Tuesday, December 10, 2002
Ninth Circuit Reinstates Reverse-Discrimination Suit By White Male Professors at Arizona School
By a MetNews Staff Writer
A suit by college professors who claim they were discriminated against when their employer instituted a “pay equity” plan that increased the salaries of women and minorities was reinstated yesterday by the Ninth U.S. Circuit Court of Appeals.
Claims by professors at Northern Arizona University that the school relied on faulty statistical conclusions in determining that women and minorities were being underpaid, while failing to consider evidence that many white males were also being underpaid, should not have been resolved on summary judgment, Judge M. Margaret McKeown wrote for the court.
The professors sued under 42 U.S.C. Sec. 1983, claiming a violation of their equal protection rights, and under Title VII of the Civil Rights Act of 1964, claiming race and gender discrimination.
McKeown, joined by Judges Andrew Kleinfeld and Pamela Ann Rymer, said it was error for U.S. District Judge Robert Broomfield of the District of Arizona to conclude that the increases for the women and minorities were, as a matter of law, a remedial measure permitted by Title VII.
The evidence, McKeown explained, shows that the adjustments may have been “more than remedial.” The court, she said, “cannot determine as a matter of law whether the range of adjustments made, however crude they may have been, fall within the range of moderate increases necessary to eliminate the imbalance.”
While the panel was unanimous in reinstating the Title VII claim, which was brought against the university, it divided 2-1 in upholding the dismissal of the professors’ Sec. 1983 claim, which was brought against NAU President Eugene Hughes individually.
McKeown, joined by Rymer, said Hughes was entitled to qualified immunity. Given the state of the law at the time, and the nature of the statistical studies, it was not clearly established that increasing the pay of the women and minorities alone constituted an equal protection violation, McKeown said.
Kleinfeld disagreed, arguing:
“Any competent university president would know that he can’t pay people more or less than others based on their sex and race. The scheme here was straightforward: minorities are gold, women are silver, white men are bronze. It’s been a long time in America since anyone thought the Constitution allowed governmental discrimination based on sex and race. The law has been clearly established on this point for many years.3
President Hughes wasn’t entitled to pretend ignorance on this point because there was no case directly on point specifically on pay raises to “predicted” salaries based on regression analyses—.”
The case is Rudebusch v. Hughes, 01-15287.
Copyright 2002, Metropolitan News Company