Lawful Searches

1. Lawful Searches Barbara A. Lee Professor of Human Resource Management Rutgers University

2. Enhancing Diversity • College policy • Diversity of central New Jersey • Benefit to students and faculty colleagues of a variety of perspectives and experiences • Ability to serve communities from which students come

3. EEO and Affirmative Action • These terms are different and are often confused or misunderstood. One is required by law; the other may be a goal of institutional policy • EEO and Affirmative Action are complimentary • An institution may practice voluntary affirmative action as long as it does so lawfully

4. Equal Employment Opportunity • Federal and state law require that employment decisions be made on basis of merit, not innate characteristics such as race, sex, age, national origin, religion, disability • New Jersey law adds marital status, sexual orientation and gender identity or expression, among others, to list of protected characteristics • EEO requires that all candidates be evaluated using the same criteria and standards

5. Laws Applicable to Searches • Federal: • Title VII of the Civil Rights Act of 1964 • Americans With Disabilities Act • Age Discrimination in Employment Act • Title IX • State: • New Jersey Law Against Discrimination

6. Title VII • Prohibits discrimination on the basis of race, sex, religion, color, and national origin • Applies to hiring and any other employment decision (promotion, salary increases, discipline) • Has been interpreted to prohibit sexual harassment, as well as harassment on the basis of the other protected categories

7. Americans With Disabilities Act • Physical or mental disorder that • Substantially limits • One or more major life activities • And cannot be accommodated without causing “undue hardship” to the employer

8. Americans With Disabilities Act • Disabled individual must be “qualified” with or without reasonable accommodation • In order to be qualified, individual must be able to perform essential functions of the position • What are the essential functions of a particular job? How do you prove it?

9. Age Discrimination in Employment Act • Applies to all individuals age 40 and over • No upper age limit for protection • No mandatory retirement for age (with a few exceptions) • Separation from employment must be either voluntary or dismissal for cause

10. Title IX • Prohibits discrimination on basis of sex by recipients of federal funds • Covers any college or university whose students receive federal student financial aid (as well as institutions that receive federal research or other kinds of funding) • Prohibits retaliation against any student or employee who complains of alleged Title IX violations, even if that individual has not personally been the target of discrimination

11. NJ Law Against Discrimination • Prohibits discrimination on basis of sex, race, national origin, religion, creed, age, disability, marital status, sexual orientation, gender identity or expression, domestic partner status, liability for military service, hereditary cellular blood trait • Also prohibits harassment on the basis of any of these characteristics • State law is far broader than federal; applicants or employees may sue under either or both laws

12. Affirmative Action • Seeking to recruit members of formerly underrepresented groups for faculty positions • Using the status of a qualified applicant’s race, gender, etc. as one of a series of criteria in evaluating that individual’s suitability for a position • Requires search committees to develop a diverse talent pool of candidates for positions • May require the committee to think more broadly about what makes a candidate “qualified”

13. Legal Status of Affirmative Action • Quotas or positions set aside for members of minority groups are illegal under NJ and federal law • Diversity is a “compelling interest” of institutions of higher education (Grutter v. University of Michigan (2003)) • Using race or another “protected” characteristic as one of many criteria, in a wholistic evaluation of candidates, is permissible in student admissions—Supreme Court has not spoken on employment

14. Legal Status of Affirmative Action • Must be a “manifest imbalance” by race or gender in an employment category (e.g., faculty) • Plan must not require the discharge of individuals on the basis of race, sex, etc. • Plan may not require the hiring of only non-majority individuals • Plan must be designed to end when the imbalance has been ameliorated

15. AA after Grutter • If employer can show that diversity is a compelling interest (for a college, on educational grounds) • If employer can show that race or other protected characteristic was one of several factors taken into consideration • If a diverse candidate who is selected meets the stated criteria for the position, or the institution has a clear, legitimate explanation for why the candidate was determined to be qualified despite the criteria • Then the institution may apply its AA plan in hiring.

16. What is a compelling interest? • Diverse student body is not sufficient justification for race-conscious hiring • Educational justification that ALL students need to be exposed to diverse ideas, points of view, backgrounds, philosophies, etc. is legally defensible • Link educational preparation of students to need to work and perform in a diverse society (e.g., arguments by business organizations that they want to hire graduates who can function in a diverse society)

17. Diversity and Searches

18. What is Diversity? • Recognizing a variety of forms of human experience that contribute to the educational mission of the college • Could include race/ethnicity or sex, but also includes religion, political perspectives, socioeconomic background, cultural background, special talents, geographic differences, disability, interest or experience in serving underserved populations

19. How do you define merit? • Institutions attended? • Previous teaching experience? • Focus of research? • Unique experiences or expertise? • Nontraditional work or life experiences? • Commitment to working with diverse student populations? • Avoid “merit looks like me”

20. Define the Position • What institutional needs will this position fill? • In addition to teaching or other programmatic needs, are there unfulfilled needs vis-à-vis nontraditional students? (e.g., special advising needs) • What possible future needs could the person in this position contribute to? Plan for ten years from now, not just for today

21. Select the Search Committee • Chair has important responsibilities—select carefully • Put together a diverse committee, including women and minorities. If necessary, invite a person from another department, program or college • Consider adding a person from another related department to the committee • Consider adding one or more students to the committee

22. Select the Search Committee • If the campus has a center or program related to your diversity goals, add someone from that program • Add someone to the committee who has experience with successful searches that resulted in diverse candidates/hires • Ensure that the committee clearly understands the search criteria and how to apply them • Ensure that all committee members are committed to enhancing diversity

23. Develop the Job Description • Develop checklist of what department is looking for in a successful candidate • For faculty, job description should clearly state whether position is tenure-track or not, full time or not, etc. • Do not make criteria so narrow that only a few candidates can meet them • Indicate that nontraditional career paths will not be used to exclude candidates • Consider not requiring a PhD

24. Developing a Recruitment Plan • Advertise in publications that are likely to reach diverse candidates, such as Black Issues in Higher Education and The Hispanic Outlook in Higher Education (HR Department has list) • Call colleagues at graduate programs in your discipline and ask if they have diverse candidates to suggest (ask for both diverse and majority candidates) • Contact nonacademics in your field and ask if they can help you recruit diverse candidates

25. Developing a Recruitment Plan • Identify websites that diverse candidates read regularly and post the position description there • Use your disciplinary organizations’ websites to announce the position • Ask your Human Resources office to provide you with information about websites and publications to use

26. Selecting the Candidates • Match candidate qualifications to job description. Don’t hesitate to ask for additional information if it’s not clear that a potentially strong candidate is a close match. • Although the committee may ask the chair or a subcommittee to review all applications, the entire committee should review the applications of those individuals deemed to meet the job description criteria.

27. Selecting the Candidates • Develop a strategy for evaluating applicants who appear to meet the qualifications, such as numerical (1,2,3) or verbal (good, OK, questionable) • Prior to applying these evaluative labels, discuss the potential for bias in applying them • Place a priority on candidates who add to, rather than replicate, strengths and characteristics of current employees • Ensure that the discussion avoids mention of race, sex, or other protected characteristics

28. Selecting the Candidates • Avoid commonly used screening criteria that often screen out diverse candidates: • Years of experience (age) • Reputation of graduate advisor (race, gender bias) • Specific degree requirements unless clearly related • Interruptions in employment (gender, disability) • Recency of degree (age) • Record reason for decision not to interview (field not suitable, inadequate experience, educational credentials weak or not relevant, etc.)

29. Interviewing • Prepare questions before interviewing begins • Avoid illegal or improper questions • Ask candidates questions that will elicit experiences and skills that will be important in fulfilling department’s teaching and advising needs • Probe for the candidate’s teaching style and philosophy; elicit a discussion of candidate’s ability to teach and advise a diverse student body • Probe for candidate’s commitment to and history of service to institution and/or community

30. Interviewing • Ask the same questions of all candidates • Follow up on answers that are incomplete or non-responsive • If candidate seems not to meet the job criteria, explain why they are important • Give the candidate time to ask questions

31. Illegal or Improper Questions • How old are you (or when do you plan to retire)? • Does your religion prevent you from teaching on Friday night or weekends? • Do you have child care (if asked only to female candidates)? • Are you a U.S. citizen? • Have you ever been convicted of a crime? • Do you have any disabilities? • When did you graduate from high school?

32. Illegal or Improper Questions • Are you married? What does your spouse do? • Do you have children? (if asked only to women) • Will you have to sell your house to take this job? • Were you honorably discharged from the military? • What is the ethnic origin of your name? • What organizations (other than professional organizations) do you belong to? • What race are you? • What church do you attend?

33. Illegal or Improper Questions • Were you a member of a union at your previous institution? • How did you learn to speak [language other than English]?

34. Reference Checks • Information to verify • Degrees, year and institution • Existence of any publications claimed • Quality of performance at previous jobs • Collegiality at previous jobs • Probe for other issues (student or colleague complaints? demeanor?) • Check with knowledgeable individuals who are not listed on candidate’s resume

35. Background Checks • Involves search of criminal records • Within New Jersey • Outside of New Jersey, particularly in states where the successful candidate worked in the past decade • Cannot refuse to hire candidate based solely on arrest record (if not convicted) • May not use expunged criminal convictions to deny employment to a candidate • Prior criminal behavior must be evaluated for relevance to position you are considering candidate for

36. Documentation • Keep notes on candidate’s interview responses, comments by references, etc. • Make sure that your notes are factual and avoid including your impressions (e.g. I think she’s lying or he gave a stupid answer) • If you witness candidate behavior or responses that trouble you, memorialize them rather than stating your opinion of them • Remember that all of your notes can be subpoenaed by a plaintiff in a lawsuit

37. Sources of Legal Liability • Treating one or more candidates differently from others of another race, sex, ethnicity, etc. in terms of questions asked, length of campus visit, access to academic administrators, etc. • Asking questions that imply that the answers will be used in a discriminatory fashion (e.g., candidates assume you will use all information you have) • Applying different criteria to candidates of different races, sex, etc.

38. Sources of Legal Liability • Changing the position requirements after the interviewing process has begun so that diverse candidates can no longer qualify • Not allowing an internal candidate (including adjunct or part-time faculty) who are qualified on paper to interview for the position • Discussions with references that refer to race, sex, etc. and get back to the candidate (the reference giver is NOT your friend)

39. Retention of Diverse Employees • Mentoring • Teaching • Advising • Service • Periodic feedback on performance by department chair or other more senior employees • Helping diverse candidates build a community of colleagues, both non-diverse and diverse—socializing, providing information on the community, etc.

40. Group Discussion • The Social Sciences Department has an opening for a tenure-track faculty member, and would like that individual to teach courses on immigration, poverty, and historical movements of people from their homelands to other countries or continents. How could the position be described to encourage a diverse candidate pool?

41. Group Discussion • A candidate for a faculty position in a department that uses several field trips each semester shows up for the interview in a wheelchair. What questions may you ask of this individual? • What if field trips are not required, but the department requires students to work at field placements and the faculty member to meet individually with students and their supervisors on site? What questions would you ask?

42. Group Discussion • An African-American candidate is being interviewed by the search committee. She asks what support services are available for staff members of color, with particular interest in mentoring. How would you respond?

43. Group Discussion • The search committee has received all applications and has reviewed them. Three applicants are white men who appear to be around the age of 50. They have the most traditional experience. Two other applicants are people of color, a man and a woman, who have some relevant experience but not as much as the white men. All five meet the stated criteria for the position. What can be done lawfully if the college decides it should make a diverse hire?

44. Group Discussion • The search committee has selected five candidates to interview. One candidate, a woman of around 35 years old, appears for the interview very pregnant. What questions may the search committee ask her concerning the pregnancy or its aftermath?

45. Group Discussion • During the interview with the search committee, a candidate volunteers that he has multiple sclerosis but that it is “OK” and he feels fine. What questions may the search committee ask him?

46. Group Discussion • The chair of the search committee has a friend that she wants to get the vacant position. During the interviews of other candidates she behaves in a very negative way, asking questions designed to make the other candidates feel that they do not meet the criteria for the position. There is a very well qualified candidate of color who you believe is equally qualified as the chair’s friend. What would you do?

47. Group Discussion • During a candidate’s visit to campus, you have scheduled lunch with several people who are not on the search committee. You are present at the lunch. Another college employee asks the candidate, a Latino, whether he would plan to “live in a Hispanic community so that you can be near your people.” When the candidate says he doesn’t know, the employee persists, asking “but don’t you want to help those illegals?” What would you do?

48. Group Discussion • You have asked a female student to escort a male candidate to his appointments around campus. As they are walking from one meeting to the next, the candidate asks the student if faculty and students date much, whether she has a boyfriend, and whether she likes older men (she reports this to you later). You are a member of the search committee. The student is embarrassed and has asked you not to tell anyone. What would you do?

49. Group Discussion • You have volunteered to call a former classmate to get an “informal” reference about a candidate (one who is not on the candidate’s list of references). Your friend agrees to speak with you about the candidate, but only if you agree not to reveal what she said. What would you do?