UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JENNIFER JOY FREYD, No. 19-35428 Plaintiff-Appellant, D.C. No. v. 6:17-cv-00448- MC UNIVERSITY OF OREGON; MICHAEL H. SCHILL; HAL SADOFSKY, Defendants-Appellees. OPINION

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

Argued and Submitted 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

* The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. 2 FREYD V. UNIVERSITY OF OREGON

SUMMARY**

Employment Discrimination

The panel reversed in part and affirmed in part the district court’s grant of summary judgment in favor of the University of Oregon and other defendants in an action brought by a professor under the Equal Pay Act, Title VII, Title IX, and Oregon law.

Jennifer Freyd, a Professor of Psychology, alleged that the University paid her several thousand dollars less per year than it paid four of her male colleagues, despite their being of equal rank and seniority.

Reversing the district court’s summary judgment on the Equal Pay Act claim, the panel held that on such a claim, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that employees of the opposite sex were paid different wages for equal work. The plaintiff must show that the jobs being compared (not the individuals holding the jobs) are substantially equal. The panel concluded that, viewing the evidence in the light most favorable to Freyd, a reasonable jury could find that she and her comparators performed a common core of tasks and did substantially equal work.

Declining to certify questions to the Oregon Supreme Court, the panel reversed the district court’s summary judgment on Freyd’s claim under Or. Rev. Stat. § 652.220,

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FREYD V. UNIVERSITY OF OREGON 3 which prohibits employers from paying wages to any employee “at a rate less than that at which the employer pays wages to employees of the opposite sex for work of comparable character, the performance of which requires comparable skills.” Under Oregon law, “comparable work” is a more inclusive standard than equal work, and requires that the two jobs “have important common characteristics.” The panel concluded that Freyd raised a genuine issue of material fact under § 652.220 for the same reasons she did so under the Equal Pay Act.

The panel reversed the district court’s summary judgment on Freyd’s disparate impact claim under Title VII. The panel held that to make a prima facie case of disparate impact, a plaintiff must show that a facially neutral employment practice has a significantly discriminatory impact on a group protected by Title VII. The plaintiff must also establish that the challenged practice is either not job related or is inconsistent with business necessity. Even if the practice is job related and consistent with business necessity, though, the plaintiff may still prevail by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. The panel concluded that, first, Freyd challenged a spec