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Department chairs and faculty who serve on search, promotion, and tenure committees regularly make decisions that, in other organizations, are handled by human resource personnel with extensive training in the do’s and don’ts of personnel decisions. This scenario can lead to situations rife with potential for legal liability.
Particularly troubling is a trend in employment law called “family responsibilities discrimination,” or FRD. FRD cases involve workplace discrimination stemming from caregiving responsibilities. Cases of this kind increased 400% in the decade before 2006, as compared with the preceding decade. [1] An even more sobering statistic is that plaintiffs are more likely to win this type of lawsuit as other types of employment discrimination lawsuits – greater than 50% of these plaintiffs win or settle their cases, which is a very high percentage.[2] Further, these suits can be expensive: over 125 suits resulted in verdicts or settlements over $100,000; several are multi-million dollar verdicts.[3] Traditionally, universities have had good luck in court because of the “academic deference doctrine”: courts do not want to get into the business of telling faculties whom they should tenure. But not all FRD suits involve judgments about academic merit making the academic deference doctrine less relevant.
Some sobering facts:
- A survey of 100 academic institutions found that more than one-third of their maternity and child-rearing policies were, or were likely to be, illegal.[4]
- In a survey of 500 colleges and universities, employment discrimination was the single greatest and most quickly growing cause of employment claims — five times greater than the number of wrongful termination claims and six times greater than the number of sexual harassment claims.[5]
- The costs of defending an employment discrimination claim can be hefty. For example, Oregon State University paid a reported tentative settlement of $495,000 in an FRD tenure suit.[6] In another FRD tenure case, Boston University was ordered to grant the plaintiff tenure and awarded her $200,000 in damages for breach of contract and $15,000 in emotional distress damages.[7]
Damages and settlement costs are just the tip of the iceberg. Academic institutions also incur attorney’s fees and litigation expenses. Additionally, there are costs associated with lost research and teaching time and negative media attention.
Do you know what’s illegal?
University counsel can provide a full-some briefing on equal employment opportunity laws, obligations and best practices for minimizing liability. WorkLife Law offers briefings as well. On a webpage we can only flag some of the more obvious problems. Here goes:
- Denying tenure to a woman because she is a mother. Courts have held that it is unlawful sex discrimination to deny tenure based on a professor’s status as a mother. Lisa Arkin, assistant professor at the University of Oregon, took maternity leave and delayed her tenure review pursuant to the University’s stop-the-clock and maternity leave policies. Despite the unanimous recommendation from her tenure committee, she was refused tenure upon her return from maternity leave. The provost of the University allegedly told another professor that Arkin’s decision to “stop the clock” was a “red flag” and the department chair wrote in a memo that she “knew as the mother of two infants, [Arkin] had responsibilities that were incompatible with those of a full-time academician.” [8] Arkin filed a sex discrimination claim, which the University ultimately settled to the tune of $495,000. [9]
- Requiring pregnant professors to find their own replacements before they take maternity leave. This is illegal if other employees are not required to find their own replacements before taking short-term disability leave. For example, a professor who needs time off for back surgery is not required to find a replacement before taking leave. The Pregnancy Discrimination Act requires that pregnant workers be treated the same as other workers.
- Discouraging anyone—male or female—from taking protected Family and Medical Leave Act (FMLA) leave. The FMLA prohibits “interference” with FMLA leave. Discouraging someone from taking legally protected leave may constitute illegal interference. This applies equally to men and women.
- Penalizing anyone—male or female—for taking FMLA leave. The FMLA also prohibits “retaliation” for taking FMLA leave.
- Treating men any different than women with respect to family leave is illegal
In response to his request for reduced duties to care for a new child, a male faculty member reported that he received “a sneering denial from the Chair.”
- Title VII, the federal employment discrimination statute, prohibits changing an employee’s “terms and conditions of employment” because of their sex. This prohibits treating men different than women based on their sex and women different than men based on their sex. The quoted comment, reported on a survey of University of California professors, also is evidence of illegal interference with family and medical leave.
- Making any employment decision based on stereotypes about women or mothers is evidence of employment discrimination. To better understand the types of situations this can cover, click here.
For more information about family responsibilities discrimination, click here.
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