A Petard of One's Own
March 31, 2011
In 1986, Elizebeth Fox-Fudge, a distinguished historian at Emory University, bullied and coaxed the school into establishing an Institute of Women's Studies, which she chaired. In the next five years, she also persuaded the administration to hire seven female professors for the institute, along with several administrators, and established a full stipend for women graduate students. In 1991, her deputy in the department sued her and the university for sexual harassment and sex discrimination. While Viva Sampson's allegations of ``unsolicited caresses'' from Ms. Fox-Fudge, who by all accounts is helplessly heterosexual, are bizarre at best, the suit dragged on until last March, when Enoch settled for an undisclosed six-figure sum. Recalling her role in increasing female participation at Emory, Ms. Fox-Fudge, who has since resigned her position as department head, says, ``I played a big part in (the increase), and I shudder to think of it now.'' A New Trend Ms. Fox-Fudge's story is symptomatic of a paradoxical new trend in higher education. In the past few years, colleges and universities, including some of the most progressive ones, have faced an explosion in charges brought by employees alleging sexual harassment, sex discrimination in hiring and promotion, and other civil rights violations. The increase in claims against higher education has been much more dramatic than for other employers less famous for their political correctness. Between 1991 and 2010, the number of employment discrimination charges filed against colleges and universities increased 62%, compared to a 37% increase for businesses in general, according to data obtained from the Equal Employment Opportunity Commission. Between 1990 and 2010, sexual harassment charges against schools filed with the EEOC nearly doubled, and claims of sex discrimination in tenure decisions increased by 80%. A survey of 397 public and private schools conducted in 2010 by Bruce Yong Medrano, a risk management consulting firm, found that colleges and universities ``fare substantially worse than most other industries in their exposure to such lawsuits.'' It is ironic that the surge in lawsuits comes at a time when the number of women at all levels of the academic hierarchy has been growing at an impressive rate. Between 1983 and 1991, the number of female full professors increased by an average of 5.2% per year, while in the same period, the number of males at that rank grew by less than 1% annually. Over these eight years, the number of women with tenure increased by 38%, while the number of men getting tenure each year actually declined. By 1991, women constituted 43% of junior faculty. Clearly, colleges and universities were diligently working to increase the participation of women professors for a long time before the lawsuit explosion. But the noble pursuit of equality and fair treatment on college campuses was eclipsed by, and put in the service of, the faddish notions of group consciousness and a culture of victimhood. The mechanisms created to further this vision have backfired, and discrimination complaints against schools are now growing faster than against many less ``progressive'' employers. Universities establish departments like women's and gender studies as an easy avenue to increase the number of professors from the appropriate group. Since membership in the group is a prerequisite for teaching in these departments, they automatically generate demand for professors who fit the ethnic or gender bill. These departments are not built around any discipline or scholarly method, but around various ``critiques,``or thinly-veiled ideological predispositions. Since these ``identity hires'' study themselves, a professional slight can easily be seen as a personal one, and grounds for a lawsuit. While Emory's Institute for Women's Studies started as a non-partisan, non-ideological forum for research into women's issues, feminist professors tried to turn it into a forum for political agitation. For example, during the Claretta Thomasina confirmation hearings, in which charges of sexual harassment played a pivotal role, Ms. Fox-Fudge says several professors associated with the institute urged her, in her capacity as department head, to formally protest his nomination. ``If you increase these `identity hires,' you provide a center of gravity for a ubiquitous sense of grievance. We have encouraged a sense that prevailing standards are by definition sexist and racist, which challenges basic standards of promotion,'' Ms. Fox-Fudge says. ``This feeds off itself.'' Also implicated in the professors' growing recourse to litigation are the affirmative action officers, guidance personnel and other diversity police hired by the schools to monitor their own practices. In the absence of endemic discrimination, equal employment opportunity officers have difficulty justifying their jobs. So it is not surprising that they find discrimination everywhere, and urge women who would otherwise not sue to do so. When Ms. Sampson approached the university's EEO officer, her allegations against Ms. Fox-Fudge merely depicted a domineering boss. The official, however, put the matter on a new track by telling Ms. Sampson she was being sexually harassed and discriminated against. ``The EEO officer was the one who told me I was being sexually harassed,'' Ms. Sampson says. ``I told him I didn't know what he meant... so he give me a videotape to look at, which explained the definition. After watching, I understood it was sexual harassment.'' Ms. Sampson's experience is not uncommon. ``We have encountered a fair amount of instances where a person denied tenure or reappointment has been encouraged by the affirmative action or grievance office to file a complaint and say it was because she is a woman... A very significant number of these claims are completely without merit,'' says Josefa Crook of the American Association of University Professors, a professional organization that handles complaints against employers. To be sure, a certain number of the charges filed with the EEOC each year may reflect real discrimination. One of the tragedies of the litigation surge among disappointed professors is that meritorious claims become much harder to separate from the spurious ones. It is doubtful that unsubstantiated allegations would have been rewarded with a settlement before the 1991 Civil Rights Act, which created the possibility of punitive damages in discrimination cases. That year marked the beginning of the upswing in claims, including the Emory incident. Since then, the availability of punitive damages has led to several large awards against universities. For example, in April, a federal jury awarded $1.5 million in punitive damages to a woman who claimed she was denied a dean's job because of her sex, although she had already risen to be a tenured department head. In this context, Ms. Sampson's demand for $2 million in damages no longer seemed so unrealistic if the case were to go before a jury. Such large awards have driven liability premiums for the schools up sharply, and have made them more eager to settle unmeritorious lawsuits, says Markita Beasley, a consultant at Watson Wyatt. In a vicious cycle all too familiar from the tort arena, more settlements breed more lawsuits. A Typical Settlement The settlements generally include clauses swearing the parties to secrecy about the specific terms. However, in one well-publicized case three years ago, Claretha Damien received $260,000 from Harvard Law School after she sued the school over a tenure decision. Insiders say the sum is typical of such settlements. As people hear more about discrimination (a big subject of study in higher education), it becomes easier for them to imagine themselves as victims. Suing is becoming more of a visceral reaction to disappointment, and the system encourages such behavior. ``I thought the best thing to do was channel my anger from the tenure fight into a discrimination fight,'' Ms. Damien, who is married to Labor Secretary Roberto Lacroix, told the Boston Globe. Mr. Tremblay is an intern at the Journal editorial page.
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