Retaliation claims for discrimination of any kind, including religious
discrimination, can be difficult to prove. Often the form of retaliation
can be subtle, but effective. In any case, it is illegal.
Ann Shafer was hired by the American University in Cairo (AUC) in 2005
as a tenure track assistant professor and art program director in the
department of performing and visual arts (PVA). She did well and her three-year
contract was renewed through the 2010-11 academic year; her second contract
stated that if she had not secured tenure by the time it terminated, she
could not stay at AUD. She received grants and a semester off to allow
her to develop her portfolio to seek tenure.
Soon after starting at AUC, Shafer converted to Islam. She decided to perform
the hajj pilgrimage during the 2009-2010 school year, tacking that period
of leave on to her time off to develop her portfolio. She did not tell
the department chair or the dean of the school of her motivation for seeking
that leave. Both were supportive and noted that a leave of absence would
help her secure tenure; AUC stopped the clock on her contract term and
the deadline to secure tenure. Shafer spent the 2009-10 year in Saudi
Arabia, fulfilling her religious duties and working as a visiting professor.
She also spent time at Harvard, doing research for publications.
Although she had been away for a year and her school had hired a new dean
(who was also a professor in her program), Shafer missed the start of
the September 2010 semester due to Ramadan. She did not clear her plans
with the new dean but simply informed the PVA chair on the first day of
classes. The new dean was unhappy and sent an email to the then-Provost
complaining about her "poor judgment." He noted that many AUC
faculty members were Muslim and practiced their religion while also satisfying
their faculty duties.
Shafer's first meeting with the dean, which included the PVA chair,
did not go well. Though the meeting was pleasant, the dean commented that
he had been getting to know Cairo and had amused himself by "taking
a lot [of] photographs of 'veiled cars.'" He later explained
that he was referring to the Egyptian practice of covering parked cars
to keep dust off. Shafer was offended, believing the remark to be a slur
against Muslim women, like her, who wear a hijab. While she did not interpret
the remark to be an attempt to intimidate or harass her, she believed
it revealed the dean's bias.
In March 2011, Shafer filed a complaint with the senate grievance committee
claiming the dean discriminated against her based on her identity as a
white Muslim woman. The committee decided in the dean's favor and
she appealed. Meanwhile, she sought to have the dean and others removed
from her tenure process and asked for an extension of the deadline to
apply. The university refused most of her requests but offered to exclude the dean.
In September 2011, faculty convened to determine membership of faculty
committees and the direction for the art program. At the start of the
meeting, the dean announced it would be recorded. Shafer objected and
the dean allegedly yelled that the meeting was being recorded on the advice
of counsel because she was suing the school. Shafer's successor as
director ran the meeting. Although Shafer volunteered for committees,
her replacement said she would not be appointed so she could focus on
her tenure portfolio. Though Shafer was ultimately allowed to serve on
certain committees, no one invited her to meetings.
Having failed to reach agreement on a tenure process she found acceptable,
Shafer never applied for tenure and did not return to the university after
her contract expired in August 2012. She filed suit alleging religious
discrimination, retaliation, and hostile work environment under Title
VII, the New York State Human Rights Law and the New York City Human Rights Law.
The New York Federal
Court threw out the religious discrimination and hostile work environment claims,
but held that the retaliation claim could proceed to trial. In its view,
a reasonable jury could find that the dean's decision (even on the
advice of counsel) to record a PVA faculty meeting constituted a "materially
adverse action" in that it might dissuade a reasonable worker from
making or supporting a charge of discrimination. And by attempting to
record the meeting expressly because Shafer filed an EEOC complaint, the
dean "sent a clear signal" to Shafer and other faculty members
present that discrimination complaints would be met with hostility and
would turn the complaining faculty member into a pariah who could not
be trusted to faithfully report what happened even in a pedestrian faculty
meeting. The court also noted that excluding a professor from committees
that shape a department's curriculum could be sufficiently punitive
to dissuade a reasonable person from engaging in protected activity.
The takeaway: Even if you don't have enough evidence to support a religious
discrimination claim, you may still have a claim for retaliation if your
employer takes actions adversely affecting your job just because you are
complaining about discrimination.