The authors of this "plaintiffs' cumulative biography" claim it is "decidedly not a cautionary tale against litigation." Excuse me? Tenure Denied examines 19 of the more than 60 sex discrimination cases supported by the American Association of University Women's Legal Advocacy Fund since the early 1980s. The female plaintiffs in eight of the 19 cases lost their claims, seven settled, two won and two are in ongoing litigation.

Tenure is a gender issue. In both the United States and Canada, men make up nearly three-quarters of tenured professors. The main theses of this well-documented study are that "the burgeoning pipeline of women professors with doctorates has yet to translate into full gender equity among tenured faculty," "the tenure process appears to exclude a larger percentage of women than men," and "sex discrimination remains a critical part of the problem."

Tenure Denied weaves together individual stories against the framework of these gross statistical disparities. Allegations include sexual harassment, a hostile work environment, differential workloads, no time off the tenure clock for childbirth, conflict of interest of tenure committee members, retaliation for whistle-blowing and trivializing women-centred research. Few cases are as blatant as that of the earliest plaintiff in the study, who, refusing the sexual advances of a senior professor, was told this was "no way to get tenure."

"A more subtle form of discrimination persists, however, regarding mothers' commitment to serious scholarship." (p. 25) Some tenure committees regard taking even a four-week maternity leave as "lack of commitment to career." In the U.S. the average age of graduating PhDs is 33. If tenure takes another seven years, when is there time for family?

Advice ranges from fitting childbearing between completion of a dissertation and before applying for a tenure-track job, to playing "biological roulette" and postponing childbearing until after tenure. Some institutions encourage women to give birth either during their research leave or during the summer. Thus their maternity leave affects their scholarship - the aspect of job performance on which faculty promotions most heavily depend.

Add to the mix that tenure battles are, by definition, unequal contests, pitting an untenured individual against a powerful institution - the classic David versus Goliath, with David as a woman, on a male battlefield. Women are still (pace Carol Tavris) "measuring up" to male-defined norms and career patterns.

The report also explores universities' defense strategies, from legitimate to devious: operate in secrecy, withhold evidence, even resort to lies and distortions about positive external evaluations. Universities may regard court oversight of the tenure decision as an infringement on academic freedom. However, Brown v. Trustees of Boston University (1989) clarified that "academic freedom does not include the freedom to discriminate against tenure candidates on the basis of sex or other impermissible grounds."

The legal heart of the report focuses on the concepts of mixed motives and pretext, along with key judicial interpretations that have, for the most part, made it more difficult for a plaintiff in a tenure case to prove discrimination. One of these is Fisher v. Vassar College, 1997. LAF-supported plaintiff Cynthia Fisher alleged Vassar had discriminated against her on the basis of sex, age and marital status. The federal district court found the biology department's tenure report was pretextual and used "patently discriminatory standards." The appellate court later found in Vassar's favour, even though it judged the college's proffered reason "unpersuasive." No married woman had ever been tenured in the hard sciences in the college's 130-year history. Still, the Supreme Court refused to hear Fisher's appeal from this adverse decision.

The financial risks for plaintiffs are "nightmarish." Legal costs typically run between $50,000 and $100,000, most coming out of the plaintiff's own resources, affecting whole families, causing anxiety, guilt and tension. One litigant took out a second mortgage and sold family heirlooms on consignment. The five women in Zahorick v. Cornell University raised $100,000, some of it from bake sales, but Cornell had resources of more than $2.5 million. The reported settlements are modest, around $54,000, but many are undisclosed. The time to achieve closure varied from two years to 15 - the average is five.

Then comes the brutal litany of health and emotional costs. Ailments include insomnia, ulcers, panic attacks, violent headaches, overwhelming tiredness and other stress-related symptoms. Some plaintiffs feel "violated, battered and maligned," are labeled troublemakers, and may be shunned as pariahs. They increase their chances of success by working closely with lawyers, but "balancing time spent in litigation with the demands of parenting and working," is sometimes the most difficult aspect of the case.

The "cumulative biography" of these professors-turned-litigants is permeated by hardship, humiliation, and loss, but also by strength, bravery and altruism. These spirited women, in the end, cherish the "intangible rewards that come from doing what one believes is right." Most see themselves as academic whistle-blowers who "take action to insist on fairness and justice for women and to change the academic culture." Some place themselves on a "continuum of past and future female scholars," feeling a responsibility "to defend the gains secured by their predecessors and promote the prospects for ... their students." They thus contribute to the broader struggle for gender equity in the workplace, even if, in almost every case - including the successful ones - the plaintiff professor has to move and/or make a career change.

Case closed? Not quite. The report ends with recommendations. Read them. If you want to proceed against the odds, you must have "capable and committed counsel, compelling facts, emotional strength and a will of steel." Playing Antigone in academe is a huge, daunting, heroic and, alas, necessary role.

Wendy Robbins, on sabbatical leave from the University of New Brunswick, is CAUT's 2004 Visiting Scholar.

¹Tenure Denied, Appexdix A, Table 3; CAUT Almanac 2004, Table 4.2.