MANAGING FACULTY SEARCHES. Leanne Shank General Counsel Washington and Lee University

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1 MANAGING FACULTY SEARCHES Leanne Shank General Counsel Washington and Lee University The Washington and Lee University

2 Purpose of this Tutorial To help faculty chairs and faculty search committees understand and successfully manage the hiring process. To provide procedural guidelines for use at your institutions. To provide practical tips for Chairs. 2

3 Key Points to Remember RECOGNIZE and Prevent Legal Risks ROUTINE and CONSISTENCY-- Use a search process REINFORCE the university s mission and standard of excellence in hiring decisions RESOURCES -- know where to go when you need help 3

4 The Most Important Laws Related to Hiring Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, national origin, and sex (including pregnancy) Americans with Disabilities Act (ADA) prohibits discrimination against qualified applicants with disabilities and requires reasonable accommodation of such individuals (see materials appended to this handout for general guidelines and definitions of important terms under ADA) 4

5 Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age (40 years or older) Equal Pay Act prohibits employers from paying unequal wages to male and female employees who perform substantially similar jobs Other Legal Grounds in Hiring Claims: defamation, interference with contract, breach of contract, negligent hiring, and others 5

6 Start at the Beginning What Position Are You Filling? The Job Description Should Drive the Search Identify the essential functions and required qualifications of the position, which then drives the advertising, interviewing, and hiring decisions. Use of well-developed job descriptions and criteria give objective yardsticks against which to measure applicants, which may prevent or help defend allegations of discriminatory treatment. 6

7 Writing the Job Description Remember: This is an important tool for hiring AND for long-term performance evaluation Include: Overall purpose of position Essential functions and marginal or infrequent functions Knowledge/skills/experience/credentials and personal qualifications required or preferred Any unusual details of the job 7

8 Essential Functions Identify criteria: Excellence in teaching? Excellence in scholarship? How does service background count? Will interdisciplinary work be expected? Academic and Experiential Background Status of Hire: Tenure track or other? How do you measure fit? 8

9 Sample Job Descriptions See a general model, developed and suggested by the W&L General Counsel, at Appendix A of materials at See a sample job description of a faculty position, prepared by United Educators, at Appendix B on above site. 9

10 Conducting the Search Recognize that a faculty search is an exercise in public relations, investigation, writing, evaluation, and legal risk management. Poorly worded or misleading advertisements, or improperly handled interviews or follow up communications may adversely impact the university s reputation in the local community and the national/international academic community. 10

11 Guidelines for Search and Selection Process It is best to establish and consistently use a standard search and selection process for all positions to be filled. Deviations in process from one candidate to another or one search to another may lead to questions or concerns of arbitrary decisionmaking or discrimination. 11

12 Consider These Procedures for Tenure Track Faculty Searches Select search committee and designate contact person or chair Develop a written job description approved by the Dean/Provost Establish timetable for search steps Prepare position advertisement Target advertising Acknowledge applications Screen applications and do initial eliminations 12

13 Tenure Track Faculty Search Procedures (cont d) Schedule brief interviews for discipline conferences/job fairs Conduct brief interviews at conferences/job fairs OR meet candidates there whom you invite to submit application Do further eliminations and schedule on-campus interviews Prepare for interviews and plan presentations by candidates 13

14 Tenure Track Faculty Search Procedures (cont d) Conduct on-campus interviews-orient interviewers Check references for viable candidates Conduct final evaluations and make hiring recommendation Prepare offer letter and rejection letters Pay/reimburse interview expenses if agreed Preserve applicant files (see section on record keeping) Provide new faculty orientation 14

15 Consider These Procedures for Adjunct or Visiting Faculty Searches Begin with clear understanding of position to be filled, including whether there is the potential for tenure track status and duration of appointment Establish timetable for search steps Contact colleagues at other institutions and professional organizations for recommendations of candidates Contact candidates and obtain vitaes/dossiers 15

16 Adjunct/Visiting Faculty Search Procedures (cont d) Interview candidates Conduct reference checks Prepare offer letter and rejection letters Pay/reimburse interview expenses if agreed Preserve applicant files (see section on record keeping) Provide new faculty orientation 16

17 Advertising the Position The purpose of advertising is to reach the largest qualified audience (and to discourage those not qualified). Choose your words and publication sites accordingly. Avoid red flag descriptions of desired applicants (e.g., young white male ). See Appendix C for sample advertisements at 17

18 Items to Consider Including in Advertisements Position, Title, Rank, Tenure Status Overall Responsibility Summary of Essential Duties Degrees/Licenses Required or Preferred Experience/Particular Qualifications Required or Preferred Salary Range 18

19 Items for Advertisement (cont d) Required Travel Description of the University (location, size, mission, student body) Equal Opportunity Employer Required application materials, closing date, and to whom sent Starting Date Particular Recruiting Information (e.g., encouragement of minority applicants) 19

20 Acknowledging Applications and Initial Screening Each application should be acknowledged promptly and candidates notified if additional information is needed. Candidates rejected after initial screening should receive prompt, brief written notice. If a candidate still under consideration has not completed standard institution application, s/he should do so at this stage, if required for faculty applicants. Acknowledgements can include required compliance notices (e.g., Campus Security Act). 20

21 Reference/Background Checks: An Important Step Use a standard reference checking procedure. Obtain consent & release from applicant (put in your application form). Best practice -- send a standard written request, including job description (see sample request in Appendix D at At the least, use a standard checklist of questions. 21

22 Reference and Background Checks (cont d) Focus on position requirements and applicant s qualification and suitability for the position. Verify applicant s information re: credentials and prior employment. Always ask, Would you rehire this person? If no, ask why not. A refusal to answer speaks volumes! 22

23 Questions to Avoid in Reference Checking Expunged Criminal History Medical Conditions and Prior Occupational Accidents Age, Race, Religion, Marital/Family Status NOTE: If you can t or shouldn t ask the applicant about it, you shouldn t ask a reference about it! 23

24 Conducting the Interview Job description should frame interview questions (essential functions and required/preferred knowledge, skills, and other qualifications). All committee members should prepare by reading relevant application materials. Best practice if questions are prepared in advance and are standard for all interviewees. 24

25 A Few Sample Interview Questions Why does this position interest you? Describe a situation the candidate would encounter in the position and ask how he/she would handle it. What qualities/skills make you the best person for the job? What would you need to work on to excel in the job? Describe your current/previous position and what you have learned from it that would contribute to your success in this position. 25

26 Avoid Topics That Could Lead to Claims of Discrimination Some general topics to eliminate: Race National origin Disability Age Religion Union membership and non-professional club membership Military status Arrest record Financial status 26

27 Disability-Related Questions You MAY ask all applicants if they can perform the essential job functions with or without reasonable accommodation and you may ask them to demonstrate. You MAY NOT ask a candidate whether he/she has a disability or impairment that would affect job performance. Generally, you cannot ask whether a candidate needs assistance or accommodation in the job. 27

28 Disability-Related Questions (cont d) BUT if an applicant indicates a need for accommodation in the application/interview process, you may inquire as to the needed accommodation and verify the disability. AND if a candidate has an obvious disability, or volunteers that he/she has a disability or needs an accommodation, you may inquire as to the accommodation needed. 28

29 Interview and Evaluation Documentation It is best to develop a standard format for documenting interviews. Develop a consistent ranking or set of quantitative evaluation criteria for all committee members to apply to all candidates. Criteria should be based on job description. 29

30 Communicating the Hiring Decision: Offers and Rejections Offer letters may legally bind the university and so must be carefully written. Need to document basis for salary or benefits or rank/title outside the typical range for the position, driven by unique circumstances (to justify and prevent or help defend unfair discrimination claim.) 30

31 Items to Consider Including in Offer Letter Offer of Position (specifying rank and tenure status, as applicable) Starting salary at the rate of per hour or per month, rather than promising for a defined period Terms/conditions/benefits (enclose applicable handbook and reference University website for summaries of required disclosures and policies) Starting date and acceptance deadline Where applicable, clear statement that offer is contingent on job-related physical exam Where applicable, moving expense amount 31

32 Offer Letters (cont d) Avoid terms like permanent or career or other terms that may imply fixed employment. Consider sending the original and an extra copy, with a place for the candidate to sign and date, I accept employment on the terms outlined above. Candidate returns the signed copy. For non-tenure faculty positions, best to have each candidate fill out institution s application, which may include employment-at-will language. 32

33 Rejection Letters Keep in mind that the manner in which an applicant is rejected can be the trigger for a lawsuit, so use care in drafting these letters. Provide a quick response and keep the letter brief and factual (e.g., We have now completed the search process and, after careful consideration, have selected another candidate for the position. We thank you for your interest in W&L. ) Avoid comparing the applicant s qualifications with the person selected. 33

34 Record Keeping and Retention Institution must keep all personnel and employment records (including application forms and materials) for at least two years, under Title VII and ADA. Refer to your institution s record retention schedule. If a lawsuit is filed, materials must be maintained until the case is resolved. It is best practice to make clear to applicants that their materials do not remain active after consideration for the position sought and that they should reapply for future positions. For individuals who are hired, there should be a consistent practice about which application materials will be retained after the two-year period. 34

35 Separate Maintenance of Medical Records Under ADA, all employee medical records (including those obtained as part of the application and hiring process) must be maintained separately from the rest of the personnel file and access must be strictly on a need to know basis. (E.g., emergency health care providers, personnel responsible for evaluating requested accommodations.) 35

36 Ideas for Promoting Faculty Diversity Recruiting and Outreach Draft position descriptions to broaden the applicant pool (e.g., avoid overly narrow criteria, consider possibilities for interdisciplinary work) Advertise in publications likely to reach out to minority, international, and women s groups Make new contacts who may have leads on promising diverse candidates 36

37 The Search Process Broaden search committee membership to include members outside the department Train search committees about the university s diversity goals and policies Provide search committees with an overview of the law of discrimination and affirmative action and guidance in prudent hiring practices 37

38 Creative Hiring and Incentive Programs Bonus hires Cluster Hiring Partnerships with Other Institutions Interdisciplinary/Joint Appointments Other Forms of Support Mentorship Programs Spouse and Partner Support Personal Attention 38

39 Resources for Hiring Questions Deans and Provosts Human Resources Institutional Counsel 39