Opinion on Denial of Rehearing and Rehearing En Banc June 15, 1984.
ARNOLD, Circuit Judge.
This suit was brought on June 16, 1976, by Dr. Mary Craik
Designated Record (D.R.) 29.
I. LEGAL STANDARDS
A.
Most of the plaintiffs' claims are based on the theory of disparate treatment.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Court prescribed a model for the establishment of a prima facie case in "private, non-class" Title VII actions, id. at 800, 93 S.Ct. at 1823. The plaintiff must prove that he or she belongs to a protected class, applied for an available job for which he or she was qualified, but was rejected under circumstances which allow the court to infer unlawful discrimination. Id. at 802, 93 S.Ct. at 1824; Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093.
450 U.S. at 254, 101 S.Ct. at 1094 (footnote omitted).
Once the prima facie case is made out, the burden of production shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas Corp., supra, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, supra, 450 U.S. at 253-55, 101 S.Ct. at 1093-95. For example, in McDonnell Douglas Corp., the employer met this burden by producing evidence that it refused to rehire the plaintiff because he had participated in illegal demonstrations at the employer's plant. 411 U.S. at 803-04, 93 S.Ct. at 1824-25. If the defendant carries its burden, thus raising a genuine issue of fact, the presumption of illegal discrimination drops from the case. The plaintiff at all times retains the burden of persuasion and must prove, by showing that the defendant's explanation was not the true reason for the employment decision, that he or she was the victim of intentional discrimination. Burdine, supra, 450 U.S. at 254-56, 101 S.Ct. at 1094-95.
On the other hand, for cases brought by private plaintiffs or by the government on behalf of many employees, charging that an employer engages in discriminatory practices throughout most or all of its operations, the Supreme Court, in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444
By proving that the defendant engaged in a pattern or practice of discrimination, not only is the plaintiff class's eligibility for appropriate prospective relief established, a prima facie case with regard to the remedial phase of the suit, in which relief for individuals is considered, is also made out. Id. at 359, 97 S.Ct. at 1866. Thus, the court presumes that the employer unlawfully discriminated against individual class members. In pattern or practice cases, however, the presumption shifts to the employer not only the burden of production, but also the burden of persuading the trier of fact that it is more likely than not that the employer did not unlawfully discriminate against the individual.
Id. at 362, 97 S.Ct. at 1868; see also Franks, supra, 424 U.S. at 772, 96 S.Ct. at 1268. The burden of persuasion shifts to the employer with regard to the claims of both named plaintiffs and unnamed class members. E.g., Taylor v. Teletype Corp., 648 F.2d 1129, 1136-38 (8th Cir.), cert. denied,
In this case we squarely confront the necessity of distinguishing the analysis required for broad-based class actions from that required for individual, non-class actions. Our recent precedents are inconsistent. For example, in Taylor v. Teletype Corp., supra, we followed the Franks-Teamsters analysis. First, we affirmed the District Court's finding of classwide discrimination. Then we examined the claims of the four named plaintiffs to see whether the employer had proved "that the individual employment decision was free from that discrimination." Id. at 1136. In contrast, in Coble v. Hot Springs School District No. 6, 682 F.2d 721 (8th Cir.1982), we first analyzed the named plaintiffs' claims under Burdine and concluded that the District Court had erred in rejecting them. Only then did we consider the class claims. Finally, in Paxton v. Union National Bank, 688 F.2d 552 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983), we analyzed first the class claims and then the individual claims, using the Burdine framework. Even though we found classwide discrimination with regard to promotion, we did not, in examining the named plaintiffs' claims regarding promotion, place the burden of persuasion on the employer. See 688 F.2d at 556-57 n. 3. However, since none of these cases addressed the question of precisely how the burdens of production and persuasion should be allocated in Title VII class actions, we do not believe that our approach in this case, which conforms with the Franks-Teamsters model, is forbidden by Coble or Paxton.
B.
The magistrate did not analyze the evidence according to the class-action framework we set out above. Rather, he first considered the plaintiffs' individual claims under the McDonnell Douglas-Burdine framework and rejected them. Then he addressed and rejected the class claims. In our view this was error; but if we agreed that the class claims were properly rejected, it would be harmless, because in that case the individual plaintiffs would not be entitled to the burden-shifting presumption of Franks and Teamsters. But we disagree with the magistrate's holdings on some of the class claims, in large part because of the manner in which the evidence was considered. In addressing and rejecting the plaintiffs' individual claims, the magistrate considered only the evidence relating to the specific incidents about which the plaintiffs complained. Then, in addressing and rejecting the class claims, he considered statistical evidence and evidence about university policies and practices, but not the plaintiffs' evidence relating directly to their individual claims. We take a different view of how to approach the weighing of the evidence in Title VII class actions. With regard to both the individual and class claims, all the evidence was relevant and should have been considered together. The statistical and other evidence is relevant to the individual claims because it "is often a telltale sign of purposeful discrimination." Teamsters, supra, 431 U.S. at 340 n. 20, 97 S.Ct. at 1856-57 n. 20. The evidence of specific incidents of alleged discriminatory treatment is relevant to the class claims because it may bring "cold numbers convincingly to life." Id. at 339, 97 S.Ct. at 1856. Much of the probative force of the plaintiffs' evidence was dissipated by placing it into discrete analytical compartments. Cf. EEOC
II. BACKGROUND: AFFIRMATIVE-ACTION EFFORTS
Neither Title VII, 42 U.S.C. § 1983, nor the Fourteenth Amendment requires an employer to institute an affirmative-action program, 42 U.S.C. § 2000e-2(j) (1976); Burdine, supra, 450 U.S. at 259, 101 S.Ct. at 1096; Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 606, 46 L.Ed.2d 561 (1976), but evidence that an employer has failed to live up to an affirmative-action plan is relevant to the question of discriminatory intent. E.g., Teletype Corp., supra, 648 F.2d at 1135 n. 14. And, although a trial judge need not make specific findings on all facts nor refer to every item of evidence introduced in a lengthy trial, "[t]he reviewing court deserves the assurance that the trial court has come to grips with apparently irreconcilable conflicts in the evidence ... and has distilled therefrom true facts in the crucible of his conscience." Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d 960, 962 (5th Cir.1975). The magistrate's near-complete failure to address the evidence concerning the defendants' affirmative-action efforts reduces our confidence in his ultimate conclusions.
The Minnesota State University system has had an affirmative-action plan since 1972. The defendants often did not abide by the plan. They did not set goals and timetables for promotion through the academic ranks, V.15.33-39, 160, or for chair positions, V.15.133-34. Nor did they set timetables for appointing women to administrative positions. V.15.111-15. The defendants advance a number of reasons for these omissions. They assert that it was not the intent of the plan to require goals and timetables for "promotions" in academic rank, but only for "appointment" to new or vacant positions. E.g., V.15.33-40. They further aver that they do not set goals for chair positions because the selection process is prescribed by the collective-bargaining agreement between SCSU and IFO/MEA and is beyond their control. E.g., V.15.133-34.
Px. 272-d, at 4, 6, 8. The plan currently in force provides:
Px. 272-g at 4. In view of the plain language of the plans, the defendants' explanations of why they failed to set goals and timetables are untenable.
In addition, the plaintiffs demonstrated that the affirmative-action committee met irregularly and did not meet at all from late 1978 until December 1980. Px. 116; Grachek II at 27-30. The defendants claim that the committee failed to meet during this latter period because the affirmative-action director wanted to use an individual rather than a committee approach. V.20.26. We do not believe that this rather lame explanation is adequate. The plan unequivocally states that "[t]he committee shall meet at least monthly." Px. 272-g at 3; see also 272-d at 12.
Finally, it is uncontested that many members of SCSU's administration and faculty are ignorant about the meaning of affirmative action. The defendants have not made efforts to remedy this situation through formal training programs. V.7B.32-35, 47.
The magistrate did not make findings on any of these points, and we cannot be sure that he gave this evidence proper weight in considering the plaintiffs' substantive claims. We believe that the defendants' explanations, where given, are inadequate to rebut the inference that SCSU officials were not committed to their affirmative-action plan. This is another factor in our conclusion that the magistrate clearly erred in rejecting certain claims of the plaintiffs.
III. CLASS CLAIMS
A. CHAIRPERSONS
Department chairs at SCSU are members of the faculty who are released from teaching duties. The chair manages the department and makes recommendations to the President on personnel actions, budgetary matters, teaching assignments, and so forth. Chairs are appointed by the President of the university.
In March 1976 the university and IFO/MEA entered into a collective-bargaining agreement which, in Article XX, sets out the procedure for selecting chairs. First, a search is held, which may be internal (within the university) or external (including candidates from outside the university). The faculty of the department holds an election by secret ballot. The candidate receiving the majority vote is submitted to the President as the department's nominee. The President must either appoint or decline to appoint the nominee within 10 working days. If the President declines to appoint, the department holds a second election and selects a different nominee. If the President declines to appoint the second nominee, he or she appoints an interim chairperson. Px. 271-a to -c.
The plaintiffs showed, and the defendants acknowledged, that women were underrepresented in chair positions at SCSU, e.g., Px. 305-b; V.15.134, although in recent years their position has improved, Px. 228 at 2; Px. 305-b, -r. From 1970-1971
The defendants pointed to several nondiscriminatory reasons for the dearth of chairwomen. First, they argued that they were unable to conduct external searches unless a faculty position was open in the department, because the chair is a member of the department's budgeted faculty. Second, the defendants maintain that almost all chairpersons have held doctorates, and that women did not obtain the doctorate in any substantial number until the mid-1970s, so that there was a very limited pool of qualified female candidates. Finally, they attempted to show that women were uninterested in chair positions. Of the 53 elections held between 1975-1976 and 1979-1980, 29 were uncontested, and all nominees — 28 men and one woman — from uncontested elections were appointed. Of the 24 contested elections, women ran in 7. In only 5 of these elections, however, did a woman run against a man. In these 5 male-female contests, the woman ran against an incumbent, and, the defendants maintain, incumbents are hard to defeat. Dx. 77.
The magistrate concluded that the plaintiffs failed to prove that women had been unlawfully discriminated against with respect to chair appointments. He found that "16.67% of the female candidates in contested elections were eventually appointed as chairs; 18.64% of the males in contested elections were appointed chairs," and concluded that this disparity was too small to give rise to an inference of discrimination. M. 68. He agreed with the defendants that budget constraints made external searches in departments which had no faculty openings impossible, M. 69. Finally, he rejected the plaintiffs' argument that the administration's failure actively to recruit and support female candidates was indicative of discrimination, because the faculty's hostility toward the administration would render such efforts the "kiss of death" to the female candidate. M. 69-70. The magistrate's discussion is conscientious and shows a great deal of industry. But we disagree in several respects with his method of weighing and analyzing the evidence.
(1) By comparing the percentage of successful female and male candidates in contested elections, the magistrate failed to recognize that female candidates were successful only when they ran against other women, but never when they ran against a man.
(2) By failing to consider cumulatively the effects of the selection process, the magistrate overlooked several important points. Before March 1976, when the collective-bargaining agreement became effective, the President had unfettered discretion in appointing department chairs. After that time, departments — most, if not all, of which had male majorities — held elections to select, by majority vote, a nominee. The President still had the right to reject any nominee and appoint an interim chairperson of his own choosing.
A selection process that is subjective and dominated by men requires particularly close scrutiny. E.g., Paxton, supra, 688 F.2d at 563 n. 15; Royal v. Missouri Highway & Transportation Commission, 655 F.2d 159, 164 (8th Cir.1981). It might account not only for women's failure to win elections against men, see discussion of Craik's unsuccessful chair bid, Part IV.A, infra, it might also account for women's reluctance to run. Cf. Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977) ("The application process itself might not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards
(3) Finally, no consideration was given to the evidence relating to the Craik-Peterson election, see Part IV.A, infra, and to the defendants' general failure to pursue affirmative action with regard to chair positions, see Part II., supra.
We firmly believe that, properly analyzed and weighed, the evidence demonstrates that the defendants discriminated against women with regard to chair positions. The plaintiffs showed that the defendants discriminated against women vis-a-vis chair positions both before and after this suit was filed. Women never held more than two chair positions during any one year. Px. 228 at 2, 305-r. Women lost contested elections against men in 1975-1976, 1976-1977, and 1978-1979. Dx. 77. At all times, the President had authority to appoint chairpersons. Even after this suit was filed, the defendants made no direct efforts to increase the number of female chairs. Even though the representation of women as chairpersons increased somewhat in 1977-1978 and 1978-1979, Px. 305-b, this phenomenon was not the result of any change in the defendants' practices during the post-suit period. Accordingly, we hold that the plaintiffs proved a pattern or practice of discrimination during the period from the time when chair appointments were made for 1970-1971 through the time when those appointments were made for 1979-1980.
B. RANK
There are four academic ranks at SCSU: professor, associate professor, assistant professor, and instructor. Faculty members are assigned a rank when they are hired, and they may later attain a higher rank through promotion. There are both subjective and objective criteria for appointment and promotion. The subjective criteria include teaching ability, scholarly achievement, and professional activities. Dx. 15-18; Px. 271-c, art. XXV. The objective criteria are degree, experience, time in rank, and length of service. Ibid. Various committees and officials make recommendations for promotions, but the President has final authority to approve or disapprove both initial appointments and promotions. Dx. 15; Px. 271-c, arts. XXI, XXV.
The plaintiffs contend that the defendants discriminate against women with regard to rank. They demonstrated that as academic rank increases, the percentage of women holding that rank decreases, while the percentage of men increases. Px. 305-a. This phenomenon, of course, could be due to factors other than sex discrimination; for example, a smaller percentage of women than men might possess Ph.D.'s. Accordingly, the plaintiffs presented multiple linear regression analyses controlling for such factors as highest degree, time elapsed since highest degree, and experience. These analyses, which covered each year from 1973-1974 through 1979-1980, showed that women held lower academic rank, at a statistically significant rate,
The defendants were required to rebut the plaintiffs' evidence by showing that it was inaccurate or insignificant or by providing a nondiscriminatory explanation for the apparently discriminatory result. Teamsters, supra, 431 U.S. at 360, 97 S.Ct. at 1867 and n. 46. Their rebuttal consisted of evidence (1) that the plaintiff's methodology was faulty, (2) that eligible women are promoted as quickly as eligible men, (3) that women get a high percentage of "exception" promotions, and (4) that women are not discriminated against in hiring.
1. Statistical Methodology. The defendants argue that multiple linear regression is an inappropriate statistical method for examining discrepancies in rank. The plaintiffs assigned numerical values to the different ranks for purposes of the analysis: the rank of "professor" was assigned a one, "associate professor" was assigned a two, "assistant professor" was assigned a three, and "instructor" was assigned a four. The defendants argue that assigning numerical values to "qualitative" data — data which, unlike height, weight, or salary, are not inherently numerical (or "quantitative") — undermines the validity of the results. Accordingly, they presented studies based on logistic regression fitting analysis,
2. Defendants' Flow Statistics. The defendants, in Dx. 54, presented a "flow" analysis comparing the movement rank to rank of men and women eligible for promotion. The exhibit is broken down by year from 1974-1975 through 1979-1980 and shows that, overall, 52.1 per cent. of the eligible women, but only 38.3 per cent. of the eligible men, were promoted. In Dx. 70 and 161, the defendants showed that women and men who were promoted between 1973-1974 and 1979-1980 had comparable years in rank and years of experience at the time of the promotion and that it took both men and women 15.5 years to advance from instructor to full professor.
3. Exception Promotions. Over the years, a number of persons have been promoted even though their credentials did not meet the requirements of the written guidelines. The defendants presented evidence showing that between 1973-1974 and 1979-1980 women received more than half of these "exception" promotions. Dx. 161, 169. The plaintiffs' evidence showed, however, that during 1972-1973 and 1973-1974, there were no female, but several male, exception promotions. V.17A.69-83; V.22.30-33, 59-62.
4. Hiring. The defendants showed that from 1974-1975 through 1979-1980 comparable percentages of men and women were hired at the highest rank for which they were eligible. Dx. 69. The magistrate did not consider, however, that for the ranks of assistant professor and associate professor, this was not true during the period before the lawsuit was filed. For example, over the entire period covered by Dx. 69, 82.8 per cent. of the women and 82.5 per cent. of the men were appointed to Assistant Professor, which was the highest entry rank possible. But during the pre-suit period, 76.9 per cent. of the women were hired as Assistant Professors, as opposed to 87.2 per cent. of the men. V. 27.42-44.
We believe that it was clear error to find that there was no discrimination with regard to rank during the pre-suit period. Again, our conclusion is based on the cumulative effects of several factors.
It is clear that the defendants' practices changed after this lawsuit was filed. They appointed women to their highest appropriate ranks in a markedly smaller percentage than men during the pre-suit period. They
Nonetheless, we would hesitate to overrule the magistrate on this issue in light of Dx. 54, the exhibit which showed the yearly movement rank to rank of persons eligible to advance. Evidence such as this is quite probative because it focuses precisely on the decisions made during the relevant time frame; it does not, like "snapshot" statistics, incorporate "the residue of past discrimination." Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1245 (7th Cir.1980). However, Dx. 54 is fatally flawed.
First, "eligibility" as used by the defendants is an imprecise and poorly understood concept. For example, the defendants, on Dx. 139a, classified many persons as eligible for promotion who were not eligible under the written guidelines. V.17A.69-83. Moreover, the volume of exception promotions and appointments indicates that the defendants did not rigorously apply the eligibility criteria. See, e.g., Dx. 70; Px. 258; V.22.30-80. Finally, various individual defendants disagree on precisely what the standards are. Some said that they were aware of no standards other than those which are contained in the collective-bargaining agreement. Grachek I at 71-72; V.14.135. These standards are vague, speaking of, for example, "[l]ength of service," without referring to any particular length of time. Px. 271-c at 25. The "Guidelines for Retention, Tenure, and Promotion," Dx. 15-18, are much more specific, but have not been distributed to the faculty or to department chairs. V.14.134-36; V.19.41-42. See Paxton, supra, 688 F.2d at 563-64. This omission is especially suspect since the promotion process normally begins with a recommendation by the department chair. Px. 271-b at 27; Px. 271-c at 25. Consequently, there is substantial doubt whether Dx. 54 includes all persons eligible for promotion and excludes all persons not eligible for promotion.
Second, the effects of the defendants' tendency, during the pre-suit period, to appoint a greater percentage of men than women to their highest appropriate rank undermine the validity of Dx. 54. One criterion for promotion is time in rank. Since women tended to begin in lower ranks, they would become eligible for promotion to their appropriate ranks later than men. The flow statistics disguise this inequity.
Accordingly, we hold that the plaintiffs proved that the defendants discriminated against women with respect to rank from the time that appointments and promotions were made for 1973-1974 until June 16, 1976, when this suit was filed. Although the effects of this discrimination lingered, and the defendants took no direct steps to compensate for it, we cannot say that the magistrate clearly erred in finding that there was no intentional discrimination in later years, when the defendants' appointment and exception-promotion policies changed.
C. SALARY
The plaintiffs claim that the defendants discriminate against women with respect to salary. They contend that female faculty members receive lower salaries overall and that they receive fewer market-factor and performance increases. The magistrate rejected each of these contentions.
1. Overall Salary. Through multiple-regression analyses covering 1974 through
In light of our holding that the plaintiffs proved sex discrimination with regard to rank during the pre-suit period, this finding cannot stand.
Mecklenburg v. Montana State Bd. of Regents, 13 Fair Empl.Prac.Cas. (BNA) 462, 468-69 (D.Mont.1976). See also James v. Stockham Valves & Fittings Co., supra, 559 F.2d at 332; Finklestein, The Judicial Reception of Multiple Regression Studies in Race and Sex Discrimination Cases, 80 Colum.L.Rev. 737, 741-42 (1980).
Nor do we believe that "division" was a proper independent variable. The defendants invented the "division" categories for trial, V.28.171, in an attempt to account for the fact that engineering teachers are paid more than English teachers. Each of the three "divisions" consisted of two colleges: (1) Fine Arts and Liberal Arts and Sciences, (2) Business and Industry, and (3) Education and Miscellaneous. V.21.166-71. These categories are too broad to be meaningful, and the defendants do not use them in making salary decisions. Cf. Wilkins v. University of Houston, 654 F.2d 388, 402 (5th Cir. Unit A 1981), vacated and remanded on other grounds, 459 U.S. 809, 103 S.Ct. 34, 74 L.Ed.2d 47 (1982), aff'd on remand, 695 F.2d 134 (5th Cir.1983) (the college in which a professor teaches is the most important factor in determining salary). Accordingly, "division" was not a proper factor.
When all persons holding academic rank are examined,
2. Market-Factor Increases. In 1980 SCSU began distributing market-factor increases in five traditionally all-male disciplines identified as "scarce market areas": Business Administration, Computer Science, Economics, Engineering Technology, and Mathematics. Seventeen men and one woman received awards; the woman was the only woman in any of these departments who had a terminal degree.
The discriminatory impact of the awards is evident: the one woman who received the award represented 6 per cent. of the recipients at a time when women constituted more than 20 per cent. of SCSU's faculty. The magistrate agreed, however, with the defendants' argument that the awards were necessary to maintain a strong faculty in these disciplines. M. 59. We cannot say that this conclusion is clearly erroneous in view of the greater market demand for professionals in these disciplines than for professionals in disciplines such as English and Education, where more women have traditionally specialized. See V.15.67-68.
3. Performance Increases. From 1975-1976 through 1980-1981, 23.1 per cent. of the female faculty members and 26.6 per cent. of the male faculty members received performance, or merit, increases. Px. 43. The plaintiffs point out that the discrepancy is higher for 1975-1976 and 1976-1977. The magistrate held that this evidence was insufficient to establish discrimination with regard to performance increases, particularly since the earlier awards were apparently made after the defendants learned that this lawsuit had been filed. We cannot say that this conclusion is clearly erroneous, so we affirm on this point.
D. ADMINISTRATIVE POSITIONS
The plaintiffs claim that the defendants intentionally excluded women from administrative positions. To the extent that the category of "administrative positions" includes department chair positions, we agree. See Part III.A., supra. We shall confine our discussion here to the higher administrative positions.
The plaintiffs showed that women are and have been markedly underrepresented in upper-level management positions. From 1969-1970 through 1975-1976, the highest position held by a woman was that of dean; from 1976-1977 through 1979-1980, the highest position held by a woman was that of assistant vice president. No more than one woman held these high positions in any one year. Px. 44. The plaintiffs also showed that the defendants had
The magistrate concluded, however, that the plaintiffs failed to prove that this underrepresentation was due to sex discrimination, and we cannot say that this conclusion is clearly erroneous. The defendants showed that from 1974-1975 through 1979-1980 women were appointed to administrative positions at more than twice the rate of their percentage in the applicant pool. Dx. 47. While this evidence did not cover the period from 1969-1970 through 1973-1974, it was not totally irrelevant in determining the defendants' practices during that time. Accordingly, we affirm the magistrate's conclusion on this point.
E. SEXUAL HARASSMENT
Finally, the plaintiffs claim that the general work atmosphere at SCSU was sexist. "Employer toleration of a racially discriminatory work atmosphere clearly violates Title VII," Taylor v. Jones, 653 F.2d 1193, 1199 (8th Cir.1981), and the same principle applies to sex discrimination. The plaintiffs' brief refers to about 50 incidents which occurred over a ten-year period. We refer to some of these incidents below, in discussing Dr. Craik's individual claim, see Part IV.A, infra, and we have considered them along with all the other evidence of classwide discrimination. Nevertheless, the situation depicted by the evidence simply does not approach the oppressive work atmosphere which forced the plaintiff in Taylor to resign. Thus, we cannot say that the magistrate clearly erred in rejecting this claim.
IV. INDIVIDUAL CLAIMS
A. CRAIK
Craik alleges that she was subjected to unlawful discrimination when she was not appointed chair of the Psychology Department in 1976. The magistrate, analyzing the evidence under the McDonnell Douglas test, held that while Craik had made out a prima facie case, the defendants articulated legitimate, nondiscriminatory reasons for selecting Dr. Peterson, a man, over Craik, and that Craik had failed to show that those reasons were pretextual. In light of our holding that the defendants were guilty of classwide discrimination with respect to chair appointments, this method of analysis was erroneous. The Franks-Teamsters model should have been applied, under which the defendants would have the burden of persuading the trial court that they had not discriminated against Craik. Normally, we would remand this claim for reconsideration under the proper standard. Here, however, we believe that even under the McDonnell Douglas test, the holding against Craik was clear error, and we therefore reverse.
In the spring of 1975 the incumbent chair of the Psychology Department, Dr. Knutson, announced that he would not continue as chair beyond the end of that quarter. The department selected a committee to conduct a search for a permanent chair, and, since there was an opening on the faculty, held an external search. Craik was one of the candidates for the chair position.
After seven finalists, including two women, had been selected, members of the search committee and members of the department faculty at large began to disagree about the requirements of affirmative action. The search committee discussed the issue at great length. When the committee decided to recommend that four candidates be interviewed, Dr. Murphy, the committee chair, resigned. Murphy felt that affirmative action required a woman to be hired, since it appeared that the female applicants were qualified, and that the department would be "playing games" by having male candidates come for interviews. Px. 1r; Knutson at 46-47. He eventually voted for Peterson. Other members of the department reacted with "hostility and anger" to the idea that they would not have any choice but to hire a woman. Kleiber at 23-25. Dr. Charles Boltuck and Dr. Lesar made statements to
The search committee then recommended that four candidates, ranked in order of preference, be brought in for interviews: Joan Bean, Louis Aiken, Mary Craik, and Robert Riedel. Bean and Aiken withdrew their names, however, and Terrance Peterson and Neil Wylie, ranked fifth and sixth, were added to the list. Craik, the only female candidate, was then top-ranked among the finalists. Dx. 25 at 3.
All four candidates were brought in for interviews. While not all faculty members interviewed all candidates, each candidate's application materials were available for inspection. During the interviews, Boltuck asked Craik if she would sue if she were not selected. V.31.64.
The election was held on May 17, 1976. Under the procedure adopted by the department, after each ballot the name of the person receiving the least votes was to be dropped. The person who, at the end, had the greatest number of votes would be the department's nominee. On every ballot, Craik received the same 10 votes and Peterson received the same 7 votes. On the last ballot, all the votes for Wylie shifted to Peterson:
Ballot 1 Ballot 2 Ballot 3
Craik 10 10 10
Peterson 7 7 13
Wylie 6 6 dropped
Reidell 0 dropped dropped
Peterson became the department's nominee.
After the election, Craik complained to Dean Ames, the dean of the college in which the Psychology Department was located, and to President Graham and asked for an investigation. She told them about the voting pattern, the "stuck with a woman" statement, and about having been asked whether she would sue if not chosen. On May 28, 1976, Graham met with Ames, Gillett, Kitchen (the affirmative-action officer), and Robert Becker (Special Assistant to the President) to discuss the appointment. They discussed the information Craik had relayed, and, relying on the recommendations of his advisors, Graham approved Peterson as the new department chair.
No investigation of Craik's charges was held prior to Peterson's selection. The officials did not contact Knutson, who was in charge of preparing the affirmative-action report, to determine what his views were; they did not attempt to discover who had made the "stuck with a woman" statement; and they did not ask the union for an extension of time in which to look further into the situation and to receive the affirmative-action report. Knutson finally filed the report about two weeks later, and it stated:
Dx. 25b at 4.
The magistrate held, however, that the defendants had articulated legitimate, nondiscriminatory
We believe that this finding was clearly erroneous. While no one factor is determinative, the cumulative effect of the evidence compels this conclusion. For example, there was evidence that a number of the men involved in the selection process were hostile to the idea of a woman's being the department chairperson. Boltuck's and Lesar's statements about "being stuck with a woman" suggest such an attitude. This inference is strengthened by Boltuck's later remark, after Gillett had explained that affirmative action did not require choosing a woman without regard to her comparative qualifications, that the department would not "get stuck with an inferior woman," as well as his inquiry as to whether Craik would sue if not selected.
The plaintiffs presented other evidence indicating that discriminatory attitudes were pervasive in the department. For example, Mason, a man who voted against Craik, while interviewing a prospective graduate student, told her that women like her made good para-professionals and that she probably did not need a graduate degree. V.12.57-58. Lesar told Knutson that he had trouble working with Mary Dwyer because she reminded him of a "prison matron." V.31.100-01. In 1970, Passini, then chairperson of the Psychology Department, assigned Craik to teach statistics and then revoked the assignment, telling her that men on the faculty had objected to her teaching the course. V.1.47-51. Although we do not know exactly why these objections were made, it is reasonable to infer that they were based on the stereotyped view that women are not good at mathematics.
The plaintiffs also presented evidence indicating that certain male members of the department resented Craik's assertiveness and feminist viewpoints. Kleiber, for instance, did not vote for Craik because he felt that there were "communication barriers," stemming largely from sexist attitudes, between Craik and other members of the department. Pdx. 6; Kleiber at 11. He perceived a pervasive atmosphere of resistance to Craik, which he thought might result from her being an assertive woman, including her assertiveness on issues relating to women's rights. Kleiber at 14-15. Knutson substantially agreed with this assessment. He said that some men in the department often made remarks which, Knutson believed, indicated that they were threatened by Craik because they believed that she had a lot of power which she and other feminists would use against them. Knutson at 31-36.
Finally, we are struck by the administration's failure to investigate Craik's charges before confirming Peterson as the new department chair. The voting pattern alone is highly suggestive; there is a 1.6 per cent. probability that the shift of all of
B. ANDRZEJEWSKI, HEMMER, AND GOEMER
The intervening plaintiffs brought individual claims charging that the defendants had discriminated against them with regard to assignment to rank, promotion, salary, and work atmosphere. As in the case of Craik, the magistrate analyzed and rejected these claims under McDonnell Douglas. In light of our holding that the defendants were guilty of some classwide discrimination, this was error. Accordingly, we vacate and remand so that the lower court may reconsider these claims under the guidelines we set out below for the consideration of the claims of unnamed class members. Additionally, since a holding in favor of the intervening plaintiffs on one or more claims encompassed by our holdings of classwide discrimination might affect the analysis of claims not so encompassed, we vacate and remand for reconsideration of those claims as well under the McDonnell Douglas standard.
VI. CONCLUSION
On remand, the lower court should consider whether injunctive relief is appropriate to ensure that the defendants no longer discriminate against women with regard to chair positions. Such relief should normally be granted. It should also consider the claims of all individuals, including the named plaintiffs and the unnamed class members,
With respect to the classwide claims of post-suit discrimination in rank and salary, and discrimination in administrative positions and work atmosphere, the judgment is affirmed.
Affirmed in part, reversed in part, and remanded with instructions.
I agree with the majority's conclusion that the opinion of the magistrate, who tried the case below by consent, seriously fails to consider much of the extensive and sophisticated statistical evidence presented at trial, and partly fails to evaluate the various kinds of evidence, statistical and non-statistical, in the proper framework. I also agree, for the most part, with the majority's explicaton of the proper framework for considering classwide and subsidiary individual claims of disparate treatment. I disagree, however, with its conclusions that under the proper analysis several of the plaintiffs' claims of discrimination were clearly established. I conclude instead that these claims must fail, though on grounds at times somewhat different from those relied on by the district court, or at most should be remanded for further findings under the proper mode of analysis lest we usurp the role of factfinder. In the discussion below I restate the class action disparate treatment framework in order to clarify a point argued by the plaintiffs and left unclear in the majority opinion, and then turn to the particular claims of discrimination.
I. Legal Standards
As the majority notes, ante at 4, disparate treatment claims, whether brought on behalf of an individual or a class, begin with the requirement that the plaintiff establish a prima facie case of discrimination. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the Supreme Court specified the elements of a prima facie case of individual, racially motivated hiring discrimination: that the plaintiff belongs to a racial minority, applied and was qualified for an open position, was rejected, that the position remained open, and that the employer continued to seek similarly qualified applicants. Because these particular elements would make no sense if applied in other discrimination contexts, such as racial discrimination against non-minority-group members or discrimination in areas of employment other than hiring, the Court has emphasized that "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from [the plaintiff] is not necessarily applicable in every respect to differing factual situations." Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13; see also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 1093 n. 6, 67 L.Ed.2d 207 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567, 575-76, 98 S.Ct. 2943, 2948-49, 57 L.Ed.2d 957 (1978); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). The critical characteristic of the prima facie case, no matter what form particular circumstances require it to take, is that it demonstrate that some decision was made and eliminate the "most common legitimate reasons on which an employer might rely" in making the employment decision at issue, so as, "absent other explanation, to create an inference that the decision was a discriminatory one." Teamsters, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 44. This principle, although first articulated in McDonnell Douglas, an individual disparate treatment case, applies with equal force in class actions. Id. at 358-59, 97 S.Ct. at 1866.
McDonnell Douglas also established that a plaintiff who succeeds in establishing a prima facie case must prevail unless the defendant dispels the inference of discrimination by "articulat[ing] some legitimate, nondiscriminatory reason" for its action, 411 U.S. at 802, 93 S.Ct. at 1824, and that even if the defendant meets this burden of production, the plaintiff may prevail by overcoming the defendant's proffered explanation, id. at 804, 93 S.Ct. at 1825. The Supreme Court has made clear that in individual disparate treatment cases the ultimate burden of persuasion always remains with the plaintiff. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. If the defendant never elicits or presents evidence
The applicability of the McDonnell Douglas analysis to classwide claims of discrimination is an issue challenged by the plaintiffs in this case and ambiguously resolved in the majority opinion. Title VII class actions and pattern-or-practice cases brought by the government on behalf of a class of employees, see 42 U.S.C. § 2000e-6 (1976), are generally bifurcated into a liability phase, in which the classwide discrimination is sought to be proved, and a remedial phase, in which individuals' membership in the class and the extent of their injuries are at issue. Teamsters, 431 U.S. at 361, 97 S.Ct. at 1867. What must be proved in phase I is that the employer engaged in a consistent rather than sporadic pattern of discrimination. Id. at 336, 97 S.Ct. at 1855 (pattern-or-practice case); Franks v. Bowman Co., 424 U.S. 747, 751, 772, 96 S.Ct. 1251, 1257, 1268, 47 L.Ed.2d 444 (1976) (class action). Teamsters and Franks explicitly hold that if a plaintiff class or the government prevails at phase I the burden of disproving discrimination against individuals who seek relief at phase II shifts to the employer without more. Teamsters, 431 U.S. at 359 & n. 45, 97 S.Ct. at 1867 & n. 45; Franks, 424 U.S. at 772-73 & n. 32, 96 S.Ct. at 1268 & n. 32. The confusion that I perceive in this area stems from the manner in which the Court described this relationship between phase I and phase II: Prevailing at phase I is said to establish the prima facie case for each individual class member at phase II, with the added twist that the burden of persuasion rather than production on the individual claim then shifts to the employer. Teamsters, 431 U.S. at 359, 97 S.Ct. at 1866, quoting Franks, 424 U.S. at 772, 96 S.Ct. at 1268 ("By `demonstrating the existence of a discriminatory hiring pattern and practice' the plaintiffs had made out a prima facie case of discrimination against individual class members; the burden therefore shifted to the employer `to prove that individuals who reapply were not in fact victims of previous hiring discrimination.'"); id. 431 U.S. at 360, 97 S.Ct. at
I believe the majority agrees with this analysis, for it speaks of proof of a pattern or practice of discrimination constituting the prima facie case for individual class members. Ante at 470 n. 7. I consider the majority opinion ambiguous only because it rejects the McDonnell Douglas mode of analyzing the evidence in phase I. Ante at 470 n. 7. If this rejection is meant to indicate that the "proof" required in the liability phase of a class case is "lower" than that required in an individual case under McDonnell Douglas and Burdine, I disagree. The stated reason for rejecting the McDonnell Douglas approach is that its burden-shifting "minuet," see Vuyanich v. Republic National Bank, 521 F.Supp. 656, 661 (N.D.Tex.1981), vacated and remanded, 723 F.2d 1195 (5th Cir.1984), is an unsuitable way to organize complex statistical proof. But, as I have argued above, the burden-shifting approach does not require that the evidence be organized and submitted in responsive volleys. Aikens establishes that the McDonnell Douglas/Burdine approach means no more than that when employers present no evidence the plaintiffs prevail if their own evidence passes a threshold of proof, and that when employers do present evidence the plaintiffs prevail if their own evidence is sufficient and more persuasive. 103 S.Ct. at 1482. This approach is not more unsuitable for class claims than for individual claims, because the approach concerns burdens rather than timing. There is no reason why the plaintiff's burden in phase I of a class case should be higher or lower than in an individual case; indeed, by citing McDonnell Douglas, Teamsters indicates that the relative burdens between plaintiff and defendant are the same in both kinds of cases. 431 U.S. at 336, 97 S.Ct. at 1855. What will vary among different types of cases is the formulation of what proof is sufficient to meet these burdens; but the Court has interpreted the McDonnell Douglas principle to encompass these variations. Id. at 358, 97 S.Ct. at 1866 ("The importance of McDonnell Douglas lies, not in its specification of the discrete elements
With these qualifications I agree with the majority's analysis of the applicable legal standards. I hasten to add that the application of these standards in this case is simple in some ways and complex in others. It is simple in that phase I shifting burdens need not be considered at all: Because the employer did present evidence to counter the plaintiffs', under Aikens the court should simply consider whether the plaintiffs' evidence was persuasive. It is complex in that the bifurcation between phase I and phase II, like the shifting of burdens under McDonnell Douglas, may partly be more analytical than temporal. For example, evidence of individual instances of discrimination may be used in phase I as part of the proof of classwide discrimination, as well as in phase II either in establishing an individual claim (if no class claim is proved) or in answering the employer's evidence (if success on the class claim shifts the burden of proof); likewise, the employer's evidence rebutting the inference of discrimination in individual instances may be used to help counter the classwide case in phase I, see, e.g., Paxton v. Union National Bank, 688 F.2d 552, 587 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983), or to meet its burden on the individual claims. Despite these complexities, the framework is useful for organizing and evaluating the evidence.
II. Specific Claims
Background
St. Cloud State University is one of seven public institutions governed by the Minnesota State University board (formerly the Minnesota State College Board). St. Cloud was once purely a teachers' college, and was called St. Cloud State College until 1975, when it assumed its current name in recognition of the growth of its more broadly based educational programs. V.15.56, V.16.73. It now offers a few two-year associate's degree programs, a broad range of four-year bachelor's degree programs, and some graduate programs. V.16.11-12. Currently the university is divided into several "colleges": the College of Business (containing the departments of Accounting, Business Education and Office Administration, Management and Finance, Marketing and General Business, and Quantitative Methods), the College of Education (containing the departments of Educational Administration/Leadership; Health, Physical Education and Recreation; Psychology; and Special Education); the College of Fine Arts (containing the departments of Art, Music, and Theatre); the College of Industry (containing the departments of Industrial Education and Technology); and the College of Liberal Arts and Sciences (containing the departments of Biological Science; Chemistry; Earth Sciences; Economics; English; Foreign Languages and Literature; Geography; History; Interdisciplinary Studies; Mass Communication; Mathematics and Computer Science; Philosophy; Physics and Astronomy; Political Science; Sociology, Anthropology, and Social Work; Speech Communication; and Speech Science, Pathology and Audiology). Px. 268. Each department is headed by a chairperson, who is a member of the faculty budgeted for that department rather than a member of the university administration. Each college is headed by a dean. The deans answer to the Vice President for Academic Affairs, who together with the Vice Presidents for Student Life and Development, Administrative Affairs, and University Relations answers to the President. The deans, vice presidents, and President, together with various assistants and associates, are members of the administration. Grachek II at 60-66;
The teaching faculty at St. Cloud are employed under three kinds of contracts and at four (formerly five) ranks. They may be employed as fixed-term, probationary, or tenured employees. Fixed-term appointments, which ordinarily may extend no more than two years, are typically used to fill temporary or last-minute vacancies, or to fill positions necessitated by "enrollment bulges," for which permanent funding is unavailable. Probationary or tenure-track appointments are year-to-year appointments of longer expected duration during which faculty members are reviewed as candidates for tenure. Tenure is an employment status automatically granted to any probationary employee retained more than six years, but which may be granted earlier, which provides the expectation of indefinite employment and some actual guarantees of job security, such as a requirement of notice prior to termination. V.3.4-6; V.15.95-96; V.16.19-22. In addition, faculty members hold various ranks: professor (I), associate professor (II), assistant professor (III), and instructor (IV). A fifth rank, assistant instructor, was merged with rank IV in 1975. V.3.11; V.15.13-14; Dx. 69. Faculty members are assigned a rank when they are initially hired, and thereafter may be promoted to higher ranks. They may be nominated or request to be considered for promotion or tenure, and are then evaluated by their department chairperson and college dean, the chairperson of an evaluation committee, the Vice President for Academic Affairs, and the President. The President has the ultimate authority to grant or deny the requested change in status. V.3.38-39; V.19.86, 90; Px. 271b at 27; Px. 271c at 25-26.
Until 1971 "minimum academic achievement" standards for assignment to rank, with specified exceptions, were established by state regulations promulgated by the State College Board. Dx. 6, § (o). In 1971 the Board authorized the seven individual institutions to set their own standards and promulgated an interim policy, to be effective until the new standards were formally adopted. Dx. 7. Both the original and interim policies used attainment of or progress toward an academic degree as the sole criteria for rank determinations. Between 1971 and 1972, at the request of the Vice President for Academic Affairs, St. Cloud's deans formulated more stringent and considerably more specific guidelines, using additional criteria such as teaching ability, scholarship, and amount of experience, to guide and regularize their recommendations for initial appointments and promotions. These "deans' guidelines," meant to help standardize the evaluation process even though they could not dictate the final decisions, were distributed to the faculty in March 1972. Dx. 15; Px. 260d; V.16.31-36. The interim State College Board Operating Policy, which remained in effect despite the existence of the deans' guidelines, was superseded in 1974 by the official adoption of A.P.T. (appointment, promotion, and tenure committee) Guidelines for Appointment and Promotion, which were similar to the deans' guidelines. Dx. 16; V.16.41-42. In 1976 the State University Board entered a collective bargaining agreement with the Inter-Faculty Organization/Minnesota Education Association ("IFO/MEA"), the exclusive bargaining agent of the faculty members of all seven state universities. Px. 271a; V.15.46-51. Article XI, section B of the agreement, and of successor agreements effective in 1977 and 1979, Px. 271b, 271c, set new minimal criteria for appointment to rank, consisting of degree and experience requirements less detailed than the deans' or A.P.T. guidelines; provided that the parties would meet and confer about qualifications and criteria upon request; and vested in the employer the discretion to assign a faculty member to a rank lower than that for which he or she was minimally qualified and to determine what degrees or experience satisfied the generalized criteria.
The State College Board regulations discussed above contained a salary schedule that prescribed minimum and maximum salaries for each rank, with some overlap between ranks. Dx. 6, § (p). The minimum/maximum salary range approach was retained under the three collective bargaining agreements, Px. 271a, art. XI; Px. 271b, art. XI; Px. 271c, art. XI; V.16.103, but was changed in the course of the third agreement to a more precise step-and-lane approach, Px. 271c, app.; V.15.52. To understand how particular salaries were set under these systems requires some background explanation of how the universities are funded. The state university system is funded by biennial appropriations by the Minnesota legislature to the State University Board, which in turn allocates the available money among the seven universities. V.15.20. Before 1977 the legislature appropriated one average faculty salary for every nineteen "full-time equivalent" students (i.e., counting part-time students proportionately to their course load), plus additional money to be used for salary increases; since 1977 it has used the 1977 enrollment base, and has funded subsequent growth in the size of the faculties solely from increased tuition revenues. V.15.44-46. The specific salary within the salary range that a faculty member was awarded on initial appointment depended to some degree on the available appropriation for that year. V.16.105. This initial salary became a base salary that could be increased in subsequent years in five ways: by across-the-board increases, by promotion in rank or degree completion, by performance adjustments, by market factor adjustments, and by equity adjustments. The legislature typically appropriated funds equal to a specific percentage of current faculty salaries to be used for increases, and the State College Board/State University Board specified how the funds it provided to each university would be allocated between flat sum or percentage across-the-board increases, merit/performance increases, and other adjustments. Dx. 21, ex. 6a, 7a, 8a, 10a; Dx. 23 at 4. Each year the university determined a uniform increase to accompany promotions to each rank or completion of a degree (e.g., $600 for promotion to rank I, $400 for promotion to rank II, $300 for promotion to rank III, and $500 for completion of a doctoral degree, see id.), although the amounts varied from year to year, and occasionally a shortage of allocated funds required the university to award "dry promotions," or promotions without increase in salary, V.15.29; V.16.103-06. Performance increases were awarded in each year that there was sufficient funding, to faculty members who applied, upon the department's or dean's recommendation and with the approval of the Vice President for Academic Affairs and the President; except that no increase could be awarded if it would push a faculty member's salary above the maximum allowed for his or her rank. Prior to the adoption of the step-and-lane schedules the increases were either a flat amount or divided into two steps in each year, although the amounts varied from year to year. V.16.106-13. Scarcity of and competition for a particular faculty member's skills, either generally or because of the state of the job market in a particular year, always played a part in setting his or her initial salary within the permissible range, but only in 1979 when
In 1971 the State College Board created a commission of women to study the status of women in the state colleges. V.15.15-16. In 1972 the commission issued two reports that compiled and analyzed data on such things as the number, rank, responsibilities, salaries, tenure status, age, and degree of job satisfaction of women as compared to men on the faculties, and made a series of recommendations stressing that women should be sought out and encouraged to apply for faculty, administrative, committee, and other positions, and that the procedures used to grant benefits such as salary, promotion, tenure, and sabbatical leave be scrutinized to ensure equal treatment of men and women. Px. 302a, 302b. Partly in response to these recommendations the State College Board created a Human Rights Compliance Commission to develop an affirmative action program for the state college system. V.15.16-17. On August 28, 1972, it adopted such a plan, Px. 272b at 13; V.15.17-18, although the state college system was not a federal contractor required by Executive Order No. 11,246, § 202(1), 30 Fed.Reg. 12,319 (1965) (as amended), reprinted in 42 U.S.C. at § 2000e (1976), to have an affirmative action plan, see Px. 275, and was not required by Minnesota state law to have such a plan until two years later, see Px. 272c; no state or federal agency has ever found probable cause to believe that St. Cloud has discriminated, so as to justify a remedial affirmative action order, see V.16.79, and universities were not even required to complete self-evaluations of policies and practices in this area until one year from March 24, 1972, the effective date of the Education Amendments of 1972, see 34 C.F.R. § 106.3(c) (1983).
One of the requirements of the 1972 affirmative action plan was that each of the state colleges conduct an "immediate inquiry into the salaries of minorities, women and men with like degrees, comparable years of service, and rank or position to ascertain where salary inequities exist or have existed." Px. 272b at 14-15. The State College Board requested the Minnesota legislature to supplement the 1973 biennial appropriation to cover the costs of correcting any such inequities, but the legislature declined. V.15.19-20. The Board therefore directed the state colleges to make affirmative action equity adjustments before making any of the other types of salary adjustments with the funds allocated to salary increases. V.15.20-21; Dx. 21, ex. 9a-9c. To help in determining the extent of salary discrepancies the Chancellor of the State College Board invited the technical assistance of the Wage and Hour Division of the U.S. Department of Labor. V.15.21-23; Px. 208; D.R. 87. The Wage and Hour Division proposed to calculate the discrepancies by comparing women and minority faculty members to other faculty with similar degrees and experience, without regard to rank. The state colleges accepted this proposal, and made the adjustments
The present action was filed on June 16, 1976, following plaintiff Mary Craik's unsuccessful bid for a chairpersonship. She alleged classwide and individual discrimination against women in recruiting, hiring, appointment to rank, promotion, chairpersonship appointments, compensation, benefits, and work atmosphere, and sought relief for all past, current, or future women employees and applicants for employment at St. Cloud under Title VII of the Civil Rights Act of 1964 and the fourteenth amendment to the United States Constitution. D.R. 1. On August 28, 1978, the district court declined to certify so broad a class because of problems of typicality and adequacy of representation, but certified a narrower class of all past or current women members of the teaching faculty at St. Cloud, conditional on the intervention of additional plaintiffs who claimed "injuries ... more representative of the class allegations." D.R. 23. Julie Andrzejewski, Joan Hemmer, and June Goemer thereafter intervened. D.R. 30, 50. On September 29, 1978, the parties stipulated to the dismissal with prejudice of the claims of discrimination in insurance and retirement benefits, and of discrimination in compensation based on an equal pay theory through the 1975/76 academic year. D.R. 32, 37. A motion to expand the class to include past or current administrators who were not members of the teaching faculty was denied. D.R. 60. The remaining claims were tried before a United States magistrate by the parties' consent. D.R. 59.
Chairpersonships
The plaintiffs offered three kinds of evidence to support their claim that St. Cloud systematically discriminates against women in the appointment of chairpersons: statistics showing that the percentage of past and present chairpersons who are women is much smaller than the percentage of women on the faculty; evidence of failure to comply with affirmative action policies, used to show bad intent; and an individual case of alleged discrimination. Before discussing this evidence, I shall sketch briefly the method by which chairpersons are appointed at St. Cloud.
Starting in 1976 such appointments have been made under procedures prescribed by the collective bargaining agreement. Article XX of the agreement and of successor agreements specifies that the President, after consultation with the department faculty, shall determine whether candidates shall be sought outside as well as within the university, and that the department shall select a nominee from among the candidates by a secret-ballot election. This nominee is presented to the President, who must appoint within ten working days, or reject the nomination and be prepared to justify the decision before the department. If the nominee is rejected, the department must conduct a second secret-ballot election and nominate a different candidate, who must be appointed or rejected in the same manner as the first nominee. The President has the power to appoint, in consultation with the department, a short-term chairperson to fill a temporary vacancy caused by leave of absence, failure to appoint the department's second nominee, or the like. The term of a chairperson, other than that of a temporary chairperson appointed
The plaintiffs assert in their brief, PB 12, without citation to the record, that before 1976 the President had unfettered discretion to appoint chairpersons. My examination of the voluminous record, though not exhaustive, indicates that this is true only in the sense it is true for appointments after 1976: the President had the ultimate power of appointment. Both the plaintiffs' and the defendants' witnesses testified that the power to appoint was exercised only in consultation with the faculty. Charles Graham, the President of St. Cloud, when asked on cross-examination whether before 1976 he "could have picked anyone out of the sky virtually ... [w]ho was on the faculty," testified:
V.17B.31. See also V.15.134 (testimony of Garry D. Hays, Chancellor of the State University Board);
The plaintiffs' first category of proof, statistical evidence, showed that three of seventy-one chairpersons, or 4.2%, who
Far more troubling than the women candidates' lack of success in these few elections is the widespread lack of women candidates for election, a phenomenon demonstrated for the early years by the report on the status of women, Px. 302b, and quantified for the later years by Dx. 77. If the defendants' actions deterred members of the plaintiff class from entering the applicant pool, we could not simply rely on the success rate of actual women applicants in determining whether discrimination existed. The plaintiffs assert, and the majority agrees, that such misconduct on the defendants' part was proved. I disagree. It is true, as the majority states, ante at 16, that subjective selection processes "might ... account for women's reluctance to run," but this possibility alone cannot override the specific finding by the magistrate, who observed the witnesses and heard the testimony, that "[f]ew females have chosen to become candidates but there is no evidence that the low number of female candidates is caused by any discriminatory practice against females by the defendants," D.R. 98.
The plaintiffs point to two specific kinds of action by the defendants to support their contention that the university suppressed class members' participation, but neither category is helpful to their case. First, they point out that several of the departments have no women members, making it impossible to select a woman chairperson unless candidates from outside the university are sought. It is undisputed that such external searches are possible only when there is a position to be filled within the department, because the chairperson is a member of the department's budgeted faculty, see V.18.164-66; V.19.433-34; V.27.105-06; but the plaintiffs argue that external searches for chairpersons of all-male departments were allowed only three times between 1975/76 and 1979/80, see Px. 336,
Second, the plaintiffs argue that the university failed to implement its affirmative action plan, by not setting goals and timetables for appointment of women as chairpersons, by the President's failure to exercise his asserted total discretion prior to collective bargaining to appoint class members as chairpersons, and by the President's failure to exercise his power under the collective bargaining agreement to reject department nominees in favor of temporary chairpersons of his choice. The university system's affirmative action plan provides that "[t]he Chancellor and each of the college Presidents shall require of the Vice-Chancellors and each department within the colleges the development of numerical goals and timetables for overcoming present imbalances of minorities and women in all job classifications." Px. 272b at 20-21, 272d at 8. I agree that willful failure to comply with the plan would be somewhat probative of intent (even though St. Cloud's affirmative action plan was voluntary, unlike mandatory affirmative action plans, which require at least good faith efforts to meet goals and timetables, see U.S. Commission on Civil Rights, Affirmative
The plausibility of the interpretation putting chairperson appointments outside the area for which the university undertook to set goals and timetables depends to a degree on the interpretation of the President's power to ignore departments' nominations, for if those recommendations lack any force, they are no obstacle to the setting of goals. As I have discussed above, there is no evidence to support the plaintiffs' assertion that prior to collective bargaining the President had the first and last say in such appointments; rather, the President's role seems to have been the same as it is under collective bargaining, to act on departmental nominations. The plaintiffs argue further, however, that even after 1976 the President could reject department nominations, and would have forced departments to select women chairpersons had he been truly devoted to the principles of affirmative action; they conclude that failure to do so bespeaks discrimination. I believe this argument is mistaken for several reasons. First, the President had no obligation under Title VII or the fourteenth amendment to override department choices so as to appoint women to chairpersonships in proportion to their representation on the faculty, because if the plaintiffs had no Title VII right to goals and timetables, still less did they have a right to specific performance of the timetables they desired. The limits of the President's discretion to accept or reject department nominees therefore must be determined by reference to the collective bargaining agreement rather than by reference to Title VII. The collective bargaining agreement (which we have no reason to believe is different from the uncodified practice prior to collective bargaining) requires that the President reject nominations only for cause, and that even temporary chairperson appointments be made in consultation with the faculty. It is at least plausible that these provisions make the President's ultimate power to appoint, like the power of the President of the United States to appoint with the advice and consent of the Senate, somewhat bounded. This interpretation gains additional plausibility from the magistrate's finding (which cannot be rejected as clearly erroneous) that the relationship between the unionized faculty and administration was rather adversarial. M. 69-70. Indeed, President Graham testified that he understood his role in reviewing nominations to be limited to correction of gross errors of judgment. V. 17A.29.
Neither the failure — if there was a failure — to conduct external searches for chairpersons nor the university's affirmative action record, therefore, supports an inference that the defendants discouraged class members from seeking chairpersonships. The remaining evidence on which the plaintiffs rely to show that the applicant pool was skewed by the defendants' actions is less specific, relating to the atmosphere at St. Cloud, discussed further below. Evaluation of this kind of evidence depends almost entirely on credibility determinations, on which we are in a poor position to second-guess the magistrate. I conclude that the magistrate was not clearly erroneous in finding the defendants not responsible for the women faculty members' low participation rate.
As the final evidence of classwide discrimination in regard to chairpersonships the plaintiffs cite Craik's unsuccessful bid for the chairpersonship of the psychology department in 1976. This individual instance of alleged discrimination was used to supplement the statistical evidence of underrepresentation in order to bring "the cold numbers convincingly to life." Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856. Without specifying the plaintiffs' burden of proof on this issue, the majority uses the instance to bolster the statistical classwide case, ante at 16; yet later when considering the individual case in detail it would shift the burden of disproving discrimination to the defendants on the ground that the class case was proved, ante at 481. But it is improper to use the instance both ways: If proof of the individual instance is necessary to complete the class proof, shifting of the burden of persuasion on the individual claim is premature; only if the class claim is proved independently
Craik's claim of discrimination in the 1976 selection of the psychology department chairperson is based on a series of allegedly discriminatory incidents directly related to the appointment, placed in context by a background atmosphere of hostility toward women, as illustrated by a different series of allegedly discriminatory incidents unrelated to the election. All the parties concede that at the time of the appointment the psychology department was in upheaval, but the defendants argue that the tensions were created by academic factionalism rather than by hostility to the prospect of a woman chairperson, as the plaintiffs suggest. It seems clear that two sources of unrest, one chronic and one election-specific, underlay the period of the appointment. First, the department had long been balkanized by differences in both theoretical and subject-matter orientation. The latter part of the difficulty was caused in part by the inclusion of the department within the College of Education rather than the College of Liberal Arts and Sciences, which would be more typical, an apparent vestige of St. Cloud's evolution from a teachers' college. The consequent rivalry between those whose interests were defined by a particular theoretical approach and those whose interests were defined by subject-matter area, between specialists in educational psychology and counseling and those whose interests were more generalized, made the department less than cohesive and prompted periodic calls for reorganization or splitting the department between the colleges. Dx. 88, 89, 103; Px. 319 at 105-09; V. 5.117-18; V. 13.128-67; V. 18.26-29; V. 24.144-46; V. 30.140-42; V. 31.41-42, 127-29; Knutson at 28. Knutson resigned the chairpersonship partly because "there had been for years some degree of misunderstanding, shall we say, animosity, squabbling, bickering, political machination which had been going on, still are going on, and I got tired of trying to act as a referee between people." Knutson at 28. At the time of the 1976 election the department was divided into four subgroups (behavior analysis, counseling, general psychology, and educational psychology), and each department member had formal allegiance to one group. Dx. 80; V. 5.92-93; V. 13.129-31. During the year between Knutson's resignation as chairperson and the 1976 election a committee of four faculty members, one representing each subgroup, chaired the department. V. 5.92-93; Px. 1d, 1e. The factionalism continued under the committee, as it was perceived to be favoring one subgroup or another. Knutson at 29-30.
Second, in the course of evaluating applicants the department chairperson search committee became embroiled in a dispute about the requirements of affirmative action. After the candidates were narrowed to nine, including two women, there was extensive discussion of whether affirmative action would require one of the women to be hired, whatever the relative merits of the others. Knutson at 39-40. Several members believed that one of the two women finalists must be hired. Id. One member, Robert Murphy, resigned after a majority of the search committee recommended that four candidates be interviewed, because he believed affirmative action policies required the elimination of the male candidates. Id. at 46-47; Px. 1r; V. 31.132-36. The committee proposed informing the finalists "that there are both men and women among the finalists, that St. Cloud State University is an Equal Employment/Affirmative Action Employer, that there are no women chairpersons in the College of Education at present, and that they are invited to call ... if they are interested in arranging an interview," Px.
Against this background several incidents occurred that the plaintiffs argue demonstrate sex discrimination. First, one member of the department responded to Murphy's statement that only women candidates should be considered by remarking that the department would be "stuck with a woman," Knutson at 46, and responded to the administration's clarification of the requirements of affirmative action by remarking "that means, then, that we won't get stuck with an inferior woman," V. 24.150. These remarks can be interpreted two ways: as expressing hostility toward women, as the plaintiffs urge, or as expressing resentment at the prospect of having to use sex rather than relative merit as the criterion for choosing among the candidates, even if the woman candidate happened to prove "inferior," as the defendants urge. See V. 7A.82-83; V. 24.173-74; V. 30.42; V. 31.60-63; V. 31.105-07; Kleiber at 19. After hearing the testimony of numerous witnesses to the statements, including the speaker, the magistrate credited the defendants' explanation. M. 17.
Second, in the middle of the affirmative action controversy the department voted to suspend the search and continue temporary chair arrangements, pending a review of the department's structural organization. The minutes of a series of department meetings reveal that reorganization of the entire College of Education had been discussed earlier that academic year, Px. 1t; that Knutson discussed the disputes within the search committee with Kenneth Ames, the Dean of the College of Education, who in turn discussed them with Vice President Gillett, id.; that the committee recommended discontinuing the search while reorganization of the department was studied, mistakenly believing that Gillett had recommended that course, id.; see V. 24.135-38, 146-47; V. 5.116-17; Px. 2; that Gillett met with the department and explained his preference that the search continue even if reorganization was under consideration, Px. 1v; that in a later meeting the department, with several students participating, nevertheless voted to discontinue the search, Px. 1w, although the necessary administrative approval was not sought, V. 18.32; V. 24.152; and that two days later the vote was rescinded because student participation was improper under the collective bargaining agreement, because suspending the search after the position had been advertised might subject the department to grievance proceedings, and because Craik had been advised by the state university system's affirmative action officer that suspension might implicate affirmative action concerns, Px. 1x; see Px. 2. The plaintiffs argue that the search was suspended because of apprehension that a woman would be appointed, but testimony in the record indicates that department members may have favored the proposal as a means of defusing the long-standing explosive disagreements within the committee and department, rather than a means to avoid affirmative action. Knutson at 52-53; Kleiber at 22-25; V. 25.11-12. Some department members testified that they wanted to suspend the search until after the reorganization because it would be unwise to appoint a chairperson and immediately thereafter to reorganize the department. V. 30.19-21; V. 31.137-39. The magistrate credited the defendants' explanation. M. 11, 14.
Third, when she was being interviewed by the department as a chairperson applicant Craik was asked two questions she considered improper and indicative of hostility: whether she would sue if she lost the election, V. 2.171; V. 31.64, and whether she would work as hard on the chairperson's duties as she did on women's issues
Fourth, the plaintiffs argue that the voting pattern in the election was suspicious because on the first ballot Craik received ten votes, Terrance Peterson received seven votes, and Neil Wylie received six votes, but on subsequent ballots when the candidate with the least votes was dropped, all of the votes for Wylie shifted to Peterson. Px. 1aa, 4, 5. It is not true, as the plaintiffs assert, that "[t]he probability that all six of these votes would shift from one man to another is non-existent." PB 2l n. 18. But even though the probability that it would occur by chance is small, the inference that sex discrimination rather than some other cause was at work is not compelled. The defendants presented evidence that all five members of the behavioral analysis subgroup cast votes for Wylie on the first ballots, and switched to Peterson when Wylie was eliminated because they believed Peterson better represented their subgroup's factional interests. Dx. 80; V. 30.44-45, 148; V. 31.59, 66, 130-31, 146. The sixth faculty member who originally voted for Wylie, Mary Boltuck, testified that she later voted for Peterson because of his administrative experience and because his academic interests were representative of three of the subgroups. V. 30.114. Each of the three subgroups other than behavioral analysis, although not unanimous, tended to favor either Craik or Peterson on the first ballots. Dx. 80; see V. 30.23-25; V. 31.107-08. The magistrate credited the defendants' explanation that the voting pattern was attributable to factional politics and reasonable assessments of Craik's and Peterson's relative qualifications. M. 15-16; D.R. 79.
Finally, the plaintiffs argue that President Graham displayed indifference to the sex discrimination issue by offering the chairpersonship to Peterson on May 28, 1976, before the department search committee had submitted an affirmative action report, contrary to the requirements of the affirmative action plan, see Px. 272b at 19,
The plaintiffs argue, however, that making the decision to appoint without the benefit of the affirmative action report indicates lack of good faith. But evidence in the record suggests that the administration was attempting to comply with the directives of both the collective bargaining
Although the plaintiffs raised serious questions whether discrimination was manifested in these various incidents surrounding the election, the evidence is not so one-sided, particularly in view of the role of assessments of credibility, as to compel the conclusion that the magistrate's findings are clearly erroneous. The plaintiffs urge, however, that other incidents, unrelated to the election, demonstrate a pattern of hostility toward women within the psychology department and administration that should have colored the magistrate's assessments of credibility. I believe this evidence, like the direct evidence concerning the election, is not compelling.
For example, because Craik was asked in 1970 whether she was interested in teaching statistics and then was not assigned to teach the course, the plaintiffs argue that she was the victim of sexual stereotyping. No evidence was offered to show the reason for that particular course assignment, but because there was testimony that in general faculty members prefer to and do retain courses they have once taught, V. 2.54-55; V. 14.58; V. 30.10-11, a nondiscriminatory reason for the assignment — that another faculty member was unwilling to relinquish the course — was possible. M. 19. In the absence of further evidence, I cannot agree with the majority's conclusion, ante at 34, that an inference of stereotyping is necessary; the bare incident does not speak for itself. As another example, the plaintiffs argue that when Mary Dwyer, a class member, joined the psychology department to create a human services program, she was ostracized by the counseling subgroup, to which she considered herself to belong, by being assigned a storage closet for an office and being denied a mailbox and secretarial service. But the testimony shows that her office was a regular office, subsequently assigned to other faculty members, including men, V. 7A.92, which had been used for files and had not been cleaned out when she arrived, V. 7A.60-62, 91-92, and that at first she was told not to use the counselor education secretary, and was given a mailbox among other faculty members' rather than a special box among the counselors', because of a temporary dispute whether she was to be included in the counseling group, based on disagreement whether she had been hired exclusively for the undergraduate human services program, rather than for the relatively autonomous graduate counseling program, V. 6.188, 196-98; V. 7A.69; V. 30.9-10; V. 31.87-88, 94-96, 97-99, and exacerbated by resentment on the part of the counseling group members that the department had voted to hire Dwyer in preference to another candidate they believed more qualified, V. 31.89-93. Dwyer also complained that in 1977 her photograph disappeared from a bulletin board with other faculty members' photographs, and was not replaced; but there was no testimony regarding who removed the picture, and a
It is true that the magistrate did not discuss each (although he did discuss many) of the innumerable incidents mentioned at trial, of which the foregoing are a representative sample. In each case, however, the incident's tenor was the subject of dispute that could be resolved only by assessing the demeanor and credibility of the witnesses; and the magistrate did make ultimate findings that the incidents as a whole did not show discrimination, although they assuredly showed a great deal of friction. M. 19-25. When the reasons for an ultimate finding of this kind are clear, a district court is not bound to discuss each item of evidence or to make explicit subsidiary findings, Banerjee v. Board of Trustees of Smith College, 648 F.2d 61, 66 (1st Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981); Stanley v. Henderson, 597 F.2d 651, 654 (8th Cir.1979) (per curiam); Falcon Equipment Corp. v. Courtesy Lincoln Mercury, Inc., 536 F.2d 806, 808 (8th Cir.1976) (per curiam); United States v. F.D. Rich Co., 439 F.2d 895, 898-99 (8th Cir.1971), unlike an administrative agency, whose policymaking and discretionary powers sometimes make more detailed findings necessary for adequate judicial review, see
In summary, I conclude that the magistrate's rejection of Craik's individual claim of discrimination is not clearly erroneous, because both the direct and indirect evidence presented at trial are capable of a nondiscriminatory interpretation; and that the rejection of the class claim of discrimination in regard to chairperson appointments is also not clearly erroneous, because of the weakness of the statistical and background evidence, the susceptibility of the evidence regarding class members' low participation rate to a nondiscriminatory interpretation, and the failure of the individual claim. Although the opposite conclusion might have been equally justified had the magistrate made contrary assessments of the witnesses' credibility, the assessments he did make seem unassailable; but if his lack of specificity casts doubts on the thoroughness of his assessments, the case should be remanded rather than reversed.
Rank
The plaintiffs argue that women faculty members at St. Cloud have been disproportionately concentrated in the lower ranks as compared to men, through discriminatory placement and promotion decisions. The bulk of their evidence is statistical. Px. 305b, for example, shows that between 1974 and 1979 a greater proportion of the women than of the men served as instructors (rank IV), and conversely a smaller proportion of the women than of the men served as full professors (rank I).
To understand the battle of the regression studies some background discussion of multiple regression technique is necessary. See generally D. Barnes, supra note 5, at 293-378. Regression analysis is a mathematical technique for sorting out the effects of various independent variables on a single dependent variable, when one has hypothesized in advance which independent variables (i.e., variables determined independently of the system under study) are likely to affect the dependent variable. As a simple example, if we know the salaries and various other facts about a sample of salespeople we may determine whether and how salary (the dependent variable) is determined by the various other facts (the independent variables). One hypothesis
y = a + bx,
where y = the dependent variable (total salary), a = a constant (i.e., a previously unknown fixed base salary), x = the independent variable (sales), and b = the coefficient of x (i.e., a previously unknown percentage of sales or commission rate). Such a function can be graphed as follows:
As noted above, the calculated formula is the one that most closely describes the sample data; particular salaries in the sample may not fall exactly on the line, but should cluster around it. In fact the formula usually is calculated (in a manner mathematically complex but conceptually simple) by minimizing the square of the deviations between the actual data and the formula. Particular salaries therefore are actually described by the formula
y = a + bx + u,
where u = an error term (which will vary among the members of the sample). If the error terms are fairly small and fairly uniform the regression formula is a useful description of the data. If they are large or nonuniform, however, one can conclude that the formula does not describe the relationship between the variables well; the flaw may be that the true relationship is nonlinear or that critical independent variables are missing. For instance, in the sales example it may be necessary to take variables other than sales, such as age and experience, into account. In that case the regression formula will have the form
y = a + b1 x1 + b2 x2 + b3 x3
where x
In this example all the independent variables (sales, age, and years of experience) are numerical, and can take a continuous range of values. Sometimes, however, a relevant independent variable is simply either present or absent, or dichotomous rather than continuous. For example, we may include college education as an independent variable in our hypothesis about salespeople's salaries, assigning the variable the value 1 if college education is present and 0 if it is absent. If, all other variables being the same, a college-educated salesperson earns $100 more (or less) than a non-college-educated one, the coefficient of the college-education variable will be 100 (or -100). Dichotomous variables of this kind are called "dummy variables," because their values are conventional rather than inherent.
The strength of an independent variable's correlation (positive or negative) to the dependent variable is revealed by its coefficient in the regression formula. The weaker the relationship, the closer the coefficient of that variable will be to zero. If the formula exactly fit all of the data, the coefficient of a variable totally unrelated to the dependent variable would be zero. But because the formula is calculated from sample data rather than all the data in the world, and because some marginally relevant independent variables may be omitted,
Slight errors in a regression coefficient therefore may result simply from the margin of error of the regression function itself, and allowances for such error can be made by assuming that the coefficient's true value lies within a calculated "confidence interval" (of whatever degree of confidence we choose) above and below the calculated value of the coefficient. In addition to such errors a different kind of error in the value of a coefficient may result from the design of the regression model. In the abstract, a regression model becomes more accurate as more independent variables are included; that is, the calculation of the dependent variable becomes more accurate. Inclusion of numerous independent variables may decrease the accuracy of particular coefficients, however, if some of the independent variables are redundant. If two variables are correlated (because they are determined by or measure the same thing), inclusion of either one will be sufficient to capture the entire effect of their joint variation, but inclusion of both will decrease the coefficient that each would have independently, by splitting up the effects of their variation between them. For example, if age and experience are highly correlated in the salespeople-salary regression model discussed above, including both as independent variables will produce misleading coefficients, because part of the actual effect of variations in experience will be picked up in the age coefficient, or vice versa. This problem is called multicollinearity. In a properly designed regression model, therefore, the independent variables must be independent of each other.
Choosing the proper independent variables is therefore critical to the success of a regression model. It is important to note that the choice of variables should be the result of a theoretical determination, made before the data are examined, of what factors are likely to be relevant; the proper variables cannot be identified statistically, because statistically correlated relationships may be accidental, lacking practical significance. Indeed, the results of models constructed by trial and error in an effort to discover statistically significant relationships are suspect, because this method increases the likelihood of stumbling on coincidental correlations. See D. Barnes, supra note 5, at 369-70; Vuyanich v. Republic National Bank of Dallas, 505 F.Supp. 224 at 269 & n. 54.
The multiple regression techniques briefly sketched above may be used to test whether certain employment practices are
The plaintiffs in the present case performed a multiple regression analysis to test whether women at St. Cloud were discriminatorily assigned to lower ranks than similarly situated men. Their model included the independent variables sex, highest degree (accounting for the three degrees B.A., M.A. or other master's degree, and Ph.D. or other doctorate), years of experience, and years from highest degree, and used rank as the dependent variable, assigning each of the four ranks a numerical value (1 = professor, 2 = associate professor, 3 = assistant professor, and 4 = instructor). Their data base included all St. Cloud employees (IFO/MEA employees, MSUAASF employees, and administrators, see supra note 16) rather than just the certified class of teaching faculty, V.11.46-47, and covered the years 1973/74 to 1978/79. Their analysis produced a coefficient for the sex variable of between .29 and .25 for the various years in the study. Although they did not report the standard error or the t value for these coefficients, they noted that each coefficient was statistically significant at the 1% level (i.e., we can be 99% confident that each was different from zero). Px. 305o; V.11.53-54. The plaintiffs' expert concluded that during those years between 2.5 and 2.9 women out of every 10 were ranked one step lower than similarly qualified men. Px. 305o at 2; V.11.55.
The defendants attacked this analysis on three grounds: that it included comparisons beyond the scope of the class, that it failed to include certain relevant independent variables, and that it improperly used a kind of dummy variable as the dependent variable. More specifically, the first objection concerned the plaintiffs' inclusion in their study of all three categories of employees included in the university's computerized data base (teaching faculty represented by IFO/MEA, middle-level managers represented by MSUAASF, and upper-level administrators), rather than merely the teaching faculty included in the certified class. This overinclusion is not limited to a handful of administrators, as the majority suggests, ante at 20 n. 15; see V.21.12-14; supra note 16. The second objection concerned the failure to include several subcategories of M.A. as independent variables. Under the university's series of appointment and promotion guidelines, see supra at 489-490, these subcategories played various roles in determining rank. Under the State College Board Operating Policies, for example, the minimum criterion for assignment to rank IV was a master's degree; for rank III, a master's degree plus 45 graduate quarter hour credits; and for rank II, a master's degree plus 90 quarter hour credits. Dx. 6, 7. Contrary to the majority's assertion, ante at 477 n. 15, these subcategories did not fall from use after 1971. Although the criteria became more stringent, up through the time of the trial the minimum criteria for rank
The defendants' critical objection to the plaintiffs' model, however, was their third one. They argued that it was improper to assign artificial values of one to four to the four ranks and to use rank, so quantified, as the dependent variable, for several reasons. The first is the most important: The dependent variable cannot be a dummy variable in an ordinary regression equation because such equations are designed to yield a continuous range of values rather than discrete steps when particular values for the independent variables are supplied. Plugging particular values into the plaintiffs' model will not yield one of four discrete values, as the model seems to expect, but will yield a range of values that anomalously may predict one will be less than an instructor or more than a professor, or any gradation in between. Because regression analysis of variables that can take only discrete values (termed "qualitative" rather than "quantitative") would be extremely useful in both the natural and the social sciences, alternative models have been devised and extensively surveyed in the econometric literature. See, e.g., G. Maddala, Econometrics 162-71 (1977); G. Maddala, Limited-Dependent and Qualitative Variables in Econometrics (1983); Amemiya, Qualitative Response Models: A Survey, 19 J. Econ. Literature 1483 (1981). In simplest terms, such models employ a transformation function so as to yield, instead of the discrete values 0 or 1 for a dichotomous dependent variable, the probability that the variable will have the value 1. H. Theil, Principles of Econometrics 628-33 (1971). If in the present case, for example, there were only two ranks, called 0 and 1, regression analysis could be performed, despite the impossibility of limiting the results of the regression equation to those discrete values, by transforming the continuous range of results into probabilities that faculty members with particular characteristics will be assigned rank 1. It would be improper simply to interpret the raw results that fall between 0 and 1 in the plaintiffs' model as such probabilities, because the ordinary regression function is not so designed.
The second problem with the plaintiffs' dummy dependent variable model compounds the first. Their dummy variable could take not two but four discrete values, arbitrarily assigned the numerical values one, two, three, and four. The model thus not only anticipated the generation of four discrete values (an expectation that suffers the flaws described above), but also assumed a particular numerical relationship among the ranks — specifically, that the "distance" between each of the successive ranks was equal. This assumption may or may not have been warranted; for example, it is possible that the rank of instructor is so much lower than the others that the proper values to be assigned to the four ranks were one, two, three, and ten. It is clear that the results of the regression could vary wildly depending on how these values are assigned. The plaintiffs' assumption about the relationship among the ranks, other than their hierarchy, lacked foundation.
The defendants' analysis sought to correct each of these flaws in the plaintiffs' study. To meet the first problem they performed a "logistic regression," which is a transformation of the regression into probabilities by a technique known as the "logit model." G. Maddala, Econometrics 163-64 (1977); G. Maddala, Limited-Dependent and Qualitative Variables in Econometrics 9 (1983); H. Theil, Principles of Econometrics 632-33 (1971). To meet the second and third problems they analyzed the four ranks separately. Their model thus operated in a three-stage sequence as follows: At the first stage it analyzed the probability that faculty members with given qualifications would be assigned rank I rather than a lower rank; at stage two it analyzed the probability that a faculty member with given qualifications would be assigned rank II rather than a lower rank; and at stage three it analyzed the probability that a faculty member with given qualifications would be assigned rank III rather than a lower rank (rank IV). This sequential analysis allows the use of a dichotomous dependent variable with the values of 0 or 1 at each step (stage one: professor = 1, lower ranks = 0; stage two: associate professor = 1, lower ranks = 0; stage three: assistant professor = 1, lower rank = 0); at each stage the transformed regression equation measures the probability that the dependent variable will have the value 1. See G. Maddala, Limited-Dependent and Qualitative Variables in Econometrics 49-51 (1983). Separating the analysis of each rank from the others also avoids any assumptions that the ranks are equally "spaced" and that the relative weights of the independent variables are uniform across ranks, and allows one to pinpoint at which ranks, if any, disparities in results are located.
To illustrate the other claimed flaws in the plaintiffs' regression study, the defendants performed two logistic regression analyses, one using the independent variables employed by the plaintiffs, and one using the independent variables degree category (B.A., M.A., M.A. + 45, M.A. + 90; Ph.D.), sex, time from degree, and experience. In the first analysis the coefficient of the independent variable "sex" was not statistically significant (i.e., not significantly different from zero) for the first stage (professor vs. lower ranks), but was progressively significant at stage two (associate professor vs. lower ranks) and stage three (assistant professor vs. lower rank). Dx. 154a; V.32.36-39, 48. When the same analysis was done with the additional degree categories M.A. + 45 and M.A. + 90, however, the coefficients for the sex variable became insignificant at each stage. Dx. 154b; V.32.15-32. The defendants therefore argue that the apparent difference in treatment of the sexes observed in Dx. 154a is actually attributable to the neutral factor of educational achievement rather than sex. If St. Cloud was entitled to reward such achievement and in fact a smaller proportion of the women faculty members than of the men had M.A. + 45 or M.A. + 90/ABD status, the proportional underrepresentation of women at certain ranks was not the result of sex discrimination.
Second, the plaintiffs argue that the use of particular degrees and subcategories of degrees as criteria for appointment and and promotion has a disparate impact on women and has not been validated by proof of business necessity. This argument is troubled, because it assumes that the criteria must be compared with some independently determined job description. But I believe the criteria are themselves definitional, rather than being designed to satisfy a preexisting definition, and that universities are entitled to set their sights as high as they choose in determining the qualities of their faculties. See A. Larson & L. Larson, 2 Employment Discrimination § 50.71(c) (1983). Because higher academic degrees are widely regarded as evidence of educational achievement and scholarly promise, they are not a bizarre measure of the qualities universities ordinarily seek; and the courts should be timid of scrutinizing further the content of such academic determinations. See Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir.1980) (Friendly, J.). Even if it were proper to inquire whether St. Cloud's choice of criteria was compelled by external considerations, however, the plaintiffs' argument would be unsuccessful, because the defendants presented evidence that St. Cloud's increasing emphasis on doctorate and near-doctorate status, as it progressed from a teacher's college to a full university with graduate programs, was required for accreditation. V.15.54-57, 79-80; V.16.58-63; V.18.13-18; Dx. 19, 20a, 20b, 20c.
Finally, the plaintiffs argue that the shortage of women at the highest degree levels at St. Cloud is but another manifestation of the university's discriminatory practices, because the percentage of faculty members at those levels who were women was smaller than the percentage of women in the applicant pool. For example, the plaintiffs' evidence showed that in the years 1976 to 1980 between 9.6% and 13.9% of the faculty members with Ph.D.s were women, Px. 305h, 305k,
In addition to these broad attacks on the defendants' regression analysis, the plaintiffs made more particularized arguments that at hiring women were not assigned the highest rank for which they were minimally qualified as frequently as men, and that afterwards women were not promoted to higher ranks at the same rate as similarly situated men. Because faculty members at St. Cloud progress through the ranks without skipping ranks, V.10.113, and have been required since 1976 to spend three years in one rank before being considered eligible for promotion to the next, Dx. 17, 18, the effects of discriminatory initial placement could persist throughout one's career at St. Cloud, and be exaggerated still further by discriminatory promotion rates.
The plaintiffs originally presented evidence of the number of years men and women faculty members holding each of the degrees Ph.D., M.A., and B.A. took to be promoted to each of the ranks. Their first such study included all employees (teaching faculty, administrative/service faculty, and upper-level administrators), and canvassed 635 promotions awarded to faculty members who were employed at any point between 1973 and 1979, regardless of the year of the decision; 411 of the decisions occurred before 1973, "some of them ... long before." Px. 305p at 2; V.11.64-65. This study found the average difference in the rate of promotion of men and women who held M.A. degrees to be significant, and concluded that the typical promotion pattern (to rank III with the M.A. and then to ranks II and I with the Ph.D.) took 14.6 years for men and 17.5 years for women. Px. 305p. Because the criteria for promotion grew more stringent in the 1970s, however, see supra at 489-490, the inclusion of the earlier promotions, made at a time when women constituted a smaller percentage of the faculty, could skew the results; the plaintiffs therefore reworked their study, using the same employees (holding M.A.s and Ph.D.s) but including only promotions made between 1973 and 1979. This study also found significant differences at the M.A. level. Px. 305q.
The plaintiffs subjected these analyses to searching examination at trial in order to demonstrate that "eligibility" was not a concept susceptible to certain definition. For example, St. Cloud's Institutional Studies and Research people, who prepared Dx. 54, did not always classify the same people as exceptions to the promotion criteria as Robert Becker, who prepared Dx. 69 and 70, did. Compare Px. 323 and Dx. 54B with Dx. 70 at 3; V.22.57-82; V.23.14-72; cf. Px. 258. A large amount of the disagreement appears to have arisen from the number and complexity of the standards, the interaction of successive sets of standards, and the history of interpolation when gaps in the written guidelines existed. In 1966 and 1971 the State College Board issued regulations providing only that promotion or appointment at rank I required a doctoral degree; rank II required a doctorate or M.A. + 90; rank III required an M.A. + 45; and rank IV required an M.A. Dx. 6, 7. These standards were not self-executing, entitling a faculty member with a particular degree a corresponding rank, but specified that any faculty member could "be assigned to a lower ranking group if deemed advisable." Dx. 6. These bare standards continued in effect until 1974, despite the formulation in 1972 of the "deans' guidelines," Dx. 15, which were designed to specify when it would be advisable to appoint or promote to the maximum rank. Thus, although the guidelines specified both quantitative conditions (doctorate or other appropriate terminal degree and ten years' teaching experience for rank I; doctorate or terminal degree and seven years' teaching experience for rank II; doctorate or terminal degree and no experience, or ABD and four years' teaching experience, for rank III; and master's degree for rank IV) and qualitative conditions (teaching ability, demonstrated scholarship, academic responsibility, and professional development for rank I; teaching ability, scholarship, and academic responsibility for rank II) for rank determinations, these standards were considered advisory rather than new binding minimums. Px. 260d. There was testimony that a practice developed during the time these guidelines were in effect of recognizing unusual degree combinations or extensive experience as alternative qualifications for attainment of rank, in addition to those stated in the guidelines. V.22.30-31; V.23.60. In 1974 APT guidelines, largely replicating the deans' guidelines, were adopted, superseding the State College Board regulations. Dx. 16. There was testimony that the interpretational history of the deans' guidelines was carried over to the APT guidelines as well. V.22.65-69;
On cross-examination of the defendants' witnesses it was determined that many faculty members classified as eligible for promotion in Dx. 70 did not satisfy the written standards in effect at the time the promotion decision was made. Many of these classifications were attributable to reliance on the standards as glossed at the time rather than as written, V.22.65-68; one involved a judgment whether a candidate's terminal degree was appropriate for his discipline, V.22.70-72; and one candidate was classified as eligible because he was interpreted at the time he was promoted to have ABD status, an interpretation that was later discovered to be mistaken, V.22.63-64. The plaintiffs make three arguments concerning the defendants' eligibility analyses. First, they argue that the defendants applied the expansive interpretation of the guidelines unequally, giving men but not women the benefit of the unwritten interpolations. They identified only two women out of the fourteen classified as exceptions, however, who should have been deemed eligible under the guidelines as expanded by interpretation, V.23.69, still leaving women with a large proportion of the exception promotions. It is impossible from the record to determine what effect including the two women among the eligibles would have on Dx. 70's comparison of the average years spent in rank and years of experience of men and women promoted as eligible, but the defendants did submit a revision of Dx. 70 going the other way, pulling out all the faculty members whom the plaintiffs argued were not eligible under the guidelines as written (one woman and seven men). As noted above, this study found that women and men fared similarly even when so classified. Dx. 161; see supra note 23. Second, the plaintiffs argue that when the guidelines are applied strictly, the proportion of promotions classified as exceptions is so great that the eligibility criteria must be abandoned altogether as a basis for comparing the rate of promotion of men and women. They conclude that their comparisons of men and women holding B.A., M.A., and Ph.D. degrees is valid. This argument overlooks the fact that many of the individuals they classify as exceptions were evaluated under some standards, albeit unwritten. If those standards were applied evenhandedly to men and women there is no cause to complain. The fluid state of the eligibility criteria and the conflicts over their proper interpretation clearly make it difficult to assess the evenhandedness of the standards' application. The defendants therefore presented evidence that, whatever the standards were, between 1975/76 and 1980/81, the years for which the data were readily available, similar percentages of the men and women who sought promotion under the largely self-nominating process were successful. Dx. 71, 165; V.27.130-31; see also V.19.93-94.
The plaintiffs argue further, however, that even if the defendants' studies are credited, they show that during the pre-lawsuit period women were hired at the highest rank appropriate for their qualifications less frequently than men. In Dx. 69 the defendants showed similar rates of appointment to the highest possible rank for the period 1974/75 to 1979/80, but the plaintiffs argue that analysis of the pre-lawsuit years alone (1974/75 to 1976/77) reveals disparate rates for men and women. In particular, they focus on the appointments at the assistant professor level. At trial they determined that, although during the entire period of the study nearly equal percentages of the men and women appointed at that level were appointed at the highest rank for which they were qualified, during the pre-lawsuit years of the study 76.9% of the women and 87.2% of the men were appointed at their highest rank.
In summary, I conclude that the defendants' regression analysis, which unlike the plaintiffs' used a proper methodology, showed that rank assignments at St. Cloud may be explained by neutral criteria. Although the magistrate despaired of understanding this powerful evidence, M. 45, 49, he did analyze the more particularized evidence offered by both parties, and after close reexamination of the evidence I cannot conclude that his finding of no discrimination was clearly erroneous.
Compensation
Finally, the plaintiffs contend that women's salaries markedly lag behind men's at St. Cloud. Again their expert offered a multiple regression study to demonstrate the alleged disparity. The parties agree that multiple linear regression is an appropriate model for analyzing salaries, cf. supra at 508, unlike rank, but disagree about the proper data base and the appropriate independent variables to be included. The plaintiffs' original study included data on teaching faculty, administrative/service personnel, and upper-level administrators, V.11.46-47, and included the variables highest degree (B.A., M.A., and Ph.D.), creditable experience, time from highest degree, and sex. Px. 305o. It concluded that between 1973/74 and 1978/79, all other variables being equal, women earned from $25 to $1198 less than men, differences that were significant at
The defendants made several challenges to this study similar to those already discussed above. First, they argued and the magistrate found that inclusion of personnel other than the teaching faculty was improper. They supported this argument with evidence that the salaries of teaching faculty members, administrative/service personnel, and administrators were determined under three separate schedules. V.20.12-13. Second, they argued that the degree categories M.A. + 45 and M.A. + 90 should be included, because it was likely that the incremental increases in education elsewhere recognized in the university would affect salary. Third, they argued that rank must be included for similar reasons. Finally, they argued that, because of differences in the market value of different departments, it was improper to omit a variable that would take market value into account. Because restricting comparisons to faculty members within single departments would so shrink the range of comparison as to prevent any useful conclusions, they proposed using three broad groupings of similar departments, which they called divisions. One division contained the colleges of fine arts and liberal arts; the second contained the colleges of business and industry; and the third contained the college of education and miscellaneous related programs. V.21.167-68; V.28.91.
I believe the defendants' first two arguments are incontestable, for they have a logical basis, and indeed the limitation of the data to teaching faculty and the inclusion of degree categories as variables are shown by the plaintiffs' own revised regression analysis to make a significant difference. Px. 337-339. The plaintiffs make more spirited arguments, however, against the inclusion of rank and division as variables. They argue that rank should be omitted because it is highly correlated to sex, and therefore poses a multicollinearity problem, threatening to mask as rank differences disparities actually due to sex. This argument stands or falls with their arguments that rank is determined discriminatorily; because I consider those arguments to have been properly rejected, there is no reason not to include rank as an independent variable in the regression. They also argue that division is an improper variable, because it is an artificial construct that plays no actual organizational role at St. Cloud. The variable need not be formal to be functional, however. It is commonly known, and evidence was offered at trial to show, Dx. 68, that members of different academic fields command different salaries depending on the competition for their services from private industry and from other universities. These disparities are likely to be most pronounced when disciplines for which there is private demand are simultaneously expanding academically (such as accounting), and when disciplines for which there is little demand in private industry are shrinking academically (such as English or philosophy). Indeed, the majority acknowledges that scarce-market fields may legitimately command higher salaries. Ante at 479. If it happens through forces independent of St. Cloud that a smaller proportion of women than of men pursues the high-market disciplines, the incidental effect on women of rewarding scarcity cannot be termed discriminatory. I therefore believe division was properly included as a variable.
The plaintiffs submitted a revised regression analysis taking into account all of these variables (experience, degree category, division, rank, and sex), using data on the teaching faculty alone, and found no significant differences between men's and women's salaries. Px. 339. In addition the defendants offered studies comparing each class member to at least five, and often many more, men in similar departments and with similar education, rank, and experience during the years 19 75/76, 19 77/78, and 19 79/80. Dx. 56, 58, 60. The studies' conclusions that women's and men's salaries were similar confirms the results of the regression analysis. I therefore believe the magistrate's conclusion that salary discrimination was not shown is not clearly erroneous.
III. Conclusion
Almost all of the issues involved in this case are factual rather than legal. The few legal issues concern the proper relationship
On Rehearing
Before LAY, Chief Judge, SWYGERT, Senior Circuit Judge, and ARNOLD, Circuit Judge.
PER CURIAM.
The petition for rehearing is denied. Rehearing en banc is also being denied by separate order entered today.
The petition for rehearing raises for the first time the question whether the defendants are immune under the Eleventh Amendment from certain relief, to the extent that that relief is based on 42 U.S.C. § 1983, as opposed to Title VII of the Civil Rights Act of 1964. Defendants may present this issue to the District Court as part of the proceedings on remand. See Behlar v. Smith, 719 F.2d 950, 953-54 (8th Cir.1983) (per curiam); Taylor v. Jones, 653 F.2d 1193, 1205 (8th Cir.1981).
It is so ordered.
SWYGERT, Circuit Judge, votes to grant the petition for rehearing.
FootNotes
The Supreme Court recognized a variation of this principle when it noted that "[a]s a general rule ..., if the difference between the expected value and the observed number is greater than two or three standard deviations," the disparity is not due to chance. Castaneda v. Partida, 430 U.S. 482, 496-97 n. 17, 97 S.Ct. 1272, 1281 n. 17, 51 L.Ed.2d 498 (1977). Accord, Hazelwood School Dist. v. United States, 433 U.S. 299, 311 n. 17, 97 S.Ct. 2736, 2743 n. 17, 53 L.Ed.2d 768 (1977). For large samples, this test "is essentially equivalent to a rule requiring significance at a level in the range below 0.05 or 0.01," Baldus & Cole, supra, § 9.03, at 297.
The parties in this case presented evidence in terms of statistical-significance rates rather than in terms of the "two or three standard deviations" rule. This presents a potential problem only because both parties also used what statisticians call "one-tailed tests" in determining the rates. Apparently, a disparity that is significant at the 0.05 level under a one-tailed test is only 1.645 standard deviations away from the expected (nondiscriminatory) result, V.32.25, while a disparity that is significant at the 0.05 level under a two-tailed test is 1.96 standard deviations away from the expected result, see Weinberg & Schumaker, Statistics: An Intuitive Approach 169 (3d ed. 1974). We agree, however, with the court in EEOC v. American Nat'l Bank, supra, 652 F.2d at 1192, that
Statistical evidence showing less marked discrepancies will not alone establish that something other than chance is causing the result, but we shall consider it in conjunction with all the other relevant evidence in determining whether the discrepancies were due to unlawful discrimination.
Nor are we convinced that the plaintiffs were required to use the M.A. + 45 and M.A. + 90 categories. The defendants have not used these categories in making assignments or promotions to rank since 1971. DB. 35. At any rate, Px. 339 cured both of these objections, and it reflects a statistically significant differential in rank.
Nevertheless, we do not believe that Falcon compels the conclusion that the named plaintiffs here cannot represent class members who have salary claims for the pre-suit period. In Falcon the Court held that a plaintiff who alleged that he had been discriminatorily denied a promotion was not a proper representative for a class claim of discriminatory hiring practices. Here, in contrast, we are not confronted with two such independent employment practices as hiring and promotion. The defendants' practices regarding rank — both initial assignments and promotions — had a direct impact on salaries. Thus, any individual with a valid claim regarding discrimination with regard to rank during the pre-suit period can properly represent other individuals who have either rank or salary claims.
Election Candidates Year Department Male Female 1975/76 Health, Physical Ed. & Rec. 2 1 1975/76 Psychology 17 3 1976/77 Elementary Education 1 1 1978/79 Health, Physical Ed. & Rec. 29 2 1978/79 Psychology 1 1
where P
The disparity between the observed outcome ("O") and E is -.69. By dividing the size of the disparity by the standard deviation we can calculate the number of standard deviations the observed outcome is from the expected. The result is the calculated
The probabilities under the one- and two-tailed tests are determined by reference to a Student's
1976/77 Theatre: fixed-term assistant professor
1977/78 Management & Finance: fixed-term instructor
Industrial Education: fixed-term instructor
Technology: (1) probationary instructor
(2) probationary instructor
Political Science: (1) probationary instructor
(2) fixed-term assistant professor
1978/79 Mass Communications: (1) fixed-term instructor
(2) probationary instructor
(3) probationary instructor
1979/80 Theatre: (1) probationary instructor
(2) probationary instructor
Chemistry: probationary associate professor
Economics: probationary assistant professor
Philosophy: (1) fixed-term assistant professor
(2) fixed-term assistant professor
V.17B.31.
(Emphasis added.) There was some dispute at trial whether an affirmative action report had to be prepared prior to the initial contact with the proposed appointee, see, e.g., V.12.145-50; V.17A.43-45; Knutson at 77-78, because St. Cloud's affirmative action manual provided:
Px. 272b at 9.
REPRESENTATION OF WOMEN
Applicant Pool Appointees
-------------- ----------
Dx. 47 | Dx. 47B || Dx. 47 | Dx. 47B
-------|---------||--------|--------
1974/75 29% | 34% || 42% | 50%
1975/76 23% | 27% || 32% | 39%
1976/77 23% | 29% || 27% | 35%
1977/78 22% | 28% || 36% | 44%
1978/79 25% | 30% || 35% | 44%
1979/80 22% | 26% || 24% | 30%
------------------|---------||--------|--------
Total 24% | 29% || 32% | 41%
WOMEN APPOINTEES
Percentage of all Percentage of all
appointees with Ph.D. appointees without Ph.D.
--------------------- ------------------------
1974/75 22.2% (2/9) 50.0% (12/24)
1975/76 18.2% (2/11) 40.0% (8/20)
1976/77 23.8% (5/21) 31.0% (9/29)
1977/78 25.0% (6/24) 50.0% (9/18)
1978/79 25.7% (9/35) 45.5% (15/33)
1979/80 10.0% (2/20) 37.5% (9/24)
-----------------------------------------------------------
Total 21.7% (26/120) 41.9% (62/148)
APPOINTED AT THE HIGHEST RANK
POSSIBLE TO:
-----------------------------
Rank IV Rank III Rank II Total
----------------------------- -----
Women 97.3% 82.8% 80.0% 92.7%
Men 95.0% 87.2% 36.8% 83.3%
PERCENTAGE
OF ELIGIBLE CANDIDATES
PROMOTED TO:
---------------------------------
Rank I Rank II Rank III Total
--------------------------------- -----
Women 31.8% 57.1% 64.3% 52.1%
Men 32.3% 49.5% 48.6% 38.3%
PROMOTIONS WITH APPROPRIATE DEGREE
Years in Prior Rank Years of Experience
------------------- -------------------
Rank I Rank II Rank III Total | Rank I Rank II Rank III
--------------------------------------|------------------------------
Women 4.4 4.7 6.4 | 15.5 | 12.6 10.8 8.4
| |
Men 4.1 5.0 6.4 | 15.5 | 13.5 10.5 9.1
PROMOTIONS WITH APPROPRIATE DEGREE AND EXPERIENCE
Years in Prior Rank Years of Experience
------------------- -------------------
Rank I Rank II Rank III Total | Rank I Rank II Rank III
-------------------------------------|-----------------------------
Women 4.4 4.4 6.4 | 15.2 | 12.6 10.3 8.4
| |
Men 4.1 5.0 6.6 | 15.7 | 13.5 10.1 9.1
SUCCESS RATE OF APPLICANTS
FOR PROMOTION
-------------
Women Men
----- ---
1975/76 33.3% (4/12) 40.3% (27/67)
1976/77 33.3% (6/18) 20.6% (14/68)
1977/78 40.0% (10/25) 28.9% (28/97)
1978/79 25.0% (6/24) 31.2% (25/80)
1979/80 27.3% (6/22) 36.0% (27/75)
1980/81 42.4% (14/33) 35.9% (28/78)
APPOINTMENTS TO RANK III
Percentage of men Percentage of women Total appointed
appointed at highest appointed at highest at highest
rank possible rank possible rank possible
-------------------- -------------------- ---------------
1974/75-76/77 87.2% (34/39) 76.9% (10/13) 84.6% (44/52)
1974/75-79/80 82.5% (80/97) 82.8% (24/29) 82.5% (104/126)
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