Saul C. Glazer, Editor
Axley Brynelson, LLP

Vol. 16, No. 11
November 2007

RELIGIOUS DISCRIMINATION

Multiple decisionmakers, layered review process help defeat discrimination claim

Tim Edwards

In addition to its prohibition against discrimination based on sex, race, and other protected categories, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of religion. In a recent case, the Seventh Circuit rejected a faculty member's argument that Saint Xavier University discriminated against her on the basis of religion by denying her tenure application. The Seventh Circuit reinforced that alleged nondiscriminatory reasons for an adverse employment decision aren't pretextual unless the worker demonstrates that the employer's reasons were invented to cover up an underlying discriminatory animus.

Facts

In 1998, Sharon Adelman-Reyes accepted a faculty position in the School of Education at Saint Xavier University in Chicago. Beverly Gulley, the school's dean, was Adelman-Reyes' supervisor. Three years later, Adelman-Reyes received a tenure-track teaching position, and she applied for tenure in the fall of 2003.

Like many universities, Saint Xavier has a layered process for evaluating tenure applications. First, the candidate's dossier is evaluated by the Rank and Tenure Committee, which makes a recommendation to the college dean. The dean, in turn, prepares a recommendation to the University Committee, which makes a recommendation to the vice president of academic affairs, who makes a recommendation to the president. The president then confers or denies tenure based on all the relevant information.

In this case, the Rank and Tenure Committee gave Adelman-Reyes a favorable recommendation. That information was forwarded to Gulley, who recommended against tenure, citing various factors. Based in large measure on the dean's negative recommendation, Adelman-Reyes wasn't granted tenure. She filed a formal grievance with the university challenging the decision. Notably, she didn't allege religious discrimination in her grievance.

After losing her grievance, Adelman-Reyes filed a lawsuit against the university claiming, for the first time, religious discrimination under Title VII. The district court granted the university's request for summary judgment (to dismiss the case before trial), concluding that Adelman-Reyes failed to establish a prima facie (minimally sufficient) case of discrimination and further failed to show that the university's reasons for denying tenure were pretextual. She appealed to the Seventh Circuit.

Court's decision

The Seventh Circuit affirmed the district court's decision in a straightforward opinion that illustrates how the burden of proof is allocated in a Title VII claim that doesn't involve direct "smoking gun" evidence of discrimination. Under the "indirect burden-shifting burden of proof," which applied in this case, Adelman-Reyes was required to establish a prima facie discrimination case by showing (1) she was a member of a protected class, (2) she was qualified for tenure, (3) she was denied tenure, and (4) a similarly situated applicant not in the protected class was granted tenure. If she established a prima facie case, the burden would shift to the university to offer a nondiscriminatory reason for its decision. Once that occured, the burden would shift back to Adelman-Reyes to demonstrate that the university's proffered explanation was a pretext for religious discrimination.

In applying that framework, the Seventh Circuit noted that it's permissible to skip the analysis of an employee's prima facie case and proceed directly to the issue of pretext if the employer offers a nondiscriminatory explanation for its decision. In this case, the university alleged that it denied tenure because Adelman-Reyes didn't show promise of a continued contribution to the university's intellectual life. In response, Adelman-Reyes alleged that Gulley was motivated by religious animosity when she issued her adverse recommendation. In support of that assertion, she pointed out that a colleague overheard Gulley refer to her as a "liberal union-oriented Jew" and that the dean also complained that she took time off from work to observe Jewish holidays.

The Seventh Circuit rejected that argument in its entirety. According to the court, Adelman-Reyes didn't provide sufficient information from which a reasonable jury could conclude that the reasons she was denied tenure were pretextual. The court emphasized that Gulley's stray remarks were insufficient to overcome the fact that the tenure application process was multilayered and overseen by a number of decisionmakers. In addition, the court acknowledged that academic decisions involving tenure require special expertise and that wouldn't second-guess such decisions in the absence of clear discrimination. Ultimately, Adelman-Reyes' after-the-fact allegations of discrimination fell far short of meeting that standard. Adelman-Reyes v. Saint Xavier University, 2007 WL 2684813, 101 Fair Empl.Prac.Cas. 937 (7th Cir., 2007).

Bottom line

This case illustrates how difficult it is to prove discrimination when multiple decisionmakers participate in a layered review process. It also shows how courts are unwilling to second-guess academic decisionmaking without clear evidence of discrimination. You should be aware that religious discrimination claims are on the rise. Therefore, you must be careful when dealing with religious accommodations and situations in which religion can possibly factor into discipline or termination decisions.

Copyright 2007 M. Lee Smith Publishers LLC

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