Gender-based wage disparities

In seeking to rectify gender-based wage disparities, faculty rely mainly on two federal laws: the Equal Pay Act (EPA) and Title VII of the Civil Rights Act. Executive Order 11246, which President Lyndon Johnson issued in 1965, also prohibits discrimination by federal contractors, which includes many colleges and universities. In addition, many states and some localities have antidiscrimination laws and "baby" EPAs.

The EPA bars gender discrimination in wages, requiring equal pay for equal or "substantially similar" work in public and private institutions. To establish a claim, a professor must prove that a university or college pays a higher salary to a colleague of the opposite sex for performing work that is, as the U.S. Supreme Court has explained, equal in "skill, effort, and responsibility, and which [is] performed under similar working conditions." At the same time, the law allows for salary differences between women and men based on a number of "affirmative defenses," including merit, seniority, and factors "other than sex."

Title VII protects individuals from discrimination by an employer, including most colleges and universities, on the basis of sex, race, color, national origin, or religion. The law specifically prohibits discrimination "against any individual with respect to his compensation . . . because of such individual’s . . . sex." The U.S. Supreme Court has explained that Title VII bars "not only overt discrimination, but also practices that are fair in form, but discriminatory in operation." The Bennett Amendment to Title VII incorporates the EPA’s affirmative defenses into Title VII’s prohibition against wage discrimination based on gender.

Recent litigation brought under these laws has highlighted the challenges involved in achieving salary equity in higher education. To whom, for example, is an allegedly underpaid female professor to compare herself? What is the proper role of market forces in setting salaries? Can merit-pay and promotion systems be "infected" with gender discrimination? Are public colleges and universities "immune" from claims by individual professors under federal antidiscrimination laws? When might "reverse discrimination" claims by male professors lead to salary-equity adjustments?