University’s Desire to Hire More Female Professors Frustrated by Title IX
Title IX was enacted in 1972 to counter then-prevalent discrimination against women by prohibiting discrimination “on the basis of sex.” Perhaps ironically then, the Sixth Circuit recently upheld a man’s bid to hold the University of Cincinnati liable for bypassing him for an assistant professorship in the interest gender diversity. Charlton-Perkins v University of Cincinnati, ___ F4th ___ (6th Cir 2022), Case No. 21-3840, June 3, 2022.
Sixty-two candidates applied for an assistant professorship in the University’s Department of Biological Sciences. Employing its usual processes, the Department winnowed the group down to three, a man and two women. The search committee recommended the male candidate. However, the Dean of the College of Arts and Sciences suggested it might be more appropriate “to focus on the women candidates first” and there might be “a case for hiring two strong women candidates.” When the search committee balked at discriminating against the person they considered the best candidate, the man, the University concocted a rationale for cancelling the entire search.
The male candidate was informed of these facts and sued, alleging a violation of Title IX. The district court dismissed his lawsuit on the grounds the entire search had been scuttled and, therefore, he could not identify a woman who received the job he applied for. The Sixth Circuit reversed. It was sufficient, the Court held, that plaintiff alleged he was denied the job because of sex with supporting details. Otherwise, employers who wished to illegally discriminate against qualified candidates could circumvent not only Title IX, but every anti-discrimination statute, by pre-textually cancelling any job search the resulted in the recommendation of a member of a disfavored group.
Charlton-Perkins is another example of courts being asked to intervene to prevent employers and other actors from illegally discriminating against individuals who do fit institutional diversity goals. The law is clear from the perspective of our federal and state constitutions and civil rights laws: the objective is to avoid discrimination against disfavored groups: i.e., equality before the law. Efforts to engineer equality of outcome, regardless of individual merit, remain illegal, whether in the service of diversity or otherwise.