Does it Make Sense to Sue if You’ve Been Denied Tenure Due to Discrimination?
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Achieving academic tenure is the hallmark of success for educators and in the college and university environment. This status grants a level of security that enables academic faculty to focus on their chosen area of study without distraction. Although tenure is a privilege rather than a right, it can easily become an expectation. Professors often invest years of their lives completing specific tasks aimed toward the achievement of tenure.
If you’ve worked hard to fulfill every role and meet every requirement asked of you and find yourself denied tenure while others seem to get approved with lesser effort or weaker credentials, it is only natural to wonder whether you have been unfairly discriminated against in some way. So what should you do? File an appeal? File a lawsuit? Or just accept the injustice?
The answer depends on numerous factors, so it could make sense to consult an attorney who handles discrimination cases in academic settings. Even when a lawsuit is not necessarily the best approach, an attorney can often negotiate a solution that provides the remedies you need and the sense of justice you deserve.
Discrimination Under Title IX and Title VII
Two federal laws and regulatory schemes are designed to protect professors from illegal discrimination in the course of their employment. Title IX of the Education Amendments of 1972 protects employees at educational institutions that receive federal funding (virtually all colleges and universities in the U.S.) from discrimination on the basis of sex and related factors such as pregnancy. Title VII of the Civil Rights Act of 1964, which was expanded to cover institutions of higher education in 1972, prohibits employers from discriminating against employees and potential employees on the basis of race, color, religion, sex, and national origin. Since the passage of these laws over 50 years ago, numerous regulations, judicial decisions, and guidance opinions have provided some clarity regarding what constitutes illegal discrimination in employment, so it is important to consider an array of information when assessing a situation for actionable discrimination.
Not All Discrimination in Tenure Decisions is Unlawful
One sad truth in employment situations, including academic employment, is that the laws do not aim to ensure fair treatment. Academic institutions, like other employers, are often free to make unfair decisions with no legal repercussions and no remedies available to those harmed.
For instance, if an academic department grants tenure to three family members of the institution’s president, while this may be a gross example of blatant nepotism, it does not necessarily violate the law. An academic institution can favor someone because of their family or disfavor them for a wide variety of reasons. It is only when discriminatory actions are based on factors specifically protected by law such as gender or race that the discrimination becomes unlawful and creates the potential for legal remedies.
Assessing Discrimination in a Tenure Case
Before deciding whether to sue for unlawful discrimination in a tenure decision, it is necessary to assess what the discrimination involved and how it can be proven. Consider questions such as:
- What detrimental actions were taken? In addition to denial of tenure, were there other opportunities or benefits denied to you that were provided to equally or lesser qualified colleagues?
- What legally protected factor formed the basis of discrimination? For instance, were you denied tenure due to your status as a female and the belief that you would focus more on family than your career?
- What evidence do you have that discrimination occurred? (Email messages, witnesses to conversations, etc.)
- Had the department or institution subjected you to harassment in the past, such as allowing ethnic jokes at your expense, refusing to assign you certain assignments because of your sex, or complaining if you requested time off to observe religious practices?
Evidence of blatant discrimination can be extremely hard to come by, so it may be necessary to establish a pattern of conduct to show the existence of discrimination. Even if you have standing to raise the issue of discrimination in the tenure decision, you will need enough evidence to counteract the school’s assertion that the candidates who were granted tenure over you had better qualifications or met the school’s needs in ways you could not.
Filing a Lawsuit is Not Usually the Best First Option but May Be the Only Way to Obtain Relief
For most problems, including discrimination in academic settings, although filing a lawsuit may spring to mind, there are usually other avenues to explore for remedies first. It is important to examine the school’s policies and procedures very closely. They may offer an appeal process. Policies should also provide processes for addressing grievances. For instance, if you believe your Title IX rights were violated, you can file a complaint through the Title IX coordinator. Evidence uncovered during the campus investigation could potentially be used later in a lawsuit if necessary.
Another reason it is important to examine the institution’s policies and procedures closely is to determine whether the school followed applicable policies properly. If they did not, that can provide solid grounds for an appeal on campus or an eventual complaint in court.
If it appears that filing a lawsuit is the only way to achieve justice in your situation, taking the preliminary steps with the close assistance of an experienced attorney will help you prepare to succeed in court. In this type of case, successful outcomes are usually achieved through settlement rather than verdict, because colleges and universities are not anxious to have discriminatory findings issued against them in a court of law.
When You’ve Been Discriminated Against on the Basis of Sex or Other Protected Factors, the Team at Nesenoff & Miltenberg, LLP Knows How to Get the Justice You Deserve
The academic world is fragile and precarious in ways that surprise many people not familiar with the unique atmosphere. At Nesenoff & Miltenberg, LLP, we focus our practice on upholding the rights of faculty, staff, and students, so we understand the unique factors that come into play and the ways that campus policies impact legal rights.
If you believe illegal discrimination is the force behind a denial of tenure or other employment action on campus, we invite you to schedule a consultation to discuss the situation and the ways our team can help you enforce your rights and obtain relief. To get started, call us at 212-736-4500 or contact us online today.