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Guest opinion: Jennifer Hendricks: Half a loaf for women and minorities at CU Boulder

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By Jennifer Hendricks

At the University of Colorado Boulder this semester, 479 faculty and 250 other staff have received raises totaling over $4 million under the Colorado Equal Pay for Equal Work Act, which went into effect in January 2021.

That’s because CU’s own statistical analysis (according to faculty and staff questions on the CU human resources website) showed that gender and race or ethnicity were “strongly predictive” of salaries, which is to say that CU has underpaid women and minorities for years.

The average increase for faculty who were found to be underpaid on the basis of gender or race was $6,612; for nonfaculty staff it was $4,086.

The people who received these raises might think the inequities in their pay have now been fixed, at least going forward. (They’ve been offered nothing for past wages lost.)

If they’re faculty members, they would be wrong. In fact, CU closed only part of the discriminatory salary gap. Here’s how the administration calculated salaries for faculty:

Suppose a CU department is made up of faculty who all have identical qualifications, performance and experience. The average salary is $100,000, with half of the faculty — all white men — making $110,000 and the other half — all women — making $90,000.

Rather than raise the women’s and minorities’ salaries to $110,000, CU declared the “predicted” salary for the department was the $100,000 and raised the women’s salaries to that number, still leaving them $10,000 short of the men.

Of course, no department is made up of identical drones, so the unfairness of this half-remedy is hidden behind a statistical technique called regression analysis.

But it wouldn’t be any more complicated to do the right thing. And the administration knows how to do it.

Nonfaculty job descriptions have fewer people in each category, which means there’s no hiding behind regressions. If the example above had involved nonfaculty staff, the women would have been raised to $110,000.

I sit on the budget committee of the Boulder Faculty Assembly, and I asked CU administrators repeatedly in meeting after meeting why they chose this half-a-loaf approach for women and minority faculty members. Mostly they dodged the question.

The one semblance of an answer I got was that “the courts” have upheld their approach. This answer would get an F if it came from one of my students at the law school.

The Colorado Equal Pay for Equal Work Act is a new law that has yet to be interpreted by courts, and it is different in important ways from equal pay acts in other states and federally. The administration may be gambling that judges and juries will be intimidated by a little statistics and a lot of hand-waving.

But under Colorado’s law, the purpose of the statistical analysis is to show that the employer made “good faith” efforts to identify and fix any pay disparities ahead of time, which lets employers off the hook for punitive damages if they later turn out to have missed an instance of discrimination.

But it’s hard to argue “good faith” when you identify and then consciously choose to half-fix the disparities, as CU has done.

CU’s administrators are essentially insisting that half a loaf is good enough for merely checking the boxes on what they call “a compliance exercise” — that is, obeying a dubious, very minimal interpretation of the law — but I have yet to find a single CU administrator who will even try to argue it is fair.

Jennifer Hendricks is a professor of law at the University of Colorado Law School.

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