Best Practices - Interviewing and Hiring Faculty

 

Federal law governs the employment relationship.  And the employment relationship actually begins when the employer first advertises a position and continues throughout the job search process. It’s important from a risk management perspective for employers to comply with federal mandates as they apply to job searches.  But, given the longer-term investment that colleges and universities make in recruiting and retaining the best faculties for their institutions demonstrating a commitment to best practices in work-family policies at this stage in the job process provides benefits for the employer.

Federal law requires that all individuals be evaluated as individuals.  Many of the stereotypes regarding the proclivity of women faculty to take time off from work for family concerns are false.  Although only women can get pregnant  -- and potentially require medical leave following childbirth, employers are not allowed to make presumptions about an individual’s (male or female) family plans.

 

  • Pre-employment and pre-admissions inquiries regarding the sex of an applicant.  Typically, both search and admissions committees know whether an applicant is either male or female because letters of recommendation written on behalf of the candidate tend to use the pronouns, “he” or “she”.  However, if the admissions or search process is to be free of the types of sex discrimination that marginalizes women in higher education, pre-employment inquiries should not be made regarding the sex of an applicant.  If inquiries are made, then all candidates must be asked the same question.[1]  

 

  • Pre-employment and pre-admissions inquiries regarding the marital status of an applicant.  Title IX requires that policies related to the marital status of candidates for graduate admissions or for employment must be the same for both women and men.  The best practice is not to begin with the assumption that a married woman graduate student, post-doc or professor will be less productive than a married man (or unmarried person) and thus not to make such inquiries.  Under federal law, if questions regarding marital status are asked, the same question must be put to all female and all male applicants.  Anecdotal evidence indicates that search committee members have asked candidates questions about marital status in order to avoid considering applicants who will have a trailing spouse.  Anecdotal evidence also indicates that search committee members sometimes ask candidates about marital status because the college or university has a formal or informal policy of aiding trailing spouses in relocation and job search.  Because women faculty are much more likely to be married to a man who works outside the home, best practices include providing relocation assistance.  Best practices call for such information to be included in a packet of general information about the hiring institution’s benefits policies and that are made available to all applicants.

 

  • Pre-employment and pre-admissions inquiries regarding childrearing plans.  Title IX of the Education Amendments of 1972 mandates that male and female applicants for graduate school and/or for employment must not be treated differently.  Do follow the advice of the American Bar Association and make graduate student interviews and job interviews as uniform as possible – addressing the same set of questions to all applicants for a given position.[2]   Best practices mandate not asking any women job candidates or applicants to graduate school about their plans to have children – even if this information is only sought in order to better plan to cover future leaves of absence – and not for discriminatory reasons.  Asking female candidates about plans for future pregnancies can perpetuate the stereotype of women as marginal workers and also may create an appearance of discrimination. If a man is hired for a given position, or a man receives a certain fellowship or spot in a graduate program, a university could find itself trying to prove in court that no discrimination was intended and that none occurred.

 

  • Evaluating an obviously pregnant applicant.   Follow the guidance of the Equal Employment Opportunity Commission when you have knowledge that a female applicant is pregnant.   Specifically, evaluate the pregnant applicant by the same standards that are being used to evaluate other job applicants.[3]  Do not assume that because a woman is pregnant she will not able to perform the duties of the job advertised – or succeed in her graduate studies.  If a female applicant is limited in some way by a pregnancy-related complication at the time of the interview, her pregnancy may be considered as a factor in the decision to offer her an appointment – but only to the extent that the search/admissions committee also evaluates other kinds of limiting short-term medical disabilities experienced by other applicants.  For example, if allowances (e.g., delayed admission or delayed job start) could or would be made for a male applicant who was suffering a short-term medical disability following an automobile accident or illness, then similar allowances should be made for a pregnant applicant.

 

  • Learning that a candidate is pregnant after you make an offer.  Do not attempt to rescind an offer to a woman candidate if you subsequently discover that she is pregnant with a due date during the upcoming school year.  An employer cannot refuse to hire a pregnant woman who has been found qualified and offered an appointment --  as long as she is currently able to perform the major functions of her job.  At a minimum the employer must provide her with the same benefits package (e.g., paid leave, ability to stop the tenure clock, etc.) that  would be made available if she were experiencing  a short-term, non-maternity-related medical disability.[4]  A graduate student granted admission to a university may not be excluded from a graduate program, including any class or extracurricular activity because the student is pregnant – unless the student requests voluntarily to participate in a separate portion of the program or activity during pregnancy and recovery from childbirth.[5]  Because the admission of a graduate student or hiring of a post-doc or faculty member should be viewed as a long-term investment, consider the costs of the accommodations needed by the pregnant woman over the lifetime of returns in the investment in the individual – rather than thinking about the returns only during the first year. 

 

  • Making an job or admissions offer to a woman candidate with a young child.  Do not refuse to hire a woman job applicant or accept a woman candidate for graduate study – just because she has a young child.  It’s a mistake to assume that mothers of young children cannot succeed in demanding positions.  It’s also a mistake to impose students’ or faculty colleagues’ views of the “proper” role of mothers of young children when making a hiring or admissions decision.  All employment[6] and admissions policies regarding parents must be applied equally to mothers and fathers[7] Moreover, under Executive Order 13152, signed by President Clinton in 2000 federal government employers (e.g, U.S. Naval Academy, Coast Guard Academy, etc.) may not discriminate in employment based on either current or prospective parental status.


[1]   34 C.F.R. §106.60(b), 106.21(c)(4).

[2]  The American Bar Association Guide to Workplace Law,  1997, The American Bar Association, Three Rivers Press, New York, p.27.

[3]   EEOC, “Facts About Pregnancy Discrimination”  -- www.eeoc.gov/facts/fs-preg.html). 

[4]  29 C.F.R. §1604, Appendix, Question 12, 15; “Practical Guidance on Pregnancy Discrimination”,  Sex Discrimination: Technical Assistance Program Manual,  January 2002, EEOC, pp. 175;  “Facts About Pregnancy Discrimination”  -- www.eeoc.gov/facts/fs-preg.html). 

[5]   34 C.F.R. §106.40(b)(1)

[6]  Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 2004; Phillips v. Martin Marietta Corp, 400 U.S. 542, 1971; Trezza v. Hartford, Inc., 98 Civ. 2205,  1999. 

[7]  34 C.F.R. §106.40(b)(1)