Oklahoma Jury Awards Transgender Professor $1.1 Million in Tenure-Denial Discrimination Suit

In 2015 we blogged about a lawsuit filed by the Department of Justice on behalf of a transgender professor, Rachel Tudor, who was denied tenure by her institution Southeastern Oklahoma State University.  At the time, we found it noteworthy that DOJ was taking the position that Title VII's prohibition on sex discrimination necessarily includes discrimination that targets someone for their transgender status, and we noted that a favorable outcome in this case would benefit transgender litigants under Title IX as well. 

2015 seems like a bygone era when it comes to the government's enforcement of civil rights, so it is particularly heartening to report that yesterday a jury of eight Oklahomans found in Tudor's favor and awarded her $1.165 million in damages. They reportedly found that the University was liable on three counts: denying Tudor the opportunity to apply for tenure in 2009-10 because of her gender, denying her again the following year because of her gender, and retaliating against her after she complained about workplace discrimination.

This really is a big deal.  A member of Tudor's legal team noted that this is the first transgender discrimination case under Title VII to make it to a jury trial. For her to win -- bigly -- in court that drew its jurors from a state not exactly known for being progressive on LGBT rights, shows that the law and culture are both shifting in favor of a necessary and expansive view of civil rights. 

Study Examines Faculty-on-Student Harassment

Professors Nancy Chi Cantalupo and William Kidder have posted a forthcoming study about an aspect of campus sexual misconduct that warrants more public discussion: the sexual harassment of students by faculty members.  They studied media reports as well as lawsuits and administrative complaints, amassing a data set of over three hundred cases. As they put it in the abstract,

Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.

Here is a link to the study, which will be published in the Utah Law Review.

New University of Oregon Alters Faculty Mandatory Reporting Status

The Chronicle of Higher Education reported today about the University of Oregon's notable decision to amend the responsibilities of faculty member who learn about sexual misconduct in the university's jurisdiction. Currently, faculty members like most university employees at Oregon and elsewhere are required to report to the Title IX Coordinator when a student discloses (or they otherwise learn) that he or she has been sexually assaulted. The trend toward assigning faculty members responsibility as mandatory reporters resulted from the Department of Education's policy statements clarifying universities' obligations under Title IX to respond appropriately to Title IX. Universities had in the past defended some of their failures to respond to instances of sexual assault by claiming that appropriate officials were not aware of what had occurred. So to minimize the possibility that communication gaps could undermine universities' prompt and equitable response, it made statements broadly defining mandatory reporters.  In particular, the Department's 2014 Q&A document requires universities to mandate reporting from anyone who has the "authority to take action to redress sexual violence," or anyone who a student could "reasonably believe" has such authority. Universities have generally interpreted this requirement broadly to include faculty.

But many have criticized the mandating of faculty members' reporting as undermining its intended objective of helping to protect sexual assault victims. Some believe that students expect faculty members to honor requests for confidentiality and feel betrayed when a faculty member is not able to do so because of policies that require reporting. It is possible that the fear of such betrayal deters victims from reporting. On the other hand, the fear that the university will not respond is also believed to deter victims from reporting. So universities must address this issue with care.

The University of Oregon believes its new approach, will takes effect this fall, will do a better job encouraging students to disclose without undermining the communication required to initiate an institutional response. Faculty members will neither be mandatory reporters nor fully exempt from reporting, but will have the ability to use discretion to decide the reporting question. As the Chronicle summarized, "If a student says she was raped but isn’t ready to a report it, her professor can generally honor that request." But the faculty member must also provide the student with information about reporting, as well as other resources, and they must even consult a campus health counselor to make sure they have done everything they can to help the student.

Even with those other responsibilities in place, what still worries me about this policy is that when information is not channeled to a centralized office, fewer people are in a position to notice the kinds of patterns that could reveal a genuine threat. What if three different students confidentially report to three different professors that they have been sexually assaulted by the same student? If the reporting students do not know about each other, then neither will the professors. The professors will therefore underestimate the risk of not reporting and decide to honor the student's request for confidence. This possible downside of Oregon's new policy is only worth it, in my opinion, if it truly serves to increase reporting overall. I wonder -- and hope -- there is some way to measure the impact of this policy change in order to help accurately weigh the tradeoffs involved.

DOJ Challenges Discrimination Against Transgender Professor

The Department of Justice has filed a lawsuit against Southeastern Oklahoma State University on behalf of a transgender professor who did not receive tenure after she transitioned on the job.  The university had hired Professor Rachel Tudor in 2004 to a tenure-track position in the English Department.  At the time, she presented as a man and went by a traditionally male name.  In 2007, she came out as transgender and began cultivating a female appearance consistent with her gender identity. She was later terminated in 2011 after having been denied tenure by the university.

She then filed a complaint with the EEOC, the federal agency that enforces employment discrimination laws. The EEOC investigated the case and determined that there was reasonable cause to believe that discrimination occurred.  When a settlement could not be reached at that point, the Justice Department agreed to litigate the case, as part of what the agency is calling a "joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII."  The case also provides the Justice Department an opportunity to put into action the position it outlined in a memorandum last December, in which it interpreted "discrimination on the basis of sex" to include discrimination on the basis of "gender identity and transgender status."  This expansive view of sex discrimination goes even farther than the protection some courts have found for transgender plaintiffs on the basis of gender nonconformity or the fact of their gender transition.  

The lawsuit contains several allegations that support the inference that the university's tenure decision was motivated by discrimination. For one, Professor Tudor had been recommended for tenure by her department chair.  At this university, such recommendations are routinely followed, yet in Tudor's case, the Dean overrode the decision.  Also, the lawsuit alleges that someone in the human resources department told Tudor that the Dean asked HR whether it would be permissible to fire Tudor because her "transgender lifestyle" offended his religious beliefs. 

While the case is filed under Title VII, Title VII decisions in the realm of sex discrimination are very influential in Title IX cases.  So a positive outcome in this case could translate to expanded federal protection for transgender students as well.

Court Dismisses Sexual Assault Case Against Northwestern

A federal district court in Illinois has dismissed a female student's lawsuit against Northwestern University that alleges the university did not adequately respond to her report of sexual assault by a professor.  The student claims that when she was a freshman, philosophy professor Peter Ludlow plied her with alcohol and took her to his apartment where he proceeded to kiss and grope her and sleep with her in his bed. The student reported this to another faculty member who informed a university official responsible for sexual harassment prevention. That official conducted an investigation and concluded that the student could not have consented to the professor's advances because she was intoxicated.  In her lawsuit against Northwestern, the student argues that, at that point, Ludlow should have been terminated.  The court, however, disagreed that Title IX required Northwestern to take that particular step. The legal standard for institutional liability in a Title IX lawsuit for damages is that the university respond to notice of sexual harassment with "deliberate indifference." Here, the university sanctioned Ludlow by putting him on leave, denying him a pay raise, prohibiting from having contact with the student in question and prohibiting his social contact  with students overall. Even though the university's response continued to cause the student "considerable grief," it did not qualify as deliberate indifference so as to give rise to liability. The court also denied a second claim that the university took retaliatory action against the student, finding no allegation that the adverse action the student alleged (namely, that she was rejected for a fellowship) was causally connected to her reporting the professor's assault.  Decision: Ha v. Northwestern Univ., 2014 WL 5893292 (N.D. Ill. Nov. 13, 2014).

Though the student's lawsuit against Northwestern has been dismissed, other litigation involving Peter Ludlow remains pending, including a a civil lawsuit that the student has filed directly against Ludlow under the Illinois Gender Violence Act.  Meanwhile, Ludlow has filed various lawsuits of his own.  In one, he sues the university alleging that it discriminated against him in violation of Title IX in the way it handled the investigation and sanctions in the student's case discussed above. This lawsuit also charges discrimination in the university's response to a second student's allegation of Ludlow's sexual misconduct. Ludlow's other pending lawsuit is against that second student for defamation.

The defamation case has raised concerns about the potential chilling effect that the threat of litigation could have on students' willingness to come forward and report sexual misconduct, especially when the accused individual is someone like a professor with the means and resources to respond with a lawsuit of his own.  One way universities could respond to this is to promise to indemnify those students who blow the whistle on sexual misconduct, meaning, that the university would defend them in court and cover any damages assessed.  While some worry this system could operate to let a student get away with filing a false claim of sexual misconduct, the argument in favor of indemnification posits that it's a far worse problem to allow the accused to leverage the fear of litigation to keep victims quiet. It does not appear that any institutions have such an indemnification policy, so it will be interesting to see if the example of Ludlow's defamation case against the student prompts any to adopt one.  

Professors Survive Summary Judgment on Employment Discrimination Claim

Today a federal court in Ohio paved the way for trial in an employment discrimination case filed by two female former professors at Xavier University. The plaintiffs alleged that they were terminated from Xavier University because of their sex and age and in retaliation for filing a complaint against the department chair. In support of their sex discrimination claim, the plaintiffs alleged that while they were terminated, a male professor who had supported and collaborated with them in their complaint against the chair, was not. The federal court denied the Xavier's motion for summary judgment on their discrimination and retaliation claims (and the plaintiffs' attempt to win on the retaliation claim on summary judgment) after determining that a jury could find in their favor. The plaintiffs' Equal Pay Act claim will also proceed to trial so that a jury can determine in fact whether the plaintiffs were paid less than other faculty members for discriminatory reasons.

Decision: Finch v. Xavier University (S.D. Ohio, Feb. 10, 2010).

Professor Settles Discrimination Case Against Penn State

Penn State and a former assistant professor have reached a settlement to terminate the professor's lawsuit alleging that she was not promoted due to discrimination on the basis of her sexual orientation. The plaintiff, Constance Matthews, had applied for promotion and tenure in 2004, after serving as an assistant professor in the College of Education since 1998. But the promotion and tenure committee denied her application, apparently due to concerns with her research, which focused on lesbian and gay issues. Matthews sued, arguing that the denial was motivated by discrimination because she deserved tenure on the basis of the quality of her research and service to the university.

Today it's reported that Matthews will drop her suit against Penn State. However, the terms of the agreement are sealed, and neither side is sharing any information.

If this sounds familiar, it's because it's not the first time we've blogged about a confidential settlement in a lawsuit raising sexual orientation discrimination claims against Penn State. Former basketball player Jennifer Harris's case, which challenged her dismissal from the team on the basis of her sexual orientation, ended similarly. In fact, Matthews's own lawyers recognized that Harris's case might help them establish a pattern of discrimination at the university level, and were able to convince a judge to let them subpoena materials about that case notwithstanding the confidentiality agreement between Harris and Penn State.

Cases often settle before a judge or jury can examine the facts, and that sometimes parties can negotiate more favorable settlements in exchange for agreeing to keep the terms confidential. But I still can't shake the feeling that something is amiss in the Happy Valley and the disappointment in another missed opportunity to expose possible discriminatory practices.

Update 8/26: this post was amended to correct an error that was brought to my attention by a reader. I had posted that Matthews's lawyers were unsuccessful (referring to this prior post) in their efforts to expose discovery materials from the Harris case, when in fact, they did prevail in a motion for reconsideration. I regret the error, especially in light of my co-blogger's post about the judge's reversal of his initial decision!) The materials Matthews's lawyers were able to subpoena from Portland and Penn State remain confidential, so it is impossible to speculate on the extent to which they factored in to the settlement negotiations between Matthews and the university.

Why Do Female Professors Leave the Biological Sciences?

InsideHigherEd.com recently posted an article called Why Women Leave Academic Medicine which describes the efforts of Phoebe Leboy, president-elect of the Association for Women in Science, to understand and ameliorate the lack of women in higher level academic positions -- dean, department chair, tenured professor -- in the biological sciences.

In contrast to the physical sciences, women earn half of the Ph.D.s awarded in biological sciences, so the problem is not attracting qualified women to the field, it's about keeping them there. Family-unfriendly policies and practices that disproportionately affect women are part of the problem, Leboy says. Another key seems to be research project grants, which are disproportionately awarded to male scientists.

The average male researcher, according to NIH data Leboy cited, has 1.4 basic research project grants, compared to slightly less than 1.3 for women. While men and women earn new NIH grants at roughly the same rate, women get “consistently fewer” competing renewals grants than men do. And for every dollar a male primary investigator receives, women get 80 cents.

Female researchers earn 42 percent of the NIH’s lower-level “career development” awards, which is about the rate one would expect given the rate at which they earn doctorates. But they get 25 percent of regular research grants and less than 20 percent of the bigger “center” and small business innovation research grants that the NIH is increasingly emphasizing. And only 17 percent of NIH-funded research centers at medical schools have women as their primary investigator, Leboy’s research shows.

I think these statistics raise some interesting and important questions about whether grant- awarding organizations and universities themselves can do more to ensure all professors are on equal footing when applying for grant money. As one person commented in response to this article, academic practices were created by men and "evolved to be what they are today by virtue of the extent to which they were designed, revised, and maintained to meet the needs and expectations of men." Is it possible that male scientists benefit from this pedigree when applying for grant money? Is it easier for men to rely on existing social networks for advice and support in this area? Does the application process create unnecessary barriers to entry for some women? Are there mechanisms to ensure that decisionmakers don't engage in gender stereotyping when comparing among applicants?

I hope that Leboy and others continue to shed light on the gender disparities in research grants, which seems like a predicate to dismantling the structural inequalities in the academic sciences.

Johns Hopkins University Strives for Gender Parity

Insidehighered.com recently reported on John Hopkins University's 2006 Report of the Committee on the Status of University Women, in which JHU outlines its plans to "achieve a 50% representation of women in senior faculty and leadership positions and gender equity with respect to every measure of career satisfaction and advancement" by the year 2020. Presently women constitute 36% of faculty members, 18% of full profesors and 15% of department heads. JHU says parity in leadership is more realistic first step because "leadership turns over much more frequently than faculty."

Via Feminist Majority Foundation/Feminist Daily News Wire.

See also AAUW's recent report on underrepresentation of female faculty, which we blogged about here.

Women Professors Underrepresented on Faculties and Earn Less than Men

Earlier this week, the American Association of University Professors released its report on gender equity in college and university faculties.

AAUP found that women hold 24% of fulltime, tenure-track professor positions in the United States even though (thanks in large part to Title IX) they earn more than half of all graduate and professional degrees. On the other hand, women are overrepresented in non-tenure track faculty positions, which offer less compensation and job security. Institutions that are closest to parity are those that grant associate degrees while institutions that are farthest from it are universities that award doctoral degrees.

None of this is bad news is particularly surpising to anyone who spends time in or around a college or university campus. But I had no idea that salary disparity was this bad:

In 2005-06, across all ranks and all institutions, the average salary for women faculty was 81 percent of the amount earned by men. This comparison has remained virtually unchanged since the AAUP began collecting separate salary data for women and men faculty in the late 1970s

Even comparing only full time professors to other full time professors, women still earn 88 cents on the dollar. AAUP suggests these disparities are influence by the salary disparity between doctoral degree universities, which pay higher salaries, are less likely to hire women than community colleges, which pay considerably less. Women are also underrepresented among senior faculty, who are compensated more. It continues:

Although it is not appropriate to attribute this remaining differential to discrimination on the basis of this evidence alone, the statistical analyses clearly leave a series of questions unanswered: Why is the proportion of women faculty holding doctorates smaller than the proportion among men? Why are women less likely to obtain full-time tenure-track positions? Why are they less likely to be employed in research universities? Why do women faculty generally spend more of their time on student advising and committee service than do men? Why do positions in the disciplines in which women faculty are concentrated generally pay less? Why are women less likely than men to earn tenure and promotion to full professor?
Why do they earn less on average at every rank than their male counterparts?

These are all good questions that need probing before post-feminists declare that the glass ceiling in education has been shattered.

Science, Engineering, Man, Woman

Another follow-up to the posts (September 18 and 28) on the report by the National Academy of Sciences that women pursuing academic careers in the engineering and science fields suffer discrimination in hiring, support and promotion (the report recommends that the federal government step up enforcement of regulations such as Title IX to help address the problem).

In the last post on this subject, we addressed New York Times' columnist John Tierney's claim (Sept. 26, 2006) that the innate differences between the genders in terms of ability and desire to pursue careers in science and engineering are responsible for any disparity in hiring and promotion in academia.

Further argument that Tierney's "innate abilities" argument (echoing the views of former Harvard president Larry Summers) does not compute comes from Travis Butterworth and Dr. Rebecca Goldin on Stats.org, analyzing the statistics behind assessments of abilities in the math and science fields.

Their article crunches the numbers and explains how, among other things, SAT scores should not be a proxy for innate ability to think at the highest levels of mathematics or science. It also asks pointed questions for those who assume that innate difference, not discrimination, is the driving force behind academia's gender gap in science and engineering. For example, Butterworth and Goldin note that the numbers of women succeeding in those fields has been steadily increasing over time -- if only innate differences were at work, what explains that change? Additionally, studies in other countries, such as Japan and Iceland, show different results in the levels of achievement between boys and girls on standardized tests (in Japan, there's no gender disparity, and in Iceland, girls score higher than boys). Looking at those findings, the "innate ability" argument, without at least some component of considering external factors such as discrimination and how the tests are structured, becomes less and less credible.

More on the Report by the National Academy of Sciences

A follow-up to the post on September 18 regarding the National Academy of Sciences' report that women pursuing academic careers in the science and engineering fields suffered from gender discrimination in hiring, support and promotion (and that more enforcement of regulations such as Title IX was necessary to begin addressing the issue): more media attention has been given to this report, in the form of an op-ed piece by New York Times columnist John Tierney (subscription required), entitled "Academy of P.C. Sciences."

Essentially, Tierney dismisses the findings of the National Academy as a triumph of politics over hard science on three grounds:
(1) The expert panel was made up of mostly women, with one male panel member, who Tierney assumes has been appointed because he agreed that with the panel's "pre-ordained conclusion." The view that an expert panel comprised primarily of women is unable to produce an objective report on issues dealing with gender is utterly patronizing. Frankly, if society chose to disregard every report or commentary on gender issues that was authored primarily or only by men, we would all be doing a lot less reading (Tierney's column included).
(2) There is some data that show that when a woman is up for tenure, she has similar odds to a man of being approved. Tierney doesn't cite conflicting data, nor does he address the other concerns of the panel, namely issues surrounding hiring, support and (non-tenure) promotion.
(3) Some studies have shown that boys and girls in high school who excel in math and science courses tend to be interested in different career fields, with boys gravitating toward "abstract theoretical pursuits" and girls generally showing more interest in fields that involve "social values" and "people contact." There are certainly many scholars and commentators who believe that inherent gender differences play some role in this decision-making process, but how that translates into Tierney's wholesale dismissal of the reports findings, which involve not only what fields women are interested in, but how women are treated once they pursue a career in that field, is inexplicable.

Title IX and University Hiring & Promotion

To study the status of women in science and engineering, The National Academy of Sciences commissioned a panel of experts in these fields, which completed its report recently. The panel's findings were that women pursuing careers in science and engineering, particularly in the academic setting, were being hindered by "bias" and "outmoded institutional structures."

The panel noted that although women now account for more than 50% of bachelor's degrees in science and engineering, they account for less than 20% of full-time faculty positions at universities. The percentages for women of color are far more disturbing, as the panel noted their presence to be virtually "non-existent" at many universities. The panel attributed some of the disparities to the difference in expectations of women in academia, and to both subtle and overt discrimination in the hiring, promotion and support of women.

The National Academy's panel offered numerous suggestions for improving the situation, including, among other ideas, that federal enforcement agencies, such as the EEOC, Department of Education, Department of Justice, Department of Labor, and their various civil rights offices, provide the technical guidance necessary to help universities achieve gender balance, investigate complaints promptly, and take measures to make sure that anti-discrimination laws (such as Title IX), are being enforced.

Interestingly, Title IX isn't mentioned by name in the summary of the panel's findings, although it's one of the best-known vehicles to combat sex discrimination in academic settings. Is it possible that Title IX has become synonymous with women and sports, and that people don't (or don't want to) associate it with issues of non-sports-related discrimination at schools and universities?