Ohio University engaged in age discrimination when it denied tenure to a then 51-year-old engineer in 2001, the Ohio Civil Rights Commission said in a stinging ruling  this month, rejecting the recommendation of an administrative law judge. The commission ordered the university to offer a tenured associate professor position to Robert Lipset and to give him $266,000 in back pay. Ohio University officials said they would appeal the agency's decision.
Lipset spent 20 years as an engineer in the automobile industry before deciding, in a "midlife career change," to get a Ph.D. Ohio University's Industrial and Manufacturing Systems Engineering Department hired him in 1995, and he received positive annual evaluations and won a series of awards, for both teaching and research, in his first six years there. "I was very confident I was going to receive tenure," he said.
When he came up for promotion in 2001, however, the department's tenure committee voted him down, citing perceived problems with his research. Lipset challenged the decision through the university's internal appeals process, but was turned down at each and every stage.
Lipset then submitted a public records request for documents from his peers' tenure decisions, which suggested that "I had been treated very, very differently from others who had come up for tenure," he said. He then complained to the state civil rights commission in 2002; its investigation concluded that it was "probable" that Ohio had discriminated against him based on age.
The case was turned over to an administrative law judge, who ruled in Ohio's favor in October. But in December, the commission reviewed the case, and concluded that the judge "did not take notice of reliable, probative and substantial evidence in the record which establishes that unlawful discrimination occurred." It is unusual for the commission to ignore the recommendation of its own administrative law judge.
First, the commission rejected Ohio's contention that Lipset's research had been deficient, citing the fact that he had won the department's research award the year before he applied for tenure, been published in "some of the most highly respected journals in engineering," and received grants.
Second, the panel noted that Lipset had received the largest merit raise in the department just before the tenure ruling, and that the raises were distributed based on the same basic criteria used in the tenure process.
Third, based on the records Lipset had gathered, the commission concluded that "substantially younger professors in the IMSE Department have been awarded promotion and tenure despite having markedly lower performance ratings than Dr. Lipset." (To the probable dismay of some of those professors, they are cited by name in the panel's report. One, for example, "was also ranked as 'below average' to 'average' due to his low number of actual publications, and his annual evaluation letters repeatedly pointed out his 'serious deficiency' in publications." Ouch.)
Lastly, the commission cited as "evidence of age discrimination" the fact that "several persons involved in the ultimate decision to deny tenure and promotion" to Lipset had "demonstrated a troubling animus against older persons." The professor with the "serious deficiency" in his research record, the panel found, had written at the time of Lipset's hiring that he was "too old" for the job. Another departmental colleague took to referring to Lipset and other older professors as "legacies," a term, the commission said in its report, "that was used to refer to 'old and outdated' computer equipment."
Taken together, the commission concluded, "the reliable, probative, and substantial evidence presented at the hearing demonstrates that Dr. Lipset's research, and indeed his entire performance, compared favorably to the other, substantially younger, professors who were granted tenure and promotion by Ohio University."
The panel acknowledges that the evidence is "circumstantial" rather than "direct" evidence of age discrimination. But the commission "disbelieves," it wrote with emphasis, Ohio University's proffered reasons for the denial of tenure and promotion, and believes that the real reason for the employment decision is unlawful age discrimination."
The commission ordered Ohio to hire Lipset within 30 days of its written ruling this month, and to reimburse him for three and a half years of back pay, totaling at least $265,998.
John Burns, director of legal affairs for the university, said it would appeal to Common Pleas Court, the state trial court. Burns said the university had given Lipset multiple opportunities to make his case but had been deemed at every level that "he didn't meet the standards that the particular department and the college felt were grounds for tenure."
He said that the university had gone to court to challenge a ruling by the civil rights commission once before and been successful, and that it would seek to prove that the panel "did not rely on good and valuable evidence" in reaching its conclusion. Burns also said, though, that "the possibility of settlement is always there."
In an interview Wednesday, Lipset said that he wanted to return to teaching, because "I thoroughly enjoyed working with students and want to try to have an effect on educating the next generation of engineers."
He said he hoped the university would "do the right thing," adding: "It's time for them to recognize the seriousness of what they've done and make it right."