Department Chair Selection Process

Mandatory Disclaimer This is practical advice on a possible compliance issue. I do not have an active license in the state of Missouri. This is not intended as a legal determination or opinion and does not create an attorney-client relationship. Those charged with governance need to establish a commitment to integrity through leadership, education, and assessment that facilitates compliance and eases regulatory burdens by preventing, or at least mitigating the impact of, external intervention; this communication is not suitable for any other purpose but to support this commitment.

How can a process be illegal? Establishes parameters designed/likely to result in legal liability for illegal actions Bona fide lawyers with active licenses have advised President Choi that our Chair hiring process opens us up to legal risk Risk management principles suggest that we need to make our process more legal to avoid liability This Photo by Unknown Author is licensed under CC BY-SA

What Laws Could We Be Liable for Violating? Missouri Statutes McDonnell Douglas Test 42 USC 2000e 29 USC 623 29 USC 631 29 USC 791 42 USC 12102

How Do We Manage the Risk of Violating State Law? Mo. Rev. Stat. § 213.055(1)(a): illegal if an employer fails or refuses to hire a candidate for discriminatory reasons. Discriminatory reasons are defined by the McDonnel Douglas Not just because we’re a STEM school Not just because we’re St. Louis adjacent

What is McDonnel Douglas? ‘70s lawsuit established the test still used today to determine whether conduct violates non-discrimination laws McDonnell Douglas Test Candidate creates a presumption of discrimination perceived or actual member of a protected class qualified for the position sought denied an available job Employer asserts a non-discriminatory reason for the denial Candidate offers evidence that the asserted reason is pretext for discriminatory reason(s)

What is a Protected Class? 42 USC 2000e established protected classes Race: ancestry, culture, and/or physical characteristics Color: skin pigmentation, complexion, shade, or tone Religion: sincerely held morals/ethics/beliefs; all aspects of observing and practicing them; can be of the person, a spouse, an associate. Sex: cis biology; gender identity, transgender status; sexual orientation; pregnancy, childbirth, or related medical conditions; stereotypes/expectations. National Origin: where someone was born; can be of the person, an ancestor, a spouse, a partner, an associate. Other protected classes added in other statutes

What is a Protected Class? (cont.) 29 USC 623 established age as a protected class 29 USC 631 defines age as at least 40 years old 29 USC 791 established disabilities as a protected class 42 USC 12102 defines disability as physical/mental impairment that substantially limits one or more major life activities.

What is Pretext? If others with similar deficiencies were not subject to similar adverse employment action, the deficiencies are more likely than not pretext. Namenwirth v. Board of Regents of University of Wisconsin System, 769 F.2d 1235, 1240 (7 Cir. 1985) Small, homogenous groups are more susceptible to groupthink, implicit bias, and blindspots. Exclusionary attitudes are evidence in favor of pretext. Lynn v. Regents of the University of California, 656 F.2d 1337, 1341 (9th Cir. 1981). Small, homogenous groups are exclusive by nature

What is Pretext? (cont.) Discrimination at any stage of the academic hiring process may infect even a process intended to recognize merit by opening it up to abuse. Impermissible bias at any point may be sufficient to sustain liability. Lam v. University of Hawaii, 40 F.3d 1551, 1560 (9th Cir. 1994). Under Lynn, a small, homogenous search committee can be evidence of pretext. This can infect the rest of the process even if the rest of the process is intended to recognize merit. Settlements don’t create case law.

What About Other Universities? The landscape is changing Most universities do not have a prescriptive, publicly available policy about search committees There are some trends Department Chairs : faculty representatives; selected by faculty Department Chairs : administrators in a shared governance structure; requires a cross-section of all constituents

Why Will This Way Be Better? Diversity Inclusion Engaging/Empowering Equality/Sameness Equity/Fairness Removing Systemic Obstacles