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Suing employer is not for faint of heart

By Susan Llewelyn LeachStaff writer of The Christian Science Monitor / November 24, 2004



When Carol Stepien, a prolific biology professor who churned out research papers and fresh scholarship, applied for tenure at Case Western University, her department's all-male faculty, while acknowledging her accomplishments, turned her down. The reason, they said, was lack of collegiality.

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She appealed the decision, filed a complaint, and eventually brought a lawsuit. The nub of her case: sex discrimination.

Hers is one of 19 lawsuits discussed in a new report: "Tenure Denied: Cases of Sex Discrimination in Academia." Put out last month by the American Association of University Women (AAUW), it shines a light on the rarely studied area of denied tenure applications in higher education. Yet the issues behind these sex-discrimination cases are largely the same across the employment arena. And 40 years after the Civil Rights Act was passed with its Title VII protections against discrimination, the number of cases is still rising across all industries. According to the US Equal Employment Opportunity Commission (EEOC), sex-based discrimination charges have gone up 12 percent in the last decade.

Workplace hostility, pregnancy discrimination, and harassment are some of the most common complaints. At the same time, sex discrimination has grown less transparent over the years and as a result sometimes harder to prove.

"The discrimination in the '80s was more overt, obvious discrimination that everyone would understand on a basic gut level," says Leslie Annexstein, director of AAUW Legal Advocacy Fund and one of the authors of the report. "The discrimination that women face today is more subtle and often harder to identify in the legal sense."

Carol Stepien's experience is a case in point. The "lack of collegiality" accusation on closer examination turned out to be more a comment on how her department operated as "an old boys' club." She was expected to play the typical female role of making the faculty feel comfortable, the report says. "When women don't make faculty feel comfortable, faculty 'register that as being difficult.' "

Ms. Annexstein adds: "Typically, once you pull apart the issue of collegiality, what it often ends up meaning for these women is that they did not conform to stereotypes."

If collegiality is a new "legally sanctioned wild card for discrimination," as the report describes it, Stepien's case is unusual in that she won. Only two cases (11 percent) reviewed in "Tenure Denied" won in court. Eight (42 percent) lost their claims; seven (37 percent) settled out of court; and two (11 percent) are still pending.

That relatively meager rate of success is reflected in national figures. Of the 24,000 or so sex-discrimination cases filed with the EEOC last year, 57 percent were dismissed as having "no reasonable cause," and a further 20 percent were closed without resolution (although EEOC determinations are not binding in court).

"If you look at statistical evidence," says Jocelyn Smith, vice president of the National Women's Law Center in Washington D.C., "it's quite clear that women still confront a glass ceiling."

Part of the issue in these types of cases is distinguishing between poor decisionmaking and actual discrimination. "Back-scratching, ... institutional politics, envy, nepotism, spite, or personal hostility, while "unattractive" reasons for making a decision are not discriminatory, the report points out.

Added to the difficulty in proving discrimination are the financial and personal costs. Most employers have deeper coffers and greater legal resources to fight a case than do would-be plaintiffs.

Of the tenured cases reviewed in the report, the average cost was $50,000 to $100,000. One woman, Beth Kern, who lost her case against the University of Notre Dame, ran up $170,000 in legal bills. Her comment: "Be prepared to place yourself at substantial financial risk."

That imbalance is somewhat redressed in class-action lawsuits, where a whole group sues an employer, making it easier for individuals to take legal action. Also, cases that reach jury trial are more likely to get awarded punitive damages, if successful. But those sex-discrimination cases that catch the media's attention - class action suits like the current ones against giants Walmart and Costco - are only a sliver of the number brought by individuals and often settled out of court.

"The Status of Women in the States" - a report released last week by the Institute of Women's Policy Research, which looks at women's political, economic, social, and health status - concludes that it will take 100 years for women to reach full equality.

The findings of "Tenure Denied," while not that bleak, suggest that even though women now make up more than 50 percent of students and faculty on campus, and appear to "have arrived," as Annexstein puts it, they are still scarce at the top. "When you look at this level that really controls higher education," she says, "you don't see a lot of women in those positions."

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