Denied tenure? Know your rights.
If you are a tenure track research academic, you are probably working 60 hours a week or more. You are writing papers, submitting to journals, going through reviews and revisions, publishing your research in top journals, presenting at important conferences, teaching classes and spending long hours serving your University and Department. You’re doing this year after year. All of your annual research and teaching reviews are overwhelmingly positive. Your Fourth Year Tenure Review is highly favorable. When you apply for tenure, your Department votes unanimously that you receive it. A cohort analysis shows you at or near the top of your cohort. External letter writers praise the independence and impact of your research in your field.
Then the unthinkable happens. The Tenure Committee votes down your application based on vague criticisms of your work that were never communicated to you previously. The President affirms this decision. You appeal and the Faculty Appeal Panel finds multiple irregularities in the Tenure Committee’s handling of your application. It writes a report saying that you were not fairly evaluated under your University’s tenure standards. The President throws this report in the trash and upholds the denial. You’ve now spent six years of your life working very hard, only to have the rug pulled out from under you.
Being denied tenure is far 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. Because academic disciplines are tightly knit communities, rejected faculty can find it difficult to get a new job elsewhere in academia. Some faculty are able to continue their careers but only in schools that are considered less prestigious or that offer fewer resources. In disciplines where few jobs are available outside of the academic context, many rejected tenure candidates are forced to change careers altogether.
Sex discrimination, pregnancy discrimination, maternity discrimination and age discrimination are rampant in academia. If you’ve been a good scholar, teacher and colleague only to be denied tenure, and the reasons for the denial don’t seem to be credible, you should consider whether you may have been a victim of unlawful discrimination.
Title VII and the PDA
Title VII of the Civil Rights Act of 1964 provides:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.
42 U.S.C. § 2000e-2(a)(1).
The Pregnancy Discrimination Act of 1978 added that:
The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work
42 U.S.C. § 2000e(k). “Title VII mandates that an employer must put an employee’s pregnancy (including her departure on maternity leave) to one side in making its employment decisions.” Smith v. F.W. Morse & Co., 76 F.3d 413, 424 (1st Cir. 1996).
Academic institutions do not receive special deference under Title VII
Congress and federal courts reject the notion that Title VII protections fade, lessen or diminish in the university setting. The idea that tenure decisions must be accorded special deference was put to rest in 1972, when Congress, expressing concern about widespread discrimination against women in academia, removed academia’s exemption from Title VII scrutiny. Pub. L. No. 92-261 § 3 (codified at 42 U.S.C. § 2000e-1 (1982). “The effect of the elimination of this exemption was to expose tenure determinations to the same enforcement procedures applicable to other employment decisions.” Univ. of Penn. v. EEOC, 493 U.S. 182, 190, 110 S. Ct. 577 (1990).
In Penn, the EEOC sought to enforce a subpoena after the university declined to release materials related to the tenure review process of a faculty member who had raised a Title VII claim. 493 U.S. at 185-87. After holding that tenure decisions are subject to scrutiny under Title VII, the Court rejected “academic freedom” as grounds to object to the EEOC’s subpoena. Id. at 198. The Court ruled that the enforcement of Title VII does not infringe academic freedom because it does not “prevent the University from using any criteria it may wish to use, except those—including race, sex, and national origin—that are proscribed under Title VII.” Id. at 201-02.
At least since Penn, courts have held that “tenure decisions are not exempt” from scrutiny under the civil rights laws, Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir. 1984), and that “universities should not be allowed to use the subjective nature of the tenure process to camouflage discrimination.” Vanasco v. Nat’l-Louis Univ., 137 F.3d 962, 968 (7th Cir. 1998). “Illegal decisions by educational institutions do not enjoy special sanctity. *** A tenure decision is often the most important point in a professor’s career. It would not make sense for courts to subject such a significant determination to less scrutiny than other, less important education decisions.” Tudor v. Se. Okla. State Univ., 13 F.4th 1019, 1039 (10th Cir. 2021). Thus, even “where colleges are concerned,” courts “leave fully open the avenues of relief created by Congress for individuals who have been discriminated against in employment.” Powell v. Syracuse Univ., 580 F2d. 1150, 1153 (2d. Cir. 1978).
As one Circuit Court of Appeal wrote more than forty years ago:
We voice misgivings over one theme recurrent in those opinions: the notion that courts should keep “hands off” the salary, promotion, and hiring decisions of colleges and universities. This reluctance no doubt arises from the courts’ recognition that hiring, promotion, and tenure decisions require subjective evaluation most appropriately made by persons thoroughly familiar with the academic setting. Nevertheless, we caution against permitting judicial deference to result in judicial abdication of a responsibility entrusted to the courts by Congress. That responsibility is simply to provide a forum for the litigation of complaints of sex discrimination in institutions of higher learning as readily as for other Title VII suits.
Sweeney v. Bd. of Trs., 569 F.2d 169, 176 (1st Cir. 1978) (emph. added), vacated on other grounds Bd. of Trs. v. Sweeney, 439 U.S. 24, 99 S. Ct. 295 (1978).
Weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the reasons for tenure denial
Tenure cases often revolve around whether the reasons for denying tenure are pretextual.
Pretext constitutes “affirmative evidence of guilt,” and a jury may “infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Reeves, 530 U.S. at 147. Under the principle of falsus in uno, falsus in omnibus — falsity in one, falsity in all – from the falsity of one reason, a factfinder may disbelieve other reasons. Lipchitz v. Raytheon Co., 434 Mass. 493, 506-07, 751 N.E.2d 360, 372 (2001) (“To meet her burden of proof that discrimination was the determinative cause of the promotion decision, [plaintiff] was not required to disprove every reason articulated by the defendant or suggested in the evidence. She could meet her burden by persuading the fact finder that it was more likely than not that at least one reason was false.”). Evidence of pretext takes many forms, and plaintiffs are not restricted to proving pretext in any particular way. Evidence of pretext is probative, even though it does not explicitly address the presence of discriminatory bias.
“Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Theidon v. Harvard Univ., 948 F.3d 477, 496-497 (1st Cir. 2020). “A decision foolish, imprudent, or incompetent by comparison to the employer’s usual mode of operation can render it implausible, inconsistent, contradictory, or weak.” Fuentes v. Perskie, 32 F.3d 759, 765 n.8 (3d Cir. 1994). Any evidence probative of the employer’s sincerity is relevant, Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 395 (7th Cir. 1998), including evidence calling into question the reasonableness of the employer’s actions. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n. 6 (1st Cir.1979) (“The reasonableness of the employer’s reasons may of course be probative of whether they are pretexts. The more idiosyncratic or questionable the employer’s reason, the easier it will be to expose it as a pretext….”).
As the D.C. Circuit recently explained, in a tenure case, the burden to show pretext “is no more difficult to meet than in any other Title VII case where the employment decision at issue involves complex judgments and numerous decisionmakers are involved. In other words, the Title VII burden is no more difficult to meet because the employer is a university. Although the First Amendment grants a university certain freedoms, the freedom to discriminate is not among them.” Maw v. Bd. of Trs. of the Univ. of the D.C., 441 U.S. App. D.C. 391, 397-98, 926 F.3d 859, 865-66 (2019). See also, Kunda v. Muhlenberg Coll., 621 F.2d 532, 545 (3d Cir. 1980) (“Nothing in the Supreme Court decisions permits the trial courts to require any additional proof by Title VII plaintiffs because the relevant employment decision has been made within the confines of an academic institution. *** Academic institutions and decisions are not ipso facto entitled to special treatment under federal laws prohibiting discrimination.”).
These principles apply with special force where a University’s adverse tenure decision is based on the application of objective criteria and quantifiable metrics. In such cases, the employer’s decisional process is not subjective, but instead is based on measurable numerical data. Kumar v. Bd. of Trs., 774 F.2d 1, 12 (1st Cir. 1985) (judicial review especially appropriate where adverse decision is based on factors “susceptible of quantitative measurement.”).
What to do
Contact an employment lawyer right away. Universities and colleges are covered by the anti-discrimination laws. They can’t deny you tenure because you are pregnant, have had children, have taken maternity leave or for any other reason that the law protects.