A straight case of discrimination? Lawsuits come in all shades for US institutions

Universities face civil-rights actions from white men and heterosexuals, writes Jon Marcus

August 26, 2010

There is little unusual about academics, other staff and students suing institutions over alleged sexual harassment or discrimination based on race or sexual orientation. Universities, after all, are large employers with deep pockets, making them popular targets of litigation.

But US universities have been hit with a succession of eyebrow-raising lawsuits from people who claim they were discriminated against not because they are black, but because they are white, and not because they are gay, but because they are straight.

At least one sexual harassment lawsuit was brought against a university - and won - not by women employees, but by men.

Although such reverse-discrimination cases are also increasingly being filed against other businesses, universities serve as high-profile targets. And the lawsuits, successful or not, have exposed some dirty laundry.

The most high profile was brought this month by a scholar at Trocaire College, a Catholic two-year university with 1,000 students in upstate New York, who claims he was discriminated against for being heterosexual - an allegation that government investigators found there was probable cause to believe.

Csaba Marosan said he was shunned by a clique of gay administrators and academics who called themselves the Merry Men. The state Human Rights Division found there was evidence that the school not only discriminated against Dr Marosan, but fired him when he complained.

Trocaire - Gaelic for "mercy" - denies the claims and says the sexual orientation of its administrators and other faculty is a private matter.

Lawyers representing universities said the economic downturn, poor employment market and increasingly politicised national media in the US were among the factors fuelling such reverse-discrimination cases.

"People are more sensitised to discrimination in our society, especially when times are more difficult and people are getting laid off or not hired or promoted," said Jonathan Alger, vice-president and general counsel at Rutgers University and incoming chairman of the National Association of College and University Attorneys.

He noted that his comments represented neither Rutgers nor the association, and that he was not speaking about any specific case.

However, Mr Alger said such lawsuits remain "a very small percentage of the overall complaints of discrimination" brought against American universities.

"It's just that they get far more publicity than so-called garden-variety discrimination cases. That's not to say there's not real discrimination that goes on in some of those cases, though certainly not in all of them. But they get sensationalised because they seem so counter-intuitive and outside the norm."

For example, when three male football coaches at the University of Southern Mississippi were awarded almost $1.2 million (£765,000) by a jury after claiming they were fired for, among other things, reporting that a female administrator had made sexual advances towards them.

Or when four American football players at the predominantly black Savannah State University in Georgia sued the institution last month saying that they were discriminated against on the basis of their race when their scholarships were withdrawn because they were white. The university denies that the men were ever offered scholarships.

US law prohibits discrimination based on such grounds as race, gender, sexual orientation and age - not a specific race, a specific gender, a specific sexual orientation or a specific age. This means almost anyone can file suit on civil-rights grounds.

Larry White, general counsel at the University of Delaware, said universities were often sued because of their claims to be diverse, their deep pockets and high profiles, and the size of their payrolls and subjective nature of their employment decisions.

"There's something unique in employment decision-making, particularly at the faculty level, at colleges and universities that is very subjective," said Mr White, who said his comments did not represent his university and were not specific to any case.

"A lot of civil-service hiring in the US is done on the basis of written examinations, which are objective. But hiring at a university, especially for a faculty position, tends to be very subjective, which can make a disappointed candidate suspicious as to whether the real factor might have been an unlawful factor."

Meanwhile, he said, "there is no question that public universities have been the target of choice for reverse-discrimination actions. Large universities, public as well as private, tend to be the largest employers in their areas and probably absorb a disproportionate amount of media ink in all fields, not just in labour relations."

One reason for this, Mr Alger said, is "a sense that universities are supposed to be pure meritocracies, whatever that means, whether it's in the hiring process or the admissions process. Especially with public institutions, there's this sense that everybody has a stake in them and everybody thinks they ought to have access to these institutions."

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