The OFCCP enforces Executive Order 11246, which makes it unlawful for employers that are government contractors to engage in gender-based compensation discrimination. To assess compliance with the law, the agency regularly conducts aggressive, protracted reviews of contractors’ pay practices. The reviews are called compliance evaluations. An employer that is found to pay female employees less than similarly situated male employees may be in violation of the law absent a legitimate, nondiscriminatory explanation for the pay disparity, such as seniority.

The OFCCP can pursue legal remedies against such employers, including back pay and benefits, costly salary adjustments, and nonmonetary relief such as mandatory promotions or job placements, modifications of policies and practices, pay equity training, and more harshly, the cancellation of current federal contracts and exclusion from future contracts.

“Similarly situated” is a term of art. When the OFCCP evaluates employee pay, it’s theoretically supposed to compare the pay of only similarly situated employees, meaning individuals whom one would expect to be paid the same based generally on the similarity of (a) their jobs, such as daily tasks, required skills, effort, responsibility, and complexity, and (b) other objective factors, such as minimum qualifications or certifications.

As the thinking goes, persons in jobs requiring certain credentials shouldn’t be grouped together with persons in jobs that don’t require the same credentials, even though the two jobs otherwise may be similar. For example, one would expect a college professor, required to have a PhD and who regularly teaches classes, to be paid more than her teaching assistant, who likewise regularly teaches but hasn’t yet obtained a PhD. Comparing the pay of a group of professors to that of a group of teaching assistants would be like comparing apples to oranges.

Princeton University’s Alleged Violation

In Princeton’s case, the OFCCP conducted a university-wide review of all full professors’ compensation. At first glance, this seems to be more like comparing apples with apples. The agency considered all of Princeton’s full professors to be similarly situated.

According to the OFCCP’s preliminary findings, 106 of the university’s female full professors were paid lower salaries than their similarly situated male counterparts between 2012 and 2014. The university didn’t admit wrongdoing or attempt to justify the alleged pay disparity with legitimate, nondiscriminatory factors. Instead, it seems Princeton asserted the agency’s findings were the result of a flawed model based on improper comparisons.

Princeton contended not all full professors were similarly situated to one another, and only full professors within each academic department were similarly situated. It claimed a professor’s compensation varied depending on what department he or she was in because professors teaching one academic discipline produce a labor market different than professors who teach other disciplines.

For example, astronauts might be more employable than jazz musicians. Therefore, professors teaching astrophysics are compensated differently than those teaching jazz studies. Princeton’s department-based approach to faculty compensation accounted for market factors it claimed the OFCCP’s process didn’t consider. Thus, as the university claimed, the agency’s inclusion of all full professors in one pool of similarly situated employees created a false impression of pay inequity...