Sex discrimination is a will-'o-the-wisp. Now you see it, now you don't. Dr. Margaret Bryan Davis, U-M professor of zoology and research baleoecologist with the Great Lakes Research Division of the Institute of Science and Technology, thought sheUniversity of Michigan administration blinked and rubbed its eyes and decided it didn't see it. i As a result, both sides won and lost in one of the most complicated cases yet to emerge from the on-going sex discriminatnation controversy at the University. On a technicality, Dr. Davis lost her case aüeging sex bias in the assignment of wages. But, in an odd combination of circumstances, she won her request for back pay. . The University lost money and a little ground in its fierce battle to avoid paying back pay in discrimination cases. But it won time and saved its reputation from the suspicion of unfair play in employment practices. The story begins in the early 1960s but doesn't reach fruition until Spring, 1970. At that time, Dr. Davis was told she was being promoted from associate professor to full professor in the Department of Zoology. Since 1966, Dr. Davis had been receiving half her salary from the University and half from federal research grants in what someone once described to her as a "cheapie appointment." The remark was meant to imply that the University received, in effect, a fulltime well-qualified staff member at only half the cost of one who didn't have such a dual appointment. At first, Dr. Davis wasn't told how much her new salary would be. But when she was informed, she says, she wasn't pleased. "The salary I was to receive was below the University-wide mean for associate professors," she says. Dr. Davis decided she would file a complaint with the Michigan Civil Rights Commission because she felt that if she had just been promoted to the rank of full professor, her salary should, at the very least, match the minimum paid to full professors. Dr. Davis has letters that show that at the urging of the zoology department chairman, the dean of the College of Literature, Science and the Arts was asked to upgrade her salary. The dean replied that something should be done, but not in one year's time. He said it could be corrected over two or three years. Dr. Davis says she didn't find the dean's answer acceptable and again threatened to file a civil rights suit. Then Dr. Davis says she was told that her salary would be upped 20 per cent, which would have put it about $500 above the minimum. "But," she says, "I didn't feel I was a minimally qualified professor." (Dr. Davis graduated first in her class, is a member of Phi Beta Kappa honorary society and was a Fulbright Scholar, among other distinctions.) Again she pressed her case and, she says, was told that because of her extensive research record a larger increase could be tacked on. The total increase was about 29 per cent, she explains, whereas she had been told to expect only eight per cent originally. "Now they say that the threats of a suit didn't have any bearing," she adds. In the summer of 1970, the U.S. Department of Health, Education and Welfare (HEW) sent investigators to the U-M to probe the question of sex discrimination. They ordered the University, as a federal contractor, to set up an affirmative action program. Dr. Davis wrote HEW about her case and its investigators, in turn, told the University. But correspondence between the two has never been made public, Dr. Davis says. One commitment in the University's affirmative action program was made to back pay. It said, "The University will pay back wages to any female who has lost wages due to discrimination by the University because of her sex." "I wrote a letter to the dean in March (1971) asking when I was going to receive this back pay they'd talked about. "Finally in May he answered my leter," Dr. Davis says. "He said the discrepancy in my salary was not due to sex but to lack of grant funds." What the dean's assessment meant was that the University felt Dr. Davis's low salary was a result of a scarcity of grant funds to match the University's half of her salary. "In fact," Dr. Davis contends, "there were plenty of grant funds." She says she had to return some grant money because it could only be applied toward her salary in an amount equal to what the U-M paid. At this time, Dr. Davis didn't know the University was under the impression grant funds limited their salary payments. However, it is expressly against University policy, as the administration was to concede later, to award salary on the basis of availability of grants. But Dr. Davis saw the situation as more than a mistaken application of a policy. She feit the fact that she was a woman was directly, if unconsciously, involved. She felt the University had had many opportunities to correct the low salary and, each time, had deferred. "It wasn't overt discrimination at all," she says now. "It was a matter of fol __ lowing procedure which tended to ,' advantage women." Dr. Davis was married when she first took a job with the U-M. She and her spouse had settled in Ann Arbor and she knew she had to have a job in the area. That, she feels, put her in a bad bargaining position with her potential employer. And, consciously or not, she feels the employer took advantage of this. "Salary is set by bargaining," she says and adds that the employer pays what he feels the market will bear, not . what the merits of the employee are. "Men can move. Everybody believes women can't," she says. "I was vulnerable to low wages because I couldn't I leave the University. I was the lowest ] paid person in my ranking." Dr. Davis also felt her promotion to full professor at a below-the-minimum salary proved that she was being taken advantage of. Yet the promotion itself indicated she was highly regarded by her colleagues and superiors. '■' She was further convinced, she says, because her threats of a civil rights suit "had this magical effect" of increasing her salary above all expectations, even while the University was supposedly I boring under the assumption that grant I funds had placed a ceiling on her salary. , On Nov. 5, 1971, Dr. Davis filed a complaint with the departmental executive committee. A hearing was set for Dec. 16 and 17, and on Jan. 13, Dr. Davis's case was decided. Although the committee didn't reject her complaint, neither did it accept it. In effect, the committee said it couldn't make a final determination without knowing where the burden of proof rested. Members did agree that unequal pay for equal work had been paid. If the burden of proof rested with the University, the committee said, then Dr. Davis' claim for back wages should be upheld. The decisión went to Vice President for Academic Affairs Allan F. Smith for consideration. On Feb. 24, Dr. Davis received a letter from Smith informing her ' that back pay - or, as he put it, a "salary adjustment" - would be paid. But her sex bias charge wasn't upheld. He wrote: "We are not prepared to concede that the record establishes discrimination against you on the basis of sex." However, he continued, the "mistaken belief" that grant funds limited salary "adversely affected" Dr. Davis's wage scale. "It is clearly inconsistent with University practice to let grant funds determine salary," he wrote, adding that a "salary adjustment" would be made. No figure has been set yet, but it is expected to be in the área of $7,500, Dr. Davis says. Smith was careful to point out in his letter that the question of back pay in sex discrimination cases is far from settled. He said that (1) the back pay commitment was made in the context of an affirmative action program that HEW has neither accepted nor rejected; (2) that it was made with the understanding that it would be retroactive only if the same' obligation was imposed on all other universities, and (3) that there are serious doubts about HEW's power to enforce a back pay obligation. "They have, in fact, lost a case," Dr. Davis feels. "It's clear that they will pay back wages in sex discrimination cases if women are willing to press hard enough." Dr. Davis says that initially there was some animosity toward her because of her case, but she doesn't feel it has hurt her in the long run. "It hurt me far more to be getting the. unfair pay. It made me feel inferior. I was sort of cowed because I felt I was not valued very highly," she admits. I llMIM "Now I know it was not a reflection of a differential in merit, but a mistake in the system. If you accept it without complaining, you're admitting t h a t you aren't worth very much. It's a matter of self respect. You have to fight back," she maintains. She feels women should not justify low pay on the grounds of loyalty to a boss or because they feel a job is interesting or because money "isn't important." Dr. Davis says she pursued her case so vigorously partly for the sake of women graduate students. "The market is tight now. If the tenured faculty don't fight these battles, the younger women don't have a chance. Black faculty are very supportive of black students. But women faculty haven't taken this role," she asserts. "This sort of token regress on the part of the University is psychologically very important. It does do something for the status of women. Next time they hire a woman they'll be careful about setting the salary right. I've seen it already." As for the University, Vice President Smith is far from admitting concessions on sex discrimination grounds. He saysB he purposely used the words "salary ad-l justment" instead of back pay, althoughl the term "doesn't have any great meaning." Smith says the Davis record doesn'fB support the sex bias claim and that thej grant funds limitation "was far morej influential in the setting of the salary'1 than pattern sex discrimination. When asked directly if he feit sex dis-1 crimination was involved in a less influential way, Smith replied, "If I had tel make a decisión now I would say the recfl ord. does not prove it." The question of who has the burden ofl proof is paramount. Dr. Davis is con-l vinced it rests with the University; thM University obviously disagrees. Smith says. the University, in grantingl back pay to Dr. Davis, did not alsol agree that the burden of proof restedB with the U-M. He says the case doesn'tl decide the question at all. Virginia Davis Nordin, head -of thel Cómmission For Women and a lawyer.l says there are no specific legal decisionsl on the question, but what decisionsl there are lean strongly toward placing the burden of proof on the employer. Final answers in sex discrimination cases are a long way off. Dr. Davis, for one, predicts a run on complaints from both sexes. She says she knows of many men who are underpaid. Normally, they would leave the University for a more lucrative position. But in the tight job market, they are staying put. Sooner or later, she feels, the 1 plaints will start flooding in.
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