Avoid Sex-Based Faculty Pay Discrimination

Colleges and universities increasingly face complaints of pay discrimination from female faculty. According to a 2025 National Education Association analysis. 

 although pay gaps varied by state, professional rank, and  institution type, women faculty at public institutions on average were paid 86 cents for every $1 men received. 

Sex-based pay discrimination is illegal under federal and state laws and  can have serious financial consequences. Working with legal counsel with expertise in pay discrimination issues, examine your institution’s compensation practices for discrepancies between male and female faculty pay. If any sex-based disparities exist, address them. (While this article focuses on faculty pay disparities, apply the same principles throughout your workforce.) 

The Legal Landscape 

The Equal Pay Act of 1963 (EPA), which amended the Fair Labor Standards Act (FLSA), is the primary federal law addressing sex-based pay discrimination. It prohibits paying male and female employees differently based on sex “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 

The EPA applies to all forms of pay, including: 

• Salaries
• Bonuses
• Benefits 

Employers cannot reduce pay rates of either sex to comply with the law. 

For a faculty member to prove sex-based pay discrimination under the EPA, that employee must first show a pay disparity with an opposite-sex faculty member (a “comparator”). The choice of appropriate comparators is fact-specific. Job titles are not determinative. The duties of the positions being compared need not be identical, but  they must be substantially equal. 

An appeals court held a female professor improperly selected as comparators two men who were former administrators, taught in different departments, and had different duties and skills, noting the university “systematically pays engineering professors more than humanities professors.” 

If a faculty member establishes a pay disparity, the institution must show a sex-neutral justification  to avoid liability. 

The EPA cites four such justifications (or “affirmative defenses”): 

1. A seniority system
2. A merit system
3. A system that measures earnings by quantity or quality of production
4. Any differential based on a factor other than sex 

In court, successful plaintiffs can recover an array of damages: 

• Backpay, or the amount by which they were underpaid, for two years (or three years for a “willful” violation, meaning the employer knew or showed reckless disregard for whether its conduct was illegal)
• “Liquidated” damages, which usually are awarded in an amount equal to backpay,  although the court can reduce or eliminate this award if the employer proves it acted in good faith and had reasonable grounds to believe its conduct was not unlawful.
• Interest, costs, and attorney fees (usually substantial due to the complexity of these claims) 

A faculty member complaining about sex-based wage discrimination could file an individual lawsuit or a collective action on behalf of other “similarly situated” faculty. 

Title VII 

Sex-based discrimination in pay and benefits is also unlawful under Title VII of the Civil Rights Act of 1964. Disparate treatment discrimination claims under Title VII require proof of discriminatory intent, although disparate impact claims (such as those challenging compensation practices that have an unlawful adverse effect on women) do not. While the EPA does not require discriminatory intent, under Title VII jobs need not be substantially equal to prove discrimination. Moreover, Title VII — unlike the EPA — allows compensatory (including emotional distress) damages and punitive damages, in addition to backpay and attorney fees. 

Depending on the situation, faculty could challenge alleged pay disparities under the EPA, Title VII, or both. Your institution also could face state law claims, which (as noted below) may be more difficult to defend than alleged federal law violations. 

Depending on your institution’s size, a collective action might mean dozens of plaintiffs, with the potential for multiple backpay, liquidated damages, and attorney fee awards. 

State Laws 

Understanding state (and any local) equal pay laws is critical. Despite broad similarities to the EPA, significant differences — favoring employees — frequently exist. Examples include: 

• Oregon bans pay disparities “for work of comparable character,” which is less restrictive for potential plaintiffs than the federal standard.
• New Mexico eliminated the fourth “catch-all” affirmative defense, while other states narrowed it.
• Although salary history has sometimes been considered a factor other than sex, many jurisdictions now view it as  perpetuating past discrimination. Federal appeals courts are divided on the question. 
• Multiple states (including Colorado, Illinois, and Washington) prohibit employers from asking about or considering salary history, as do cities like Cincinnati and Philadelphia.
• A growing number of states, including California, Connecticut, Illinois, and Maryland, have wage transparency provisions requiring employers to disclose salary or pay ranges to applicants, employees, or in job postings. 
• New Jersey and New York allow six years of backpay for wage discrimination, and New York authorizes liquidated damages for willful violations up to three times backpay. 

State laws vary, so institutions in other states (and all those recruiting nationally or for remote positions) should consult legal counsel about applicable requirements and consider how they might affect your faculty compensation practices. 

Key Actions 

These steps can help your institution avoid (or mitigate the effects of) a pay discrimination claim: 

• Evaluate faculty job descriptions. Ensure written job descriptions for every department capture the duties for each position, including teaching, service, and scholarship. Be specific; if a department expects tenure-track faculty to produce a minimum number of publications per year, make this clear.
• Document reasons for pay decisions. Many factors can be involved, including education; professional qualifications; other experience and training; seniority; academic rank when first hired; and quality of research/scholarship, service, and teaching. Require people making pay decisions to document their  reasons, such as market factors (for example, on average faculty in accounting, business, and economics earn more than those in education, history, and philosophy), as well as competing offers, retention increases/bonuses, or other exceptions to your normal compensation practices. Avoid basing decisions on questionable justifications, like salary history. Preserve documentation according to your document retention policy.

If you use student evaluations to assess teaching performance, be cautious about potential bias. One study found students generally rated male instructors as more accurate, better educated, and easier to understand than female instructors — and penalized men less for being “tough graders.”

• Train personnel. Train employees who make decisions or communicate about compensation issues, including provosts and department chairs, on federal and state pay equity legal requirements, including avoiding retaliation.
• Consider and prepare appropriately for a pay audit. Institutions conduct pay equity audits for various reasons, including responding to internal pay discrimination complaints or during periodic compensation reviews. Depending on institutional culture and needs, pay audits (sometimes called pay reviews or pay studies) may use internal resources or be outsourced.

While reviewing pay practices offers potential benefits — including avoiding a “willfulness” finding in eventual litigation if a sex-based pay disparity exists or establishing an affirmative defense to a pay discrimination claim in states like Massachusetts and Oregon — conducting such a review improperly poses substantial risks to your institution. 

In 2013, a university admitted in writing a “significant pay disparity” (averaging almost $20,000) between male and female law school faculty but took no corrective action. The Equal Employment Opportunity Commission (EEOC) sued, obtaining a settlement under which the university paid $2.66 million in damages to seven female professors, increased their salaries, and agreed to other terms, including publishing salary information annually. 

Before examining your pay practices, i consult an appropriate expert (usually a labor economist) for advice on approach and methodology, including pinpointing permissible factors other than sex that influenced initial pay and identifying potentially “substantially similar” faculty positions within and between departments. Work closely with legal counsel with expertise in pay discrimination matters who can help find qualified experts. Counsel’s involvement from the beginning  may protect confidentiality of an audit if litigation develops. 

• Realize litigation is costly — even for schools that successfully defend lawsuits. These cases are fact-intensive. You may have to find and produce records going back decades, and multiple outside experts are often necessary. Also consider the significant nonmonetary costs of litigation, including lost time and productivity, as well as damage to employee morale and institutional reputation. 

More From UE  

Equal Pay Issues for Educational Employers  

Pay Attention to Pay Transparency 

Additional Resources 

Fisher Phillips: Pay Equity and Transparency Map

Seyfarth: 50 State Equal Pay Reference Guide  

Seyfarth: Developments in Equal Pay Litigation