Tenured Faculty Performance Issues and Disability Discrimination
August 31, 2017
Scenario 1: A renowned 25-year tenured university professor experiences drastic weight loss over a short period of time. He now routinely appears for classes and meetings disheveled. For months, he’s displayed uncharacteristic behavior such as becoming forgetful and combative with his colleagues. Students and other professors have expressed concern about his overall health and safety.
Scenario 2: A tenured faculty member is involved in a severe automobile accident, requiring multiple surgeries and extensive rehabilitation. Three years later, the faculty member teaches her regular course load, but has not published scholarly work in four years or participated in department or campus committees.
Scenario 3: A college professor receives tenure. She begins to miss her scheduled office hours so that she can attend doctors’ appointments for an undisclosed condition. Students start to complain about her lack of availability.
Do any of these situations sound familiar? Many institutions confront challenges presented by tenured faculty with likely disability and performance issues, including:
- Declined productivity – for example, missing appointments, showing up late for class, forgetting the substance of a lecture, publishing less, or falling asleep in meetings
- Disruptive behavior – for example, offensive treatment of students, colleagues, or administrators, or angry outbursts during faculty meetings or other campus gatherings
To strike the appropriate balance between offering care and support, holding tenured faculty accountable, and not running afoul of disability discrimination laws, consider the following recommendations:
- Focus on performance using post-tenure reviews: These reviews provide the institution an opportunity to measure a tenured faculty member’s performance and development, and explicitly outline performance expectations. These reviews should be documented in writing and retained for future review. This documentation will help you evaluate the extent to which a faculty member’s productivity has declined over time and demonstrate the guidance provided to the faculty member regarding his or her performance standards. It is essential that the institution conduct these reviews for all tenured faculty and not on a selective basis to avoid discrimination claims.
- Review job descriptions: Ensure that job descriptions accurately reflect the tenured faculty’s current position by specifically articulating the essential job duties beyond the general or overly broad descriptions of “teaching, scholarship, and service.” Also, be prepared to justify any differences in essential job functions between faculty members. Clearly stated essential job functions help set a standard for each faculty position. If an institution demonstrates that a professor is not capable of performing essential job functions with or without a reasonable accommodation—as determined by human resources (HR)—the risk of liability from a disability discrimination charge is greatly reduced.
- Consult HR regarding the interactive process: A faculty member is typically responsible for identifying his or her disability and requesting an appropriate accommodation. However, if students or others have raised concerns or productivity is lagging, you should initiate a discussion with the faculty member regarding a potential accommodation. Before doing so, consult HR for guidance regarding your institution’s accommodation policy and the process for reviewing these requests. Throughout the process, it’s important to maintain open communication with the faculty member and document the institution’s efforts.
- Assess consistency: Compare the treatment of the faculty member at issue with other faculty members to ensure that you have not tolerated similar performance deficiencies for others with or without known disabilities. As mentioned above, documentation will facilitate the review of actions previously taken against faculty members to ensure consistency.
- Review your contractual obligations: Review the faculty member’s contract and the processes afforded under your institution’s faculty handbook, union contract, or other applicable governing documents before taking any adverse employment action against the faculty member, such as forced leave or dismissal. In most circumstances, it is best to try to reach a negotiated resolution with the tenured faculty member.
Navigating performance issues with tenured faculty can be challenging for everyone involved and requires patience and great care. How your institution handles addressing faculty performance challenges can have a far-reaching impact on staff morale. Following these recommendations will help protect you from legal claims of disability discrimination, while also fostering goodwill among faculty members and your institution.
By Kimberly Cole, United Educators risk management counsel