Was denial of tenure after participation in flexible work arrangement discriminatory?


Emily, an assistant professor of mathematics for the past seven years, filed a charge alleging that she was denied tenure based on her sex. She applied for tenure after returning from six months of leave to care for her father. The University’s flexible work program allows employees to take leave for a year without penalty. Before taking leave, Emily had always received excellent performance reviews and had published three highly regarded books in her field. After returning from leave, however, Emily believed she was held to a higher standard of review than her colleagues who were not caregivers or had not taken advantage of the leave policies, as reflected in the lower performance evaluations that she received from the dean of her department after returning from leave. Emily applied for tenure, but the promotion was denied by the dean, who had a history of criticizing female faculty members who took time off from their careers and was heard commenting that “she's just like the other women who think they can come and go as they please to take care of their families.” Could Emily’s tenure denial be discriminatory?


Yes. Under these circumstances, an investigator would determine that Emily was denied tenure because of her sex. While the University acknowledged that Emily was eligible for tenure, it asserted that she was denied tenure because of a decline in her performance. However, an investigation revealed that her post-leave work output and classroom evaluations were comparable to her work performance before taking leave. In addition, the University did not identify any specific deficiencies in Emily’s performance that warranted the decline in its evaluation of her work.

Although the federal EEO laws do not prohibit discrimination against caregivers per se, the Equal Employment Opportunity Commission (EEOC) has described circumstances where discrimination against caregivers might constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964. Employment decisions that are based on an employee's actual work performance, rather than assumptions or stereotypes, do not generally violate Title VII, even if an employee's unsatisfactory work performance is attributable to caregiving responsibilities.

Source: EEOC Guidance: “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,” reported in CCH Employment Practices Guide, New Developments ¶5243.

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