Case Updates

 

SINGLETON VS. REGENTS OF THE UNIVERSITY OF CALIFORNIA

 

The Regents of the University of California have approved a settlement agreement for Singleton et al., a class action lawsuit filed almost five years ago alleging gender discrimination at the Lawrence Livermore National Laboratory which is managed by the University of California for the Department of Energy. An Associated Press article puts the total financial cost of the settlement as $17.9 million, plus a 1 percent raise for the lab's 2,500 female employees, and characterizes it as the largest of its kind for the University of California. Presumably the cost will be borne by the Department of Energy (see Spring 2003 Newsletter).

      Although the financial cost of the settlement is large, it appears far less significant than the reforms that the Lab must enact under the agreement. Some of the reforms concern the use of Relative Value Rank (RVR), a process in which manager assign each employee in a "rank domain" a number between one and the number of employees in the domain. RVR has been of concern to female employees because women have been consistently ranked lower than male peers.

      The reforms as described in a press release from Trial Lawyers for Public Justice are:

• The Lab will eliminate RVR for three groups of administrative and technical employees. Compensation for these employees will instead be based on a system that determines pay primarily based on the employee's job classification and performance.

• The Lab will issue revised guidelines for the RVR of all remaining employees designed to eliminate subjective biases from decision making processes.

• The Lab will conduct annual pay, promotion, and rank equity studies to identify any disparities between male and female employees. If the studies show statistically significant disparities based on gender, the Lab will determine the reason for the disparity and either correct the problem or document the non-discriminatory reasons for the disparity. The studies will be shared with the attorneys for the class, who may use such information to show the Court that the Lab is not complying with the agreement.

• The Lab will develop and implement a written plan to promote equal opportunity for women in obtaining desirable job assignments.

• Lab managers and supervisors will be required to receive training on compliance with the settlement agreement; compliance with federal, state, and Lab prohibitions against discrimination and retaliation; diversity; and recognizing and avoiding the influence of stereotyping in the making of personnel decisions.

• Annual performance evaluations of Lab managers and supervisors will include evaluations of their ranking and performance evaluation skills and compliance with equal employment opportunity laws.

      More information about the case is posted on the Trial Lawyers for Public Justice Web site, www.tlpj.org. Efforts to achieve equitable treatment at the Lab began in 1977. A history of these efforts and graphics showing pay and experience for males and females in different Lab directorates are given in the fall 2001 issue of the Association for Women in Science Magazine.

 

 

PAT WASHINGTON VS. SAN DIEGO STATE UNIVERSITY

 

Pat Washington was denied tenure at San Diego State University's women's studies department despite many teaching awards and publications, and was terminated in May 2003 (see Spring 2003 Newsletter). Washington has now secured the legal services of a team of civil rights and employment law attorneys who have successfully litigated cases against both the University of California and the California State University. Thanks to the generosity of community groups and individuals, as well as contributions from national academic and activist organizations, Washington and her Support Committee were able to raise enough money to pay the required $20,000 retainer. Lead attorneys Robert Racine and Moises Vasquez filed her case in state court on July 11, 2003.

      The National Education Department of the NAACP has notified Washington that it is conducting research "to determine if racial disparities exist in obtaining tenure on a systemic level at the University [SDSU] and/or the entire state of California, while assessing the probability of initiating a successful lawsuit." 

      Perhaps even more significant is the endorsement given to Washington by the National Women's Studies Association (NWSA). At this year's national conference in June, the Membership Assembly passed a recommendation that the President of NWSA, on behalf of the entire NWSA membership, write a letter to SDSU President Weber and CSU Chancellor Reed expressing concerns about the process used to deny Washington tenure and supporting efforts to reverse her tenure denial.

      Washington has been successful in getting the California Faculty Association to arbitrate her tenure denial and termination.  The arbitration hearings took place July 16, July 17, and September 16. Although the arbitrator's decision won't be known for several months, supporters were most gratified that numerous faculty witnesses appeared at the hearing to attest to Washington's excellence as a teacher and scholar.

      On September 23, 2003, the Equal Employment Opportunity Commission (EEOC) found in Washington's favor and recommended tenure and promotion to associate professor, back pay, benefits, etc. If SDSU fails to "engage in meaningful conciliation" by September 29, 2003, EEOC will refer Pat's case to its Legal Unit for further action. On December 26, 2003, Washington received notice that SDSU has rejected EEOC's proffered remedies and has elected to go to court rather than make restitution.

      At this time, the full implications of EEOC's determination are unknown. Because litigation expenses will come out of California State University system coffers-not out of SDSU's budget-those wishing to urge CSU to settle are requested to contact CSU Chancellor Charles Reed and Board of Trustees Chair Debra Farar. The Pat Washington Support Committee is accepting contributions to defray Washington's legal costs.  Make checks payable to "Pat Washington Support Committee" and send to Pat Washington Support Committee, P. O. Box 151314, San Diego, CA 92175-1314.

 

 

Charity Hirsch writes:

GRACIELA CHICHILNISKY VS. COLUMBIA UNIVERSITY

 

Graciela Chichilnisky joined the Columbia University faculty in 1977. In 1980, she became a tenured full professor and since 1995 the holder of the UNESCO Chair in Mathematics and Economics, as well as a professor of mathematical statistics. In addition, she now directs Columbia's Program on Information and Resources (PIR) and its Center for Risk Management. Internationally renowned in her fields, Chichilnisky has Ph.D.s in mathematics and in economics. She has taught at universities other than Columbia, including Harvard and Stanford, and has published extensively.

      For more than ten years, Chichilnisky has struggled with Columbia to ensure equitable pay and treatment for its female faculty. In 1991, she filed a class action lawsuit representing all women faculty at Columbia. The complaint alleged that Columbia had violated Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963 by maintaining a policy of compensating and promoting female faculty significantly less than their male counterparts.

      Columbia did not respond but instead sued Chichilnisky's lawyers for conflict of interest. Two years later the Court found her lawyers free of conflict of interest and  Columbia sought a settlement with Chichilnisky. The suit settled in 1995 on terms favorable to Chichilnisky, including $500,000 in damages, an increase in salary from about $60,000 to $110,000, and the acceptance by the university of an academic chair created for Chichilnisky by the United Nations Educational and Cultural Organization (UNESCO) in Mathematics and Economics in recognition of her contributions to the international community. Columbia promised Chichilnisky an additional $50,000 per year for her activities in connection with this chair, as well as needed office space and support for PIR.  Immediately after settling Chichilnisky's suit in February 1996, Columbia released a long-overdue report on salary equity and increased the salaries of four other female professors.

      However, Columbia has not fulfilled or retracted many of the terms of the settlement agreement. Despite commitments in the agreement, the university froze more than $2 million in research funds that Chichilnisky had raised for PIR and failed to pay the agreed-upon compensation for the UNESCO Chair. In January 2000, Columbia announced its intention to ask UNESCO to terminate the UNESCO Chair.  One month later Columbia dismantled PIR's computers and offices resulting in the loss of crucial records and research.

      Immediately following this action, Chichilnisky obtained a temporary restraining order in New York State Supreme Court on March, 2000, which stopped the university from further destruction.  Simultaneously she filed a second lawsuit alleging breach of the 1995 settlement agreement, retaliation, and sex discrimination. Columbia sought to settle. Chichilnisky agreed to mediation and engaged in a number of discussions with Columbia regarding enforcement of the 1995 agreement. In 2002, the university provided Chichilnisky office space for PIR, equivalent to that destroyed, and reinstated her UNESCO Chair. However the funds raised by Chichilnisky for PIR remain frozen and Columbia has not yet paid her what she is due under the UNESCO Chair agreement.  During discovery for her second lawsuit, Chichilnisky found a large discrepancy between her salary and those of the male professors in her department.  A more than 50% increase was needed for her salary to reach the average salary of male full professors in her department.  She amended her complaint accordingly in January 2003 to allege violation of the Equal Pay Act as well.

      Columbia's response in February 2003 was to fire its attorney, who was discussing settlement, terminating the settlement negotiations which were then almost complete, and countersuing Chichilnisky for issues unrelated to her lawsuit. Columbia's claims concern the number of days Chichilnisky worked outside the university to supplement her income (a practice encouraged by Columbia), and the number of classes she taught. These claims refer to potential "conflicts" with her work outside the university. Columbia's policies and procedures direct that such conflicts be handled and cured by a Science and Technology Policy Committee, but in this case Columbia did not follow its own procedures.  Later, the university explicitly admitted that no definition nor ground rules were in place to ensure compliance with the so-called "conflict of commitment" for which it is suing Chichilnisky. Chichilnisky has requested the Court for a Summary Judgment to vacate these counterclaims because she cannot be responsible for a lack of compliance with policies which the University itself admits it has not defined. Chichilnisky has also asked that sanctions be imposed on Columbia for suing her before using its own internal procedures.

      The American Association of University Women voted in 2002 to adopt and support Chichilnisky's sex discrimination case against Columbia.  As of June 2003, the Legal Advocacy Fund of the AAUW has awarded $38,000 in support of her case.

      Chichilnisky's case against Columbia is in the final stages of discovery and is scheduled for trial in early 2004. Her request for summary judgment in the counter suit is scheduled for a court presentation before Judge Omansky of the New York Supreme Court in September 2003.

      This summer we started organizing her support committee which includes academics, academic wives, an AAUW member, someone from the UN . . .  Committee members come from throughout the U.S. and we meet by conference phone!  E-mail is used a lot and and supporters have created a Web site for the case www.sexandtheivyleague.com. Anyone interested in this  case is invited to call me at 608 798-3814 or to e-mail me at cbhirsch@tds.net.

 

 

CHARLENE MCMAHON VS. CARROLL COLLEGE

 

A year ago, Charlene McMahon, an assistant professor of chemistry at Carroll College in Wisconsin, called Mary Singleton, the chemist who instigated the suit against Lawrence Livermore National Laboratory for gender discrimination (see Case Updates). Charlene and three other assistant professors had been denied promotion to tenure although all had been in tenure-track positions and were recommended for promotion by their departments as well as by the tenure and promotion committee. The administration, upheld by the board of trustees, said that "institutional needs" made the promotions inadvisable, then advertised for non-tenure-track replacements for all but one. In protest of these actions the tenure and promotion committee resigned en masse. Mary told Charlene to call me.

      McMahon told me she was up for promotion at the same time as two other chemists, both male. Both were promoted, she was not. She feels certain her qualifications were at least comparable to those of the men and has filed a gender and disability discrimination suit. (She was pregnant at the time; discrimination against the pregnant is classified as disability discrimination.) The other three faculty members denied promotion have filed suit together against the college for breach of contract. No one denies that the three met the requirements for tenure described in the faculty handbook, however the college changed their jobs to untenured positions-midstream.

      The American Association of University Professors (AAUP) investigated the professors' complaints, although Carroll College refused to participate in the investigation. The college was found to be flouting the rules for promotion to tenure because none of the departments suffered from inadequate numbers of students (which would justify reducing faculty numbers), nor is the college in financial distress, the two acceptable reasons for failing to promote to tenure qualified candidates on the tenure track. The AAUP wrote: "We believe that withholding tenure for qualified candidates in order to replace them with non-tenure-track faculty is inimical to the principles of academic freedom which tenure serves." The college has not responded.

      It sounds to me as if these cases are the thin edge of the wedge of abolishing tenure, a goal which may appeal to many administrators. In this situation, three women and three men were up for promotion and two men were promoted. The two men awarded tenure had pregnant wives. One of the candidates not awarded tenure was pregnant. It seems probable that at work here was the usual assumption-women don't need jobs, men with families to support do.

      Signs of hope include the support given to the non-promoted professors by each other and by the faculty, students, and community. They have already raised $5,000 for litigation costs (for more information or to donate, please see www.facultyforjustice.org/).