By Donna Lewis: Recent protests over the qualifications of Jane Fernandes to succeed I. King Jordan as president of Gallaudet University have raised questions regarding the relevance of Equal Employment Opportunity (EEO) laws. It makes sense that employment controversies involving disability raise the EEO flag; however, a preliminary analysis indicates that the situation is most likely not an EEO dispute - at least not for Dr. Fernandes at this time.
A preliminary assessment of whether an EEO matter exists is based on three criteria:
- Is the complaining employee a member of a protected group or class?
- Was the complaining employee treated unequally or differently than other similarly situated employees.
- Did the complaining employee experience a harm or injury as a result of unequal or different treatment?
If the answer to any of these questions is “no,” it is not an EEO matter. Dr. Fernandes is a member of at least two protected classes (disabled and female); however, for Dr. Fernandes, the answers to (2) and (3) are no.
Is The “More/Less Deaf” Argument A Form Of Discrimination?
In EEO speak, the situation at hand is a selection. In any selection situation, there is a selectee (Jane Fernandes) and non-selectees. Often, non-selectees perceive discrimination in the selection process.
The discrimination argument for non-selection is that the only reason the selectee was chosen was because the selectee was not a member of a protected group or class in question (i.e. a man or hearing). In the present situation, one of the top candidates might Claim to be equally or better qualified than Dr. Fernandes but also “more deaf” than Dr. Fernandes, thus claiming discrimination based on disability.
Could the “more/less deaf” argument actually work? The degree of disability and the perception of that disability could certainly be raised as a discrimination issue. This does not mean that such an argument would be successful; however the issue can always be raised where one perceives differential treatment based on a protected status.
What If Dr. Fernandes Is Removed?
If Dr. Fernandes were asked to step down or removed, this analysis would change. With an actual employment action giving rise to a complaint, the analysis would turn to whether the employment action was really an act of discrimination.
If an employment offer had been accepted by Dr. Fernandes and then revoked by the Board of Trustees, clearly Dr. Fernandes would have an employment contract dispute.
But a contract dispute is much different from a claim of discrimination. A contract dispute is a civil action involving a breach of a specific agreement, not a determination of whether civil rights were violated.
In an EEO analysis, the focus would be on the reason for the removal or revocation. If Dr. Fernandes were removed, neither of the deaf finalists was selected for the position and a hearing individual was selected instead, a case for discrimination based on disability would be clear. Success would not be guaranteed, but the case itself would be obvious.
In another scenario, if Dr. Fernandes were removed and one of the “more deaf” finalists was selected, she might have a case for discrimination based on degree of disability.
What About Sexism?
What if Dr. Fernandes were removed and one of the male finalists was selected? Dr. Fernandes might have a case for sex discrimination. There have been suggestions that the selection has been challenged because of Dr. Fernandes’ personality or demeanor.
A sex discrimination claim would be based on the contention that a male would never be removed based on his demeanor. A common problem at higher levels of administration and management is the dichotomy between male/female leadership personalities. We like tough males in executive positions; tough males are perceived as assertive and confident leaders. We are not so receptive to tough females who are perceived to be “difficult.”
The male/female personality distinction can be an insidious, more discreet form of discriminatory effect. Dr. Fernandes has already come out in the press to say she believes the unhappiness stems from decisions she made in her position as provost. Were she removed, the discrimination argument could be that a male would not have been removed based on making the same decisions (i.e., that a male’s decision-making would not be questioned in a similar fashion). Of course, that argument wouldn’t work if another female was selected.
And so it seems at this point in time that the only potentially harmed persons, for purposes of EEO, are the individuals who were not selected. Whether the non-selectees will challenge the selection process remains to be seen.
Do the Protesters Have A Say?
The remaining category of disgruntled persons are those protesting the fairness of the selection process. For those claiming that their interests were not adequately represented in the selection process, there is no “standing” in the EEO context. Standing is the legal right to initiate a lawsuit. Only the person or persons sufficiently affected by a matter are deemed to have standing. In the EEO context, the person affected is the individual who an employment action is taken against; it is not those who are offended by the action.
Donna Lewis is an EEO attorney with BayFirst Solutions, LLC. Donna’s specialization is in matters related to disability.
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A nice change of subject- thanks!
Your post, while having valid legal points, seems to lend credence to the errorenous belief that this whole dispute is about Jane Fernandes’ gender and degree of deafness.
So that the readers understands what basis the non-selectees may use (should they feel inclined to challenge the selection process), a legal definition of “harm” may need to be provided here for further clarification on some of the points raised in your post.
Donna wrote from an EEO perspective, Julie, which covers gender and disability. As far as I know, EEO doesn’t cover issues of job performance or relationship quality with clients, which is FSSA’s main beef.
I thought Donna’s point about sexism was very illustrative. The public often does not like women in power. Would a Joe Fernandes, with all of Jane’s achievements and shortcomings, have been easier for the students to swallow? Impossible to say, but it’s food for thought.
Oh, Adam, I understand that she was writing from the EEO perspective- but it still surprises me (personally) that it was even brought up in the first place.
Plenty of female leaders (need I even name them?) have dispelled the myth that Americans don’t want women in power. The media really portrays everything “as isn’t”.
I hate going back to correct posts, but I just realized that people may think that I see females being equally represented everywhere- they are NOT. But the obstacles are becoming fewer and fewer with each passing year. Female representatives in the Congress are numbered in few not because the public doesn’t want them, but because not enough women run. We are slowly, but surely, evolving to the day where gender is no longer “food for thought” in terms of discrimination.
Julie, I hate to say this, but I think you’re being a little naive. Look at how Hillary Clinton and Condi Rice, arguably the most powerful women in America, are portrayed in the media. The original bloggist is correct: we hold women leaders to different standards than male leaders (and I’m a guy!).
Exactly what I meant; it’s the _media_ who portrays them differently. I still stand by my point that Americans generally have little issue with seeing a female take power. That’s completely different from holding women (or men) to different standards.
Ah, but don’t you think that to an extent the media reflects public perceptions and biases? The media and people’s attitudes are not competely distinct, are they?
To a small extent, yes. But remember that the media shapes our perception based on what they think are our wants and desires. If they didn’t, we wouldn’t be calling them the fourth branch.
I think the issue of sexism is out of the window, given the disparity of number of women who have spoken out against Jane Fernades. Out of the 8 names on the letter to Jane Fernades criticizing her for playing the “I’m not deaf enough” card from 8 deaf faculty members who grew up with similiar circumstances as Fernades did. All but one of those signaturees were female. You will also note that most of the most vocal opponents who have spoken out are also female.
D.C. is also an at-will jurisdiction. The only exceptions the court has carved out for this have been narrow and have been, so far, only in cases of outrageousness and for public policy purposes.
Let’s not forget that if there should be another search process, and a candidate of the opposite sex of Fernades was selected, the burden of proof to show that sex discrimination occured would fall on Fernades, not Gallaudet.
Bottom line, this is a slanted legal analysis on what Fernades could try to do, without a factual basis for doing so. No issues in regard to her sex has been raised.
Want to write a balanced legal article? You need to put down what Gallaudet could do to protect itself, along with this. Didn’t they teach that you in law school to present both sides?
JH-
Disclaimer: I am not a lawyer, but I did stay at a Holiday Inn last night.
Just to clarify, factors like “at-will” are contract issues and not EEO issues. Any individual unhappy with a removal or other disintegration of offer could look at a [1] contract analysis, which focuses on the promises made (and perhaps breached) in the employment contract and an [2] EEO analysis which explores whether discrimination was at play. The individual can also look at both.
Thanks, Julie. The bases that non-selectees in any situation can proceed upon are the same bases for any claim of discrimination: color, race, gender, age, national origin, sex, etc. The harm for non-selection is actually one of the simplest harms there is: it is the harm of not being hired. The key for the individual bringing the discrimination claim is a perception that they were equally or more qualified than the selectee and that they were not selected because of their membership in a protected group.
nah I doubt it after what he or she did for last 6+ years.
This doesn’t even address one of FSSA’s main contentions, the flawed search process. Granted, we do not know anything about the process except the results, but it’s really a lot more than just sexism (which I don’t think was even raised as a point at all) and discrimination based on disability.
The original point was that if JKF is forced to resign and a male president hired, she could file an EEO complaint charging gender discrimination. There’s not any question this is true. Gallaudet has never had a woman president (who actually took office).
For many reseasons, the BOT can’t force JKF to resign. It would have to be a “voluntary” act, taken by her. Anything else would open a whole new can of worms for the Board, including the charge that they take orders from the students they’re supposed to supervise.
While I appreciate your analysis, it seems to take us on a very tangential argument. It is my understanding the an EEO issue lies within the selection process of the final three. Wasn’t one of the criteria “must possess a PhD”? And extensive leadership experience? It is my understanding that a black man with a PhD and 20 years of leadership experience as a superintendent of a deaf school and/or Hispanic woman with PhD and extensive leadership experience could pursue an EEO complaint on issue of nonselection into the final three based on race and ethnicity. Again, the criteria must be carefully examined in order to establish a valid EEO complaint. Comment by former EEO Specialist, Rossana Reis
Which leads me back to: should the FSSA prevail, and the search be reopened…then what? On the now defunct “gallypreswatch” Stern was the heavy favorite. He lacks both the terminal degree (currently) and the post secondary experience, which was of concern to some on the faculty… is he the right choice? Will the faculty and the students agree on a “good” choice? Anderson? Who?
Thanks for your comment, Regina. A careful legal analysis, in the event that a non-selectee brought a claim of discrimination, would indeed require a very specific investigation into the selection criteria that were purported to be used and then actually used in the selection process. Any of the non-selectees, if they fall into a protected class, could argue (theoretically) that they were equally or more qualified than the selectee and not selected based solely on their membership in a protected class.
JHB sexism is out of the window– because… “Most of the complaining employees were female?”
Sexism can well be discrimination against women FROM women. It happens a lot, actually.
Women tend to hold other women up to a double standard. If a woman in high office has a pattern of treating male employees more preferentially than female employees, that WOULD be a grounds for a sexism suit. It makes no difference whether that powerful person is male, female, or neuter.
Just wanted to point this out.
Opinion… don’t ask me to back it up with facts:
From an EEO perspective, the selection process that paved the way for Fernandes (JK), Stern and Weiner is suspect because it eliminated Roz Rosen.
The argument we have seen for JK is that she’s qualified because she was provost, regardless of her performance. The argument against Roz is that although she was VP of Academic Affairs (which has been dissolved and was roughly equivalent to provost), her performance is what made her application DOA.
(Incidentally, I’m told former provost Harvey Corson was also an applicant, but let’s not even get into his chances.)
If being provost is on its face enough to qualify her for the presidency, which is what the whole JK world seems to be saying, then Roz should have advanced to the final six. If performance was indeed a consideration, then how did the search committee ever find her application inadequate? They had only her resume and references to go on at that point, and they doubtlessly sparkled, I’d bet my firstborn on that, unless she wrote in the margins, “BTW, King let me go and made JK provost, FYI.”
I don’t see how the same criteria could have screened Roz out but allowed JK ahead. Therefore, I am led to conclude that something other than the application materials submitted figured early into the search process.
Lastly, this is coming from someone who does not know JK. I graduated from MSSD in 1993, before she took over pre-college programs in 1995. I graduated from Gally in 1998, before JK became provost. The lady is a stranger to me. Nevertheless, it is no surprise that she advanced to the interview round… but a travesty that Roz didn’t.
/glenn lockhart
Addendum: Rather than say JK received a helping hand (cronyism), I think Roz was dealt with unfairly. I wonder if she has a basis for a lawsuit… could Ms. Donna Lewis respond to this?
Also, would it be a plaintiff’s case, meaning the burden would be on her to prove that she was denied an equal employment opportunity? And what would be the “test”? The way I see it, she doesn’t have to prove that she should have been president, only that she should have at least been among the six interviewees, not a very difficult task.
Would anyone elaborate on who Roz Rosen is and what her qualifications were? Just curious.
(Glenn, the night lives!)
Thanks for all of the discussion. For the record, I wrote the entry because a large number of individuals were assuming there was an EEO aspect involved. I was trying to delineate what brings an issue under the EEO purview. This was not a legal analysis in that I was working only with the information out in the media. In that respect, I was not focusing on a balanced legal analysis. I was merely providing the parameters of an EEO issue in response to the question of whether this issue fallas under EEO. I believe asking what I learned in law school is disrespectful and not conducive to productive discussion. Thank you, Donna Lewis
Under the ADA, there is no affirmative action requirements/provisions. And under the ADA, employment application forms by businesses and universities cannot ask you “Are you disabled?” And how are you gonna have aa without a quota system? Is Gallaudet requiring applicants to identify themselves as deaf legal or illegal?
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