THE AFFIRMATIVE OUTLOOK
Volume 1, No. 2, September 2003
“Taking Affirmative Action to Achieve Equal Opportunity”
From the Director…
One of the many things we cherish in the Equal Opportunity and Affirmative Action Office is the opportunity to meet and converse with many people on and off campus. We appreciate especially the associations with our own administrators, faculty, staff, and students as they call or visit our office for assistance or simply drop by to say hello. A day seldom passes without visitors from various segments of the University. We have long realized that the working relationships develop with individuals and departments on our campus are extremely important. They are vital to fulfilling our mandate and to discharging the duties of our office more effectively. John Donne said “No man is an island, entire of itself; every man is a piece of the continent, a part of the main…”
We strive to stay in touch with the campus community, to keep abreast of issues, to share information, to provide the best possible service and resources, and to continuously seek ways to better serve the campus. Please let us know how we can better assist you.
This issue of The Affirmative Outlook provides information we hope will be useful and of interest to you.
Recruiting and hiring occur almost daily at the institution, increasing the possibility of litigation due to improper searches. Search committees and others involved directly in these processes (search firms/head hunters) are cautioned to strive diligently to avoid legal problems. This is especially important in light of recent revelations.
As I was searching through our library holdings, I ran across information listing several reasons to be concerned about recruitment and hiring. The timely and timeless information, distributed at a national conference, was presented by Edward Kelly, assistant to the president, SUNYCollege at Brockport, and Susan Kinneston, vice president for business and finance at Paul Smith’s College.
Avoiding Legal Problems in Recruiting and Hiring
1.Increasing rise in employment litigation and new theories of contract and tort in state and federal courts
a.State courts have tended to read more and more into representations made during the search--handbooks, policy statements, and other facets of the search--seeing implied or actual employment contracts or theories of “estoppel” (a bar preventing one from contradicting what one has previously stated as the truth) which may conflict with what the employer thought was an “employment at will” agreement.
b.The “tort du jour,” is the theory of negligent hire, the concept that an employer is liable for the acts of the employee because the employer failed to take appropriate precautions during the hiring process.
2.The availability of jury trials and punitive damages and possible awards of attorney fees to plaintiffs after the Civil Rights Act of 1990
The Civil Rights Act of 1990 provided to plaintiffs in cases of sex, race, or national origin discrimination the same right to a jury trial and to punitive damages, (subject to a $300,000 cap) as has been available in cases brought under the Age Discrimination in Employment Act (ADEA). The result has been a dramatic increase in filings with the Equal Employment Opportunity Commission (EEOC) and in federal civil rights litigation.
3.The monetary costs associated with litigation arising from a failed search
The cost of defending a claim, win or lose, can be formidable. The cost of defense counsel, the time and effort spent on the discovery process, and the trial can be in the tens of thousands to hundreds of thousands of dollars. The lost opportunity costs associated with the time spent by members of search committees, human resource personnel, vice presidents, and sometimes even presidents, in depositions, discovery, and trial can be very significant. Even defendants who “win” their cases incur most of those costs.
4.The morale costs of employment litigation
Meritorious or not, employment litigation is usually a newsworthy event in a college community. Allegations in the pleadings, the statements of potential plaintiffs, and sometimes the statements of college employees, can have a very negative effect on the image of the institution. On employment matters, it is not uncommon for factions within the college to polarize with very different views as to what should have happened and who is to blame, resulting in tension, dissension, and poor morale.
5.The costs of an unsuccessful search
The second worst thing that can happen in a search is that it is aborted without hiring a candidate. The morale of the search committee, the inability to fill the position, the costs of advertising and interviewing come to nothing. Remember this is the second worst possible end to the search.
6.The cost of a bad hire
The worst thing that can happen is the bad hire. The person selected despite serious reservations, the person selected without verifying the credentials, the person selected despite bad references, is the person who can cost the university the most. The university may find itself as a defendant in a lawsuit alleging that it was negligent in hiring the individual. The university may find itself in a lawsuit brought by the employee when it tries to rectify the situation by terminating the employee. The university certainly loses whatever benefit it might have gotten from getting the right person to fill the job.
7.Defamation, libel, and slander
The hiring process in higher education can be compared, figuratively, to lots of cooks stirring the gravy. The typical search committee includes somewhere between five and seventeen people, all of whom will be asking questions of the candidate, perhaps checking references, calling colleagues at the candidate’s place of employment or elsewhere, and reporting back. The potential for gossip, malicious or other, is significant, and that gossip can and does result in litigation.
8.Testers
Another reason that we should be concerned about recruitment is the use, by the Federal Government and by various special interest groups, of “testers.” Testers were first used in housing segregation complaints. A black couple would appear at the office of a housing or real estate office seeking to purchase a home. The couple would be employees of HUD or volunteers from an organization such as the NAACP. The testers were not interested in buying a home but in ascertaining whether discrimination existed in the process. Testers are used to examine applications and hiring practices in matters of race, sex, and national origin. The testers will certainly be used to determine disability discrimination.
9.Improve the chances for a successful search
We want to be sure we hire the best person for the job. The existence of employment litigation, legal concerns and complaints about the hiring process, and time spent in dealing with them, takes away from the primary goal of finding the right person, bringing that person on board, and being able to document that the search was carried out in a legal and ethical fashion.
10.Do the right thing
Finally, we realize that in the search process, not only are candidates trying to woo us, but we, in turn, are attempting to woo the finest of the candidates to accept the position. The search process is the introduction of the candidate to the institution and tells the candidate what the institution values in a way no handbook or view book ever could. If the search is conducted with honesty, integrity, efficiency and a respect for the integrity of the individual, the candidate will take note of that fact and will consider it in making the decision whether to accept the offer. The unsuccessful candidate, while perhaps disappointed in not getting an offer, will have a sense of the institution’s values.
Kelly and Kinneston noted other particular areas of concern:
1.The employment contract
“Sam Goldwyn once said that ‘A verbal contract isn’t worth the paper it is written on…’ In the case of employment contracts, it is only the beginning of the problem associated with not having a written employment contract. The rule in American common law is that, absent other terms, an employment contract is at-will, meaning that it is terminable at any time by either party, hence not worth the paper it is written on.” In some states, however, oral contracts, or faculty handbooks, or institutional bylaws or guidelines (such as AAUP standards) have been held to create binding contracts. See Subryan v. Regents of the University of Colorado, 698 P.2d 1383 (Col Ct. App.1984); Brady v. Board of Trustees of NebraskaState College, 242 N.W. 2d 616 (Neb. 1976).
Normally, if an employment agreement is in writing and its terms unambiguous, the court will not consider conversations, or fill in the ‘gaps’ by considering what happened during the search. Where we are dealing with large search committees, innumerable meetings with high level administrators, and many occasions for informal discussions and communications with candidates, the potential for significant gaps and misunderstandings loom ominous. Consequently, we start at the end. The candidate from day one must understand who the appointing authority is and that any promises or representations will be reduced to writing and will be included in the appointment letter.
2.Confidentiality, privacy and the search committee.
The academic world is one of openness, shared governance, with an ethic of free and open communications. Members of various constituencies are expected to report back to colleagues, and committee doings often become the basis for departmental gossip. Every college has its horror stories of leaks from search committees which cause problems for candidates, of unauthorized calls to candidates home campuses, of negative statements made by members about candidates which result in, in the best of circumstances, discomfort to the committee members, and in the worst of cases, litigation against the college.
Committee members might wish to develop their own code of ethics outlining their expectations of each other throughout the search.
Candidates should be made aware of the extent to which they can expect their applications to be private. If references other than those provided will be called, the candidates should be made aware of that fact. If state sunshine laws make the candidates’ applications a matter of public record, they should be made aware of this fact. Once there is agreement on this aspect of confidentiality, everyone on the committee should honor that commitment.
The second aspect of the confidentiality of the process is the duty of members to one another to protect the freest expression of opinion in committee deliberations. While a limited privilege applies, the existence of leaks, miscommunications, and liberal interpretations of what in fact was said can often be the basis of a lawsuit which, while not meritorious, can result in considerable harm to the institution.
The third aspect of confidentiality is the agreement that any public representations regarding the search will come from the chair of the search committee. Candidates who were not granted interviews, or who were granted interviews but want feedback often attempt to get statements from committee members; these statements can cause problems.
3.Accessibility
The Americans With Disabilities Act (ADA) prohibits employers from taking certain action that could have a discriminatory effect when screening applicants for employment. In general it is illegal to:
a.Recruit, advertise or use job application procedures in a way that discriminates against a disabled applicant.
Consider the search committee that refuses to have a copy of the advertisement made available in Braille to a visually impaired person or which requires a person in a wheelchair to go to the second floor of an inaccessible building to fill out an application.
b.Fail to make reasonable accommodations to the known physical or mental
limitations of an otherwise qualified disabled applicant or deny employment to such an applicant based on the need to make reasonable accommodations.
The hearing disabled candidate may require some accommodations in the search committee interview process. Other candidates may require more time to review the interview questions.
c. Use qualification standards or other selection criteria that tend to screen out individuals with disabilities unless the standard, test, or criterion is job-related and consistent with business necessity.
Employers may, of course, require a job related or business needed license
or, in the academic setting, the terminal degree.
- d.Select and administer tests to applicants who have impaired sensory, manual or speaking skills in a manner that ensures the test results measure the disability rather than the skills they propose to measure.
Consider a search committee that gives a candidate an “in-basket” assessment in which the candidate is given an in basket of memoranda and written descriptions of problems, a reasonable amount of time to read the materials, and the opportunity to present an oral assessment of the problems and a proposed plan of action. A candidate with a speech disorder or with a reading disorder would probably need an accommodation, and the committee should be careful to measure the management skills, not the disability.
- e.Except in rare circumstances, make an inquiry into the nature and extent of any such disability.
The ADA is a complex and far reaching piece of legislation. In any case where a search committee faces a possible need for accommodation, the appropriate college administrator who handles these matters should be consulted.
4.Resume Fraud
It is an unfortunate fact of life that people are more and more inclined to falsify or inflate their achievements on their vita than ever before. Business surveys reflect dramatic increases of resume inflation or falsification, some surveys showing that between 40 to 60 percent of resumes contain erroneous or falsified information. Sometimes a decentralized search process, such as many of us have at our institutions, fails to place responsibility for resume verification on candidates selected for hire.
Someone must be given the responsibility to verify the credentials of all candidates prior to presenting the employment contract.
5.Applications
The employment application is a critically important document and should comply with applicable state and federal law. The application form used at most colleges can include some language which will help the institution.