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ENDE v. BD. OF REGENTS OF NORTHERN ILL. UNIVERSITY

May 10, 1983

RUSSELL S. ENDE, ET AL., PLAINTIFFS,
v.
BOARD OF REGENTS OF NORTHERN ILLINOIS UNIVERSITY, DEFENDANT.



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 class.

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 52.

FINDINGS OF FACT

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 market factor.

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
  Illinois University.

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.
                                                 Points
    a) Salary           $2,388 (male)
                        -2,340                     48
    b) Years in Rank     19
                          7 (male)
                         --
                         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.

Points

  a) Salary           $2,388 (male)
                       2,500       ...

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