report of committee w, 1977-78

Report of Committee W, 1977-78Author(s): Mary GraySource: AAUP Bulletin, Vol. 64, No. 3 (Sep., 1978), pp. 177-180Published by: American Association of University ProfessorsStable URL: http://www.jstor.org/stable/40225113 .

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Report of Committee W, 1977-78

In this, my fifth and last report as chairperson of Com- mittee W, the message I bring is not substantially dif- ferent from those of previous years. As the pressures on tenure gather, fed by the prospect of declining enroll- ments, the specter of a higher retirement age, the new questioning of the role of colleges and universities in our way of life, academic women are feeling the effects disproportionately. The best hope of equitable treatment remains, I believe, with effective utilization of academe's own procedures rather than with administra- tive or judicial remedies.

We have in the past focused on a variety of ap- proaches to the issues, adopting techniques to meet the challenges which constantly arise. However, before we proceed with such an analysis, I want to discuss an issue which has, throughout my tenure, been of special concern to me.

Equal Periodic Benefits

AAUP has long played a leadership role in advocat- ing equal periodic retirement benefits to similarly situ- ated men and women. Last year we resolved the issue in our role as an employer by beginning to pay our retired female employees benefits equal to what they would receive were they male. We had to resort to this temporary expedient because TIAA-CREF was unwilling to provide a satisfactory plan to supplant the cur- rent unequal benefits plan we have with them. TIAA has also been unwilling to provide satisfactory plans to other employers who would prefer not to discriminate.

AAUP, like most colleges and universities in the country which are not under state retirement systems, has a TIAA plan in which the employees and the employer make contributions as percentages of salary (defined contribution plan); faculty members accumulate these credits in their individual accounts. In most cases faculty members, at least after some waiting period, must participate in the plan. Upon retirement certain options are available to each person: single- life annuity, ten-year certain annuity, joint survivor annuity, etc.; however, it is not possible to receive the entire accumulation as a lump-sum payment. Under the single-life option, the monthly benefits to women are approxi-

mately 15 per cent less than to men with the same accumulation. The justification offered is that on the average women live longer than men; this factor and this factor only is considered in grouping for insurance purposes. (For a more detailed discussion of the issues involved, see "Interim Report on Equal Periodic Pen- sion Benefits for Men and Women*

' in the October,

1976, AAUP Bulletin.) Largely due to the efforts of the Michigan conference

of AAUP, the Michigan legislature has passed a bill which will require Michigan employers to provide equal periodic benefits in their retirement plans. A similar bill1 has been introduced in the United States House of Representatives by Representative Brodhead of Michigan. In addition, as I reported last year, in Reilly v. Robertson, 56 Ind. Dec. 480, 360 N.E.2d 171 (1977), the Indiana Supreme Court ruled that the state teachers' retirement system, which had a plan similar to the TIAA plan, may not pay unequal monthly benefits to men and women. Since the decision was based on state as well as federal constitutional grounds, the United States Supreme Court declined to review it; hence it is controlling in Indiana. Thus our members in two states should be able to enjoy nondiscriminatory retirement benefits; however, further action may be required to carry out these legislative and judicial man- dates.

The most significant development, however, oc- curred in City of Los Angeles v. Manhart, 46 U.S.L.W. 4347 (1978), a case in which AAUP joined with ACLU in filing an amicus brief. The United States Supreme Court ruled that women may not be forced to contrib- ute more to a pension plan in order to receive the same periodic retirement benefits as men. The Court found such a practice to be in violation of Title VII.2

The plan in Manhart differed from the TIAA plan not only in requiring unequal contributions from the employees, rather than paying unequal benefits, but also in basing benefits on a formula based on years of service

1 H.R. 10292 2 42 U.S. Code § 2000e et seq.

SEPTEMBER 1978 177



(defined benefits) and in being operated by the employer himself rather than by an insurance company.3 Because of these differences, there is some doubt as to the effect of the Manhart decision on TIAA plans. In his opinion, Mr. Justice Stevens noted that since Title VII covers employers, not insurance companies, employers could give their employees equal amounts of money to purchase retirement annuities in the open market. However, in the TIAA plan, participation in a system involving discriminatory options is obligatory, and the plan is offered through the employer, who is covered by Title VII. Thus, although we may have to await further resolution in the courts, TIAA does not seem to escape through Mr. Justice Stevens' "open market " clause.

Moreover, the language of the opinion seems to be applicable to unequal benefit plans since it is the sin- gling out of sex as the only characteristic contributing to life expectancy and then classifying by it that the court apparently found objectionable.

The extent of the applicability of Manhart to the university setting should become more apparent as sev- eral cases in the lower federal courts are decided.4 Meanwhile, representatives of AAUP have been in touch with the Department of Labor to urge them to change their regulations in such a way as to require equal benefits; and they have entered into discussions with representatives of TIAA and of various associations of colleges and universities regarding possible modifica- tion to the TIAA-CREF plans. It has been the view of Committee W that merged tables should be used for the population of TIAA annuitants, with no identifica- tion of individual policy holders by sex. Such a plan would appear to offer the most equitable treatment and to be most likely to withstand any possible challenge in the courts. The simple expedient of universities hand- ing over in a lump sum the accumulations of a retiree would also be permitted under Manhart, but would on other grounds not appear to be in the best interests of faculty.

The Courts

Individual suits charging sex discrimination against universities have in general fared badly in the courts; the pain of having one's entire career examined mer- cilessly, with each disgruntled colleague and former student coming back to haunt one, has not even in most cases been compensated for by the vindication of a court victory. However, there is one bright note. A recent First Circuit decision5 upheld a district court

decision in favor of a female faculty member who had charged sex discrimination in a denial of promotion. While expressing the traditional judicial reluctance to become involved in faculty judgments of professional merit, the court felt that there should not be judicial abdication of responsibility in higher education.

Within the area of seeking redress through the courts, there is an issue of special concern to me: the use of statistics. In two recent individual cases, which had relied in part on statistical evidence of institutional discrimination to buttress the complaints, plaintiffs failed to convince the judge to draw the inferences they proposed from the data and the analysis of it which they presented.

In one of the cases, the decision, which is being appealed, would place virtually impossible burdens on a faculty member seeking to show discrimination. Aside, however, from the courts' treatment of statistical evidence, the first hurdle faculty face is that of deter- mining the sort of information which would be useful, collecting it, and presenting it in the most effective way. This is an area with which Committee A has been concerned, realizing that sex-discrimination cases are not tractable under their usual procedures and feeling the need for Association expertise. Budgetary limita- tions have prevented Association expansion into this field, but the new policy statement, discussed below, does provide some useful guidance.

In class action suits the proper use of statistics is even more crucial. There is not much useful precedent in cases in academe, but a large number of suits are currently in progress. A suit which could have widespread implications is that brought by the Department of La- bor against Memphis State University to enforce the provisions of the Equal Pay Act. Committee W is very fortunate to have as its luncheon speaker at this Annual Meeting the attorney in charge of this litigation, Ms. Edith Barnett. She will be speaking on the applicability to the college and university setting of general legal principles governing sex-discrimination cases. How- ever, in general the federal agencies have not been vigorous in carrying out their enforcement responsibilities against educational institutions. The complexity of the decision-making process in a university, the sacred- ness of faculty judgments, the Byzantine nature of university politics, the effectiveness of the lobbying efforts of university administrations, as well as the relatively limited impact of faculty employment practices on society have all probably contributed to the lack of zeal among the enforcers.

Currently there are three federal agencies involved in enforcement of anti-discrimination requirements in higher education. The Department of Labor Wage and Hour Division is responsible for the enforcement of the Equal Pay Act, applicable since 1972 to faculty. The Act prohibits only discrimination in compensation, but issues such as differential promotion rates may be impli- cated because of the effect of rank on salary. The De- partment also has responsibility for assuring the compliance of federal contractors with the equal

8 The plan in question was altered in 1975 after California legislation prohibited such a scheme.

4 Peters v. Wayne State, currently in the federal district court for Eastern District of Michigan, directly involves the TIAA plan. State of Oregon v. Henderson, currently awaiting decision in the Ninth Circuit, involves an equal contribution- unequal benefit plan. AAUP has filed an amicus brief in Henderson.

5 Sweeny v. Board of Trustees, 16 FEP cases 378 (1st Cir. 1978).

178 AAUP BULLETIN



opportunity-affirmative action requirements of Execu- tive Order 11246; however, in the case of educational institutions the responsibility has been in the past dele- gated to the Office of Civil Rights of the Department of Health, Education, and Welfare. However, in the reorganization of equal employment opportunity enforcement now under way, Labor's Office of Federal Con- tract Compliance will be in charge of monitoring all contractors, including educational institutions. Al- though there have been delays in awarding grants, in the past no college or university has lost funds because of noncompliance; perhaps we can look to more vigorous efforts from OFCC.

HEW's OCR will retain responsibility for Title IX enforcement, but at least two federal courts have held that Congressional intent in enacting Title IX was to assure only that there be no sex discrimination against students and that employment is not covered.

Under the reorganization, Labor's Equal Pay responsibilities will be transferred to EEOC, the agency which has enforced, and will continue to enforce, Title VII. This centralization would appear to be an improvement in view of past conflicts over EEOC and DOL inter- pretations in areas of overlapping jurisdiction. How- ever, the EEOC plans also to decrease the number of offices, to rely more on state agencies and to cut down on its backlog by to some extent discouraging the filing of complaints. Committee W, along with other organizations, has expressed its concern that the reorganization not result in a reduction of enforcement activities, rather than in the increase so desperately needed.

EEOC has also announced that it will undertake, on its own, investigations of systemic discrimination even in the absence of individual complaints. Committee W will urge that consideration be given to targeting such investigations at some of the worst offenders in higher education.

The Campus Committee W continues to believe that the best

chance for improving opportunities for women in the profession lies with our colleagues on the campus. It is first of all the responsibility of the faculty to assure that hiring, promotion, and tenure procedures are fair, that their students receive equitable treatment and encour- agement, and that stereotyped conceptions of roles do not impede women in pursuing their careers. In this context, I want especially to note the at least partly deserved criticism leveled at senior women faculty: it seems to me that on top of the myriad of other professional responsibilities which are ours, we should make a special effort on behalf of our junior women colleagues. Whether it be a hint on grantswomanship, a word of advice on juggling responsibilities, or help in some other form, we should give some thought to a mentor's role.

In the August, 1977, AAUP Bulletin appeared "On Processing Complaints of Discrimination on the Basis of Sex." This statement was developed by a subcommittee of Committee A, with representation from Committee

W, in recognition of the special problems presented by such complaints. It provides guidance not only for the Association but for campuses in handling problems internally.

Committee W has provided, in response to frequent inquiries, a list of suggested chapter and conference Committee W activities. These included projects for all kinds of institutions and for committees at various lev- els of awareness. For example, reports compiled by local Committees W or by campus Commissions on Women have proved very useful not only in promotion of improvements on the local campus but as models for other campuses. At other colleges and universities, Committees W have monitored institutional pub- lications for sex bias while at still others they have, with other campus groups, organized day-care centers.

Many campuses are now using the Higher Education Salary Evaluation Kit developed by Committees W and Z. For campuses where data are available but access to analysis is difficult, the national AAUP office can provide such service for a modest fee.

As a backup to the processing of individual complaints, Committee W proposes that investigations be conducted of campuses whose practices appear to evidence widespread discrimination. We suggest joint Committee A- Committee W efforts such as those conducted by Committees A and T in the past. Committee W is beginning work on a project to identify egregious offenders as candidates for an in-depth investigation. Concomitant with a study of the "worst" offenders, we propose an analysis of the "best" campuses from the point of view of equality of opportunity and success of affirmative action efforts, in the hope of providing good models for institutions sincerely committed to affirmative action.

The Legislative Process The effectiveness of AAUP efforts in Michigan to

secure state legislation guaranteeing equal pension benefits was discussed above. There are many such issues which are best addressed on the state level, in particular those dealing with insurance, traditionally an area of state regulation. Many states have passed legislation requiring that employers' insurance plans provide for benefits for pregnancy-related disabilities. The analogous federal legislation, which Committee W has supported, is bogged down in the United States House of Representatives, after passing the Senate, primarily because of an attached anti-abortion provision.

One area in which we can, regrettably, report very little progress is that of ratification of the ERA. On August 26, 1977, members of the national and local D.C. area Committees W and of the AAUP staff participated in a pro- ERA march down Pennsylvania Avenue. Last October, the AAUP Council voted not to meet in states which have not yet ratified the ERA. However, it is now truly a local issue in a handful of states, and it is from these states that the ratification effort must come. We ask that chapters and conferences do all that they can to secure ratification.

SEPTEMBER 1978 179



The Association

Within the Association, support for the goals of Com- mittee W has been spotty. While we realize that the Association is facing a period of austerity, we do not feel that present staffing arrangements are entirely satisfactory. In particular, there is a need for additional legal services. We may need to engage in more cooperative efforts with other organizations, such as the ACLU or WEAL, to involve state conferences more, and to re- cruit more volunteer assistance in this area.

In the past we have been concerned with the apparent lack of equal opportunity and affirmative action in the Association's own employment practices. While some recent appointments have been encouraging, the progress, particularly in senior positions, has not been as good as we should like. An affirmative action plan, covering hiring and subsequent conditions of employment, has been developed and we hope will be ap- proved by the Council without any weakening.

The Loose Ends In reviewing my tenure chairing Committee W, I

feel that the Association has made a great deal of progress: the inclusion of data by gender in the salary survey, the development of the salary survey kit, the adop- tion of a policy statement on leaves of absence, the inclusion of affirmative action considerations in the regulations on retrenchment, the development of the Committee A guidelines on sex-discrimination complaints, the preliminary recommendations on tenure for part-time faculty, and, finally, but very important to me, the furtherance of the principle of equal pension benefits.

In some of these areas work remains, and there are other areas in which relatively little has been done, such as special programs for graduate students. I hope that the new chairperson of the committee will have as good staff and committee members with which to work as I have had. I remain ready to help in any way that I can.

Mary Gray (Mathematics and Computer Science)

The American University Chairperson

180 AAUP BULLETIN



report of committee w, 1977-78

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