August 23, 2009
The Beginning of the FAR Season and The Beginning of an Age Discrimination Lawsuit
Jeff Lipshaw (Suffolk) of the Legal Profession Blog has some thought-provoking insights on a recent age discrimination lawsuit brought against the University of Iowa Law School by an unsuccessful older applicant for an immigrant law professor position:
Here's how Usha [Rodrigues of Georgia Law and the Conglomerate Blog] poses the question: "was [Donald] Dobkin clearly 'more qualified' than the 2 other prospectives offered the job, given academic hiring as we know it?" With all due respect to Usha, while I share her sympathy for Iowa, I'm not sure that's the right question. I think she's highlighted the wrong thing, namely, a focus on the quantitative (publications divided by years). Moreover, the question does the same thing Dobkin's case seems to do, which is to conflate the age issue with the "experience" issue. Is his claim that he was the victim of age discrimination, or is he asking the court to impose on the school a hiring policy based on experience over scholarly bona fides? The simple answer to Usha's question is that unless a court is prepared to undertake the latter, there were all sorts of reasons that Iowa could have reasonably passed on Mr. Dobkin without having considered his age.
Without getting all Thomas Kuhn-ish here, Usha's proviso "given academic hiring as we know it" is another way of acknowledging that academic law isn't just about training new lawyers. It is an academic paradigm that, for better or worse (actually, in my experience of several years now, better AND worse), is determined largely by them who is already in the paradigm. It's just a fact of the academic world. I have a book proposal in at a major university press that has passed every hurdle except a late request by the philosophy overseer that it be sent out for a pure philosophy review. It's possible I don't write (or think) in the au courant philosophy paradigm, and I will be wrongly rejected. But that doesn't give rise to a legal claim. As I said to my editor, que sera, sera.
Regardless of where you come out on this debate, take a look at the comments to this post where Jeff engages a thoughtful commentator on whether this suit has a chance of being successful. FWIW, I tend to agree with Jeff's analysis, but also have had practical experiences where so-called slam-dunk discrimination cases have turned into anything but once discovery starts.
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[I'm a former trial lawyer, now a tenured academic, studying juries.]
An intriguing case, which is to say, thought-provoking. I quite agree that the framing of the question is everything.
1. Original phrasing, "Was Candidate A clearly more qualified than Candidates B and C?"
2. Suggested rephrasing in this blog, "Is Candidate A claiming age discrimination or requesting a standard elevating experience over scholarly bona fides?"
Both obscure the true question, which is simply tougher to accurately get at:
3. Was Candidate A rejected because of age?"
When a candidate is rejected for appearance, race, religion, disability, ethnicity, skin color, the hiring committee will offer a myriad of other reasons. Always has, always will. In the academic world, aging new candidates are undesirable (when they are) to a department or university due to the fact that other faculty start guessing about how long the aged candidate will be around for the investment of the department/school/university in them. [Odd, considering that younger candidates often leave after 2-3 years, having only accepted the position in a tough job market as a "starter job."] This is in addition to various personal implicit associations with a person older than one's self.
I was a for former law school faculty member, then a trial attorney for many years, left to get a M.A. and Ph.D. at a top research-1 institution, and the black box of academic hiring opened [a bit]. Learning how sausages are made.
Could there be a reason to reject any candidate? You bet. However, when a faculty or hiring committee is turned off by age, disability, race, gender ++ that reason will be buried.
We should acknowledge that older new hires are not favored for reasons that do not involve qualification of the scholarly or experience sort.
[Great blog, thanks.]
Visiting Professor, Santa Clara School of Law
Associate Professor, Department of Communication
Posted by: Dr. SunWolf | Sep 4, 2009 5:30:35 AM