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'Disparate Effect' on Women Could End the Tenure System

"To think of tenure ethically, I had to start thinking about it differently."

Most research on tenure and gender explores why this career goal eludes women—why they disproportionately fail to make the grade. Elizabeth Mooney O’Callaghan expands the discussion by examining the tenure system through the lens of law, suggesting its disparate impact on women may make it illegal.

She’s a research assistant and PhD student in educational leadership and policy analysis at the University of Wisconsin–Madison. At the University of Nebraska’s Women in Educational Leadership conference in Lincoln in October, she spoke on Unintended Consequences: Considering Sex-based Discrimination in the Tenure Process.

Tenure holds a mystique for those on or aspiring to the tenure track. It holds out the promise of job security and freedom. Without it, whether on the tenure track or an adjunct, teachers risk being dumped at any time. They must to be careful what they say and to whom. Voicing unconventional ideas may cost them their jobs.

Her fellow graduate students see tenure as a personal career goal, achieved by individuals through a combination of effort and luck. “To think of tenure ethically, I had to start thinking about it differently,” she told WIHE.

She decided to look at it from an institutional perspective. What does tenure look like as an employment practice? How does it compare to retention and promotion practices in other fields of employment? Stripped of its mystique and without the protective assumption that higher education is somehow different, how would tenure and its effects stand up under the law?

How tenure works—or doesn’t

Faculty used to be men, with wives to look after them and the kids. The tenure system worked reasonably well for them. They worked long hours for seven straight years to build up a record of scholarship, teaching and service, with tenure being the light at the end of the tunnel.

Designed for men free of other responsibilities, the system only occasionally works for women. Many have explored the reasons: devaluing of women’s academic work; assignment to departmental drudgery; time spent on teaching and service; informal collegiality requirements; exclusion from old boys’ networks; limited access to research funds; shortage of women mentors and role models; overload of students seeking women advisors; expectations of women’s availability; the biological clock; stereotypes that moms aren’t serious; housework and eldercare that fall to wives and daughters; women’s reluctance to go seven years without a life, and more. The list goes on and on.

Statistics confirm what we’ve known all along. Far fewer women than men are on the tenure track. Those on the track are far less likely than men to get tenure. They have lower base salaries and a widening gap in wages. Women make up a disproportionate number of adjuncts, especially if you don’t count the doctors, lawyers and other professionals who teach a course or two on the side.

As Joan Williams wrote in the Chronicle of Higher Education (“How the Tenure Track Discriminates Against Women,” October 27, 2000), we need a new conversation “about sex discrimination–not about sexist comments by a few clueless men, but about whether the current design of the tenure track discriminates against women.”

That quote inspired O’Callaghan’s analysis of the structure of the tenure system as an institutional employment practice. “I’m trying to bridge the two worlds of higher education and legal scholarship,” she said.

Disparate impact

Academic freedom protects a university’s right to decide who will teach. That’s in tension with Title VII and other anti-discrimination laws. Workplace sex discrimination in the United States is on the rise. The EEOC has received increasing numbers of complaints, topping 24,000 in 2005.

Like race or disability, gender is a protected status under the law. Women who demonstrate sexual harassment or overt discrimination has occurred against them only occasionally win cases or settlements, as reported in WIHE’s “Newswatch.” Since tenure is a judgment call, disparate treatment can be hard to prove.

Standard employment practices that explicitly favor men are going the way of the dodo. Discrimination that persists is more subtle. On the surface it’s gender-neutral. Women can get a fair break, if they look and act like men.

Disparate impact is legalese for what happens when an employment practice is neutral on the surface but winds up affecting groups differently. Under the law, a practice with an adverse impact on a protected class is illegal unless an employer can justify it as a job-related business necessity.

Griggs v. Duke Power Company (1971) was the foundation case. African American employees argued that requiring a high school diploma and certain aptitude test scores for promotion adversely affected them as a group. The court found for the employees, agreeing that neither requirement was related to job performance.

How does this translate to the tenure system? Statistics are clear on adverse impact. With women getting about half the doctorates for some years now, the old pipeline argument has gone stale. So has the notion that women really want to stay home.

That leaves the job-related business necessity defense. How’s a judge or jury supposed to know better than senior faculty what a university needs in a tenured scholar? In the past, judges have given considerable deference to higher education, academic freedom and the confidentiality of peer review. The mystique around tenure is part of a larger mystique telling non-academics to keep hands off.

Several cases suggest the door is starting to open. Judges have shown willingness to hear sex-discrimination tenure cases. They have considered arguments of disparate impact, even though they finally ruled for the school.

In a 1979 case, they found the sample size too small to prove implicit discrimination. In two other cases at about the same time, they agreed that requiring a PhD had a disparate impact on women and African Americans but accepted the universities’ argument that the degree was a business necessity.

Provoking change

O’Callaghan analyzed national statistics from three different years—1992, 1998 and 2003—against the ratios that legally show disparate impact. Things haven’t improved much for women, especially at research and doctoral institutions. “The data shows what we already know,” she said.

She isn’t planning a class-action suit or aiming to eliminate tenure. Instead, she hopes to prod higher education man-agement into recognizing its legal and moral responsibility to employees, instead of hiding behind special privilege. “I want to be provocative,” she told WIHE.

By treating the tenure system as an employment practice, she hopes to demystify it and break it down into its practical components. Schools can develop programming to address the covert discrimination in climate, workload distribution and gender segregation by discipline.

They can separate the job-related purposes of tenure from discriminatory elements that don’t help education. Does effective teaching and scholarship depend on attending after-work gatherings and birthday parties in the name of collegiality? Does working only 40 hours a week instead of 60 invalidate one’s scholarly insights?

If colleges want to keep the advantages of tenure, they need to support women and minorities to eliminate the system’s disparate impact. Mentoring, flexible scheduling and family-friendly policies are only the beginning.

Ultimately, higher education needs to redefine what it means to be on the tenure track. The old model of constant, steady, high performance for seven straight years is no longer tenable for women or men. Perhaps it never was.

Productivity and external demands will ebb and flow. Recognition of this reality supports, rather than diminishing, excellence in scholarship and teaching.

Retooling tenure to avoid disparity might include:

  • Part-time options
  • Flexible leave policies
  • Acceptance of gaps
  • Clear reentry policies

These shouldn’t be seen as accommodations to women but as fundamental changes making higher education more welcoming to all. They acknowledge diversity and the value of individual choice.

“Part of the responsibility for reducing the discrepancy between men and women lies with the management of higher education,” she told WIHE. If it can’t be done, the system may have to go. With commitment and creative thinking, college and university leaders may find ways to keep what’s valuable about the tenure system, and throw out the parts that hurt women.

Contact her at eocallaghan@wisc.edu

Comments about the article can also be sent to
Mary Dee Wenniger, Editor and Publisher
women@wihe.com

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