The University of Denver has agreed to pay $2.66 million to resolve a lawsuit filed by the Equal Employment Opportunity Commission, which accused DU of paying not just one or some of its female full law professors less than the mean average salary of male full profs at the law school, but all of them.
But in a statement about the consent decree in the case, DU Chancellor Rebecca Chopp neither admits wrongdoing by the university nor apologizes for gender discrimination that appears to have gone on unchecked for decades, prompting Kris McDaniel-Miccio, one of the intervenors in the case, to offer this pithy response: "The lies continue."
Chopp's complete statement is accessible below, along with links to the consent decree and a 2012 memorandum from then-DU law-school dean Martin Katz in which he wrote that "the median salary for female Full Professors was $7,532 less than that for males before this round of raises and $11,282/year less than that of males after this round of raises."
In the beginning, most of the publicity generated by the case focused on DU law professor Lucy Marsh, who filed the original charge with the commission, alleging that the university violated the Equal Pay Act and Title VII of the 1964 Civil Rights Act.
However, Marsh wasn't the only female law-school prof to suffer from discrimination. The consent decree cites six other DU female full law professors: McDaniel-Miccio, K.K. DuVivier, Nancy Ehrenreich, Joyce Sterling, Catherine Smith and Celia Taylor. Moreover, the original suit included Sheila Hyatt, who passed away late last year — and McDaniel-Miccio believes another professor, Ann Scales, would have been part of the fight had she not died in 2012. "Ann was a scholar who coined the term "feminist jurisprudence" and started the whole discussion about gender discrimination in salary," she says. "If it wasn't for Ann, we wouldn't be here."
In 2016, Mary Jo O'Neill, a Phoenix-based regional attorney for the EEOC, told us that the suit was "really about all the female full professors. We view this as a systemic problem — and we think DU isn't the only law school where there's this pay differential between male and female professors. And equal-pay issues don't only affect the person when it first happens, but during their whole careers."
Marsh's case was used in the lawsuit to exemplify O'Neill's last point. The document noted that when she was hired as an assistant law professor in the fall of 1976, she was paid an annual salary of $16,800, while a man brought aboard to fill a similar position at the same time received $19,000 — and this discrepancy didn't vanish as the years went on. In fall 1982, when Marsh was promoted to full law professor, her salary was $37,320, while the man, who also earned a promotion then, received $40,500. And by October 2013, this gap had widened considerably. Marsh was being paid $111,977 — a healthy sum, but more than $75,000 less than the male professor in question.
Comparing the salaries of all the female professors at DU with the amount paid to their male counterparts shows there was nothing unique about Marsh's situation. In October 2013, DU's law school employed 25 full professors: sixteen men, nine women. The mean annual salary of the males was $159,721, compared to $139,940 for the women — and as the complaint states, "no female Full Professor earned an annual salary greater than the mean annual salary for male Full Law Professors."
This scenario didn't surprise O'Neill. "Let's say raises are based on percentages," she notes. "Because the women started at a lower amount, the differences will increase over time — and there's been this difference for forty years. Think about the impact that can make. It can impact retirement and it can impact their whole families, because this is women taking home less money to their families than their male counterparts."
Nonetheless, the university fought the lawsuit vigorously for years, and McDaniel-Miccio thinks a major reason had to do with a concern over its reputation. "This was an institution that talked the talk about equality but didn't walk the walk," she allows. "DU holds conference after conference on the subject. In fact, they just had one" — HerDU 2018, staged last month — "that was all about promoting women. Really? You want to promote women when you've been discriminating against women who are full professors of the law school for thirty years?"
The consent decree essentially confirms that DU did just that. But rather than acknowledging that mistakes were made, Chancellor Chopp strikes a very different tone in a statement sent through the university's internal news system. It reads:
I write to update you on an important matter.
Today, the University of Denver settled a legal matter filed by the U.S. Equal Employment Opportunity Commission, regarding compensation practices at our law school.
One of our cornerstone commitments as a university is to be an academic community based on fairness, equity and merit. As a woman in higher education, I have been a part of the struggle to ensure equity at every institution I’ve served—this is lifelong personal work that I continue as the Chancellor of DU.
DU undertook the settlement process with great seriousness, deliberation and care for all involved. While confident in our legal position, we made this decision because of a strong desire to heal our community and move forward together. We believe this settlement will allow us to collectively focus on a present and a future in which the law school—and the DU community as a whole—can unite under our common values of equity, integrity and opportunity.
Always mindful of the University’s finances, we also made this decision in order to focus our resources, time and attention on the initiatives that will make our university, our law school and our community stronger, rather than on expensive litigation. We were able to reach a settlement that will not affect scholarships, financial aid or day-to-day university operations.
Thanks to many of you, we have made strong progress becoming a more inclusive community built on mutual respect and understanding of our individual life experiences. Still, we recognize that our work continues and we all must be vigilant and active participants to ensure that we continue to live our values.
As you can see, Chopp doesn't refer to the $2.66 million payout or the key reason why McDaniel-Miccio and her colleagues decided to settle: The decree requires the university to be monitored by an independent consultant for a period of six years to make sure its compensation for female faculty meets legal standards for salary fairness.
For her part, McDaniel-Miccio feels that "we didn't get anything close to what we deserve in terms of money. But we thought it was much more important to get the consent decree, so women who come after us, and also people of color, will know they have support when they ask questions like, 'Am I being paid less than...?'"
McDaniel-Miccio still remembers how she felt upon learning that, in her case, the answer to this question was yes. And that wasn't the only insult that came her way. Back in 2015, she points out, Dean Katz "made representations to the press and our colleagues and alumni that we were paid less because we were basically substandard. This was in an email sent to the entire Sturm College of Law community, including students, and when I read it, I was heading into class, where I was teaching first-years. When I stepped up to the podium, a young woman introduced me to her mother, and after I said, 'Lovely to meet you,' the student said, 'I brought my mother here to show her you weren't substandard.'"
This term certainly doesn't fit McDaniel Miccio, who has received a slew of scholarly awards over the course of her life in the law. As her DU biography points out, "She is a Fulbright Scholar, Marie Curie Transfer of Knowledge Scholar, Erasmus Mundus Scholar and a Fulbright Senior Specialist. The Marie Curie and Erasmus Mundus fellowships were awarded by the European Commission, and all of the awards were conferred because of Professor McDaniel-Miccio’s research and scholarship on the issue of male intimate violence, state accountability and conceptions of justice." And the other female professors in the case have had equally stellar careers.
However, McDaniel-Miccio has cut ties with the university, accepting a buyout as a direct result of the issues at the heart of the complaint. "I thought I'd leave DU in a body bag, because I loved teaching and I loved my students. Leaving DU was really bittersweet, and it was something I really didn't want to do, but at a certain point, you have to cut your losses. I said to myself, 'At my age and my background, I don't need this shit anymore.'"
But while McDaniel-Miccio, who now lives in New York, has left the University of Denver behind, she's proud of the legacy the case will leave. In her words, "This is a big victory for equality, and it's going to have ramifications across the country. We know there are a lot of law school faculties who are interested in this case, because they're looking to see if they fall into the same category as those of us at DU."
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