The opinion of the court was delivered by: Roszkowski, District Judge.
MEMORANDUM OPINION AND ORDER
Before the court is a reverse discrimination claim filed by the
plaintiffs, a class of male professors, against the Board of
Regents of Northern Illinois University ("NIU"). The plaintiffs
allege that a new compensation scheme introduced to remedy salary
discriminations against female professors violates the Equal Pay
Act. 29 U.S.C. § 206(d). The issue of liability was tried before
the court on March 16 and 17, 1982. For the reasons stated
herein, the court finds in favor of the defendant and hereby
enters judgment on the liability issue in favor of the Board of
Regents of Northern Illinois University and against the plaintiff
The issue before the court is whether the Equal Pay Act
prohibits the implementation of an affirmative action salary
program which increases compensation to female employees solely
because of gender. The court holds that where, as here, female
employees have suffered from documented salary discrimination,
the Equal Pay Act permits salary adjustments which substantially
remedy discriminatory salary practices.
The jurisdiction of the court is invoked pursuant to 28 U.S.C. § 1331.
This opinion constitutes the court's findings of fact and
conclusions of law as required by Federal Rule of Civil Procedure
On January 12, 1973, Margaret Joyce Nelson, an employee of
Northern Illinois University, filed a complaint with the Regional
Office of the Office of Civil Rights of the Department of Health,
Education and Welfare (hereinafter "OCR"). The complaint alleged
that Northern Illinois University discriminated against female
faculty personnel in matters of salary. On December 19, 1974, OCR
informed NIU that its investigation revealed that there was
"reasonable cause to believe" that NIU had discriminated against
females because of their sex.
In late 1974, NIU also conducted its own internal investigation
of salaries at the University. The independent investigation
confirmed that there was a salary differential between male and
female faculty members, and that salaries of female faculty
members were significantly lower than those of males.
When NIU's own investigation confirmed the reasonable cause
determination made by OCR, the University chose to remedy
voluntarily*fn1 the discriminatory salary practices. All parties
agree, as a factual matter, that the pre-1975 salary structure
did discriminate against female faculty members.
NIU's internal investigation indicated that the aggregate
amount of the discrepancy between annual salaries of male and
female faculty members was approximately $160,000. The University
Council Personnel Committee therefore set out to establish a
salary formula which would, in the aggregate, pay NIU's female
professors an additional $160,000.
To finance the increase, NIU established a special fund from
which the adjustments to female faculty member's salaries would
be made. The fund was separate from those funds available for
general faculty salary increases and the regular general faculty
increases were distributed in the usual way. The only change
would be that after the usual salaries were distributed, the
female professors would then receive an additional amount from
the special fund.
The Committee responsible for devising an allocation formula
considered various proposals. One proposal was suggested by
Richard M. Cady, a political science professor at NIU who had
been studying the salary structure at the University since late
1973. Professor Cady's proposal included a "marketplace" factor
which attempted to adjust for the salary differentials between
different academic fields. A business or engineering expertise,
for example, is more valuable in the private market than
expertise in fields such as education or art. Consequently, a
business or engineering department is forced to pay higher
salaries to retain talent than is an education department.
Professor Cady proposed that the allocation formula reflect this
"market factor." Professor Cady's proposal was not adopted,
however, and the formula ultimately chosen did not adjust for the
The formula ultimately chosen by the university was called an
"affirmative action equity adjustment formula." As a starting
point, the formula identified the mean monthly salary for a male
NIU professor. It was also determined the mean time in rank for
a male NIU professor was seven years. After determining these
mean figures, NIU established a point system to systematically
compare women faculty members and librarians with their male
counterparts. The formula used to determine the point total for
each woman was as follows:
a) One point, plus or minus, for each dollar of
difference between their monthly salary and the male
mean salary by rank. (The male averages by rank are:
Full Professor $2,388, Associate Professor $1,940,
Assistant Professor $1,543, and Instructor $1,248.
b) Five points, plus or minus, for each year of
difference between their years in rank and the male
mean years in rank.
c) Five points for each year of service to Northern
d) Add a, b, and c to determine total points.
Once total points were determined, the number was multiplied by
sixty cents. The sixty cent value was determined by dividing the
total accumulated points for all women into the available
affirmative action dollars. The resulting figure, rounded off to
the nearest five dollar increment, constituted the additional
monthly amount the female professor would receive. Two examples
illustrate the application of the formula:
1) A female professor at a salary of $2,340 with 19
years in rank and 29 years at Northern Illinois
University would accumulate 253 points or $152. The
mean salary for male professors is $2,388 and the
mean time in rank is seven years.
a) Salary $2,388 (male)
b) Years in Rank 19
12 x 5 60
c) Years at NIU 29 x 5 145
d) Total Points 253
(253 x .60 = an additional $152 a month)
2) A female professor with a salary as a full
Professor of $2,500 and 18 years in rank would have
accumulated 53 points or $32.
a) Salary $2,388 (male)