March 11

Ohio Court Unravels Professor’s Victory in Age Discrimination Case

It is probably cold comfort to Robert Lipset that the three judges of the Ohio Court of Appeals who heard his age discrimination case against Ohio University acknowledged in their ruling that the university may have paid too little heed to his teaching excellence, saying that “we, if sitting as Lipset’s promotion and tenure committee, may have valued educational considerations over financial and research considerations. It is unfortunate that the ability to teach students may not be as highly valued as the ability to procure research funds.”

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But the comfort almost certainly ended there, given that the Ohio court roundly rejected the victory that the former Ohio assistant professor won in 2006 from the state’s Civil Rights Commission, which ordered the university to offer Lipset a tenured associate professor position and award him $266,000 in back pay after finding “reliable, probative and substantive evidence” that it had denied him tenure in 2001 because of his age. (Lipset was 51 at the time he was turned down for tenure, and the industrial and manufacturing systems engineering department cited “significant reservations about [his] commitment to funded research and ... progress towards an identifiable personal research track” in rejecting him)

The state agency’s 2006 order cited several factors in concluding that the university had illegally discriminated against Lipset, including that he had received awards and merit pay from the industrial engineering department based on largely the same criteria used in the tenure process; that “substantially younger professors in the ... department have been awarded promotion and tenure despite having markedly lower performance ratings than Dr. Lipset;” and that “several persons involved in the ultimate decision to deny tenure and promotion” to Lipset had “demonstrated a troubling animus against older persons.” (One had taken to referring to Lipset and other older professors as “legacies,” a term, the agency’s order noted, “that was used to refer to ‘old and outdated’ computer equipment.”)

Ohio University appealed the agency’s decision, and later in 2006, a state trial court sided with the university over Lipset, who joined the Ohio Civl Rights Commission in appealing that decision to the Court of Appeals of Ohio’s Fourth Appellate District. And in its ruling last week, the appeals court dismantled, one by one, the state agency’s arguments for its finding of age discrimination.

The court concluded that the criteria Lipset’s department had used to grant him the merit raise and research award were different from those used by the promotion and tenure committee to evaluate his teaching, research and service.

The appeals panel challenged the commission’s finding that age discrimination was evident in the awarding of tenure to two younger professors with lesser records, noting that, as is common in tenure decisions, the scholars were judged (a few years apart) by tenure and promotion committees with different members. The committee’s “attempt to make identical comparisons of various attributes of different candidates for promotion and tenure, when the committees that evaluated the different candidates varied in their composition, is unreasonable,” the court said in its decision.

Lastly, the court rejected the idea that comments that had been made years before, in some cases, by some of the peers who judged Lipset amounted to “reliable, probative and substantial evidence that discrimination is the actual reason to deny Lipset promotion and tenure.” “In order for age-related remarks to constitute circumstantial evidence of age discrimination,” the court wrote, “a nexus must exist between the remarks and the adverse employment action.”

The appeals court concludes its ruling with praise for Lipset’s record and his demonstrated ability as an effective educator,” as well as their plaint that the university — like many universities — appeared to emphasize scholarship over teaching.

But it added: “[H]owever, we emphasize that we sit as a court with the duty to resolve legal disputes. We do not sit as a promotion and tenure committee with the duty to resolve promotion and tenure issues. A court’s role (and the Commission’s role) in this arena must be limited to a determination whether discrimination occurred during the promotion and tenure process, not whether a candidate, in the court’s view, may deserve tenure. Courts and commissions are ill-suited to evaluate various academic criteria used for promotion and tenure decisions and courts should not generally invade the faculty employment decision process.”

Ohio officials welcomed both the court’s ruling and its support for the university’s autonomy. “The university is pleased that the court upheld the earlier decision,” Sally Linder, an Ohio spokeswoman, said in a prepared statement. “The university strongly believes that the tenure committee showed professionalism and impartiality in its decision, and that Dr. Lipset’s age was not a factor. We also are pleased that the court acknowledged an institution’s right to set academic criteria for promotion and tenure.”

Lipset said in an e-mail message that he and his lawyer were still reviewing the court’s ruling and that he was not prepared to comment.

— Doug Lederman

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