A lawsuit brought by former Harvard Associate Professor Kimberly S. Theidon alleging the University unfairly denied her tenure could be headed to trial after a federal judge said at an appeal hearing Wednesday that the case may be better left to a jury.
Theidon first filed suit in Massachusetts District Court against Harvard in 2015, arguing the University declined to grant her tenure in the Anthropology department after she publicly spoke out about sexual harassment and gender discrimination. United States District Judge Leo T. Sorokin dismissed the case in February 2018, ruling in summary judgement that Theidon did not prove the University discriminated against her or retaliated against her for her comments on sexual harassment.
But this week — nearly five years after she left Harvard — Theidon returned to a federal courtroom to argue her case against the University. U.S. Circuit Judge Juan R. Torruella, one of the three First Circuit court judges on the panel, said during the hearing Wednesday that Theidon’s case should perhaps be heard by a jury, rather than letting the summary judgment stand. In particular, the judge said questions about a tenure committee’s credibility may merit a jury trial.
“The question of credibility is usually left to a jury,” Torruella said. “She had the unanimous support of her colleagues for tenure. That’s not speculation, is it?”
In response, Harvard’s lawyer Martin F. Murphy acknowledged that Theidon indeed had such support.
But Murphy argued that the evidence of gender discrimination amounted to mere “speculation” and “guesswork,” rather than “circumstantial evidence.”
“I think the court, perhaps other scholars — this is the nature of this business — could disagree about whether Professor Theidon should be tenured or not,” he said. “But I would suggest to the court that the real question is whether the plaintiff has offered specific facts which connect the denial of tenure either to gender discrimination or to retaliation for protected conduct.”
In 2013, Theidon called Harvard a “sexually hostile environment” in the comments section of a Crimson article and urged sexual assault victims to speak out. Two months later, she learned her application for tenure had been rejected and that she would need to leave Harvard within a year.
Speaking before the panel of judges on Wednesday, Theidon’s attorney Lauren A. Khouri reiterated her client’s claims that, in denying her tenure, Harvard violated Theidon’s rights under Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and a corresponding Massachusetts law.
Title VII prohibits employment discrimination on the basis of various characteristics, such as sex, race, color, national origin, and religion, while Title IX specifically prohibits discrimination on the basis of sex in educational programs or activities that receive federal funding.
Khouri said in court on Wednesday that in 2008, when her client was promoted to associate professor, the then-acting chair of the Anthropology department told Theidon that she would need to “behave like a dutiful daughter” and that her tenure application would be “held to a higher standard” than her male co-workers’ applications.
“With disputed facts and questions of credibility, Dr. Theidon’s claims were prematurely dismissed,” Khouri said.
In a brief submitted to the court, Harvard’s lawyers argued that since Theidon’s comments did not qualify as an official complaint to her department superiors about sexual assault — as is necessary under Title IX for her to successfully claim unjust treatment — the University could not have broken the law in its tenure decision, Law360 reported Wednesday.
University spokesperson Anna G. Cowenhoven wrote in an emailed statement that Theidon’s allegations “continue to be flatly wrong.”
“There is no merit whatsoever to her allegations of discrimination or retaliation,” Cowenhoven wrote. “Any advocacy on Dr. Theidon's part on behalf of victims of sexual harassment and sexual assault at Harvard was not known, let alone considered, as part of the University's decision on her tenure case. Moreover, such advocacy would never adversely affect a tenure decision at Harvard.”
Theidon wrote in an email that she is “pleased” with the appeal’s progress.
“Various Harvard administrators, including former [University] President Drew [G.] Faust and Provost [Alan M.] Garber [’76], have encouraged people to come forward and surface incidents of sexual harassment and gender bias,” Theidon wrote. “That encouragement will be unproductive unless people know they will not be retaliated against for speaking out.”
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