A Hypothetical Higher Education Dispute and How a Neutral Can Help Resolve It

Imagine you are employed in the human relations department at a university. One day, Dr. Kiran Gupta,* who has been a faculty member in the political science department for 10 years, comes to your office and is very upset. She is concerned that she did not receive tenure because she is originally from Bombay, India. Another faculty member, Dr. Jason Parker*, who has been teaching at the university for only five years, was granted tenure. Dr. Benjamin Cooper* is dean of the political science department and was instrumental in denying tenure to Dr. Gupta.

You believe that employment discrimination based on national origin and gender may have occurred. Under the university’s policy, you have a duty to report this to the Title IX coordinator/discrimination, harassment and retaliation (DHR) administrator. The policy states that if you know or have reason to know of an incident that may violate relevant federal law, you are considered to be a “responsible employee.” In this case, the relevant laws are Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.

The Applicable Law

Title VII of the Civil Rights Act of 1964 forbids employers to discriminate on the basis of race, color, religion, sex or national origin. Originally, Congress exempted educational institutions from liability under the act. However, in 1972, Congress removed this exemption with the enactment of Title IX because of concerns about discrimination in education, manifested in part by the lack of women and minorities in higher-ranking academic positions.

In the case of Dr. Gupta, Dean Cooper and the university may have violated Title VII by denying her tenure based on her national origin and gender. They may have also violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education programs and activities of entities that receive federal financial assistance.

What Happens Next

The DHR administrator and their staff will decide if an investigation is necessary. Suppose the administrator decides to proceed with an investigation. In that case, they will send a notice of investigation to Dr. Gupta, Dr. Cooper and other parties involved in the decision to deny tenure.

When Dr. Cooper is contacted, he may ask the parties to engage in an informal resolution through mediation. He tells the DHR administrator that he does not want a hearing.

An informal resolution is possible since there is no sexual misconduct or exploitation alleged. However, the university requires the written consent of both parties to an informal resolution.

The Value of a Skilled Neutral

If Dr. Cooper, the university, and Dr. Gupta agree to informal resolution, a skilled neutral without any conflicts of interest should assist them in mediation. A neutral can assess the credibility of parties, evaluate direct and circumstantial evidence, and make proposals that help the parties settle their dispute.

During the mediation, Dr. Cooper and the university representative may cite one or more factors other than national origin or gender discrimination as the reason for not granting tenure, such as the university’s financial situation, the length of employment of the faculty member, the faculty member’s number of expected annual publications, complaints by students or other faculty members and lack of all the standard qualifications necessary to grant tenure.

Dr. Gupta may tell the neutral that she has already received a “consent to sue” letter from the Equal Employment Opportunity Commission or Fair Employment and Housing Act and is ready to file a civil complaint in either state or federal court.

Informal Resolution

Fashioning an informal resolution will depend on many factors, including the parties’ ability to communicate with each other and their willingness to compromise. The parties might outline a path to tenure with enumerated conditions and a time frame for achievement. Or the parties might agree to grant tenure rather than incur the expense and potential embarrassment of a court proceeding or court order admonishing Dr. Cooper and the university and requiring it to grant tenure. Sometimes a simple apology will facilitate a path to resolution. Dr. Cooper could apologize for any behavior perceived by Dr. Gupta to be discriminatory or any conduct that was, in fact, discriminatory.

The experienced neutral may convince the parties that mediation is a prime opportunity to fashion an informal resolution and avoid the time, expense, stress and anxiety of a university hearing or public trial. The neutral can also walk the parties through what a hearing or trial would entail and the risks involved.

Most importantly, the neutral will remind the parties that an informal, mediated resolution is their last opportunity to control the outcome of the case.

* The names used are fictional.