f retention negotiation disparities 1 3 appears to satisfy the “fourfifths rule,” a standard prom ulgated b y the E qual Em ploym ent Opportunity Co mmission, which “states that a selection practice is considered to have a disparate im pact if it has a selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate o f the group with the high e s t r a t e.” Stout
, 276 F.3d at 1124 (internal quotation m arks o mitted). W e agree with the Seventh Circuit that where a sam p le is sm all but the results nevertheless indic a te a disparity, the “granting of summ ary judgm ent in favor of [defendant] on this issue by the District C o u r t w a s p r e m a t u r e

. ” F i s h e r v

. T r a n s c o Services-Milwa u kee, Inc.
, 9 79 F.2d 1239, 1245 (7th Cir. 1992). 1 4

13 W e also n ote that these statistics were significant enough to the Departm ent leadership that it noted the retention raises were the potential cause of an equity issue.

14 W e are puzzled by the dissent’s critical comm ents abo u t the statistical analysis p re p a red by the Psychology Departm ent in its 2016 self-study. Dissenting Op. at 57 (stating that the study “was conducted b y professors and em

ployees o f the Psychology Departm ent—not experts in the field o f m athem atics, statistics, or econom i cs.”). W e think we do not trespass the b oundaries of o ur expertise with the observation that the toolsF R EYD V

. U

NI VE R S I TY O F O R

E G ON 32

The district court held, alternatively, that “ev en i f Professor Freyd had m ade out a prim a f acie case for disparate im pact, summ ary judgm ent would st i ll be appropriate” because the University established a “busines s n e cessity” defense. F

reyd
, 384 F. Supp. 3d at 1297. This conclusion is in error, for two reasons. First, there is conflicting evidence about the need for retention raises and whether the retention raises are job-related. 1 5 Second, the district court assessed the

of “m athem atics, statistics, [and] econom i cs” are comm only used in other disciplines, including p sychology. W e are not aware of any legal p rinciple that would allow us to disparage an academ ic departm ent’s self-study o n the grounds that w e did n ot think its faculty qualified to conduct such a study. T h ese questions go to the w eight of the evidence, not its adm i ssibility, and should be left for the jury to resolve.

15 D ean Sadofsky defended the University’s practice of com pensating faculty “where there is co m p e l l ing evidence that a preem ptive action is necessary to prevent the loss of a valued faculty m em ber.” On the other hand, P rofessor Louis Moses, f o rm er Psychology De partm ent Head, criticized the University’s retention policy as counterproductive:

[It] effectively punish[es] [a faulty m e m b e r] for not going on the job m arket. In doing so the adm inistration sends a m essage to faculty that t he only way to receive

a large salary raise is t o pursue an outside offer, thereby encouraging individuals t o g am e the system b y shopping them selves around as a way to negotiate an increase. Encouraging behavior of this kind is costly in
term s o f t im e, resources, and energy; not only for the fa c u l ty m e m

b er in v ol v e d a n d th e c o m peti ng universities, b ut al so for the departm ent and U O adm i nistration when they need t o re s pond to the

com p etition.

The Psychology Departm ent’s own self-study also expressed skepticism regarding retention raises, noting that “ it is not o bvious that the f requency of retention negotiations is a strong indicator of overall productivity.”F R EYD V

. U

NI VE R S I TY O F O R

E G ON 33

wrong p ractice. Freyd is not challengi ng the practice o f awarding retention raises; she challenges th e p ractice o f awarding retention raises to som e p rofessors without increasing the salaries o f other professors o f c o mparable

m erit and seniority. And as explained below, Freyd has proffered an alternative practice that m ay be equally effective in accom plishing the University’s go al of retaining talented fa culty. Thus, w e cannot say as a m atter of law that th e Univers i ty ’ s policy and practice represents a business necessity.

Even if we thought the University’s policy represented a busine s s n ecessity, Freyd m ay show that there is a viable alternative practice that would serve the University’s needs. See Ricci
, 5 57 U.S. at 578; Albemarle Paper C o. v. Moody
, 422 U.S. 405, 425 (1975). “Factors such as the cost or other burdens of proposed alternative selection devices are relevant in determ ining whether they w ould be equally as effective as the challenged practice in serving the em ployer' s legitim ate business goals.” W

a ts o n , 487 U .S. at 998. Freyd has proposed, as an alternative to the current practice, that “when [the University] gives a retention rais e to a Psychology professor, it should evaluate the resulting salary di s p arity wi th others in the sam e rank with com parable m erit and seniority, and give affected individuals a raise.” The record contains conflicting ev i d e n c e as to whether this alternative would be equa lly as effective as the current p ractice in serving the University’s legitim ate business g oals. On o ne h a n d
, c u rr e n t U n i v e r s i t y p o l i c y a l r e a dy m a n d a t e s consideration of “im

plications for internal equity” when determ ining whether to grant a p rofessor a retention raise. And a s the University’s form er interim president Scott Coltrane testified, th e University has engaged in this alternative practice in the past, granting other pro fe s sorsF R EYD V

. U

NI VE R S I TY O F O R

E G ON 34

equity raises when another professor the school d eem ed to be less distinguished was offered a retention raise. 1 6 But on the other hand, the University argues that this alternative practice would increase its costs, which is inconsis te nt with its “lim i t e d bu dget and an o bligation to spend that budget responsibly.” And Coltrane testified that, in his view, when the alternative practice was used i n the past, “[n]obody was happy in the end,” because the b udgetary restraints forced the University to give each professor a sm a l l e r raise than she believed she deserved. This conflict i n g evidence raises a genuine issue of m aterial fact as to the adequacy of Freyd’s proposed alternative policy. 1 7

* * *

On this record, there is at least a genuine issue of m aterial fact as to whether Frey d e s t ab l ished a prim a facie case o f disparate im

pact. Th e district court erred in granting

summ ary judgm ent on this claim

.

16 Th e d is sent appears t o assert that w e should not credit these
statem ents b e c ause of t

he contradictory facts r egarding costs and other adm i nistrative burdens. Dissenting Op. at 59–61. B u t at summ ary judgm ent, we m

u st take the record in the light m ost favorable t o Freyd and therefore m

ust credit these conflicting facts.

17 The dissent reveals its strong preference for a “m arket-driven practice.” Dissenting Op. at 39; see also id. at 5 7–59. Th i s i s a policy question better addressed to the need for Title VII. A “business necessity” defense is not the sam e as a guarantee o f a f ree m arket. S

e e Ri z o , 9 5 0 F.3d at 1223, 1230 (discussing the Suprem e Court’s rejection of “m arket force t heory” in Corning Glass Works v. Brennan
, 417 U.S. 188 (1974)).F R EYD V

. U

NI VE R S I TY O F O R

E G ON 35

D. Title VII Disparate Treatment

To establish disparate treatm ent unde r Title VII, a plaintiff “m

ust offer evidence that ‘gives rise to an inference of unlawful discrim ination,’ either through the fram ework set forth in McDonnell Douglas Corp. v. Green or with direct o r circum stantial evidence of d iscrim inatory intent.” Vasquez v. County of Lo s An geles
, 349 F.3d 634, 640 (9th C ir. 2 003) (alteration m arks om itted) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine
, 450 U.S. 248, 253 (1981)). The McDonnell Douglas fram ework contains thre e , burdenshifting steps. McDonnell Douglas Corp. v. Green
, 411 U.S. 792, 802–04 (1973). At the f irst step, the plaintiff m

ust m ake

a p rim a facie case of d i scrim ination, which requires a showing th a t “ ( 1) [ s]he is a m em ber of a protected class; ( 2 ) [s]he was qualified for h[er] position; (3) [s]he experienced an adverse em ploym ent action; and (4) sim ilarly situated individuals outside h[er] protected class were treated

m ore f avorably.” Fonseca v. Sysco F ood Servs. of

Ariz., Inc.
, 3 74 F. 3 d 840, 847 (9th C ir. 2004) (quoting Peterson v. Hewlett-Packard Co.
, 3 58 F .3d 599
, 6 0 3 (9th Cir. 2004)). Onc e a p rim a facie case has b een shown, the burden then

s h i f t s t o t h e d e f

e n d a n t t o s h o w a l e g i t i m a t e , nondiscrim inatory reason f or the challenged actions. See M c Do n nell Douglas
, 411 U.S. at 8 02. The burden th e n returns to the plaintiff, who m u st show that the proffered nondiscrim inatory reason is pretextual. See id

. at 804. While intent is not relevant to a d isparate im pact theory of recovery, the disparate treatm ent theory does require p roof o f d is crim inatory intent. Garcia v. Spun Steak Co.
, 998 F. 2 d 1480, 1484 (9th Cir. 1993) (citing Watson
, 487 U.S. at 988).

Freyd has not prese n ted evidence sufficient to raise a genuine issue of m aterial fact concerning disparate treatm ent.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 36

She has not pr e s ented “direct or circum stantial evidence o f discrim i na t o ry intent.” Vasquez
, 349 F.3d at 640. She has al s o not presented evidence sufficient to establish a p rim a facie case under the McDonnell Douglas fram ework because she has not shown that sim ilarly situated individuals outside of her p rotected class were treated m ore fav orably than her. Freyd’s com

parators engaged in retention ne g o tiations with the University and were granted substantial salary increases

as a result. Freyd has never engaged in retention negotiations. Though the University did deny Freyd a raise in 2 0 17, the raise Freyd sought at that tim e was a retroactive equity raise. There is no evidence that her com parators ever received—or even sought—retroactive equity raises. Under universi ty p o licy, equity raises and retention raises are distinct. Ap p lications for equity raises and retention raises

are assessed differently, through d ifferent processes that weigh different criteria.

Because equity raises a nd r etention raises are not

com parable, w e cannot say that F reyd’s com parators were treated “m ore favorably” than was Freyd in this context. Thus, she cann ot establish a prim a f acie case o f disparate
treatm ent, and the d istrict court’s grant of summ ary judgm ent was proper on this claim

.

E. Oregon Revised Statute § 659A.030

Oregon Revised Statute § 659A.030 prohibit s “an

em ployer, because of an i nd i vi du a l’ s

. . . sex

. . . to discrim inate against the individual in c o mp e n sation or in
term s, conditions or privileges of em ployment.” Or. R ev. Stat. § 659A.030(1)(b) (2017). Oregon courts a s sess 659A.030 claim s under the sam e fram ework as they do Title VII disparate treatm ent claim s. S ee D awson v. Entek I

n t ’l
,F R EYD V

. U

NI VE R S I TY O F O R

E G ON 37

630 F. 3d 928, 934–35 (9th Cir. 2 011). Because summ ary judgm ent was proper on Freyd’s disparate treatm ent claim
, it was also proper on her § 659A.030 claim

.

F. Title IX

Title I X mandates that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the b e n e fits o f, o r be subjected to discrim ination under any education p rogram o r activity receiving Federal fin a n c i al assistance.” 20 U.S.C. § 1681 (2018). F reyd alleges th a t the University violated Title IX by “knowingly

a n d intentionally pa[ying] Professor F reyd less than m en in the sam e job because of her sex” and “fail[ing] and refus[ing]
to rectify this sex discrim ination when m ade aware of it.” A s with her Title VII disparate treatm ent claim
, because F reyd has presented no evidence of intentional discrim ination, there is no genuine is s u e of m aterial fact here. W e affirm the district court’s grant o f summ ary judgm ent on Freyd’s Title IX claim

.

G. The Oregon Equal Rights Amendment

The Oregon Equa l Ri ghts Am endm ent m andates that “[e]qua l it y of rights under the law shall not be denied o r abridged by the State o f Oregon or by any political subdivision in this state on account of sex.” Or. Const. Art. I § 46. Because Freyd h as pr esented no evidence o f intentional discrim ina t ion, she cannot prove that the University denied her equality of rights “o n a ccount of” her

sex. Cf. Klein v. Or. Bureau of Labor & I n d u s

. , 4 1 0 P.3d 1051, 1061 (Or. Ct. App. 2017) (defining the phr a se “on
account o f” in the context of ant i-discrim ination statutes to

m ean “‘by reason of’ or ‘because of’”). W e affirm theF R EYD V

. U

NI VE R S I TY O F O R

E G ON 38

district court ’ s g r ant of summ ary judgm ent on Freyd’s state constitutional claim

.

IV. CONCLUSION

W e conclude that Freyd has presented a genuine issue o f

m ater i a l f

act under the E q

ual Pay Act and Or. R ev. Stat. § 652.220 and for disparate im p act under Title VII. W e thus

reverse the district court’s grant of summ ary judgm ent for
th o se claim s. But because we find that Freyd has n o t presented a genuine issue of m ateria l fact for her claim s for disp a rate treatm ent under Title VII, and her claim s under Title IX, Or. Rev. Stat. § 659A.030, and the Oregon E qual Rights Ame n dm ent, we affirm the district court’s grant o f

summ ary judgm ent f

or those claim s. 1 8 Nothing w e have said here should b e taken as reflecting our judgm ent on the m erits of the claim s we are rem anding to the district court.

Each party must bear its own costs.

REVERSED IN PART; AFFIRMED IN PART.

18 The University h as m oved to stri ke m ention of Allen’s updated declaration from

the record, as well all argum ent depending on it. It has al s o m o ved to strike som e social science scholarship referenced in the opening brief. Because we did not consider nor rely on e i th e r of these

m aterials in m aking t

his decision, s tri k i n g this evidence would have n o bearing on the outcom e of this case. W e DENY the m otion.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 39

VANDYKE, Circuit Judge, d issenting in part and concurring in part:

Jennifer Freyd is far from the typical em pl oyee arguing that she is being treated d ifferently based on her sex. She is
not m erely a professor of Psychology, o r even just a tenured professor o f Psyc h ol o g y. She is a full professor o f Psychology at the University of Oregon—the top echelon, crèm e-de-la-crèm e of her academ ic field. She is, one m ight
say, in the big leagues o f h e r profession. According to Dr

. Fr e y d h erself, her job at her elite level of academ ic achievem ent is m arked by “consider able discretion and
autonomy i n developing and executing a unique research agenda and p rofessional profile,” and “[n]o two people wi ll exercise their discretion and autonom y in the sam e way.”

Just as we see with top professional athletes or the very best attorneys in their field, com petition is fierce for leading academ ic talent. Universities understandably attem pt to poach top dons from other schools by offering better pay and other benefits and opportunities, and the professors’ hom e institutions are often r e quired to m ake com parable o ffers (called “retention raises”) to keep their own outstanding people—especially those who are willing to seriously entertain an offer to change institutions.

This case effectively challenges that m arket-driv e n p ra ct i c e as violative of a host of federal and O regon laws prohibiting sex-based discri m ination. 1 If Freyd is correct

1 T he m ajority c riticizes what it characterizes as m y “strong preference for a ‘m arket-driven p ractice.’” My preferences are unrelated
to m y pointing o ut the obvious here. The fact t hat an em ploym ent practice is “m arket-driven” m ay not necessarily exem pt i t from Title VII, b ut i t isF R EYD V

. U

NI VE R S I TY O F O R

E G ON 40

that—even in this elite context, whe r e the defining characteris t i c o f p r o fe s sors at this level is their uniqueness—pay disparities b ased on retention raises can perm it a jury to award d am ages for sex discrim ination, th en

em ployers will predictably be incentivized to abandon a tool for retaining top talent and revert to lock-s t e p pay. W orse, unless all of the federal circu i t s agree with ours (always an unlikely proposition), a n other predictable result of today’s decision is that universities in the Ninth Circuit will be unable
to co mp e te econom ically to retain their best p rofessors, and

we could see a corresponding b rain drain in universities in the
western states.

Of course, if this w ere required by our laws pr ohibiting

sex discrim ination, then so be it. But it isn ’ t

. The district

court wa s correct that, f or professors at this level, “a university is m ore akin to the N ational Baseball League than it is to a traditional em

p loyer.” Freyd v. Univ. of Or.
, 384 F. Supp. 3d 1284, 1288 (D. Or. 2019). Only by em phasizing a superficial “comm on core o f tasks” shared by full professors and downplaying all o f the obviou s d ifferences that have

m ade them stand-outs in their profession can the m ajority conclude that “a reasonable jury could f ind that Freyd and her

com parators

... do substantially equal work” for purposes o f the Equal Pay Act. The m ajority also errs in its consideration of Freyd’s Title VII disparate im p act claim, relying on irrelevant statistical d ata to fin d a genuine issue of m aterial

unquestionably relevant to whether it is p ro hibited. W hile i t is perhaps
true that a “‘business necessity’ defense is not the sam e as a gu arantee o f

a free m arket,” it is certainly true that every business necessity is, ultim ately, m arket-driven. Even the m ajority cannot avoid m arket-driven concepts when discussing t he University’s business necessit y d efense (“the need for retention raises” and “job-related” have no m eaning apart from a job m arket).F R EYD V

. U

NI VE R S I TY O F O R

E G ON 41

fact and then indulging the academ ic fiction tha t th e University’s retention raise practice m ay not serve a business necessity. I disagree with these conclusions, and therefore respectfully dissent.

I. The Equal Pay Act

The Equal Pay A ct prohibits an em ployer fr om discrim inating between em ployees of di ffe r ent sexes for perform ing “equal work on jobs the p erform ance o f which requires equal skill, effort, and responsibility, and which are perform ed und e r sim ilar working conditions.” 29 U.S.C. § 2 0 6(d)(1). Individuals of different sexes perform “equal work” for purposes of establishing a prim a facie case under the Equal Pay Act if “the jobs [being com pa red] are substantially equal.” Fo r s b e r g v. Pac. Nw. B ell Tel. Co.
, 8 4 0 F.2d 1409, 1414 (9th Cir. 1988) (alteration in or i g in al ) (citation om itted). In considering the substantial equality o f jobs, we look to whether the jobs share a “comm on core o f tasks” and “wheth e r any additional tasks, incum bent o n o ne job b ut not the other, m ake the two jobs ‘substa n t i a lly different.’” Stanley v. Univ. of S. Cal.
, 178 F.3d 1069, 1074 (9th Cir. 1999) (citation om itted).

The m ajority here faults the district court for focusing on the diffe r e nc es in job responsibilities of Freyd and her m ale

co m p arators and instead highlights high-lev el similarities an d “exam p les” of characteristics shared by the jobs to conclude “that Freyd and her com

parators perform a ‘“comm on core” of tasks’ and do substantially equal work.”

I thi n k th e m ajority m isapplies the standard. It initially
asserts that a r e a s o nable jury could find Freyd and her m ale

c o mp a r ators have the sam e “overall job” because they al lF R EYD V

. U

NI VE R S I TY O F O R

E G ON 42

conduct research, teach classes, fulfill service roles, and work toward the University’s equity and inclusion initiatives. The
pr i mary basis for the assertion that they all have the sam e “overall job,” however, is the Departm ent’s “ Tenure-Track Faculty Professional Responsibilities” docum ent—i.e., a Departm ent policy docum ent setting out job descriptions for professors in Psychology. The problem with the m ajority’s reliance on this policy docum ent is that this court is required
to com par e a c tual job duties—not job descriptions—in determ ining whether the relevant jobs are substantially equal. See Spaulding v. Univ. of Wash.
, 740 F.2d 6 86, 697 (9th Cir. 198 4 ) (asserting “[ a] ctu al job p erform ance and content, rather
t h a n j o b d e s c r i p t i o n s , t i t l e s o r c l a s s i f i c a t i o n s , i s determ inative” when comp aring jobs for purposes of the Equal Pay Act), overruled on o ther g rounds b y Atonio v. Wards Cove Packing C

o

. , 810 F.2d 1477 (9th Cir. 1987) (en banc). Furtherm ore, this policy docum ent applies to assistant professors, associate professors, and f ull professors in the Psychology Departm ent—a m uch broader com

parison g roup that does not have, and Freyd does not argue they have, substantially equal jobs. 2

2 The m ajority’s relianc e o n this policy docum ent dem onstrates a deeper fl a w in its approach to the Equal Pay Act. The Psychology Departm ent i sn’t the only departm ent at the University to use the “TenureTrack Faculty Professional Responsi bilities” docum ent to set expectations for its professors. The Physics and Classics Departm en t s , fo r e x a m ple, have adopted n early identical job expectations in their

own profe s s i onal responsibilities docum ents. See Department of P h y s i c s T e n u r e

- T r a c k F a c u l t y P r o f e s s i o n a l R e s

p o n s i b i l i t i e s ( “ P hy s i c s P o l i c

y ” )
, U N I V

. O F O R

. 1

– 4 ( M a r

. 3
, 2 0 1 7 )
, https://provost.u o re g o n. e du/ fi l e s /p h y s

_t t f_ p ro f_resp_final_03_03_2017 .pdf; D epartment of Classics Tenure-Track Fa culty Professional Responsibilities (“ Classics Policy ”), UN IV

. O F O R

. 1– 4 (Mar. 3, 2017), h t tp s : //p rovost.uoregon.edu/files/ c l a s

_t t f_ p ro f_re s p

_ fi n a l

_ 0 3

_ 0 3

_ 2 0 1 7

. pdf. Like Freyd and her m ale com parators, all tenure-track professors inF R EYD V

. U

NI VE R S I TY O F O R

E G ON 43

When looking at the actua l job responsibilities of F reyd and h er m ale com

parator s as s e t o ut in the record, it is not true that “Freyd and her com parators all perform each of the[] functions” s e t out in the Departm ent’s professional responsibilities docum ent—i.e., research, teaching, advising students, p erform ing service roles, and contributing to equity and inclusion initiatives—as the m ajority contends. Ulrich Mayr and Go r d o n Hall, for exam ple, taught few—if any—classes between 2014 and 2017, because their roles as

Physics and Classics are expected to con duct research, teach classes, and advise students. Co m pare, e.g. , Department of Psychology TenureT r a c k Fa c u l t

y P r o f e s s i o n a l R e s

p o n s i b i l i t i e s ( “ P s

y c h o l o g y P o l i c y ” )
, U N I V

. O F O R

. a t 1 ( M a r

. 3
, 2 0 1 7 )
, h t tp s : //p ro v o s t

. u oregon.edu/files/psych_ttf_p ro f_re s p_ fi n a l

_ 0 3_ 0 3_ 2 01 7.pdf (asserting full-tim e tenure-track f aculty should “spend 40% of their effort o n re search, 40% on teaching, and 2 0% on service over the academ ic y ear”), with Classics Policy at 1 (sam e), and Physics Policy at 1 (sam e f or t enure-track faculty at r ank o f pro fe s sor). Like Freyd and her

com p arators, Physics and Cl a s s i c s professors are directed to “serve actively on departm ental, college, and university comm ittees and in other roles in service to the institution.” Psychology Policy at 4; Physics Policy

a t 4 ; Cla ssics Policy at 4. And those professors m ust “contribute to the Uni v e rsity’s goals regarding equity and i nclusion,” Physics Po licy at 4, Classics Policy at 4, just like Freyd and her m ale colleagues, P sychology Policy at 4. Applying the m ajority’s incorrect reasoning, one would have
to conclude that a reasonable jury could find Freyd’s job is substantially equal to that of all tenure-track professors in th e Ph y sics and Classics D ep artm ents because th ei r r esp o n sib i l i t i es can b e co m p ar ed t o F r ey d ’ s— at least at a 30,000-foot level based on the generic job requirem ents set out in these professional r esponsibilities docum ents. Although the m ajority claim s it “do[es] n o t argue that all full-tim e professors at the University h a ve substantially sim ilar jobs,” where would i t draw the line? Fre yd ’s job could be subs t a n t i a lly equal to that of an associate professor o f Physics, but not t o tha t o f an associate professor of Biology? Or Freyd could establish substantial job equality with an assista n t p ro fessor o f Classics, but not a full professor of Anthropology? The logical im plications of the m ajority’s analysis are breathtakingly expansive.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 44

departm ent head and Associate D irector (t h e n Interim Director) of Co DAC, respectively, consum ed so m uch o f their tim e. Hall also conducted v ery l ittle of his o wn scholarly research during that tim e due to his co mmi t m ents with CoDAC. There is likewise no evidence in the r e c ord that Phil Fisher’s job included any responsibilities related to the prom otion of the equity and i n cl u s i on goals of the University.

The m ajority contends th a t the “granularity with which the d issent p icks through the facts would gut the Equal Pay Act f or all but the m o st perfunctory of tas k s.” But a casespecific evaluation of the actual job perform ance and content, based on a review o f the overall job, is exactly what the E qual Pay Act requires. Gunther v. County of Washington
, 623 F.2d 1303, 1309 (9th Cir. 1979) (“To m ake this showing, actual job perform ance and content, not job t i t les, classifications or descriptions is determ in a t i v e. It is the overall job, not its individual s e g m e nts, that m ust form the basis of com

parison, and, because job duties vary so widely, each suit m

us t b e determ ined on a case-by-case b asis.” (internal citations om itted)). T h e m ajority can only reach its conclusion h e re by a high-level over-generalization of the jobs held b y Freyd and her c om parators to conclude that a jury could find the jobs substantially equal. 3

3 The m ajority cites Hein v. Oregon College of Education , 718 F.2d 910, 914–17 (9th Cir. 1983) i n support of the proposition that it cannot as

a matter of law h old that t he responsibilities of the professors here are incom parable for purposes of t

he Equal Pay Act. In doing so, it explains that H ein f ound s ubstantial job equality b etween a m ale educator (who spent thre e -quarters of his tim e teaching and one-quarter coaching) and
two fem ale educators, o ne of whom s p e n t two-thirds of h er tim e o n teaching and one-third o n coaching
, and the other who spent f i ve-ninths of her tim e in athletics with both coaching and adm inistrative duties. ButF R EYD V

. U

NI VE R S I TY O F O R

E G ON 45

the court i n Hein relied heavily on the clearly erroneous standard o f review in its qualified f inding and no ted that its approach m ight be different under a de novo r eview. H ein
, 718 F.2d at 913, 9 15, 917–18 (“Although we m ight accept this proposition [that the i n stitutional im portance of a basketball coac h translates into clearly different job responsibili t ies] were it presented to us de novo , sufficient evidence supports t

he district c o urt’s determ ination that the two jobs h ad substantially equal responsibility.” (em phas i s a d ded)). It u l t im ately vacated judgm ent and rem anded with r espect to those fem ale educators because the district court ex cluded com parisons t o m ale faculty who m ight be m aking less than the plaintiffs. Id . at 916, 918. For another similarly situated plaintiff in Hein
, the court determ i n e d that the finding o f substantially equa l jobs was clearly erroneous because t hat p laintiff did not coach at all, and “[u]nder the Equal Pay Act, jobs requiring different skills are not substantially equal.” I d

. at 914. This case therefore presents

num erous distinctions from Hein

. Here, the m ajority i s not reviewing the district court’s ruling for clear error, wh i c h circum scribed the review in Hein

. This record also does not contain such a specific breakdown of tim e spent on d ifferent duties. And if it did, it would reveal that Freyd and her

com p arators did not have s ub s t a ntially equal jobs. Cf. Hein
, 718 F.2d
at 914 (“[T]he differences in job content between the p o si t ions held b y Dr. Hein and Mr. Boutin were not inconsequential. A coaching job plainly requires skills that a noncoaching job does not.”).

D esp i t e t h ese d i f f er en ces, t h e m ajority seem s to conclude that because fe m a l e professors in Hein were able to dem onstrate—after a bench trial—substantial job equ al i ty with a m ale educator also in t he Physical Education Departm ent, Freyd could likewi s e establish substantial job equality with m ale full p rofessors in the Ps y ch ology Departm ent. But

e qu a t i ng Freyd to the fem ale plaintiffs in Hein m erely because they a l l share the sam e broad title o f “ professor”—and ignoring t he fact that the Hein plaintiffs held positions at a different level, in a different departm ent, and at a d ifferent college than Freyd—contradicts Ninth Circuit p r ecedent, which the majority quotes from Hein. See Majority Opinion at 18 (“The question of whether two jobs are substant i a l l y equal is one that m ust be decided o n a case-by-case b asis .” (em p h asis added) (quoting H ein
, 718 F.2d at 913)). So it’s not as if Hein precludes u s from de t e rm ining whether t wo jobs are substantially equal as a m a t t e r o f law. To the contrary, since He i n , this court h as affirm ed a district court’s grant o fF R EYD V

. U

NI VE R S I TY O F O R

E G ON 46

The m ajority also claim s I’m saying that two faculty

m em bers in th e sam e departm ent cannot be com pared— apparently ever. Not so. I t i s not that two f aculty m em

bers in the sam e departm ent could never be com pared, as there are undoubtedly situations when professors’ jobs can be

com pared f o r purposes o f the Equal Pay Act. See, e.g. , H ein
, 718 F.2d at 914–18. The key here is the unique nature of the “full professor” positions specifically held by Freyd and her four com p arators, m aking them not substantially equal a n d

m ore like NFL or MLB players. Further, the m ajority’s reference to the fact that the Unive r sity “regularly am ake[s] these com

pari s ons [of professors’ jobs] for purposes o f setting s alaries” is not p articularly com pelling, because the broad guidelines for setting salaries in the Departm ent apply
to all tenure-track faculty in that departm ent—not just its full
pro fe s sors. Unless the m ajority thinks all tenure-track professors in the Departm ent h ave substantially equal jobs—which Freyd wisely doesn’t argue—its a r gum ent proves too mu ch.

summ ary j udgm ent on an Equal Pay Act claim o n th e basis t hat the jobs being com

pared were not substantially equal as a m atter of law. S ee, e.g. , Forsberg
, 840 F.2d at 1416 ( determ ining two jobs were not substantially equal—despite t

hat they “perform ed the sam e function for the com pany” and “ involv[ed] superficially sim ilar tasks”—because “[l]ooking beyond the surface sim ilarities to the underlying skills required in perform ing the
two jobs leaves no doubt t hat plaintiff’s c l a im s of sex-based p ay discrim inat io n m

ust f ail”). Accordingly, Hein does not support the proposition tha t th e differences in the responsibilities of the professors here cannot be adjudicated for p urposes of the Equal Pay A ct a s a matter of law , as the m ajority contends.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 47

When the m ajority com

pares the actual job duties o f Freyd and her m ale com p arators, it largel y fo c u s es on the sim ilarities between Freyd and two of h er com parators in discrete aspects of their jobs: (1) the f act that both Freyd and Fisher run research laboratories and (2) the fact th a t b oth Freyd an d Hall took on significant service roles to the University. Ironically, the m ajority d oes exactly what it just chastised the district court for doing—com paring “individual
segm ents” of the positions held b y Fr eyd and her m ale
comp a r at o rs instead of their “overall job[s].” See Gunther
, 623 F.2d at 1309. Notwithstanding this error, I do agree that Freyd and her com

parators share som e of the sam e basic job requirem ents. Freyd, Fisher, a n d Al l e n each run their o wn research ce n t er. Freyd and Allen both teach courses, and Freyd, Mayr, Ha l l
, an d Al l e n a l l h ave editorial responsibilities on journals.

But considering only the m inimum qualifications for full professor is not reflective o f the full pictur e o f du ties and skills required of each individual position. Cf. Forsberg
, 840 F.2d at 1416–17 (looking beyond “two jobs in v o l v i n g superficially sim ilar tasks” to d eterm ine that they “require[d] qualitatively different skills in their perfo rmance” and therefore, were not substantially equal). While these sim ilarities m ay establish tha t Freyd and her com parators share a “comm on core of tasks,” our analysi s c annot end there. W e are instead required to analyze “whether any additional tasks, incum

bent on one j o b but not the other,

m ake the two jobs ‘ s ub stantially different.’” Stanley
, 1 78 F. 3 d at 1074 (citation om itted). A s a result, it ma d e

sense for the district court to focus o n the differences in job duties because if those differences m ake up a si g nificant enough portion of the jobs being com pared, the jo b s cannot be substantially equal as a m atter of law. To properly assessF R EYD V

. U

NI VE R S I TY O F O R

E G ON 48

th e d ifferences in actual job duties between Freyd and h e r

com parators, I will com

pare Freyd’s job to that of each of her

com parators.

A. Ulrich Mayr

Ulrich Mayr, the head of the Psychology Departm ent, does not do substantially equal work as Freyd. The m ajority essentially concedes as m

uch in footnote eight of the opinion. T h e r e q u i rem e nts o f th e d ep artm ent h ead p o sitio n

— m an a g in g th e Departm ent, handling f aculty grievances, running scien tif i c m i sco n d

u ct inv estig ation s, p articip atin g i n reten tio n negotiations, and conducting the tenure and f aculty review
process—consum e nearly all of Mayr’s w orking tim e and are responsibilities that Freyd does not share. Freyd even agreed “that the departm ent h ead duties, in particular, are d ifferent from the d

uti e s o f th e job o f a full professor.” Because the
vast m ajority of Mayr’s job consists of departm ent h ead tasks that are not part of the content of Freyd’s job, Mayr’s work is qualitatively different from
, and thus not substantially equal to, Freyd’s work.

B. Gordon Hall

Gordon Hall’s work is likewise not substantially equal to Freyd’s. The m ajority reache s a different conclusion, however, by classifying Hall’s position as A s so c iate D irecto r, and then Interim Director, of CoDAC as a m ere “service role”

a n d then arguing that Freyd also took o n a “service r o l e ” a s

a m em ber of the University Commi t t e e to Address Sexual and Gender-Based Violence. Based on that reasoning, the

m ajority could not d eterm ine as a m atter of law wh e th e r Hall’s and Freyd’s “two service roles m akes Hall and Freyd’s jobs substantially different.” But, again, the m ajority m issesF R EYD V

. U

NI VE R S I TY O F O R

E G ON 49

th e b a ll h ere, im

p ermissib ly c o m

p a r in g “in d iv id

u al segm ent s ” of H all’s and F reyd’s work—i.e., their service roles
, not their jobs as a whole—to conclude that Hall and Fr e y d d o substantially equal work.

By considering these positions in the context of all of the job responsibilities borne by Ha l l and F reyd, it is clear that their overall jobs are not s ub s tantially equal. Hall’s

r e s ponsibilities with CoDAC consum ed at least half of h i s working tim e, som etim es m ore, a n d thus significantly reduced the p ortion of his job spent teaching and conducting his own direct research. While the ma j o r it y hom es in on Freyd’s statem ent that s h e s pent an “enorm ous am o unt o f [her] tim e” work i n g with the University Comm ittee to Addr e s s Sexual and Gender-Based Violence, she also reported spe n ding “extensive tim e and effort” running her research lab an d ad d itio n a l tim e supervising and m eeting with lab m em bers; was “ v ery involved in the developm ent of the field of traum a re search”; invested “significant tim e and energy” teaching trauma courses and working w ith students and faculty who disclosed their own traum atic experiences in the te a c h i ng setting; did “a substantial am ount o f advising and m entoring” of graduate students; and engage d in “signific a n t am ounts of briefing, teaching, and consulting work for entities outside the higher education context.”

Be c ause Freyd—in her own words—asserts that her position requires her to devote a significant am o unt o f tim e to each of these m any tasks, the record sim ply does not support that she could have spent anywhere close to 50% or m ore o f her tim e on her service work with the University Comm ittee
to Address Sexual and Gender-Based Violence, even viewing the evidence in the light m ost favorable to her. In addition to the very different responsibilities im posed by these two jobsF R EYD V

. U

NI VE R S I TY O F O R

E G ON 50

overall, the specialized skills required to accom plish even the
two discrete “service roles” relied on by the m ajority—i.e., knowledge of diversity, equity, and inclusion initiatives and phenom enon (for Hall’s role) versus experience with sexual and gender-based traum a (for F reyd’s role)—are clearly very different. A s a result, Hall’s overall job ( a t least half o f which was dev oted to equity and inclusion w ork) is qualitatively different than Freyd’s job (m ade up of varying tasks related to the field of traum a), and therefore the two are not substantially equal. See Gunther
, 6 2 3 F.2d at 1309–10 (concluding that p riso n m atrons did not do substantially equal work as m ale prison guards where the m atrons spen t “ as much as 50% of their working tim e” on clerica l wo rk
, whereas the m ale guards “spen t v ery little tim e perform ing clerical work,” and the prisoner-to-guard r a ti o was significantly higher for m ale guards).

C. Phil Fisher

Phil F isher does not do substantially equal work as Freyd, in particular because part of his work is done directly for (and is com pensated by) H arvard Un iversity, and he spends a substantial am ount of tim e adm inistering l arge federal research g r a n ts, which Freyd does not. Harvard University
p ays approxim ately 20–30% of F isher’s salary in exchange for h is work at Harvard. By n ature of F isher d o ing a portion of his job for an entirely different u niversity
, the departm ent head could only generically describe this part of his work as having to do with “policy, advising, [and] research coordination” and h aving “som e synergy” with Fisher’s work for the University of Oregon. But the departm ent head didn’t “need to have an exact description” o f Fish er ’ s work for Harvard, he explained, because he doesn’t “have t o o versee that work.”F R EYD V

. U

NI VE R S I TY O F O R

E G ON 51

In addition to the consid e r ab le tim e devoted to his work for H arvard, F isher invests “a very large part of [his] tim e” in
ap p ly in g f o r a n d ad m in istering federal research g rants, h av in g been awarded over $9 m illion in grant fundi n g during his decade at the University. He has historically subm itted five

or six grant applications per year, each of wh i ch can take anywhere from weeks to m onths to p r e p a re and consum e a substantial portion of his tim e. After receiving these g rants, Fisher bears substantial adm inistrative responsibilitie s , inc l ud i n g ensuring that tim e spent on a project is
ap p ropriately allocated to the grant, all of the expenses charged to the grant are allowable and reasonable, all of the reports satisfy the governm ent’s requirem ents and are tim ely subm itted, and he and his staff have com plied with all of the relevant federal laws and conditions im posed on th e g rants. In describing the duties im posed by adm inistering lar g e federal grants, the departm ent head reiterated th at th ese grants require significant rep o rtin g req u i rem e nt s, n eg o tiating b u d g et changes with the g o ve rnm ent, com plying with data security requirem ents, and “a lot of really nasty overhead.”

The m ajority asserts that, “according to Freyd,” her responsibilities associated with obtaining private funding for her research are sim ilar to those of her m ale com parators who

m anage large federal grants to conduct their research, and so it cannot say as a m atter of law that the difference in funding

sources m eans Freyd does not do substantially equal work as her m ale com

parators. The m a

j o r i ty bases this assertion on Freyd’s briefing, which a rg u e s that the underlying tasks required of her m ale com parators to manage federal grants are sim ilar to the duties she b ears in managing her research lab

. But as noted above, Freyd, Fisher, and Allen each run their own research lab—presum ably bearing sim ilar

a dm inistrative burdens associated with actually m anagin gF R EYD V

. U

NI VE R S I TY O F O R

E G ON 52

th at laboratory—but F isher and Allen a lso m an ag e sign if ican t federal grants. So o b taining a nd m a naging large federal grants im poses significant and very different duties f or Fisher and Al l en in addition to the norm al adm inistrative duties o f

running their labs. T h is conclusion is supported by the fa ct that, as opposed to the num erous responsibili t i es borne by Fisher and Allen as a result of the m illion s o f dollars in external g rant f

un d in g that they received and oversee, Freyd’s only funding-related responsibilities, as she describes them
, ap p e ar to be raising private donations and overseeing the b u d g e t , a c c o u n t i n g , a n d g r a n t ap p r o v a l s f o r t h e approxim ately $285,000 in cum u lative private donations she has re c e i v e d fo r her lab in over a decade. These are not sim ilar responsibilities.

Consider i ng the com position o f responsibilities

com prising Fisher’s job as a whole, including the significant portions devoted to his work for H arvard and to applying for

an d adm inistering federal grants, results in th e co n clu sio n th at Fisher does work th at is not substantially equal to Freyd’s work.

D. Nicholas Allen

Nicholas Allen do e s n ot d o substantially equal work as Freyd because Allen, like F isher
, a dm inisters a num ber o f large federal grants to facilitate his research and serves as the
current D irector of C linical Training, roles which m ake up a substantial portion of h i s work and which require different responsibilities and skills than Freyd’s wo rk

. In over four
years since Allen joined the University, h e has o btained, individually and with others, over $8.8 m illion in federal grant funding. He was also awarded another large grant from the National In s t i tute of Mental Health for an upcom ingF R EYD V

. U

NI VE R S I TY O F O R

E G ON 53

project on suicide prediction. Allen assum es prim ary responsibility for the preparation of thr e e o r f our grant applications on average each year, each of which, a s noted above, m ay take anywhere from weeks to m onths to prepare and which cum

ulatively consum e a substantial portion of his tim e. After receiving the federal grants, Allen is responsible for satisfying the com

p lex, tim e-consum ing adm inistrative requirem ents associated w ith m anaging such grants. His grant-related responsibilities are generally sim ilar to Fisher’s grant-related responsibilities described above. As discussed in relation to F isher’s w ork, Freyd do es n ot bear the sam e responsibilit ies associated with obtaining and m anaging federal grant funding.

In 2 017, Allen also assum ed the position of Di r ector o f Clinical Training. In addition to overseeing the preparation, training, and supervision of clinical psychology doctoral students, organizing week ly sem inars, and working with accrediting agencies, A llen is responsible for leading the Departm ent of Psycholog y ’ s re-accred itatio n p ro c ess w ith the Am erican Psychological A ssociation (“APA”). This burdensom e process—one that h as con s u me d hundreds o f h o urs in prelim inary work alone—involves conducting a selfstudy o f the University’s clinical program , hosting an oncam pus visit and interviews, and im plem enting any required follow-up from the A PA. In contrast, Freyd has not served as the Di rector o f Clinical Training and d oes not bear any o f these responsibilities.

Giv en the substantial portion o f A llen’s job that is devoted to adm inistering large federal grants and serving as the Director of Clinical Training—both of which com e with duties and sk ills not required o f Freyd’s job—Allen’s job is not substantially equal to Freyd’s job.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 54

* * *

Based o n the significant differences i n responsibilities constituting Freyd’s job relative to those of each of h er m ale

com parators’ jobs, Freyd and each of h er m ale c o mp a r ators do not d o substanti a l l y equal work. Thus Freyd cannot establish a prim a facie case under the Equal Pay Ac t

. Accordingly, I w ould affirm the district court’s gran t o f

summ ary judgm ent on her Equal Pay Act claim

.

II. Oregon Revised Statute § 652.220

Oregon state law prohibits an em ployer from engaging in salary discrim ination between e mp loyees of different sexes

wh o p erf o rm “work of com

parab le ch aracter, th e p erf o rm a n ce of which requires com parable skills.” Or. Rev. Stat. § 652.220 ( 1 ) (2017). This “com parable” work standard is

m ore inclusive tha n the “equal w ork” standard under the Equal P ay Act. Smith v. Bull Run Sch. Dist. No. 45
, 722 P.2d 27, 29 (Or. Ct. App. 19 8 6). “Com parable” work only requires that the jobs being com p ared “ h a ve im

p ortant

comm on characteristics.” Bureau o f Labor & Indus. v. City of Roseburg , 706 P.2d 956, 959 n.2 (Or. Ct. App. 1985).

Because the m in i mum qualifications of a full professor

m ay establish a “comm on core of tasks” shared by Freyd and her m ale com

parators, such “comm o n core of tasks”—while
not sufficient to establish substantial equality am ong jobs for
purposes of the federa l Equ al Pay A ct—m ay dem onstrate sufficient “comm on characteristics” shared by the jobs f or a reasonable jury to conclude Freyd and her m ale com parators do “com p arable” w ork for purp oses of Or. Rev. Stat. § 6 5 2

. 2 20(1) (2017). I therefore agree with the m ajority’ sF R EYD V

. U

NI VE R S I TY O F O R

E G ON 55

conclusion that the district court e rr ed in granting summ ary judgm ent to the University on this claim

.

III. Title VII Disparate Impact

“ A p l aintiff establishes a prim a facie case of disparat e i mp act b y showing a significant disparate im pact o n a protected class caused by a specific, identified, em ploym ent practice or s election criterion.” Stout v. Potter
, 2 76 F.3d 1118, 1 121 (9th Cir

. 2 0 0 2 ). In concluding that there is at least a genuine issue o f m aterial fact as to whether F reyd established a p rim a facie case under her disparate im pact claim
, the m ajority credits two sets of statistical data provided by Freyd as dem onstrating a “sign i fi cant discrim inatory im pact” on fem ale professors of Psychology.

As an initi a l ma t ter, the m ajority interprets the data relating to the num

be r of fem ale Psychology professors (as opposed to m ale Psychol o g y p rofessors) engaging in retention negotiati o n s and the num ber of “successful” negotiations resulting therefrom to m ean that fem ale faculty receive fewer com

peting offers. B ut this data only states that “of the 20 retention cases, only 4 affected fem ale faculty, and only 1 of the successful ret en ti on cases was a wom an (the percentage of fem ale faculty in o ur departm ent i s c urrently about 4 9 % )

. ” This does not necessarily m ean that fem ale faculty receive fewer com peting offers; it sim

ply shows that the fem ale faculty who engaged in retention negotiations, as known to the authors of the self-study, totaled f our o ut o f twenty. Freyd concedes that she does not know any wom en who have left the University in the last ten years where the Unive rs i ty could have retained them with a better retention offer. And she has also stated that “[o]ne of the things that I
th i n k is really im

portant to understand is that the m os tF R EYD V

. U

NI VE R S I TY O F O R

E G ON 56

comm on way ... this [outside recruitm ent] occurs is there is

an initial p robe, and if that probe is rejected, that tends to be the end of it
, and I rejected those probes.” (em phasis added). So even when considering in the light m ost favorable to Freyd, this data sim

ply shows that fewer fem ale faculty have

e n gaged in retention negotiations. Freyd’s explanation s indicate that suc h d a ta does not encom pass the total availability of outside offers to fem ale faculty.

Moreover, the choice of f

em ale faculty to accept or reject the Departm ent’s retention-ba s e d counter-offers does not support the conclusion that the Departm ent’s failure to adjust salaries of o ther profe s sors (who h ave not been offered retention raises) caused a si gn ifi cant disparate im pact on fem ale professors. The d ecision to accept o r r e j e ct an out s tanding retention o ffer is in the sole discretion of the professor who received the offer and m ay be m ade for m any different reasons. The University can lead a professor to the offer, but it can’t m ake the professor accept it. The m ajority claim s that rewar d i n g faculty who receive com peting o ffers favors m ale faculty, but the fact that fem ale psychology profes s o r s may choose to decline to accept the University’s counter-offers is partially dependent on the i n d ependent actions of f

em ale professors. It doe s n o t follow that fem ale professors were the subject of a significant disparate impact because a greater percentage of them elected not to accept a retention offer.

These “statistics” are thus com pletely useless to the question at hand. Nonetheless, the m ajority chalks this u p to

a “dispute am ong the experts” “that we can [n o t] resolve.” This is incorrect. Unl i k e th e regression analyses conducted by Dr. Cahill, a labor econom ist—there is no expert interpreting or analyzing this data set of twenty re t e n ti o nF R EYD V

. U

NI VE R S I TY O F O R

E G ON 57

negotiations. Instead, the m ajority plucked this inform ation from the Psychology D epartm ent’s 2016 self-study that was conducted by professors and em ployees of the Psychology Departm ent—n o t e xperts in the field o f m athem atics, statistics, or econom ics. The sm all sam ple size (i.e

. , four

wom en out o f twenty total professors engaging i n r e tention negotiations and o n ly o n e in four accepting the offer), together with Freyd’s failure to dem onstrate that these figures

are statistically significant, further underm ines the reliability of th ese statistics. Cf. Stout
, 276 F.3d at 1123 (“A sam ple involving 6 fe m ale applicants in a pool of 38 applicants is likely too sm all to produce statistically significant results.”); Bouman v. Block
, 940 F

. 2 d 1 2 11, 1225–26 (9th Cir. 1 991) (warning that “it is the com bination of sm all sam

ple size and

sm all success rate that calls into question the statistical significance of a violation of the [four-fifths] rule”). 4 To that end, this data com

paring the num

ber of retention negotiations and resulting “ s u c c e sses” experienced b y fem ale and m ale professors does not establish a prim a facie ca s e o f disparate im pact.

Even if Dr. Cahill’s separate regression analyses w ere to establish a prim a facie case of disparate im pact, the University has dem onstrated that its practice of o ffering retention raises to externally recruited professors, without also p roviding raises to other professors of com parable m erit and seniority, is b oth “job relate d

... and consistent with bus i n ess necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). This

4 The m ajority questions this critique o f the University’s self-study, but the point i s not to dispute the University’s q ualifications in conducting such a study. Rather, it is that due to the sm all sam ple s i ze, m ere satisfaction of the four-fifths rule is n ot sufficient without also a showing of statistical significance. Bouman , 940 F.2d at 1226.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 58

is independently sufficient to defeat Freyd’s disparate im pact claim

. First, the University’s retention practice is job-related. A practice is “job related” if “it actually m easures skills, knowledge, o r ability required for successful perform ance o f the job.” Assoc. of Mexican-Am. Educators v. Ca l i f o rnia
, 231 F.3d 572, 585 (9th Cir. 2000) (quoting Contreras v. City of Los Angeles
, 656 F.2d 1267, 1 271 (9th Cir. 1981)). A retention raise is the result of a retention n egotiation that m ay only be triggered by an external offer or pursuit of a fa culty

m em ber by an outside institution. Other institutions seek out professors in the Departm ent becaus e of the experience the professors hav e gained from
, and their successful perform a n c e in, their current job at the University. For

exam p le, Ha l l was recruited by the University of Michigan

s pe cifically because they were about to em bark o n a v e ry sim ilar accreditation process to the one th a t Ha l l had just

com pleted for the University of Oregon.

Many o f the retention negotiations in the Departm ent are prom pted by external offers to faculty who have am assed large federal grants i n th e i r current positions. And the Departm ent takes the am ount o f grant f unding that a professor receives into account under its g ui d e l ines and procedures to determ ine m erit raises, r ev i ew s, p ro m o tio n , and
tenure. When the Departm ent asse s ses whether to m ake a retention o ffer to an externally recruited faculty m em ber, it generally und e rt akes a m erits evaluation of that faculty

m em ber and considers “whether the faculty m em ber’s contributions to the de p a rtm ent and the field are worthy o f further investm ent[,]” am o ng other factors. This separ a te analysis conducted b y the Departm ent is also clearly related
to the job experience and job perform ance of th e faculty

m em ber and therefore related to the m em ber’s current job.F R EYD V

. U

NI VE R S I TY O F O R

E G ON 59

Awarding retention raises to only those professors who

r e c e ive external offers or are recruited by other universit i e s is also a “bu s i n e s s necessity.” Freyd acknowledges that the University m

ust “have world-class scientists d o i n g worldclass research” to support its m ission as a renowned research institution. But if o n e high-quality p rofess o r leaves the University, others that work clos ely with that individual o r engage in signifi c an t g rant activity together m ay also leave. An exit i ng professor m ay take grant and other external funding with them

—fundi n g th at supports a portion of the University’s infrastructure, gradua t e student stipends and tuition, and the salary for research assist a n t s , am ong other
expenses. The purpose of the r etention-raise policy is to

ensure that the Univers it y is not “priced out of the m arket” and has a way to recruit and retain th e s e h igh-caliber professors.

But the ability to do so depends on available resources. At tim es, the University has b een unable even to m atch the external offer m ade to a professor, m uch less fund additional raises for o the r professors. In addition, these retention situations often occur under som e tim e pressure w ith a short window of o pportunity. D eterm ining whether the University has the b u d ge t both to extend a viable retention offer and provide raises to other professors of com parable m erit and senio r i ty would likely cause the University to lose out on professors under a tight tim eline for negotiation. As a result, the University’s practice of granting retention raises without also p roviding raises to other faculty of com parable m erit and tim e in rank is a “business necessity.”

Freyd has also failed to separately establi s h a claim o f disparate im

pact by presenting an alternative em p loym ent practice that th e University refused to im plem ent. SeeF R EYD V

. U

NI VE R S I TY O F O R

E G ON 60

42 U.S.C. § 2000e-2(k)(1)(A)(ii). Freyd’s proposed alternative practice is that, when the Departm ent awar d s a retention raise, it should also give raises to other profe ssors in the sam e rank with com parable m erit and seniority. F reyd
argues— and the m ajority credits—that the Univers i ty has taken this approach in the past, and this practice is consistent with Departm ent policies on retention raise s

. But we m ust consider cost and o th er ad

m in istrative burdens in determ ining whether the alternative practice “ wo uld be equally as effective as the challenged practice in serving the em ployer’s legitim ate business goals.” Watson v. Fort Worth Bank & Tr. , 487 U.S. 977, 998 (1988) (O’Connor, plurality).

Significantly, the example that Freyd provides—and the

m ajority h ighlights—of the University previously applying this alternative practice was during a tim e when the Universit y em

ployed a com

pletely different budget m odel, and the dean of each departm ent had c o n trol over that departm ent’s budget. Ev e n back then, only certain departm ents followe d this p ractice, while others paid their
star faculty as m

uch as they could and hoped that the other professors w ould eventually reach that level. Freyd d oes not provide any evidence that the University coul d currently afford to grant raises acros s th e b o ard when one o f their faculty is offered a job elsewher e , no r d oes she suggest any criteria for determ ining which professors a r e considered o f “com p arable m erit and seniority” to warrant such raises. This approach poses serious financial concerns for the University,

as well as concerns that it could h inder the Universi ty from effectively pursuing externally recruited faculty in tim esensitive s i tu a tions. This alternative em ploym ent practice would not serve the University’s legitim ate business interestF R EYD V

. U

NI VE R S I TY O F O R

E G ON 61

in retaining highly valued, externally recruited faculty. 5 Thus, Freyd cannot establish a case for disparate im pact under any of her proffered legal theories, and I would affirm the district court’s grant of summ ary judgm ent on this claim

.

IV. Title IX and the Oregon Equal Rights Amendment

Freyd raises claim s under Title IX and the Oregon E qual Rights Am endm ent, but the only argum ents that she asserts in her opening brief on appeal with respect to these claim s are the sam e theories under which she br i n g s her T itle VII and Oregon R evised Statute § 659A.030 claim s. Becaus e her Title V II a n d Oregon Revised Statute § 659A.030 claim s

5 T he m ajority claim s tha t we m u st credit conflicting facts about Freyd’s proposed alternative practices when reviewing in a light m o st fa v o rable to Freyd. But even on summ ary j udgm ent, “[t]he plaintiff’s proposed alternative (s ) m ust be ‘equally effective’ as the defendant’s chosen policy at serving the defendant’s inte re s t (s ), taking into account ‘[f]actors such as the cost or other b urdens’ t hat alternative policies would im pose.” Hardie v. Nat’l Collegi a t e Ath l etic Ass’n
, 876 F.3d 312, 3 2 0 (9th Cir. 2 017) (quoting Wards Cove Packing Co. v. Atonio
, 490 U .S. 642, 661 (1989), superseded by statute on other grounds , 42 U.S.C. § 2000e2 (k ), a s recognized in Tex. Dep’t of H ous. & Cmty. Affairs v. Inclus i v e Cmtys. Project, Inc.
, 576 U.S. 519, 5 42 (2015)). F reyd has n o t shown how her proposed alternative is equally effective, especially considering the additional costs and burdens. S ee Hardie
, 876 F.3d at 321 ( “W e find Hardie has failed to establish t hat the pre-2011 policy would be equ a lly effective as the current policy in serving the NCAA’s legitim ate interests.”); MacPherson v. Univ. of Montevallo
, 922 F.2d 766, 773 (11th Cir. 1991) (“Plaintiffs in this case never presented evidence to show t hat requiring the University to pay th e A

. A .C.S.B. ‘m arket r ate’ to longerserving professors is econom ically possible for the University.”).F R EYD V

. U

NI VE R S I TY O F O R

E G ON 62

fail, 6 her claim s under Title IX and the O regon Equal Rights Am endm ent lik ewise fail. Any alternative theories o r argum ents supporting these claim s h av e been waived. See Greenwood v. FAA.
, 28 F.3d 971, 977 (9th Ci r

. 1994) (“W e review only issues which a r e argued specifically and distinctly in a party’s opening brief.”); s e e al so Miller v. Fairchild Indus., Inc.
, 797 F.2d 727, 7 38 (9th Cir. 1 9 86 ) (declining to consider “m atters on appeal that a r e not specifically and distinctly argued in appellant’s openi n g brief”). A ccordingly, I agree with the m ajority’s conclusion
to affirm the d i s tr ict court’s grant of summ ary judgm ent on these claim s.

* * *

For the reasons set f

orth herein, the district court’s grant of summ ary judgm ent on all claim s—except Freyd’s Oregon Revised Statute Section 652.220 claim —should be affirm ed. I therefore respectfully dissent.

6 I concur i n Section III, Parts D and E, of the m ajority’s opinion regarding Freyd’s Title VII d isparate treatm ent claim and h e r O regon Revised Statute § 659A.030 claim

. I also concur in denyin g Freyd’s Motion to Certify and the University’s Motion to Strike.