What's the difference between nonrenewal, termination or getting fired?  Not much, said a federal appeals court last week. It found that an instructor whose five-year contract with Cornell University was not renewed in 2002 suffered an "adverse employment action" and therefore has grounds to sue.

The ruling may come as some comfort to the majority of the academic workforce teaching undergraduate classes during these trying academic times. While lacking the security of tenure, a contract, even one on the verge of expiring, implies a degree of legal protection that employers can't dismiss at will.

The case involved Margaret Leibowitz and Cornell University's School of Industrial and Labor Relations. Leibowitz sued Cornell and some of its ILR administrators when they failed to renew her five-year contract as a senior extension associate in 2002. She had been working under term contracts for the ILR since 1987.

The university tried to argue that its decision was based on financial exigency; the New York Legislature had cut back on its funding during a state recession and the publicly supported ILR was at risk.  Leibowitz charged that discrimination was at play.  She was one of six women over the age of 50 who were let go at that time; meanwhile, within the year the university hired 12 new employees and assigned Leibowitz's work to three younger male instructors, among others.

Leibowitz was not able to get her day in court on this claim, however, because a lower court twice came to summary judgment for the university. The district court said, basically, that Leibowitz didn't have standing to sue on the discrimination claim because she presented insufficient evidence to show that she suffered an "adverse employment action" when her employer refused to renew her contract.

Such a holding is chilling on many levels. Now, eight years after the last recession, the country is facing a much deeper recession and higher education budgets are the first to feel the ax. Contingent faculty, who research shows tend to be older and females, are likely targets. 

Luckily, Leibowitz, who holds a law degree, persevered. And the U.S. Court of Appeals for the Second Circuit decided that the lower court erred, writing:

"An employee seeking a renewal of an employment contract, just like a new applicant or a rehire after a layoff, suffers an adverse employment action when an employment opportunity is denied and is protected from discrimination in connection with such decisions under Title VII and the ADEA. The mere fact that the employer's decision not to renew is completely discretionary does not mean that it is not an ‘adverse' employment decision."

The appeals court has sent the case back to the district court for a new trial. In the meantime, faculty working under contracts can feel protected by the laws against discrimination. As Leibowitz's lawyer, David M. Marek, commented to Inside Higher Ed:

"Colleges and other employers may find themselves needing to eliminate jobs when the economy's bad, it's true. But they also still sometimes try to get rid of people they want to get rid of anyway, and people need to be able to bring discrimination claims when they think that's happened to them."