By Lorene D. Park, J.D. Irregularities in a university’s tenure review process, including excessive commentary on an employee’s family leave, as well as evidence that similarly situated individuals outside her protected class fared better, led a federal court in Pennsylvania to deny summary judgment on her Title VII and state law claims that she was denied tenure due to stereotypes relating to women with childcare responsibilities. However, the court granted the university’s Daubert motion to exclude her expert’s testimony on the issue (Childers v. Trustees of the University of Pennsylvania, March 21, 2016, Pratter, G.). The assistant professor of history at the University of Pennsylvania had previously taught at other well-known schools, had published one book, and was in the process of publishing a second in her area of specialty, 20th century France. In 2004 she took a leave of absence for the birth of her first child, during the 2005-06 school year she did not teach but focused on research and publication, and in 2007-2008 she taught half-time due to the birth of her second child. She did so again in 2008-09 due to her first child’s autism diagnosis. She was twice denied tenure, once in 2008 and again in the 2009-10 academic year. Filing suit under Title VII and the PHRA, she claimed tenure was denied due to stereotypes relating to women with childcare responsibilities. Tenure process. The university’s tenure process involves several stages. First, the history department solicits recommendations from external reviewers in the field. A three-person committee considers the reviews and the candidate’s dossier, and the department makes a recommendation to the dean of the School of Arts & Sciences (SAS). The dean also reviews a recommendation from a separate SAS committee made up of members from three disciplines (humanities, social sciences, and natural sciences). The dean forwards the case to the provost with a recommendation and the provost meets with the provost staff conference, which consists of several deans and vice provosts, to make a decision. If the provost decides in favor of tenure, the candidate is presented to the university trustees for a final decision. Employee’s process dwells on family leave. As to the employee’s tenure, the department faculty voted 21-11 in favor, but the personnel committee voted 9-0 against, noting concerns with scholarly productivity after the 2003 publication of her first book. The second time, the employee prepared a new dossier, noting her second book was accepted by Oxford University Press. This time, the history department voted 26-5 for tenure. As for the SAS committee, the humanities subpanel expressed concern about her productivity and was informed about her family leave. The subpanel asked questions and the department chair elaborated, disclosing her child’s autism. The SAS committee voted in favor of tenure, but still expressed concerns about her productivity and visibility, including her lack of travel to the French venues. Ultimately, the dean sent a letter of support to the provost, noting the difficulty of assessing the employee’s productivity in light of her family leave. The provost staff conference advised against tenure and the provost agreed. The employee filed a grievance and a university grievance commission concluded that the references to her leave of absence did not comport with policy and “unfairly amplified the issue” of her leave. It recommended her case be reevaluated with a different decisionmaker and different committee members. The provost did reconsider her case, redacting references to her family leave, but did not recuse himself or ensure that the conference contained different members. She was again denied tenure. Daubert motion granted. In support of her discrimination claims, the employee offered a gender stereotype expert who focused on how stereotypes of women with childcare duties affect women in the workplace. She examined the tenure process and found characteristics that could have opened the door to stereotyping, including the lack of HR involvement; the emphasis on family leave; and lack of specific, objective standards. The university moved to exclude arguing her report involved general observations and unfounded speculation on the existence of bias. It asserted that she failed to look at key information, including the university’s record of promoting women with childcare duties or the dossiers of the employee and her comparators. After reviewing various cases involving expert testimony on social stereotyping, the court found the testimony should be excluded. Because the expert did not review data such as information relating to similarly situated individuals, her conclusions were not supported by sufficient evidence. Also, her methodology of sifting through evidence to find passages supporting the employee’s theory did not meet Rule 702’s reliability requirement. The court further found that the expert’s analysis of the tenure process was beyond her expertise. As such, it would not assist the trier of fact and might even cause confusion, given how speculative her conclusions were. Comparators, comments on family situation raise questions. Denying the employer’s motion for summary judgment, the court found it significant that a male tenure candidate who had less favorable history department support than the employee, and about whom productivity concerns were raised, had still received tenure. Other comparators, such as women without family leave who received tenure and may have been judged less harshly than the employee, also supported her claim. Between the excessive commentary on her family leave in the tenure review record and the potential similarly situated comparators who were treated more favorably, the court found that she made out a prima facie case of discrimination. And while the university asserted that insufficient productivity, scholarly impact, and visibility, including the failure to publish sufficient articles, were legitimate reasons for denying tenure, the court found triable issues on pretext. For example, the employee’s family situation was widely discussed in the tenure process, so much so that the grievance commission found the discussions inappropriate and granted her a reevaluation. In addition, there were successful tenure candidates outside her protected class who had similar publications records, and productivity did not appear to be a concern for external reviewers or the history department itself, which is more book-focused than article-focused. Based on the foregoing, the sex discrimination claim survived.
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