The Association of American Universities
Dupont Circle, Suite 730 ° Washington, D.C. 20036
February 5, 1971
To: Council Members
From: Charles V. Kidd, Director
Subject: Administration of Programs Related to University Discrimination against Women in Employment - January 19 meeting at HEW
Allan F. Smith, University of Michigan
Barry Munitz, University of Illinois[A]
Richard G. Leahy, Harvard University[B]
Martha Peterson, Barnard College
John O. Eidson, Georgia Southern College[C]
John F. Morse, American Council on Education
Betty Pryor, ACE
Sheldon Steinbach, ACE
Charles V. Kidd, Association of American Universities
Stanley Pottinger, Director, Office of Civil Rights, Office of the Secretary
Owen Kiely, Director, Contract Compliance Division
Allen Jacobsen, General Counsel's Office
Edward Levy, General Counsel's Office
On January 19, a group of representatives of higher education met with HEW officials to discuss equal employment opportunity for women in universities.
The primary outcome of the meeting was a tentative agreement to undertake the preparation of a set of advisory notes to be issued by ACE with the hope that they could be in principle agreed to by HEW. This was essentially the procedure followed last year when ACE put out the guides relating to political activity with the approval and later endorsement by I.R.S.[D] It will take some time to work out these guides, and the job may be an impossible one.
Meanwhile, as completely unofficial advice, I am distributing the attached preliminary notes with the hope that they may be of some help to those universities which may be dealing with the Regional Offices of HEW on the question of discrimination in employment.
However, the regional office people are likely to continue to rely on the statistical approach, and it will continue to color their attitude. This is the case even though HEW has presented no evidence in specific cases that the existing ratio of male/female academic employees is inconsistent with the ratio of available qualified candidates.
The discussion pointed in the direction of placing more emphasis on evidence that would demonstrate good faith, reasonable diligence in seeking, and fairness in selecting women for jobs. This is a more reasonable approach than the statistical one. The possibility of more extensive use of the "good faith" approach will depend heavily upon the willingness and ability of universities to reassess traditional procedures, and upon the willingness of HEW to give adequate time and understanding.
The "good faith" approach, though stressed verbally by Pottinger, has not been firmly established. Universities need to give more thought to the kinds of efforts that demonstrate good faith, and the nature of the evidence required to show that adequate effort has been exerted. This is one area where exchanges of experience could appear useful. Universities would also be well advised to broaden the recruitment net in ways that can be reasonably expected to bring suitable women candidates to the attention of departments, and to ensure that records are kept of these efforts.
It should be noted that the real problem that many institutions have had and will have with women is not initial hiring--it is salary, rank, and the general impact of anti-nepotism statutes. A history of "departmental understandings," "lack of market mobility," lower entering salary, etc., have resulted in an unbalanced situation, and those institutions not yet under the HEW gun would be well advised to reexamine the rank and salary pattern, of their present female academic staff. In this unsettled situation, it seems to me that it would be useful for universities
[p. 6]at the time of review to present HEW with their specific ideas as to what constitutes evidence of good faith, to demonstrate specifically what they are doing and to urge HEW to give heavy weight to a demonstration of good faith.
The review teams generally seem to know theoretically that the executive orders and the guidelines say "good faith efforts," but when they arrive on a campus the emphasis is placed upon specific instances of inequity raised to general patterns, assumptions of "bad faith," and "goals and timetables." One important area for further work in Washington is the development of written guides by HEW (or by ACE with approval of HEW) as to what specific actions constitute evidence of good faith.
The "statistical equity" concept has been carried to absurd extremes by some Regional Offices in dealing with some universities. For example, one university was told that while they had a sufficient number of minority employees they had too many orientals. In subsequent discussions they agreed that no law or ruling permitted the Regional Office to get involved with internal administrative matters, including hiring practices, provided the university had fair and adequate employment procedures. This incident emphasizes the advisability of ensuring that Regional Office people stay within the law and regulations, and of calling Kiely or Pottinger when the Regional Office people have in the judgment of the university exceeded their authority.
Apart from procedural problems, regional office attitudes towards such matters as confidentiality of personnel folders, what items are and are not confidential, interpretation of retroactivity orders, attitude toward third-hand horror tales passed on to the review team, conception of "norms and standards," etc., vary greatly among regions. In connection with the credence sometimes given by regional office staff to gossip, inexperienced and verbose visitors have at
[p. 7]times raised false expectations or supported false accusations among campus activists and malcontents.
3. Greater Uniformity of Rules and Procedures Among Regional Offices
The Secretary of HEW has suggested that the problem of discrimination is essentially the same among all universities, and that national standards are therefore needed. Mr. Pottinger asked whether there was agreement on this point.
There was general agreement on this point, but this did not lead to the conclusion that a set of National guidelines should be prepared by HEW in the near future.
The university people were of the opinion that rules and interpretations should approach a greater state of uniformity, but that this should be done as the development of common law proceeds on an issue by issue basis. It must also be done with some awareness of variance among institutions, and without across the board application of compromises reached under extreme financial pressure.
A quickly formulated uniform code of HEW procedures would tend to freeze many matters before experience adequate to lead to a sound procedure had been accumulated. The letter of December 24, 1970 from Pottinger to Fleming (distributed to Council members on January 7) is an example of the manner in which the university people would see rules evolving as experience is gained.
Gross inconsistencies among Regional Offices and departures by them from the rules as understood by the Washington staff nay be reduced somewhat if universities call these matters to Pottinger's attention, as suggested below.
4. The Guilty Until Proven Innocent Approach.
The prevailing attitude at HEW is that universities have signed an agreement that they will not discriminate in hiring, and that the burden of proof that they
[p. 8]are not discriminating rests exclusively on them. There is also the assumption that discrimination against women in employment (and in salary and promotion) has been widespread and blatant. There is also apparently the assumption in some Regional Offices that discrimination has been proved, that the issue is how to apply sanctions that will end discrimination, and that the President of a university can unilaterally establish and enforce rules relating to hiring by colleges, schools and departments.
All of these, and perhaps some other factors, account for the widely observed difference in the way that the Regional Offices of HEW have approached the question of discrimination on the basis of sex as contrasted with the approach to discrimination based on race. The latter has been approached with a much greater willingness to assume good faith and to work out jointly the problems involved in removing discrimination, and with a far clearer mutual comprehension of the issues involved.
According to Kiely, the difference in approach is due in large part to the fact that universities took discrimination against blacks as a serious problem which they were prepared to resolve as a matter of conscience, whereas HEW sees many deans, department heads, and faculty members as taking a rather cavalier, doctrinaire and supercilious approach towards employment of women. There is no doubt some ground for this view.
There were no commitments on the part of HEW to change the ground rules to avoid a presumption of guilt. However, Pottinger did commit himself to search for a procedure that would not put universities in the position of being guilty until they are found innocent.
5. Experience of the Regional Staffs
Both Mr. Pottinger and the Secretary realize that the Regional Offices are not staffed with people who understand universities, their hiring procedures, their governance, etc. They both realize that knowledge of these matters
[p. 9]is required if the rules relating to discrimination and their administration are to be reasonable.
Given the admitted deficiencies of the Regional staff in this area, university officials need not accept without protest rulings, requests for information, etc. which appear unreasonable. This is a touchy area. Appeals directly to Pottinger or Kiely in Washington should be carefully considered because the Washington people are constrained to back the regional staff as far as possible, and a barrage of complaints might do more harm than good. Some sort of clearinghouse or filter may be needed so that the ticklish problem of going over the head of regional teams can be tested. ACE should probably assume this function over the long run.
I suggest that any university talk with one of those listed under Item 9 before seeking relief by dealing with Kiely or Pottinger.
6. Procedural Matters
The university people pointed out that junior federal officials can, with or without understanding the potential consequence of their action, raise publicly questions relating to discrimination that can in fact lead a prudent agency contracting officer not to award a contract. For example, a casual public statement such as, "We have not yet determined that the University of X is not discriminating," can be the functional equivalent from the point of view of the university of a formal finding of violation of the Executive Order.
The university group asked HEW to clarify the conditions under which such questions can be raised, and to establish a procedure tantamount to hearing and appeal. There was no commitment on the part of HEW to do so, but it was not clear whether this was because of an intent not to do so or because the matter was not explored thoroughly enough. It should be noted, however, that this is clearly related to Item 4, above, whore there is a commitment to avoid the "guilty until
As an immediate matter, universities should not hesitate to call (area code 202, 963-5047) or write to Mr. Pottinger when they appear to be faced with delays in the award of Federal contracts. This must in many circumstances substitute for a more organized procedure for hearing and appeal.
As a longer range matter, the entire issue of due process in relation to administrative procedures, findings, and requirements which have as powerful sanctions the withholding of government contracts has not yet been dealt with adequately. This remains a central issue which must be resolved before a satisfactory set of ground rules relating to fair employment can be worked out. Indeed, the concept of power over universities sanctioned by law in general terms, applied in specific terms by a bureaucratic apparatus, and enforced by power to withhold Federal contracts without the constraints imposed by carefully developed rules of due process under the judicial procedure raises issues of great importance. Means of discussing this problem effectively need to be devised quickly. Suggestions are welcome.
7. Graduate Students as Employees
The HEW staff was again told that the universities did not believe the Executive Order gave jurisdiction over admission to graduate study. There were told that it was possible to assure equal opportunity and access to those jobs which are traditionally filled by graduate students without extending jurisdiction to admission, and that universities will undertake to do so. With respect to this point, universities would be well advised to examine admissions procedures and criteria. Any limitations on the number of women in departments or schools should be carefully and solidly justified. Finally, the HEW staff was told that the complications arising from moving into admissions where both minority problems and sex problems must be resolved would be detrimental to progress in both areas. HEW is now considering this question, and its staff still inclines to the view that HEW should assort jurisdiction over admissions. The matter is in abeyance, pending a
[p. 11]decision by the Secretary. If HEW is to be persuaded that it should not assert this jurisdiction it will be necessary for universities to demonstrate that there is no discrimination in admission. The question whether research assistants are to be considered as employees is also in abeyance. HEW counsel incline to the view that they are employees in common law, even though they are not so considered under the Social Security and Fair Labor Standards Acts. Efforts to have an adequate representation of the university point of view in the formulation of regulations and guidelines on these and all other relevant issues are being exerted.
8. Hiring in Proportion to Applications
Pottinger's letter of December 24, 1970 to Fleming states the role of applications for employment as an indication of discrimination or non-discrimination more soundly than have a number of Regional Offices. Moreover, he has overruled the position of at least one Regional Office that "statistical underrepresentation" of women is prima facie evidence.
Any university which is told that applications will be used by a Regional Office as a major element in assessing compliance should cite Pottinger's letter to the Regional staffs, and send copies of correspondence relating to this subject to Pottinger. In addition, the use of "statistical underrepresentation" as the basis for a finding of discrimination should be called to Pottinger's attention.
9. Informal Consultants
Institutions which are faced with a review by HEW or the Department of Labor may wish to get in touch with people who have been through the mill. The following will be available for advice:
Robert Gentry, University of Wisconsin
Carl M. Franklin, University of Southern California
Richard Leahy, Harvard University
Allan Smith, University of Michigan
I may be able to help, but people who have worked on the scene are more knowledgeable.
cc: AAU Presidents
__________________________A. Barry Munitz moved to the University of Illinois in 1970 and was appointed vice president for academic affairs in 1972.
Back to Text B. Richard G. Leahy was then assistant to the president of Harvard for civic and governmental affairs.
Back to Text C. John O. Eidson served as president of Georgia Southern University from 1968 to 1971.
Back to Text D. Internal Revenue Service.
Back to Text