By Matthew Stone

When Nat Longley accepted an offer to teach physics at Macalester in 1999, he looked forward to taking advantage of what he described as the school’s wealth of opportunities for a physicist. Today, he finds himself on the winning side of a $125,000 settlement with the college, but without a job as he seeks a new career in law.The settlement comes after Longley, who is white, complained to then-Provost Dan Hornbach that the college had discriminated against him during the hiring process for a tenure-track position in the physics department. Longley, who had taught three years at Macalester as a visiting professor with a renewable contract, claimed that his physics department colleagues encouraged him not to apply for the position because the school was seeking more women and minority faculty in the department.

Soon after he voiced his complaint with the provost, Longley said, he received a letter informing him that his yearly contract would not be renewed. According to the Equal Employment Opportunity Commission (EEOC), this constitutes an act of retaliation because Macalester refused to renew a contract of an employee who complained about discrimination. Such acts of retaliation are illegal under the 1964 Civil Rights Act.

As a result, Macalester, for the next three years, finds itself bound to the terms of a consent decree, or agreement, after settling in federal court with the Equal Employment Opportunity Commission (EEOC), which represented Longley. The decree requires, among other stipulations, that Macalester periodically update the EEOC of any complaints of retaliation it receives and that the school amend its handbook for chairs of academic departments so as to include clauses reflecting provisions of the Civil Rights Act.

One clause outlines the college’s nondiscrimination policy. The other explains that the college cannot retaliate against any employee who complains about discrimination or harassment.

The EEOC’s decision to file a lawsuit on Longley’s behalf sets this case apart from most employment discrimination cases. Of the approximately 80,000 complaints the EEOC receives and reviews each year, said David Grinberg, an EEOC spokesman, the agency itself files approximately 400 lawsuits against employers. The agency files a suit in federal court if conciliation discussions with the employer do not yield an agreement.

Longley, who will finish law school after this summer, came to Macalester after teaching stints at Swarthmore College and Cal Tech. He taught four years here as a visiting professor.

When he began at Macalester, Longley said last week in an interview, he expected to apply for a tenure track position in the physics department which Professor James Doyle, then the department chair, said would become available within the next few years.

The physics department soon began a search for a tenure-track faculty member to begin in the 2003-2004 academic year and Longley prepared to apply.

“Then a lot of very strange things happened,” he said.

Despite what he described as a solid teaching and research record, which included above-average enrollment in his classes, strong reviews, grants from the National Science Foundation and frequent publication of his research, Longley, who is white, said colleagues in the physics department began to discourage him from applying for the position.

“I was told that they really would prefer to hire another woman in the department,” he said. “I was told that there was a need for more diversity in the faculty, and that I didn’t meet the need.”

Longley decided to apply for the position regardless of his colleagues’ advice, of which he was suspicious.

“I had the impression that they were encouraged to discourage me,” he said.

So when the search committee refused to interview Longley for the position—in the end, the department hired another white male—he decided to voice his complaint with Hornbach. Longley told the provost that he felt he had been treated unfairly and that the school had discriminated against him.

According to Longley, three days after meeting with Hornbach, he received the letter from the provost informing him that Macalester would not renew his contract after the end of the 2002-2003 academic year. This, the EEOC alleged, was an illegal action.

“When that happened, I was actually quiet for some time because the provost had used very strong language,” Longley said. “And we [Longley and his wife] were uncertain really at that point whether I was going to be able to finish the year.”

After seeking advice from attorneys, Longley decided to file his case with the EEOC.

Macalester has denied any wrongdoing throughout the proceedings; the consent decree reflects this.

“The consent decree isn’t any type of judgment in the finding of wrongdoing,” said Dan Wilczek, a partner at Faegre & Benson LLP of Minneapolis, who represented Macalester in the settlement talks.

Hornbach said that the letter sent to Longley was standard operating procedure for the college.

“[In the letter] I told him about the college’s policy that we don’t rehire those who have applied for tenure track positions and are not successful,” he said Tuesday.

To Longley, however, the college’s desire to settle the case before going to trial and its acceptance of the settlement terms amount to an admission of wrongdoing.

“Just the fact that they’re changing something [the academic department chair handbook] doesn’t tell you what was wrong, but it tells you that there was something wrong,” Longley said. “Why would they settle if they did nothing wrong?”

According to Treasurer David Wheaton, the decision to settle before trial was a purely logistical one.

“I don’t think we feel that the claims have much merit, but trial is an unpredictable thing and a time consuming thing,” Wheaton said. “I think that in conjunction with our conversations, we decided that this would be the best way to proceed.”

This case places Macalester at the forefront of a growing national trend. According to Grinberg, the EEOC spokesman, the EEOC received 22,740 complaints involving claims of retaliation in 2004, up from approximately 12,000 in 1992. And according to Laurie Vasichek, a trial lawyer in the EEOC’s Minneapolis office who worked on Longley’s case, retaliation cases are some of the most important the EEOC handles.

“Retaliation cases are a concern for us because they directly impact our processes,” Vasichek said. “We look very carefully at the circumstances surrounding the case because the consequences of shutting out people’s ability to complain will adversely affect our ability to enforce the law against discrimination.”

Longley has alleged that he is a casualty of Macalester’s implementation of its affirmative action policies.

“I think the minute the college started thinking about its applicants in terms of which ones were women and which ones were minorities, as opposed to who are the qualified people,” Longley said, “that’s when you get in trouble.”

According to Kenneth Swift, who teaches employment law at Hamline University Law School, affirmative action policies are designed to ensure equal access.

“I think employers can and should take steps to encourage applicants from the pool that they might want to encourage—women and minorities,” Swift said, “but certainly they shouldn’t go as far as discouraging other applicants.”

Swift said that an employer can successfully implement affirmative action policies by broadening the pool of applicants it considers. And the consent decree the college signed with the EEOC, Swift said, is intended to ensure that Macalester fairly implements such policies.

“The EEOC not only wants to get retribution for prior acts,” he said, “but they also want to make sure these types of problems don’t occur again in the future.”

Wheaton is the administrator responsible for implementing the terms of the consent decree. He said that
the school has already completed much of the process and that implementation for the three-year duration of the agreement would be simple. Expenses could include legal consultation and costs for re-printing the department chair handbook.

Chemistry department chair Tom Varberg, whose department is currently conducting a search for a tenure-track faculty member, said that the addition to the handbook would not change much with regard to hiring practices.

“They’re just rules regarding affirmative action and nondiscrimination which the college I think has always consistently applied,” he said.

Diversity has a “natural place” in education, Longley said, but, in trying to attain that, he questions whether Macalester was successful.

“The idea of broadening opportunity in physics is not new, it’s a question of how you approach it,” he said. “[In this case] the question is, did they get it done, and I’m not sure that they did.”