Dear BI Career Consultants:
What are the critical factors in determining whether litigation is my only option in a promotion dispute, and if I do sue my institution, is that tantamount to career suicide?
Jonathan R. Alger,
Counsel, American Association of University Professors,
Washington, D.C.
We live in a litigious society in which the media portray courts as the forum of choice to handle all sorts of disputes. In reality, however, litigation is expensive, time-consuming and emotionally draining. Without compelling evidence of discrimination, contractual violations or retaliation for engaging in protected activity, courts are reluctant to second-guess promotion decisions made by educational institutions.
First, determine whether your institution’s own procedures provide for grievances, appeals or reconsideration. Don’t bypass such steps because you assume that a fair hearing is impossible on campus — if you file suit, a court will ordinarily want to see that you have exhausted all internal options.
Look for possible allies in or outside the decision-making structure. Solicit guidance from potential resources who could influence or intervene in the process, such as faculty senate leaders, organizations such as the American Association of University Professors and union leaders with well-reasoned, non-accusatory, written documentation of the process, including any irregularities. Such a record is helpful if litigation becomes necessary. Consider using a lawyer or other advocate prior to litigation to send a message to the institution that you are serious about pursuing your rights. If you suspect discrimination, talk to a campus affirmative action officer, the U.S. Equal Employment Opportunity Commission or a similar state agency.
Litigation is feasible only if a violation of a specific legal right can be identified. The law does not protect against general unfairness, personal animosity or incivility. When a lawsuit is filed, positions harden and individuals on all sides become less willing and able to cooperate.
If you must litigate, you can best protect your career by continuing to act professionally. Don’t burn bridges unnecessarily, and surround yourself with friends on and off campus who can support you throughout the process.
Renee F. Williams, J.D. Professor, College of Business,
Chicago State University and former general counsel, spelman College
Before you consider any options at all, you should first assess the merits of your case. In conducting such an assessment you will be allowed to get a clear and hopefully unbiased view of your case, while aiding you in your consideration of options at a later stage. Following are some suggestions about how to proceed with this assessment.
You should ask yourself, “Did I meet the established criteria for promotion?” While you should have asked this question before the promotion process began, there is no harm in repeating the question. In order to complete this assessment, you must have a clear understanding of the factors used to determine whether or not a promotion would be granted.
Ask someone you can trust and who has a solid understanding of the promotion process, to review your case. Assuming that individual will provide you with unbiased feedback, listen to and consider what they have to say!
Then ask an attorney specializing in employment law to review your case. He or she will help you understand the strengths and weaknesses of your case before you proceed with other options. A consultation fee is typically charged for this service.
Once you have completed the assessment, you then should explore ways in which you might resolve the promotion dispute. Your options range from mediation to litigation. Often disputes can be settled internally, avoiding the long, emotionally — and sometimes financially — exhaustive option of litigation.
Before resorting to litigation, you might consider an informal resolution of the dispute. Most institutions of higher education encourage this strategy of resolution in personnel actions. But in reality, informal resolution of promotion and other personnel disputes is difficult. You should consider this option with caution.
As to a formal internal resolution of the dispute, if you are part of a collective bargaining unit, the unit’s contract will spell out the steps you must take if you seek to resolve a dispute or grievance internally. These procedures, which are typically defined as grievance procedures, are steps that an employee is required to take if he or she seeks to resolve the dispute internally.
If you are not part of a collective bargaining unit, typically, the institution will spell out the steps for disputing a decision pertaining to promotion in its employee handbook, policy handbook or in individual documents (i.e., memorandums) defined as institution policy.
You should be aware that the grievance procedures might also include an arbitration option.
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