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November 20, 2007

Hammer v. Univ. of Michigan

The lawsuit alleges that Professor Hammer (currently tenured at Wayne State) was denied tenure due to his sexual orientation.  Professor Hammer reports, on the blog documenting the litigation, that, "[i]n the forty years between 1965 and 2004, forty-five straight (or closeted) men were considered for tenure at the Law School. Without exception, all were granted tenure. Professor Hammer was the first openly gay man ever to be considered for tenure, and the first man in the history of the institution to be denied."

The complaint, which was filed in Jan. 2005, asserts that the Univ. of Michigan breached its de facto tenure contract with Hammer by denying him a hearing to consider whether to terminate his de facto tenure employment (as de facto tenure was created by 8 consecutive years of tenure track appointment).  Also, Hammer asserts that the Univ. of Michigan had a contractual duty not to discriminate against him on the basis of his sexual orientation in violation of Univ. policies.  He also asserts an equitable claim based on the fact that he decided to teach at the Univ. of Michigan based on assurances that the school stood by its non-discrimination policy and would grant his partner health benefits. 

In his affidavit, Hammer lays out his findings regarding the practices of the Univ. of Michigan relating to tenure. According to the wayneoutlaws blog:  the trial court had originally granted Univ. of Michigan's summary disposition motion for the de facto tenure claim, the appellate court granted an interlocutory leave to appeal to Michigan and then reversed its decision and, at this point, the case has been remanded to the trial court for reconsideration on all counts.

Michigan has not added sexual orientation as a protected class to its state non-discrimination laws.  Thus, Hammer relies on breach of contract and equitable claims in his lawsuit.

This suit further demonstrates the need for a comprehensive federal non discrimination act protecting employees against discrimination based on sexual orientation.  Whether Hammer is able to recover or not--he should be afforded protections under Title VII and state non-discrimination statutes alike.  Under a very similar set of allegations, a female Harvard law professor was able to recover when the institution denied her tenure because of her sex.  What is the difference between denying someone tenure because she is a woman and denying someone tenure because he is gay?  In either instance, the focus of the tenure process should be the performance of the professor, not his sex, race, gender, sexual orientation, and the like. 

November 20, 2007 | Permalink

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