Smyth v University College Dublin
ODEI - the Equality Tribunal
File No: EE 47/1998
EMPLOYMENT EQUALITY ACT, 1977
Equality - Application before Equality Tribunal - University post vacancy - Competition for appointment - Applicant unsuccessfull in competition - Complaint to Labour Court - Referred to tribunal - Whether applicant discriminated
1 The dispute concerns a claim by a female Claimant that on 28th April, 1998 University College Dublin discriminated against her within the meaning of Section 2(a) and in contravention of Section 3 of the Employment Equality Act, 1977 in its failure to appoint her to the level of Associate Professor at the College.
1 The Claimant is employed as Director of the Women's Education, Resource & Research Centre (WERRC) at UCD. In September, 1998 the College announced a promotional competition for appointment to the level of Assistant Professor. The Claimant was an applicant in the competition but was unsuccessful. It is the Claimant's contention that she has superior qualifications than four successful male candidates and that the reason why she was not selected by the College is that she is a woman. Twenty candidates were successful, one of whom was a woman.
2.2 The Claimant, through her union SIPTU, referred a complaint to the Labour Court on 12 October, 1998 under Section 19 of the 1977 Act. The Labour Court referred the complaint to an Equality Officer for investigation and recommendation. Submissions were received from the parties to the complaint and a joint hearing of the complaint was heard on 13th June, 2001 and continued on 17th October, 2001. Further material was exchanged by the parties subsequent to the hearing culminating in a final response document from SIPTU on 21st February, 2002.
3.1 It is the claimant’s case that the University College Dublin (UCD) discriminated against her in terms of Section 2(a) of the Employment Equality Act, 1977 in its failure to appoint her to Associate Professorship level at the College. The Claimant contends that the predominantly male promotion boards established by UCD were biased in favour of male candidates. She contends that her qualifications are manifestly superior to those of four successful male candidates.
3.2 The disputed Associate Professorship posts were advertised by internal UCD circular in September, 1997. A copy of this circular is included at Appendix 1. The procedures for consideration of applications which accompanied this circular are included at Appendix 3. The procedures outline the role of the Head of Department/Professor, external assessors, Faculty Review Panels, College Promotions Board, Faculties, Academic Council and the Governing Body in the selection process and should be referred to for an overview of the selection process. The detailed criteria for selection are included at Appendix 2. The criteria against which applicants for Associate Professorship posts are assessed are summarised below along with their respective weightings in the marking scheme:
Teaching ability and performance
Research, Scholarly Standing
Contribution to Department/ Faculty/ College/ Community
"Floating Allocation" for the discretion of Faculty Review Panels
SIPTU states that the Claimant met these criteria to a greater extent than four named successful male candidates and argues that the reason the Claimant was not appointed was because she is a woman. SIPTU states that no woman from Ms Smyth's faculty i.e. the Arts Faculty, was among the 20 successful candidates.
3.3 SIPTU in its submission sets out to compare the Claimant against each of the four named comparators in terms of the above criteria based on the information provided in their application forms. SIPTU contends that it is unclear as to the manner in which the Faculty Review Panels allocated marks and that an analysis of the completed application forms is the best basis for assessing each candidate's entitlement to score and leads SIPTU to conclude that the Claimant was far better qualified for the position than the four comparators. SIPTU argues that gender bias in the selection process was inevitable when all applications required a recommendation on suitability from the candidate's Professor/ Head of Department when 86 out of 89 Professors were male. In the case of the relevant Faculty Review Panel, 9 of the 11 member panel were male and of the other seven Faculty Review Panels only one other had a female member. The College Promotions Board was made up of 8 male and 2 female members. In the Arts Faculty there were 49 applicants, 32 males and 17 females however all 7 successful candidates were male. Across the University 20 appointments were made however only one female candidate was appointed. SIPTU contends that gender bias has been evident not only in the present round of promotions but in earlier rounds also. Referring to the 1996/7 round, SIPTU states that one third of applicants in the Arts Faculty were female while no female candidate was successful. Over the last two years there were a total of 30 appointments to Associate Professor level across UCD however only 2 were women. SIPTU argues that the figures showing the poor performance of female candidates constituteprima facie evidence of discrimination on the gender ground and that the onus must shift to the College to justify its decisions and to demonstrate that it has checks in place to "address any conscious or unconscious gender bias inherent in the male dominated system which adjudicates on the applicants for promotion".
3.4 SIPTU refers to various research sources in support of its argument that, in what it would describe as a male dominated academic structure such as UCD, female academics suffer gender bias throughout their careers, are over-represented at junior levels and under-represented at senior levels as a result. SIPTU also refers to research sources in support of its argument that gender imbalanced promotion boards produce gender-biased outcomes. SIPTU states that the use of seniority as a criterion by UCD disadvantages women and is not one of the published criteria for promotion. SIPTU also challenges UCD's use of length of service at a senior grade as a relevant criterion in the selection process stating that this amounts to discriminatory treatment as there are considerably more men at senior level. SIPTU argues that it is discriminatory to require female candidates to have experience which the very system prevents them from acquiring.
3.5 SIPTU contends that there is no transparency or accountability in the selection system used at the College. SIPTU states that applicants do not know how they or the successful candidates were scored and ranked and that unspecified criteria e.g. PhD qualification and length of service, were applied in the selection of candidates. SIPTU refers also to the absence of any records on the deliberations of the Faculty Review Panels and College Promotions Board and the absence of any appeals procedures. SIPTU sets out what it regards as the gender impact of the criteria adopted by UCD.
Although research has repeatedly found that women academics teach significantly more courses and classes than their male colleagues, teaching at 20% is weighted significantly less than research (50%) and what SIPTU describes as certain high-profile administrative responsibilities and other academic activities. SIPTU states that UCD's evaluation of teaching performance is purely quantitative and not qualitative. SIPTU argues that on the quantitative basis applied by UCD, Ms Smyth's contribution to teaching far exceeds that of the four comparators.
SIPTU argues that the Claimant fulfils all of the specified requirements for research and scholarly standing and rejects UCD's response that, unlike the four comparators, she does not hold a PhD. SIPTU states that it is a matter of record that several UCD Professors, all of whom are male, do not hold a PhD. SIPTU also states that Ms Smyth's academic achievements constitute far in excess of the equivalent of a PhD. SIPTU suggests that Ms Smyth's research, publications, international scholarly reputation and other achievements were overtly or covertly accorded lesser value than those of the comparators and adds that none of the members of the promotions boards have expertise in Women's Studies or in any of the new interdisciplinary fields.
SIPTU again argues that the Claimant exceeds the four comparators under this heading. SIPTU states that although the Claimant was twice appointed to the Higher Education Authority and as Trustee of the National Library by the relevant ministers, in addition to many other government commissions and consultancies, in 30 years of service she has been appointed on only three occasions to College-wide committees, although such appointments are widely recognised as an important route to achieving the profile necessary for promotion in a competition-based system.
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