Professors Are Not Widgets

Garrett Wozniak
Garrett Wozniak

In a recent decision, Palmer v. Indiana University, et al., No. 21-1634 (7th Cir. Apr. 14, 2022), the Seventh Circuit Court of Appeals affirmed summary judgment in favor of Indiana University and its trustees in a suit brought by a lecturer in the school’s business marketing department.  Palmer, a lecturer and then senior lecturer, alleged that he was denied an early promotion because of his race and was paid less than a white colleague in violation of Title VII.

In addition to his lecturer duties, Palmer was a diversity coach in the school’s MBA program.  He was paid an additional $25,000 for this role and permitted to teach a reduced course load.  Three years into the lecturer role, Palmer inquired about becoming a senior lecturer.  The department chair at the time discouraged Palmer from seeking a promotion until he had worked for the university for a few more years.  It was apparently uncommon for lecturers to ask about promotion until having worked at the institution for closer to six years.  This dissuaded Palmer from seeking an early promotion, however, he was promoted to senior lecturer three years later.

Palmer resigned as diversity coach at the end of the 2016-2017 academic year.  As a result, he was no longer paid the additional compensation or permitted a reduced schedule because of that role.  Also in the 2016-2017 academic year, the school hired another lecturer (Caucasian) who was also assigned as the director of the business marketing academy.  The role paid a total annual stiped of $37,500, but did not provide a reduced schedule.

In summer 2018, Palmer complained that the new lecturer’s base salary was almost equal to his base pay of $98,750 (it was $94,000).  No other lecturer or senior lecturer in the department made more than $90,000 annually in base pay.  Palmer followed up his complaint by accusing the former department chair of bias and discrimination because of the chair’s discouraging him from seeking early promotion.  Around the same time, the white lecturer sought an early promotion.

Palmer filed a charge of discrimination in May 2019 and filed suit in November 2019.  The court affirmed summary judgment in favor of the University.  

As to the pay discrimination claim, the court concluded that the other lecturer was not an appropriate comparator.  As the court stated, “‘[p]rofessors are not interchangeable like widgets,’ so Palmer merely showing that his comparator is also a lecturer in the same department is not enough to meet his burden that the two are comparable.”  In addition, the suggested comparator had too many “concrete differences” from Palmer such that they did not perform equal work.  In particular, the colleague received additional compensation because he performed an administrative role and taught a number of overload courses, the latter of which Palmer did not do.  It was the additional courses and administrative role that enhanced the purported comparator’s pay above Palmer’s.  The court also recounted that Palmer was the highest paid lecturer or senior lecturer (in terms of base pay) in the department throughout his employment. 

Palmer, therefore, could not show “unequal pay for equal work.”  IU, moreover, was able to show that there was a legitimate business reason for the other lecturer’s compensation.  The additional work performed resulted in more pay and larger raises.

Palmer’s failure to promote claim did not survive because he (Palmer) did not file a charge of discrimination within 300 days of when the then-chair convinced him to not seek an early promotion in 2013.  By the time Palmer filed a charge with the EEOC in May 2019, the limitations period had long since run.

The court was not receptive to Palmer’s request to draw an inference of discrimination based solely on the race of the other employee.  Judge Easterbrook commented in a concurrence why the inference of discrimination Palmer sought was not appropriate:

In every distribution of numbers, one is highest. This is a fact about numbers; it is equally true if the numbers concern incomes, the weight of starlings, or the height of foam in beer glasses. Most distributions are normal, with upper and lower tails plus a bell-shaped middle. If every member of the faculty at Indiana University were white, a distribution of incomes still would exist, without any chance that it had been caused by racial discrimination.

Suppose the third-highest-paid lecturer were to file a suit and contend that Palmer’s higher pay shows discrimination. That would make no more sense than Palmer’s contention that being #2 shows discrimination. All the difference shows is a distribution of incomes; it does not imply that, if Gildea and Palmer were the same race, Palmer would be the highest-paid lecturer. But if Palmer is right, then every lecturer at the Kelley School (other than Gildea) is a victim of racial discrimination, because all are paid less than some other lecturer of a different race. Is Indiana University really engaged in ram-pant discrimination in favor of non-white lecturers, shown by the fact that Palmer’s income exceeds all but one of the other lecturers?

Teachers are not fungible, as the court’s opinion observes. To rest a claim of discrimination on levels of compensation it would be necessary to compare the median income of one ethnicity or sex against the median of another, as in King v. Acosta Sales & Marketing, Inc., 678 F.3d 470, 475 (7th Cir. 2012), or to construct a statistical model that would reveal the weights the Kelley School gives to teaching (quantity and quality), scholarship (quantity and quality), and community service such as committee work, so that any effect of race or sex could be isolated. Palmer did not try either of these approaches. He stopped with the observation that Gildea had higher total compensation, and that observation does not hint at racial dis-crimination.

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