Labor & Employment Law Daily Minor variations in Harvard’s tenure review proceedings can’t revive female anthropology professor’s bias suit
Wednesday, February 5, 2020

Minor variations in Harvard’s tenure review proceedings can’t revive female anthropology professor’s bias suit

By Lisa Milam, J.D.

The opinion provides an exhaustive overview of Harvard’s tenure process and affirms summary judgment in the university’s favor in a suit brought by a female professor who was denied tenure.

A federal court properly awarded summary judgment in favor of Harvard University in a discrimination and retaliation lawsuit brought by a female anthropology professor whose application for tenure was denied. In a lengthy opinion outlining in painstaking detail how university tenure decisions are made, the First Circuit found no evidence that minor variations in the usual tenure review proceedings were evidence of pretext for sex discrimination. Nor could a factfinder conclude the adverse decision was reprisal for the professor having voiced concerns about gender disparity in her department, or for advocating on behalf of sexual harassment and assault victims on campus. Rather, her tenure reviewers simply were not convinced that the professor was showing promise as a scholar who would develop into a leading contributor in her field (Theidon v. Harvard University, January 22, 2020 [released January 31, 2020], Thompson, O.).

The professor appeared to be on track for tenure. In a prior review, she was ranked “outstanding” on most criteria and, six years in, the dean appointed her to a prestigious endowed position reserved for the university’s “most distinguished tenure-track faculty,” noting her appointment was “an honor richly deserved.”

Complaints of gender disparities. Less than a week later, the professor went to the university’s senior vice provost to voice concerns about gender disparities in her academic department, and the vice provost took steps to investigate, including reaching out to the anthropology department and other academic officials. She complained that female faculty were saddled with the “lion’s share” of undergraduate courses to teach and that there was only one female senior tenured faculty member. (Her senior colleague was counseling her to downplay her intelligence and to behave as a “dutiful daughter”—one who “doesn’t complain about the extra workload”—if she wanted to succeed, and she warned the professor that female faculty are judged by a higher standard.).

Campus activism. Meanwhile, the professor was a vocal opponent of the “toxic culture” of gender discrimination at Harvard and was active in efforts to improve the university’s response to allegations of sexual misconduct on campus. She presented at conferences addressing the issue and regularly blogged and tweeted about sexual assault, including on campus. She never received any pushback or criticism from Harvard officials for her activism—except for that tenure denial, she contended, in a suit alleging sex discrimination and retaliation under Title VII, Title IX, and Massachusetts law.

Research failings. Looking ahead to her tenure application, her department had expressly advised the professor to publish more—in her specific field in particular, and especially major anthropology journals. She already had one published book under her belt, and she asked that her tenure application be put off one year so that her second book, which was in progress, could be published first. But even though her second book was published shortly after her academic materials were distributed for outside reviewers, several of these scholars noted that her second book was largely a rehash of her first, rather than a new body of research; as such, she did not meet the criteria that she have a second research project “substantially underway.” Moreover, while she had published numerous articles in human rights journals, she did not meet the specific recommendations for publication in peer-reviewed anthropology journals. In the end, her body of academic work had “failed to reflect progress” in the recommended areas.

Irregularities. Below, and on appeal, the professor pointed to several irregularities about the tenure review proceedings that in her view suggest pretext. For example, the review committee first circulated a draft describing the professor’s retention as “a matter of importance” to the department and the university; a revised draft described retaining the professor as “a matter of necessity.” Yet it was the earlier draft that made its way of the tenure chain of review.

But this was, at most, “an administrative error,” the appeals court said, “but not one from which a reasonable jury could glean a perceivable or demonstrable motivation” of discrimination—and ultimately of little significance, as the record suggests the tenure denial had little to do with the “conclusionary verbiage” of the committee’s report “and a whole lot to do with the external committee members’ professional determination that [she[ had not made a substantial contribution to her field either in terms of publications in leading journals or progress on a second major research project."

She also said that Harvard imposed a stricter publication requirement for tenure, so that she needed a second published book for tenure (one that had not been imposed on male faculty during tenure proceedings in years past). But this assertion was a misstatement of fact. The university did not newly impose a "two-book standard." Its standard continued to be one book and "substantial progress on a second research project in her field." Her second published book was largely an English version of her first book, which was written in Spanish, and appeared to be "more of the same" to several reviewers.

Disparities. The professor said the male anthropology candidates who came up for tenure were treated differently; while not all of her journal articles were sent out to external reviewers, the male faculty had "a more robust selection" of their work, in fact, a "full set of materials" were handed over for evaluation. But her male comparators were not similarly situated; she was in social and medical anthropology, while the male faculty she pointed to were in "visual and sensory anthropology" and archaeology. "In academia, the differences between subfields matter," the appeals court noted.

"Hail Mary" evidence. The professor pointed to a discriminatory work environment within the anthropology department, citing her female colleague’s admonitions to behave like a "dutiful daughter" and the provost’s own observation of the lack of diversity in the department (a notion seconded by a visiting committee on diversity). But, notwithstanding her "early on ill-advised mentoring advice," the senior faculty member was a "zealous advocate" for the professor’s tenure case throughout the process. Also, the stated diversity concerns were too general, not sufficient "to constitute circumstantial evidence of discriminatory animus" against the professor, in particular. Thus, the appeals court rejected this "Hail Mary evidence."

No retaliatory animus. As for her contention that the tenure denial was rooted in her complaints of gender disparities and campus activism, there was no evidence the voting members of the tenure committee were aware of her complaints before they made the recommendation to deny tenure. Two non-voting department members involved in the deliberations knew about the complaints, but there was no evidence (based on notes of the proceedings) that the issue arose. Nor was there evidence the university president factored the professor’s activities into the final decision. The professor argued cat’s paw liability—the department chair seemed to grow less enthusiastic about her tenure chances as the committee proceedings wore on—but, as a factual matter, this theory was unsupported. The professor could not establish causation.

Rule 59( e) motion. Finally, the appeals court found the district court properly denied the professor’s motion for an altered or amended judgment. After The Chronicle of Higher Education published a "watershed investigation" about reports of sexual harassment by a male anthropology professor—a former mentor of the plaintiff—several more women came forward accusing him of sexual assault. The plaintiff sought to amend summary judgment and reopen discovery to look into his misconduct.

The accused professor played an instrumental role in her tenure denial, she posited, in retaliation for the professor encouraging survivors of sexual harassment and violence to come forward, "which purportedly threatened [his] position as a respected administrator and scholar. However, the lower court found no new evidence connecting the male professor to her tenure denial or her reprisal claims. Finding no abuse of discretion, the appeals held the district court properly denied her motion.

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