Barbara A. Lee
Professor of Human Resource Management
Rutgers University
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
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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
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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
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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
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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
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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
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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?
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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
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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
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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
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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”
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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
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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
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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.
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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)
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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 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
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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
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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
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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
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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
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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
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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.
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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
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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.)
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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
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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
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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?
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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?
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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]?
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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
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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
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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
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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.
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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)
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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.
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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?
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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?
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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?
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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?
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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?
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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?
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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?
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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?
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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?
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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?
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