Professors alleging tenure discrimination face uphill battle.

Lately that the firm has seen a big increase in academic clients claiming tenure discrimination.  And as a result, I’ve spent a lot of time looking at how courts apply state and federal anti-discrimination statutes to academic employers.  There is a frustrating but very obvious trend of courts giving colleges and universities wide latitude in tenure decisions–even if those decisions are pretty clearly discriminatory.  This leeway makes proving employment discrimination against academics difficult.

This trend is borne out pretty clearly by a Seventh Circuit Court of Appeals decision from earlier this month.  In Hatcher v. Board of Trustees of Southern Illinois University an Assistant Professor filed suit against Southern Illinois University alleging a number of claims including tenure discrimination based on her gender in violation of Title VII of the Civil Rights Act.  The University claimed it denied her tenure because she had not published enough.

In support of her claims, the Plaintiff presented a lot of evidence which pointed to this gender bias – including: (1) the similarity of her publication record to that of male colleagues who received tenure, (2) testimony from department colleagues that she should have been promoted and was treated unfairly, (3) an email from the Executive Committee Chair to the Dean questioning why Plaintiff was not awarded tenure when a similar male colleague was; and (4) evidence that the Dean “cherry-picked” negative comments from external reviewers for Plaintiff’s tenure review but did not do the same for her male colleagues.

That sounds like exactly the kind of evidence that might lead a jury to find that the University had discriminated. And let’s be clear – the court was not charged with deciding whether the university had discriminated, but whether the Plaintiff had presented enough evidence to take her case to a jury to let them decide whether there had been any discrimination at play.  The court had correctly explained that all the Plaintiff needed to do to defeat SIU’s motion was to “assemble from various scraps of circumstantial evidence enough to allow the trier of fact to conclude discrimination occurred.” That’s it.  A fairly low burden.  And yet, despite all the evidence, the court granted SIU’s motion and dismissed Dr. Hatcher’s gender discrimination claim, finding that she had not presented enough evidence from which a jury might be able to find actionable employment discrimination.

As frustrating as this decision may be, it is in keeping with years of precedent which seems to treat academic institutions different from regular employers. In reaching this conclusion, the court explained that “in the academic context, we have held that scholars are in the best position to make the highly subjective judgments reviewing scholarship and tenure.”  It went on to state that “because so many factors influence the tenure process and because statistical inferences of discrimination are difficult to draw when there is only a small number of observations … it can be difficult to infer the presence of an invidious influence such as the sex of a candidate merely by comparing successful and unsuccessful tenure applicants.”

This reasoning is not new and is, unfortunately, in keeping with past precedent in our jurisdiction and others. However, it is incredibly confusing and frustrating.  Because of course, subjective factors play a role in every employment decision.  And in every other work environment, comparing the qualifications of male and female candidates for employment decisions and the ways in which they are treated by their supervisors is precisely how we allow juries to infer that gender (or any other protected status) was the reason for the adverse employment action.

This is not to say that tenure discrimination claims are impossible to prove, but they are certainly more of an uphill battle than those which arise in other workplaces.  We represent a lot of academics and I hope that through continued representation of them we can encourage the courts to examine these tenure discrimination cases in the same way they do all others–by asking themselves whether a reasonable jury infer employment discrimination.  In the meantime, we are grateful for the Plaintiff in this case and other academic employees of her kind who continue to stand up for their rights.  This was a frustrating outcome but an important case, nonetheless.