Overview - Tenure Denied: Cases of Sex Discrimination in Academia

Women have made progress in higher education, but it is not reflected in the ranks of academia.

• Women are graduating from colleges and universities in record numbers and making striking gains in doctoral programs. In academic year 2000–01, for example, women made up 44 percent of doctoral recipients, up from 32 percent in 1980–81. In the 1980s and 1990s, women also made impressive gains in faculty appointments at all ranks, growing from about one-fourth of the full-time faculty to more than one-third

• In spite of these gains, women remain stuck in the majority of lower-echelon positions in academia. They make up more than one-half of instructors and lecturers and nearly one-half of assistant professors, but they represent only one-third of associate professors and one-fifth of full professors.

• On average, com pared to men, women earn less, hold lower-ranking positions, and are less likely to have tenure. For four-year institutions, the differences are more pronounced.

• The burgeoning pipeline of women professors with doctorates has yet to translate into full gender equity among tenured faculty.

The implications of sexism in the tenure process impact everyone.

• Sex discrimination in tenure decisions is not just unfair; it also has repercussions in the workplace and in society in general.
  • Tenured faculties control curriculum and grading and, in so doing, play a central role in determining the credential of a college degree.
  • As teachers and mentors, professors help shape the intellect and social conscience of their students and, hence, of our society. Offering students a faculty as diverse as the world they live in and ensuring the fairness of the promotion process is thus of tremendous importance.
    

Tenure: What it means to educators in colleges and universities

• Tenure is a promise of virtual lifetime employment awarded to scholars who demonstrate excellence in scholarship, teaching, and service. Tenure conveys the approval of the academic community as a whole and ushers the candidate into a job with extraordinary job security and prestige.
  • Tenured faculty can be fired “only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies.”
  • Tenure review generally takes place five to seven years after a candidate is hired. Although the nature of tenure review varies greatly, the criteria for tenure generally include research, teaching, and service. In most cases, but not always, the final decision maker—the provost or board of trustees—will defer to the dean’s recommendation.
  • Losing a bid for tenure is much more damaging than being passed over for a promotion because the rejected candidate usually loses her or his job and must leave the university by the next academic year.

The tenure process has a number of characteristics that contribute to the likelihood that the matter will end up in court.

• Confidential documents: In a typical case, the tenure file and committee proceedings are confidential. Secrecy is needed, some argue, to allow for candid review. The downside, however, is that candidates do not have access to key documents used to make the tenure decision and often learn about deliberations through rumor. Because candidates receive only partial or inaccurate information, they do not know if they have been treated fairly.
• Ambiguity about standards: Universities do not have straightforward publication or teaching standards that guarantee tenure. Also, standards have risen during the 1980s and 1990s as the number of tenure-track and tenured positions has dwindled relative to the number of applicants.
• Biased behavior and decision-making: For example, one department chair argued that a woman professor didn’t need her job as much as a man did because she was married (and presumably could depend on her husband for support). In other cases, discrimination was subtler, manifesting itself in the guise of personal animosity toward a female professor who did not seem sufficiently “collegial.”

Proving discrimination – Judicial interpretations

• Most of the tenure denial cases filed in federal court are brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, race, national origin, and religion in employment.
• Disparate impact discrimination refers to practices that appear neutral on their face but that result in discrimination against a protected group. While the tenure process appears to exclude a larger percentage of women than men, few tenure cases alleging sex discrimination have proceeded under the disparate impact theory.
• Disparate treatment refers to the differential treatment of employees or applicants on the basis of their race, color, religion, sex, or national origin. Under this approach, a plaintiff must prove intentional discrimination using direct or circumstantial evidence.
  • The plaintiff must establish a prima facie case by showing that she (1) belongs to a protected class, (2) is qualified for the position, (3) suffered an adverse employment action, and (4) was replaced with someone outside the protected class, i.e., a male. A plaintiff may meet the fourth element by showing that a comparable nonprotected person was treated more favorably. Once the plaintiff has established a prima facie case, the burden shifts to the employer who must articulate a legitimate, nondiscriminatory reason for its decision. When the employer has met this burden the plaintiff must prove that the employer’s legitimate nondiscriminatory reason is not the real reason for the decision but rather a cover story or a “pretext” for discrimination.

During the past two decades, judicial interpretations have, for the most part, made it more difficult for a plaintiff in a tenure case to prove discrimination.

• Judicial interpretations of the question of “intent” to discriminate and the relative importance of motive have made it harder to prove sex discrimination. The burden of persuasion now remains with the plaintiff throughout the life of the case.
• More recent Supreme Court rulings have imposed additional burdens on plaintiffs. Even if a plaintiff could demonstrate that the employer lied about its reason for its employment decision, the plaintiff would also need to show that the employer lied specifically to mask discrimination. The pretext, [Supreme Court Justice] Scalia reasoned, may simply be disguising a nondiscriminatory but unsavory reason such as personal dislike for the plaintiff, and in such cases, Title VII does not provide a remedy.
• Because tenure decisions involve multiple decision makers, a decision will be made for multiple reasons. In a complex decision-making process, it becomes increasingly difficult for plaintiffs to demonstrate that the driving force behind the negative decision was discrimination.
• “Mixed motives” (both legitimate and discriminatory motives) for the employment decision can be considered. Sex discrimination must have played a motivating part in the employment decision, but it need not be the only motivation.
• Pinpointing sex discrimination amidst the tangled web of subjective judgments behind a tenure decision is a Herculean task.

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