by Colleen Flaherty
Several legal challenges suggest a key challenge for long-term adjuncts seeking jobs on the tenure track is age discrimination.
This article was originally published in Inside Higher Ed
Many adjuncts wonder why colleges that employ them year after year, giving them good reviews course after course, seem to have no interest in them when tenure-track jobs open up. Several legal court cases suggest that bias against adjuncts may be linked to age discrimination.
"Whether this is a definite trend or not, I don’t know, but there’s been an increase of these cases, and that’s a good thing,” said Maria Maisto, president of the New Faculty Majority, a national adjunct advocacy group. “We know anecdotally that is a problem and we hear about it all the time.”
Last week, the Washington State Supreme Court said that a longtime adjunct instructor of English at Clark College who accused the institution of age discrimination in not selecting her for a tenure-track position had enough of a case for it to proceed to trial. That court’s decision overturned several lower courts’ rulings in favor of Clark, which claimed that Kathryn Scrivener was the lowest-performing of four faculty-backed candidates interviewed for two open positions. Both eventually went to candidates under 40, who were selected by the president and vice president. But Scrivener, who began at the college in 1994 as a part-time adjunct and had been a “temporary” full-time instructor since 1999, said ageism was at play. She was 55 at the time.
Scrivener based her claim on statements that the college’s then-president, R. Wayne Branch, made during a college-wide speech in 2006, the year she did not get a tenure-track job. He allegedly said that there was a “glaring need” for younger talent among the faculty. He also allegedly advocated hiring instructors with no experience for the open English positions, which Scrivener argued hinted at bias against older applicants. She said Branch also impersonated Jon Stewart, host of the “Daily Show,” in her interview and said he wanted applicants with “funk,” which she interpreted to mean “youthfulness."
In a similar case, the U.S. Equal Employment Opportunity Commission filed a lawsuit this summer saying that Harold Washington College in Chicago discriminated against a 66-year-old adjunct instructor of English when it didn't hire her for a full-time job. Younger colleagues with less experience landed full-time positions.
John Rowe, the commission’s district director, who led its investigation into Nancy Sullivan’s claims, said in a statement that she had worked at the college for five years, building an “excellent record” before applying for full-time work. "She looked like a perfect fit for the job, yet was passed over in favor of younger, less-experienced candidates,” he said. “That's age discrimination.”
The commission said the college’s action violates the Age Discrimination in Employment Act; the lawsuit says Sullivan still wants a full-time position. A spokeswoman for the City Colleges of Chicago, of which Harold Washington is part, said she could not comment on pending litigation, but that the colleges are proud of being "inclusive and diverse" places to work.
A spokesman for Clark said the college could not comment on ongoing litigation or personnel matters. But he noted that Scrivener’s claims involve the college’s past president, who left the institution eight years ago.
Sue-Del McCulloch, Scrivener’s lawyer, said that age discrimination is always “challenging” to prove. But she said she feels confident in her client’s case, which she noted rests heavily on the former president’s statements regarding a “protected class.” Indeed, Washington State and federal law prohibit age discrimination in employment decisions for applicants over 40 years old.
McCulloch said age discrimination persists inside and outside academe partly because “we haven’t adjusted as a society yet to the fact that our working lives are so much longer.” But in academe in particular, she said, a relatively young student body can highlight the “differential between those who are serving and those who are served.”
Maisto had another explanation. Ageism towards adjuncts can’t be disentangled from their non-tenure-track status, she said, so passing over experienced, “in-house” adjuncts to hire younger, less experienced candidates for full-time positions indicates institutions’ biases against longtime adjuncts.
“Being an adjunct for a long time, as opposed to coming from graduate school or another profession, there’s that ‘scarlet A’ stigma,” said Maisto, an Ohio-based adjunct English instructor. “I had a full-time professor tell me not to work as an adjunct for more than three years because it will radically decrease your chances of getting a full-time position.”
She continued: “If you’ve been an adjunct for a long time, for whatever reason, the assumption is that you’re a failed academic.”
In reality, Maisto said, being a longtime adjunct – especially in the market-saturated humanities – speaks to a poor academic job market and a changing labor system. But outdated “cultural” notions about what a successful academic looks like persist, she said.
Additionally, Maisto said ageism in hiring decisions disproportionately affects women adjuncts because more women are employed as part-time instructors in the humanities than are men. And that stems in part from child and family care obligations that can “geographically bind” or otherwise limit women’s academic career options in a way that is not as common for men, she said.
Kiernan Mathews, director and principal investigator at the Collaborative on Academic Careers in Higher Education, said there’s scant data on this corner of the professoriate: older adjuncts. But he said even tenure-track professors keep getting older, given the increasing expectation that even humanities Ph.D.s will have postdoctoral experience before landing a tenure-track job. According to one COACHE survey, he said, the average age of an assistant professor is 39.
Daniel Maxey is a graduate student of education at the University of Southern California and an investigator with the Delphi Project on the Changing Faculty and Student Success there. He said there was some hard evidence – such as occasional academic postings requesting that only the most recent Ph.D.s apply, as was the case at Colorado State University in 2012 – to suggest that age discrimination is a problem. He’s heard the anecdotal evidence, too, he said.
But beyond age discrimination, Maxey said, the Delphi Project frequently notes that non-tenure-track positions put adjuncts at a disadvantage in that they often don’t include or allow time for “things such as conducting research, publishing, and attending and presenting at research conferences, which are all typically required to be competitive applicants for tenure-track jobs.”
Maisto said she’d heard that academe favors “newly minted” Ph.D.s because those candidates are at the cutting edge of research in their fields. But she called the argument “disingenuous,” saying it was the hiring institution’s fault – not the adjunct’s – if it wasn’t giving its instructors the resources they needed to stay current in their fields. She noted, however, that many adjuncts manage to do that anyway, on their own time and at their own expense.
It's also worth noting that these cases have come up at community colleges, where faculty members are expected to focus on teaching -- which is exactly what those who were passed over at Clark and Harold Washington were doing.
Ageism is particularly complicated when it comes to adjunct hiring, but it doesn’t just affect adjuncts; some tenure-track professors have claimed it in tenure decision disputes. But the case of Maria Ivancin, a former assistant professor of communication at American University, has an interesting twist. She sued American last year, after she was denied tenure on the university’s professional track, at the provost’s level. Ivancin, who is in her 50s, alleged age discrimination, since she had received the unanimous backing of fellow faculty members and her dean, and saw no other reason for the decision. The provost said her research was lacking.
Ivancin filed an amended complaint this year. She said the university retaliated against her for filing her lawsuit by taking away the courses it had offered her as an adjunct, after she was denied tenure. She said she was reoffered her courses following the filing and is currently teaching as an adjunct. Her case is ongoing.
The former assistant professor said that despite what’s happened, she still wants to teach at American – as a tenured professor. She considers herself lucky enough to be able to pursue her case legally, thanks to her career in business before she entered academe full-time.
“This costs a lot of money,” she said. “There are probably many other [cases like mine] but people don’t want to pay tens of thousands of dollars to go down that path. I’m a little bit unique in that I did have a successful professional career, so I can do this.”
Mathews said allegations about ageism in faculty hiring call into question one thing: colleges' and universities’ commitment to “diversity.” That's not just diversity in age, he said, since older academics already are well-represented on college campuses. Rather, it's about having nontraditional professors to complement increasingly nontraditional students and "lifelong learners.”
“Do we really have alternative rungs to the faculty ladder?” Mathews asked. And even where that commitment exists, operationalizing it will be challenging, since most hiring decisions are made at the department level, he added. Real change “will require a great deal of energy and resilience. … It’s not a command and control situation, as in, ‘Let’s do this,’ and it gets done."
Like Ivancin, Maisto said cost barriers likely keep other age discrimination cases out of court. But she said the New Faculty Majority had compiled a list of age discrimination cases for its members, as a resource. Until recently, she said, there was one case every few years. So the two recent cases – and their outcomes – could indicate a change in the tide, she said.
She added that the academy’s “cultural” bias against adjuncts also is starting to change – albeit slowly. “Tenure-track faculty need to acknowledge that their success and security usually come at the expense of an adjunct, and they’re just beginning to address that.”