Keeping Tabs on the Ninth Circuit
March 19, 2021 - This Week at the Ninth

This Week at the Ninth: Payment and Prayer

This Week at the Ninth:  Payment and Prayer

This week, the Ninth Circuit issued two decisions addressing interesting employment-discrimination issues.  In the first, a divided panel held that a university’s policy of raising the salaries of professors who threaten to leave for other posts may constitute gender discrimination under federal and Oregon law.  In the second, the Court concluded that a school district had properly terminated a football coach for conduct that would violate the Establishment Clause. 

The Court holds that a University’s practice of paying retention raises to professors contemplating leaving for other institutions may have resulted in unlawful gender discrimination.

The panel:  Judges Bybee, VanDyke, and Cardone (W.D.Tex.), with Judge Bybee writing the majority opinion and Judge VanDyke concurring in part and dissenting in part.

Key highlight:  “The granularity with which the dissent picks through the facts would gut the Equal Pay Act for all but the most perfunctory of tasks.  The Equal Pay Act, however, is ‘broadly remedial,’ and should be so ‘construed and applied’ as to be ‘workable across the broad range of industries covered by the Act.’”

Background:  Plaintiff Jennifer Freyd is a psychology professor at the University of Oregon.  After discovering that she was making between $14,000 and $42,000 less than four male professors of comparable tenure and standing, she began investigating the University’s compensation practices.  A regression analysis suggested that the University was systematically compensating female professors less than male ones, and further investigation revealed that the disparity was largely due to the University’s practice of granting “retention raises”—raises provided to professors who are threatening to leave for positions at other academic institutions.  Freyd brought suit, alleging gender discrimination under the Equal Pay Act, Title VII, Title IX, the Equal Protection Clause, and Oregon law.  The district court granted summary judgment to the University on all of her claims.

Result:  The Ninth Circuit affirmed in part and reversed in part.  First addressing Freyd’s Equal Pay Act claim, the majority concluded that Freyd’s evidence created a triable issue of fact as to whether comparable male employees were being paid more than she was.  The Court explained that while Freyd and the four male professors she had identified might perform some different tasks—i.e., teach different classes or supervise different research—a trier of fact could find that they all had “the same overall job”: they were “full professors in the Psychology Department.” 

Next, the majority turned to Freyd’s claim under Oregon Revised Statute § 652.220.  Declining Freyd’s request to certify two questions to the Oregon Supreme Court, the Ninth Circuit held that because this Oregon law imposes a standard similar to, yet broader than, that imposed by the Equal Pay Act, Freyd had necessarily demonstrated a triable issue of fact for the same reasons.

Turning to Freyd’s Title VII claim, the majority first concluded that Freyd had made a prima facie showing that Oregon’s retention-raise policy had a disparate impact.  As the majority reasoned, Freyd had successfully identified a specific employment practice:  “the practice of awarding retention raises without also increasing the salaries of other professors of comparable merit and seniority.”  And she had shown, through statistical analysis, that this practice had a detrimental effect on women, who were “less likely to seek, receive, or be receptive to competing offers.”  While the majority acknowledged that, as the district court had emphasized, Freyd’s sample size was small (roughly 20 retention negotiations), the Court concluded that it was up to a jury to resolve any dispute among experts regarding the data’s explanatory power.  Moreover, the Court determined, the University was not entitled to judgment on the ground that it had established a “business necessity” defense, both because there was a factual dispute regarding whether retention raises were necessary, and because Freyd’s alternative proposal—increasing the salaries of other similarly situated professors in line with any retention raises—might serve the University’s goals equally well. 

The Court concluded, however, that Freyd had not raised any triable issue with respect to her Title VII disparate treatment claim.  The Court held that she had not presented any direct or circumstantial evidence of the University’s intent to discriminate.  It emphasized that her comparator male professors had all engaged in retention negotiations, while she had not, and thus there were no similarly situated male employees being treated more favorably.  For the same reasons, Freyd’s parallel intentional-discrimination claims under Title IX and Oregon law also failed.

Judge VanDyke dissented in part, writing that he would have affirmed as to all but the Oregon Revised Statute § 652.220 claim.  Judge VanDyke criticized the majority for focusing on job titles rather than actual job duties, likening professors at the upper echelon of academia to professional athletes whose particular attributes and contributions may be valued very differently.  He also parted ways with the majority on Freyd’s disparate impact claim, reasoning that Freyd’s statistical evidence was insufficient to make a prima facie showing, and that in any event the University had a business justification for the challenged practice, as “[d]etermining whether the University has the budget both to extend a viable retention offer and provide raises to other professors of comparable merit and seniority would likely cause the University to lose out on professors under a tight timeline for negotiation.”

The Court holds that a school district did not violate a football coach’s rights under the First Amendment or Title VII of the Civil Rights Act by prohibiting him from leading prayers at centerfield after games.

Panel: Judges D.W. Nelson, M. Smith, and Christen, with Judge M. Smith writing the opinion and Judge Christen concurring.

Key Highlight: “Although there are numerous close cases chronicled in the Supreme Court’s and our current Establishment Clause caselaw, this case is not one of them . . . .  When it evaluated BSD’s actions concerning Kennedy, the district court held that seeking to avoid an Establishment Clause claim was the ‘sole reason’ BSD limited Kennedy’s public actions as it did.  We hold that BSD’s allowance of Kennedy’s conduct would violate the Establishment Clause; consequently, BSD’s efforts to prevent the conduct did not violate Kennedy’s constitutional rights, nor his rights under Title VII.”

Background: Joseph Kennedy was a football coach at Bremerton High School.  His Christian faith required him to pray on the same field where the game was played, immediately after its conclusion.  At first, he prayed alone.  But some students asked to join him and, over time, the group grew to include the majority of the team and sometimes members of the opposing team.  Kennedy’s prayers eventually evolved into religious speeches during which players would kneel around him. 

When the School District learned about the prayers, it conducted an internal investigation and sent Kennedy a letter informing him that his inspirational talks “must remain entirely secular,” and advised him that “[s]tudent religious activity must be entirely and genuinely student-initiated, and may not be suggested, encouraged (or discouraged), or supervised by any District staff.”  While Kennedy was “free to engage in religious activity, including prayer,” the School District told Kennedy his prayer “must be physically separate from any student activity, and students may not be allowed to join such activity.”  

Kennedy complied at first, but eventually informed the School District through counsel that he intended to resume his previous practice.  Kennedy made numerous media appearances publicizing his intentions and, joined by a large gathering of coaches, players, a state elected official, and other members of the public, he engaged in a post-game prayer shortly after the next game.  The School District informed Kennedy he had violated its policies and offered a private area where Kennedy could pray after games.  Kennedy declined, and prayed with students at center field after two more games.  The School District placed him on administrative leave, and he did not apply for a coaching position the following year.

Kennedy filed suit, alleging that the School District had violated his rights under the First Amendment and Title VII.  The district court granted summary judgment for the School District, concluding that its actions were justified due to the risk of an Establishment Clause violation if it allowed Kennedy to continue with his religious conduct.

Result: The Ninth Circuit affirmed.  The Court first addressed Kennedy’s free speech claim.  Because his post-game speeches were part of his official duties as a coach, the Court concluded that he was speaking as a public employee not a private citizen at those times, and thus he was not entitled to the same level of protection as he would otherwise be.  And even if he were a private citizen, the School District had adequate justification to treat him differently because a reasonable observer, knowing the full history of his conflict with the School District, would view his conduct as an endorsement of a particular faith.

Next, the Court addressed Kennedy’s free exercise claim.  It concluded that the School District’s targeting of Kennedy’s religious activity satisfied strict scrutiny because it served the compelling state interest of avoiding a violation of the Establishment Clause.  And because it tried to work with Kennedy to accommodate him, the School District’s actions were narrowly tailored to achieving that interest. 

Finally, the Court rejected Kennedy’s Title VII claims.  He could not establish failure-to-rehire liability because he was not adequately performing his job, refusing to follow School District policy and conducting media appearances that led to spectators rushing the field.  Nor could he establish disparate treatment under Title VII:  other coaches were treated more favorably only because their actions did not violate the Establishment Clause.  Kennedy’s failure-to-accommodate theory likewise failed because the School District made good faith efforts to accommodate him by offering a solution that did not violate the Establishment Clause.  And his retaliation claim was rebutted by the School District’s legitimate and nondiscriminatory desire to avoid an Establishment Clause violation.

Judge Christen, joined by Judge D.W. Nelson, concurred to emphasize that the “the outcome of this appeal is entirely driven by the circumstances from which Coach Kennedy’s claims arose.”  “No case law requires that a high school teacher must be out of sight of students or jump into the nearest broom closet in order to engage in private prayer,” Judge Christen wrote, “but it cannot be denied that this football coach’s prayer at the fifty-yard line, immediately after a game, under stadium lights and in front of players and spectators, objectively sent a public message.”  Unlike most outward expressions of religiosity, “[g]iven the community’s response to Kennedy’s public statements, BSD would have unquestionably sent a message of endorsement if it had allowed him to continue to pray at midfield.”