Legal question (re: employment law arena)

[sturt]

A friend of mine is the Chair of a university department. She accepted and began working in that capacity only two years into a tenure-track contract. It is unusual but not unheard-of for a tenure-track faculty member to be invited to take that role, largely because of the implications to the person's ability to meet expectations sufficient to gain tenure at the point that they must go up for review. And that's because "expectations" are related in academia to three areas specifically: teaching, research and service. Administrative responsibilities are not considered.

 

So, she accepted the position, understanding that that was the case, though also anticipating that, if not formally, there would be some natural accommodation in the reasoning of the faculty reviewing her dossier just by virtue of fairness.

 

When her first annual review was completed by her supervisor (ie, the Dean), she became aware that the administrative element of her job as Chair was fixed at precisely 50% in the university's annual review instructions--which she thought was a fair assessment. (The other three elements could vary to some degree between 5 and 30%, as long as it all added up to 100%).

 

Here's the rub.

 

All tenure track faculty have 100% of their time over the course of 5 years to devote toward meeting the expectations of tenured status.

 

My friend, given that she was asked to take on the Chair role, received that for her first 2 years, but by definition of the role, was only allowed 50% of the last 3 years to accomplish that. So, in essence, she was disadvantaged to the tune of 30% less time overall.

 

Within this last couple of months, she received word that she was being denied tenure, and will have to leave following this next academic year (summer 2016). She appealed based on this disadvantage that I just stated, but learned this week that her appeal was rejected. The letter she received, of course, did not divulge administration's reason for denying the appeal, other than to acknowledge that the university's handbook does not allow for any modification of the tenure process in spite of her situation, and that her appeal presentation did not persuade them that the university has broken any federal or state laws by virtue of their decision.

 

I'm inclined to think that she might have a case, though, if she were to pursue this in court--it seems to me that the university basically used her to not have to conduct an external search for the position when it became open, and did not make any allowances on the back end to compensate for her disadvantage compared to others who are tenure track.

 

Appreciate others' insight. She has the complete support of her department's faculty as well as me and the other chairs in the college, so it's not one of those nod-and-wink situations where they're just trying to wedge the person out. This has me boiling, but maybe I'm just not seeing it clearly. I have a meeting with her soon to discuss some inter-departmental things. I'm almost sure she will look for my advice.

 

Especially if you have some legal background, I'm interested to know how you would advise her(?).

Edited June 16, 2015 by sturt

[AHF]

This would probably be fact dependent.  Generally, an employer can do what they want unless there is a contract otherwise (such as just cause language in a CBA or an employment contract with an individual, etc.).  So most of the law revolves around disparate treatment where a woman is treated differently than a man, etc.  I don't see enough here to see that anyone was similarly situated and treated differently.  With the proviso that there may be other key facts, this seems to be more about unfairness.  It doesn't appear that there was a binding promise made to consider the administrative time for tenure review so it seems unlikely that there is a breach of contract claims unless there is more to this.  Academia is notorious for denying tenure to good teachers and administrators in favor of those with superior publication records.  I'm not sure if this is the primary driver for your friend.

 

So I'm not seeing a slam dunk legal case against the University but her position will be much stronger if you can find some people for whom special accommodations were made (someone had to miss time due to leave, etc.) who were granted tenure.  If they have simply flushed everyone without the necessary publications, she has probably gotten railroaded unfairly but doesn't have a clear legal claim just like professors who knocked it out of the park delivering for their students but fell short in other areas.

[sturt]

Thanks, @AHF.

 

Closest I can come to that is that the University decided a couple of years ago to allow special accommodations (one year extra time) to individuals who had family circumstances (ostensibly, caregiving for an elderly parent) arise that they believed would naturally impose on their capacity to amass a sufficient research agenda.

 

Does that somehow matter, in your opinion?

[AHF]

Thanks, @AHF.

 

Closest I can come to that is that the University decided a couple of years ago to allow special accommodations (one year extra time) to individuals who had family circumstances (ostensibly, caregiving for an elderly parent) arise that they believed would naturally impose on their capacity to amass a sufficient research agenda.

 

Does that somehow matter, in your opinion?

 

If they allowed that to men, etc. but didn't allow it to her then she could make a case for that.  She could make the argument anyway but it would be stronger as a legal claims if she could show disparate treatment on the basis of some protected characteristic.

[sturt]

If they allowed that to men, etc. but didn't allow it to her then she could make a case for that.  She could make the argument anyway but it would be stronger as a legal claims if she could show disparate treatment on the basis of some protected characteristic.

 

All good.

 

To my knowledge, she isn't going to pursue any litigation. And, sounds like, you would probably recommend that I not encourage her otherwise(?).

 

My guess is that all that is going to happen is several will sign a petition to the system chancellor that the language in the faculty handbook get changed for future reference... probably won't help her, but it certainly needs fixed.

[AHF]

All good.

 

To my knowledge, she isn't going to pursue any litigation. And, sounds like, you would probably recommend that I not encourage her otherwise(?).

 

My guess is that all that is going to happen is several will sign a petition to the system chancellor that the language in the faculty handbook get changed for future reference... probably won't help her, but it certainly needs fixed.

 

Maybe you guys can do something that will help her land on her feet, too.  A narrative that she sacrificed some of her tenure resume to step in when the tenured professors wouldn't take on the administrative responsibility isn't the worst story (reinforces team player, etc.).  

[sturt]

Yep. Already on it.

[AHF]

Best of luck with it!