Interview, November 30, 1999
CIR client Ian Maitland is a professor specializing in business ethics and international business at the University of Minnesota. With CIR’s help, Professor Maitland challenged a 1989 legal settlement that gave a pay increase to women at the university. The case was settled after the University agreed to distribute pay equitably. Professor Maitland has taught at the University of Minnesota’s Carlson School of Management since 1979. We recently sat down with him to discuss his case.
Q. You will have to excuse me for beginning with a completely irrelevant question. Your accent makes me think that you are an immigrant to the United States. Where are you from originally?…
A. It is hard to say. My father is a Scot and my mother was a Canadian. I was born in Ottawa and raised in England, Egypt, France and the United States where my father had postings with the British Foreign Office. Since 1980, I have been a U.S. citizen … I have lived in the United States since 1971 when I attended graduate school at Columbia University.
Q. This litigation has a long and tangled history. How and when did it start?
A. It all originated with what I call the “mother of all sex discrimination suits” at the University of Minnesota – the Rajender suit. In 1973, Dr. Shyamala Rajender, then a lecturer in the Chemistry Department, filed a class action lawsuit after the Department failed to hire her for a tenure track position. The case went to trial before Federal District Court Judge Miles Lord (the well-known Minnesota populist). The University settled the case in 1980 (out of “fear of the Lord,” people joked at the time). The Settlement and Consent Decree (Rajender I) gave Dr. Rajender $100,000 and her attorneys $2 million.
Q. But the case did not end there. Why not?
A. The settlement also provided that disputes under the settlement would be referred to court-appointed special masters for non-binding arbitration, with the District Court retaining the right to approve the settlement of such disputes. This provision, in combination with the University’s “pro-settlement” policy during the 1980s, opened the floodgates to charges of sex discrimination on campus. (The University’s Equal Employment director later described the University’s pro-settlement policy in the following terms: “In general, the dean or department head would be advised to settle. If the case looked very ridiculous or the person wanted a settlement that was just completely out of line, sometimes those didn’t settle.” My emphasis!) Within two or three years, some 300 claims or “petitions” had been filed against the University. Several of those claims alleged that the University discriminated against women with respect to their pay. These claims were consolidated and, in 1989, led to second settlement (Rajender II) that gave $3 million in pay increases to women faculty and academic staff. Each woman on campus got a pay raise –regardless of whether her current salary was higher or lower than that of similarly situated men.
Q. What prompted you to file your own law suit?
A. The settlement was reached despite the University of Minnesota’s own pay study showing no difference (or only a statistically insignificant difference) between men and women’s pay. Again, the University was settling a case, not on the merits, but because it wanted to buy peace and quiet. Before the settlement was finalized, I voiced my objection to it in the Faculty Senate and by other means, as well as at the District Court’s fairness hearing, but my objections were brushed aside. That made me mad enough to bring a charge with the EEOC and, in due course, to file a complaint in Federal District Court in 1993.
Q. In your mind, is your case mainly about the money?
A: No–it is about setting the record straight. The University’s decision to settle sex discrimination lawsuits without regard to their merits left the impression that discrimination against women was endemic on our campus. The University officially denied that it had discriminated, but many people inside and outside the university community assumed that this was just a legal ploy. The University’s lips said it hadn’t discriminated, but its open checkbook said otherwise. Judge Miles Lord was a case in point. He told a newspaper that, since the first Rajender settlement in 1980, “I don’t think [the University’s] changed a bit. There is blatant, rotten, rank discrimination. It’s inbred.” That was a terrible slur on a lot of good people (men and women) who were trying to be fair in difficult circumstances. Instead of defending the honor of its faculty, the University Administration chose to try to lower the temperature by paying off plaintiffs.
Q. Did the policy of “appeasement” work as the administrators hoped it would?
A. Of course not. Predictably, the policy of appeasement failed to earn any gratitude from the gender ideologues on campus. Instead, it convinced them of the University’s guilt and validated their self-image as victims. The truth is that the Rajender settlement created pay inequities where none had existed before. I felt that the only way that I could stiffen the University Administration’s spine in discrimination litigation was by showing that unprincipled surrender could be just as costly as hanging tough.
Q. Were you alone among the faculty in feeling that the University was wrong not to defend itself more vigorously against what is after all a very serious accusation of sex discrimination in pay?
A. I wasn’t alone, but I’m not sure what proportion of the faculty shared my view. However, I was virtually alone was in publicly protesting the University’s policies. I think Bernard Shaw said it best. “Reasonable people accept the world as it is. Unreasonable people try to change the world. Therefore all progress depends on unreasonable people.” But, to be fair to them, I didn’t ask my colleagues to join me on the barricades; I chose to pursue a remedy through the courts. A number of my colleagues volunteered to sign on as named plaintiffs if I got the court to certify a class.
Q. What are you seeking in your lawsuit?
A. My goal is to reverse the effects of the 1989 Rajender pay settlement. So I wanted back and front pay and for myself and all male faculty members. So originally I wanted court certification of a class comprising all the male counterparts of the female Rajender class. As a non-attorney, I was barred from representing the class myself – another reason why I needed to engage legal counsel. Unfortunately, for reasons that I still don’t understand, the District Court denied class certification.
Q. Is it true that you tried right away to get a lawyer to represent you but couldn’t find one?
A. I think I got turned down by twelve lawyers or law firms in all. Mostly they didn’t bother to say why they would not take my case. Some public interest law firms declined because my case didn’t match their priorities and/or their dockets were full. I think private firms were scared off by the financial exposure the case might involve. The University has deep pockets. Anyway, the result was that for ten years (counting my EEOC charge), I was forced to represent myself.
Q. You represented yourself quite successfully?
A. My case was thrown out twice by the District Court, so I made two trips to the Appeals Court and got the case reinstated each time. That was quite exhilarating. The University underestimated me because I was representing myself. And even though I had a lousy lawyer, I had a great case, so it largely took care of itself.
Q. You not only had trouble finding an attorney; I understand you had a difficulty finding a judge?
A. Yes. I could wallpaper a small room with the recusal notices. A total of nine or ten U.S. District Court judges recused themselves at one time or another during the course of the suit. Again, with few exceptions, the judges didn’t say why. Was it because the University of Minnesota is such a pervasive presence in the Twin Cities that they were conflicted out? Or was it because they didn’t want to touch such a politically incorrect case?
Q. Was CIR’s involvement important?
A. It was crucial. I could pursue the case pro se up to a point, but eventually I would have run into legal issues of horrendous complexity. As it happened, the University tried to get the case thrown out a third time over some extremely esoteric issues. It argued that the individual defendants (University Regents and a former University president) enjoyed absolute immunity for their “legislative” acts. It also argued that Congress had exceeded its authority when it permitted Title VII sex discrimination cases against state entities (like the University) brought by male plaintiffs. The University took its arguments all the way to the U.S. Supreme Court (which declined to hear them). Without CIR’s involvement – its expertise and financial support – it is certain that my case could not have survived. CIR also paid for expenses, expert witnesses, and so forth. That made it possible for me to engage my lawyers Mark Johnson and Joseph Nilan of the Minneapolis-based Gregerson Rosow Johnson & Nilan law firm. I was very fortunate in having these two outstanding law firms in my corner. I can’t tell you how important it is to plaintiffs like me – who are usually shunned by the organized bar — that the CIR, a public interest law firm with a libertarian bent, is out there to help pursue a case like this.
Q: Are you a litigious person? Have you initiated lawsuits before?
A: Twenty years ago I went to small claims court (also successfully!). That and the present litigation are the sum total of my experience of litigation. But I don’t shy away from an argument – after all I was a Republican candidate for Congress in St. Paul and a op-ed page columnist for the Minneapolis Star Tribune…
Q. In representing yourself, what sorts of things did you have to do to prepare? Did you have to spend all your free time reading cases and briefs at the law library?
A. Actually, filing the lawsuit was like falling off a log: I simply used the original Rajender complaint and motions as my templates. I suppose I did spend a fair amount of time on preparing the case, especially during my summers (when University of Minnesota faculty are temporarily unemployed). But it became a labor of love, so I have no regrets.
Q. So on the whole, you are glad that you filed the lawsuit?