Law School Slammed By EEOC For Discriminating Against Female Professors -- Potential $1.2 Million In Damages

The EEOC finds a pattern of gender inequality dating back to at least the 70s.

If there were one place that one might assume immune from blatant sex discrimination it would be the legal academy. Basically, people assume a liberal bastion of traitorous ISIS sympathizers would be too politically correct to allow even the hint of identity-based discrimination in their ranks. And this would be superficial and stupid because left-leaning folks are in no way immune to racism or sexism, the difference is they feel bad when they get called out.

Which is probably how the collective powers-that-be that have managed University of Denver’s Sturm School of Law since clear back to 1973 feel today, after the school received a letter, dated Friday, from the EEOC finding a pattern of discrimination and suggesting that the school could have to pay $1.2 million in damages to its female faculty members. That’s a hell of a pay disparity.

Per the Denver Post (h/t TaxProf Blog):

In a letter sent to the university on Friday, the director of the Equal Employment Opportunity Commission’s office in Denver wrote that an EEOC investigation found a gender pay gap among the school’s legal faculty dating back to at least 1973. The commission concluded that the university knew about the gap by 2012, “but took no action to ameliorate this disparity, in effect intentionally condoning and formalizing a history of wage disparity based on sex.”

The EEOC’s investigation came after longtime DU law school professor Lucy Marsh filed a complaint with the commission more than two years ago.

Marsh was the school’s lowest-paid full professor, and is represented by Equal Rights Advocates and Hutchinson Black and Cook. The school moved swiftly to blame the victim:

In a statement, the law school defended its merit-based pay structure and blamed Marsh for her lower salary, saying she showed “sub-standard performance in scholarship, teaching and service.”

“In this era of cost containment and assessment, we stand by our historical system of evaluation and merit pay,” DU chancellor Rebecca Chopp said in the statement.

But this argument hinges on Professor Marsh being an outlier on the faculty, which mounting evidence suggests she wasn’t. Sure, she may be the lowest-paid professor:

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But a review of the school’s faculty directory — as well as a December 2012 memo from the school’s dean — shows that men outnumber women roughly 2-to-1 among full professors, the highest academic rank. In the 2012 memo, which explained how $1.5 million in raises was awarded that year, law school dean Martin Katz noted the gender pay disparity but said raises would be given “without regard to trying to correct potential inequities.”

After the raises, female full professors on average made nearly $16,000 a year less than their male counterparts.

Given Denver’s $149,000 median salary for full professors, we can estimate that women are at a little over a 10 percent disadvantage on average over their male counterparts. And retreating to an “objective” merit-based system can’t salvage Denver’s case. Once a pay structure results in systematic discrimination — especially discrimination the school knew about at least as of 2012 — it has an obligation to address the inequity, even if the disparity is wholly unintentional. No matter how much people try calling a system “objective” doesn’t render it synonymous with “fair.” Especially when that system is constructed by managers cherry-picking factors and deciding what weight to give them.

One of the best statements on the role unintentional bias can play in discrimination and federal law’s power to address these issues is this quote from Legal Times in 2007:

Many commentators have criticized current anti-discrimination law on the grounds that it does not adequately prohibit unconscious bias in employment decisions. That claim is wrong: Unconscious bias is fully actionable, and it can generally be proved by knowledgeable employment lawyers.

The idea behind unconscious bias is that well-meaning employers and supervisors, who would likely consider themselves supporters or even champions of equality, might subconsciously harbor attitudes that result in negative employment decisions for women and minorities.

The author? Martin Katz, the current dean of University of Denver Law.

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Like I said, just understanding a problem doesn’t mean you won’t repeat it, just that you’ll feel bad about it. Which is something.

(A copy of the EEOC’s official determination is provided on the next page…)

EEOC Accuses DU Law School of Discriminating Against Women Professors [Denver Post]
EEOC: Denver Law School Is Underpaying Female Faculty, Who May Recover $1.2 Million In Damages [TaxProf Blog]

Earlier: Professor Sues Law School Over Pay Inequality, But In Fairness Her Dean Is Notoriously Bad At Math