- The Washington Times - Monday, February 5, 2001

A Howard University professor will get a new trial on her claim of sexual discrimination after supervisors reduced her salary and denied her reappointment to a prestigious post.

The D.C. Court of Appeals ruling Jan. 4 clarifies how courts define "retaliatory action" against employees who claim sexual discrimination on the job. Any retaliatory action by employers can be used as evidence against them, regardless of whether the employee complained only informally about discrimination, the court says.

Debra Katz, a D.C. employment lawyer, says, "It's a great ruling." The decision will provide an incentive for employees to resolve discrimination issues inside their organizations rather than relying on the courts as a first line of defense, she says.

In essence, she says, the ruling means, "You can't take adverse employment action against an employee who makes internal reports about discrimination."

Ann Carter-Obayuwana, a counseling and psychology associate professor at Howard University, says any professional disputes she had with the university or her immediate supervisor resulted from the university's violation of Title VII of the Civil Rights Act of 1964 and the D.C. Human Rights Act.

Mrs. Carter-Obayuwana has been teaching at the university since 1974. She received tenure after six years and experienced no problems until the early 1990s. In 1992, Frederick Harper was appointed chairman of the Department of Psychoeducational Studies.

A conflict arose between the professors when Mr. Harper accused Mrs. Carter-Obayuwana of missing office hours and a lack of professionalism. Mrs. Carter-Obayuwana said Mr. Harper's antagonism began when she refused to date him. She also accused him in a memorandum to university administrators of a "sexist mentality."

Shortly after she wrote the memorandum, Mr. Harper assigned her to teach a third class on "vocational theories." Mrs. Carter-Obayuwana refused to teach the course, saying that she lacked the "moral and professional conscience" for the class. Mr. Harper told her that her course load was too low. Mrs. Carter-Obayuwana said Mr. Harper was retaliating against her for her memorandum.

Because of her refusal to teach the course, the university administration lowered her salary by 20 percent.

Subsequently, she also was denied reappointment to the graduate faculty. The university says her reappointment was denied because she failed to publish a peer-reviewed article. Mrs. Carter-Obayuwana says the denial was a continuation of sex-based discrimination.

Title VII forbids employers from discriminating "against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's … sex." It also forbids retaliation against employees for opposing sex discrimination. The D.C. Human Rights Act sets out essentially the same prohibitions.

The jury deadlocked during the first trial. During the second trial, the judge ruled in favor of the university after refusing to allow Mrs. Carter-Obayuwana to use evidence of her salary reduction to support her claim.

The lower court judges said the fact that Mrs. Carter-Obayuwana's salary was reduced could not be considered retaliatory because it occurred before she filed her first legal claim. Only actions against her after she filed her first legal claim could be considered retaliatory, the lower courts said.

The D.C. Court of Appeals, however, says the judges erred. Any retaliatory actions, regardless of when they occur, can be used as evidence against employers, the appellate court says.

In Mrs. Carter-Obayuwana's case, she wrote a memorandum to university administrators complaining about sexual discrimination almost two years before she filed any legal complaint.

"Protected activity need not take the form of a lawsuit or of a formal complaint to an enforcement agency …," the appeals court says. "On the contrary, the protections of Title VII extend to an employee's informal complaints of discrimination to his or her superiors within the organization."

The appellate court did not rule on whether Mrs. Carter-Obayuwana had been subjected to discrimination or retaliation. Instead, the court ordered a new trial in which the salary reduction could be used as evidence.

Kip Schwartz, attorney for Howard University, says: "I don't think it's going to change the ultimate outcome. I take the court of appeals decision as a temporary setback."

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