32, no. 3 (Spring 2001): 57-58
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Legal Issues Confronting Academic Department Chairs
MAXINE COLM
BY WAY of introduction, let me say that I have spent my professional life in higher education administration handling legal matters for colleges and universities and working closely with department chairs to develop collegial relations with their faculties. In my view, when academic personnel decisions are made, the role of the department chair is the most difficult one in a college or university. Chairs are at once faculty colleague and supervisor when difficult issues arise. In the following, I identify some broad areas, a legal framework if you will, that affect all department chairs when they deal with academic personnel matters.
First, we all recognize that the hiring and reappointment process is at the core of building and maintaining the highest quality of faculty members. The search process legitimizes appointments, connects the department and the institution, and permits diversity to be more than an abstract goal. Conducting an effective search is not easy, but adherence to well-understood procedures can help assure that the best candidate is hired and can also reduce potential litigation from candidates not selected for a position.
After the hiring process, virtually every college and university has a system of annual faculty evaluation designed primarily to determine salary adjustments—one that is linked to departmental goals and individual faculty members’ workloads. These systems are based on performance in teaching, research and scholarship, and service. Again, to avoid litigation, it is critical that annual evaluation criteria be well-communicated and clearly understood by the department’s faculty members and implemented fairly. This is especially true for midprobationary reviews and, of course, for the promotion and tenure decision itself. From a chair’s perspective, careful adherence to written criteria and procedures can greatly reduce grievances or litigation flowing from these personnel actions.
It is also important to note that even though academic employment decisions concerning hiring, promotion, and tenure may be subject to external review, most federal and state courts defer to academic judgment when such decisions are contested. For example, in a 1998 case, Bickerstaff v. Vassar College, an African American associate professor with a joint appointment in the Departments of Education and Africana Studies challenged the college’s decision to deny her promotion to full professor, alleging both race and gender discrimination. The court found that the college had provided sufficient evidence of nondiscriminatory reasons for denying the promotion (lack of research productivity and poor student evaluation scores) to uphold the professional judgment of the college on the paucity of research quality. The court stated that universities have the autonomy to set their own standards for promotion and tenure decisions. There are a number of similar decisions on the books. Although courts tend to defer to academic judgment when personnel decisions are challenged, complaints will be filed, and department chairs are often required to give testimony at internal grievance hearings or before a state or federal agency or in court. It is, therefore, important to be aware of the statutes that permit faculty members to file such claims in external forums.
Under Title VII of the Civil Rights Act of 1964, claims of sexual discrimination or sexual harassment or both have been frequent sources of litigation by faculty members in recent years. Two major cases decided by the Supreme Court in 1998, Faragher v. the City of Boca Raton and Burlington Industries v. Ellerth, have increased the liability of supervisors (i.e., academic department chairs) when sexual harassment is alleged and no negative employment action has been taken. In both these cases, supervisors had made numerous offensive remarks based on gender. Neither plaintiff filed an internal complaint with the employer; each had been promoted before resigning and filing a sexual harassment claim under Title VII. Before 1998, there had to be a “quid pro quo” (e.g., sex in exchange for a grade) or a hostile environment demonstrated before a complaint of sexual harassment received scrutiny. At the University of Delaware, we used to require a signed complaint before an allegation of sexual harassment would be investigated.
With the 1998 Supreme Court decisions, universities became vicariously liable for actions caused by colleagues or supervisors even if senior administrators were not aware of the incident. Merely making an outright allegation of sexual harassment is now sufficient to initiate an investigation; at Delaware, we dropped the requirement for a signed complaint from the university’s sexual harassment policy.
The law now places a new burden on supervisors and especially on department chairs who previously may have elected to handle such matters collegially. Gone are the days when a chair can merely talk with a colleague about alleged improper behaviors—knowing “old Joe” and his proclivities won’t resolve the matter. It is now incumbent on a department chair to make known to deans, vice presidents, or persons who hold positions similar to mine that such an incident has occurred. Failure to do so will place your university at risk. Know too that these court decisions have also been applied to allegations of harassment and discrimination on the basis of race, color, national origin, and religion. In other words, it is the academic manager’s burden to investigate or cause to be investigated such claims and then to assure that appropriate action is taken.
As a general rule, department chairs should undertake such an investigation, do so with the utmost confidentiality, and follow the procedures in place at their colleges or universities. I also recommend that there be a “note to the file” whenever an individual is interviewed about a claim of sexual harassment or any other form of discriminatory behavior. The note need not be long, but it should outline the salient facts and be signed and dated by the chair. Such notes will be invaluable to the university attorney should a matter be litigated.
Another evolving area of employment law is the 1992 Americans with Disabilities Act (ADA), especially as it applies to students with physical handicaps. Department chairs need to be sensitive to the student who—due solely to a handicapping condition—cannot complete a course of study. The student can make a request for a reasonable accommodation to assist in overcoming the disabling condition and the burden for evaluating such requests falls on the college or university, not on the student. It may well be that the campus administrator who oversees this area of student concern will want to consult with the chair if a faculty member does not wish to make such an accommodation (e.g., extending test-taking time, changing the locus of the examination to provide a quieter environment, providing a tutor). It is the chair’s responsibility to work with both parties and to assure that reasonableness prevails. Indeed, a standard of reasonableness also applies to study abroad opportunities. For example, case law suggests that a sign language interpreter must be provided for a deaf student if study abroad is part of a curriculum offering. In other words, ADA requirements do not stop when students study in another country.
A word about e-mail and Internet access. Many faculty members do not realize that a university can be liable for the circulation of harassing or discriminatory e-mail messages and Internet images. Merely deleting a message or a file does not necessarily delete it from the larger system; mail messages can and will be subpoenaed during litigation. Moreover, faculty offices are not sacrosanct and a chair may well have to tell an offending faculty member that viewing pornographic materials that can be seen by colleagues or students will not be tolerated. Creating a sexually hostile work environment by downloading explicit materials from the Web is just as damaging in a claim of sexual harassment as having a pin-up girl affixed to an office wall. Know also that downloading child pornography is a federal offense and requires immediate notification of the FBI.
Another area that we often do not think about in terms of litigation is the Age Discrimination in Employment Act (ADEA). Uncapping the working years of the tenured workforce occurred in 1994 when the ADEA was applied to higher education. That means that barring incompetence faculty members can work until they wish to retire. Thus discussions by a chair, whether about the virtues of retirement or by coupling an upcoming posttenure review with retirement, can result in a claim of age discrimination, one of the most difficult to rebut. Chairs would well be advised never to initiate retirement discussions, however well meaning, with a faculty member. A charge of age discrimination may be just around the corner.
There are other areas that can result in litigation that one might include under the overall umbrella of managing the academic department. I think here of a colleague with a drinking problem; the newly hired faculty member who is denied a leave for parenting that stops the tenure clock; or the colleague who cannot get along with anyone in the department and suggests that academic freedom allows protection from behaving civilly in interactions with others. Whatever may be the issue, close attention by the chair to university procedures and a large dose of common sense and fairness can help guide the department successfully through the shoals of potential grievances or litigation or both.
© 2001 by the Association of Departments of Foreign Languages. All Rights Reserved.
ADFL Bulletin 32, no. 3 (Spring 2001): 57-58 |
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