Barbara A. LeeProfessor of Human Resource Management

Rutgers University

Enhancing DiversityCollege policyDiversity of central New JerseyBenefit to students and faculty colleagues of

a variety of perspectives and experiencesAbility to serve communities from which

students come

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EEO and Affirmative ActionThese 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

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Equal Employment OpportunityFederal 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

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Laws Applicable to SearchesFederal:

Title VII of the Civil Rights Act of 1964Americans With Disabilities ActAge Discrimination in Employment ActTitle IX

State:New Jersey Law Against Discrimination

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Title VIIProhibits discrimination on the basis of race,

sex, religion, color, and national originApplies 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

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Americans With Disabilities ActPhysical or mental disorder thatSubstantially limitsOne or more major life activitiesAnd cannot be accommodated without

causing “undue hardship” to the employer

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Americans With Disabilities ActDisabled individual must be “qualified” with

or without reasonable accommodationIn 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?

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Age Discrimination in Employment Act

Applies to all individuals age 40 and overNo upper age limit for protectionNo mandatory retirement for age (with a few

exceptions)Separation from employment must be either

voluntary or dismissal for cause

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Title IXProhibits discrimination on basis of sex by

recipients of federal fundsCovers 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

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NJ Law Against DiscriminationProhibits 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

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Affirmative ActionSeeking to recruit members of formerly

underrepresented groups for faculty positionsUsing 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”

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Legal Status of Affirmative ActionQuotas 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

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Legal Status of Affirmative ActionMust 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

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AA after GrutterIf 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.

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What is a compelling interest?Diverse student body is not sufficient

justification for race-conscious hiringEducational 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)

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Diversity and Searches

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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

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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”

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Define the PositionWhat 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

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Select the Search CommitteeChair has important responsibilities—select

carefullyPut 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

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Select the Search CommitteeIf 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

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Develop the Job DescriptionDevelop checklist of what department is

looking for in a successful candidateFor 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 PhD23

Developing a Recruitment PlanAdvertise 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

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Developing a Recruitment PlanIdentify 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

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Selecting the CandidatesMatch 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.

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Selecting the CandidatesDevelop 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

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Selecting the CandidatesAvoid 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

relatedInterruptions 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.)

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InterviewingPrepare questions before interviewing beginsAvoid 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

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InterviewingAsk the same questions of all candidatesFollow up on answers that are incomplete or

non-responsiveIf candidate seems not to meet the job

criteria, explain why they are importantGive the candidate time to ask questions

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Illegal or Improper QuestionsHow 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?

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Illegal or Improper QuestionsAre 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?

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Illegal or Improper QuestionsWere you a member of a union at your

previous institution?How did you learn to speak [language other

than English]?

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Reference ChecksInformation to verify

Degrees, year and institutionExistence of any publications claimedQuality of performance at previous jobsCollegiality at previous jobsProbe for other issues (student or colleague

complaints? demeanor?)Check with knowledgeable individuals who are

not listed on candidate’s resume

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Background ChecksInvolves search of criminal records

Within New JerseyOutside of New Jersey, particularly in states where

the successful candidate worked in the past decadeCannot refuse to hire candidate based solely on

arrest record (if not convicted)May not use expunged criminal convictions to deny

employment to a candidatePrior criminal behavior must be evaluated for

relevance to position you are considering candidate for

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DocumentationKeep 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

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Sources of Legal LiabilityTreating 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.

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Sources of Legal LiabilityChanging 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)

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Retention of Diverse EmployeesMentoring

TeachingAdvisingService

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.

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Group DiscussionThe 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?

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Group DiscussionA 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?

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Group DiscussionAn 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?

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Group DiscussionThe 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?

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Group DiscussionThe 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?

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Group DiscussionDuring 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?

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Group DiscussionThe 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?

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Group DiscussionDuring 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?

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Group DiscussionYou 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?

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Group DiscussionYou 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?

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