While the federal judge previously twice dismissed Margaret Leibowitz’s ’73 charges against Cornell without a trial, the U.S. Court of Appeals for the Second Circuit decided to give Leibowitz the opportunity to make her case in her six-year legal battle against the School of Industrial Labor School on Oct. 23.

Leibowitz was one of the six female employees at the ILR school, all over the age of 50, who were laid off between late 2001 and early 2003 due to the University’s budgetary concerns. Failing to get her contract as an instructor and senior extension associate renewed, Leibowitz filed age and sex discrimination charges against the University to the District Court in 2003.

In the two court hearings, the federal judge pointed out that Leibowitz did not hold tenure, and thus her position at the ILR school did not guarantee her lifetime employment. Unlike the demotion or dismissal of a tenured professor, Cornell’s failure to renew her contract did not constitute an “adverse employment action” — a precondition for her discrimination claims to proceed to trial.

The Court of Appeals, however, disagreed and overturned the decision of the District Court, setting a precedent for all cases dealing with the dismissal of non-tenured employees. Regardless of whether an employer fires an employee or does not renew his or her contract, with this decision, the employee has the right to a discrimination trial.

“[W]hether plaintiff was ‘laid off’ or ‘terminated,’ or her employment was ‘not renewed’ is not critical to the legal analysis,” the three presiding judges wrote. “[R]ather, she suffered an adverse employment action because she was denied the requested continued employment, regardless of the label.”

The court moved on to examine the evidence that Leibowitz presented to substantiate her discrimination claims against the ILR school. The appeals panel found that Leibowitz had a reasonable chance of proving that Cornell had discriminated against her and decided to grant Leibowitz a trial.

“We disagree with some aspects of the decision,” said Claudia Wheatley, director of Cornell Press Relations. “Because we are going to trial now, we don’t think it’s appropriate to comment further.”

Since Leibowitz taught both on the Ithaca campus and at the New York City Extension Division branch, the University provided Leibowitz with funds to commute between the two campuses. In 2002, the University decided that it could no longer afford to reimburse her travelling expenses, resulting in a non-renewal of her contract.

“[I]t was a common practice amongst male Extension Division faculty members to negotiate for compensation as [Leibowitz] did, and that none of these employees’ contracts were terminated or not renewed,” the appeals panel wrote. “Plaintiff submits that, if her requests were so onerous that granting them made her continued employment unsustainable, defendants were free to simply deny them.”

When the University recovered from the financial setback over 2002-2003 and opened up 12 new positions at the ILR school, Leibowitz was not considered for any of them, according to a blog maintained by the law firm of Bergstein & Ullrich, LLP, a source provided by David Marek, Leibowitz’s attorney. Tom Germano, a former employee at the Long Island branch of the ILR school, was fired for making an offer of a faculty position to Leibowitz in 2002.

ILR Discrimination Charges

“Colleges and other employers may find themselves needing to eliminate jobs when the economy’s bad, it’s true,” Marek said in an interview with Inside Higher Ed. “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.”

In 2008, Francine Moccio, another former female employee at the ILR school, sued Cornell for age and sex discrimination. The University terminated her because of financial constraints and program cuts at the ILR school. Prior to her termination, Moccio had allegedly been receiving discriminatory treatment at work. Moccio’s case is still pending.

Marek hoped that the University will become more vigilant in protecting the rights of its female employees, especially older females.

“Ms. Leibowitz was an ILR school graduate and taught at the school in various positions for 20 years.” Marek said, “She was one of the most decorated teachers in the history of the ILR school, winning a variety of teaching awards. We believe the evidence shows that the decision to terminate her employment was made without any legitimate basis and without even looking for a way to retain her services.”

“Hopefully, this case would give employees even at other universities more protection under discrimination,” Marek said.