How to deal with inappropriate hiring instructions that are only given verbally?

Question

Suppose I am chairing a hiring committee for a faculty position in a north American university, and suppose the administration have some verbal instructions on how the search should be conducted that are highly inappropriate (even borderline illegal).

Just as an unrealistic example, suppose the provost says that "You can certainly interview left-handed people, but we won't seriously consider hiring them in the near future...".

What would be the best way to establish a paper trail? I'm asking from a tenured professor's point of view, although I doubt it makes a huge difference nowadays.

Answer 1

For the record: I am a full professor at a large public university in the US. Also, I am not a lawyer (I am a mathematician).

Here are some thoughts about your situation, which I find difficult. Let me start with a story told to me by a colleague (the story is from about 30 years ago but still relevant). The Chair of the math department where my colleague was working at the time asked the Dean if the department can have a faculty hire in that academic year. The Dean replied "Yes, if you are going to hire a black female statistician." [In a way, this is similar to the situation you are in.] After a brief deliberation, the department (which is highly ranked, let's just say that it was and still is among top-20 math departments in the US) has decided not to have a faculty job search that year. (My colleague has left that department next year.) I believe this was the right decision. (Eventually, the department started to hire faculty again and the administration has backtracked on its draconian micromanaging of the hiring process.)

If I were a Chair of a department or a member of a hiring committee, I would rather have a failed search (or searches) than to accept administration's position "not to hire left-handed people." I would also conduct a fair job search and if the administration refuses to make offers to the candidates chosen by my department, so be it.

I would also have a conversation on the hiring matter with the provost in presence of more than one faculty member. Regardless of the law in your state, I would not feel good about recording the conversation unless the provost agrees on this (and I very much doubt your provost would agree). However, I would have an email exchange with the present faculty members after the conversation with the provost, confirming what was said in great detail. If it comes to legal proceedings (I hope, for your sake, it does not), such a record will be admissible in a court of law (as far as I know). At the same time, I would strongly advise against any of the options suggested by Remzi in the bottom 4 bullet points in his answer; however, I agree with his suggestions in the bullet points 1-3. I have some experience of dealing with university bureaucracy and legal system (I will not elaborate here) and even if you win, you will end up loosing several years of your life to this battle. And chances of winning are slim, the deck is stacked against you. I know, it is sad and disheartening, but this is what I know from experience and discussions with a professional lawyer (not affiliated with my university). One more thing: In general, the US legal system is very reluctant to deal with cases involving academic hiring and retention.

Answer 2

The question of how to deal with the situation is quite different from the question of how best to establish a paper trail.

About how to establish a paper trail:

• Write an account of the meeting in which the illegal instructions were given. Sign and date it. Include as many relevant details as you can remember, and do this as close to the date when the meeting happened as possible. In your account, prefer verbatim quotes to paraphrased statements, and prefer factual, objective statements to subjective descriptions of how you felt about what was happening or speculation about the person's intent in saying what they said.

• Keep the document in a safe place for possible future use.

• Keep a digital scan of the document in a secure digital storage in case the physical original is lost.

• Show the document to at least one (or better yet, several) other people whom you trust. Do this as close to the time of writing as possible.

• If other people witnessed the illegal behavior, show them (or at least some of those among them whom you trust) what you wrote, and ask them to confirm that what you wrote is an accurate description of what happened. Get this confirmation in writing or in documented electronic format (e.g., email) if possible. If any of them are agreeable to it, ask them to write their own accounts of the meeting.

If you follow these instructions, you will have a reasonably credible account that will be difficult to refute. Although people can and do occasionally deny saying things that they said when there is no audio recording (or sometimes even when there is!), in a situation in which some time after the events in question occurred you make an accusation of improper behavior, having a written, dated, and (ideally) corroborated account of what you witnessed would make any such denial appear quite lacking in credibility.

About how to deal with the situation:

I don't know. That's a tough one! Sadly this type of behavior is quite common in academia, at least in the United States. I have seen it myself (usually with savvy administrators who know better than to say "we don't hire X" but employ more ambiguous language that says effectively the same thing and skirts the boundaries of what crosses into illegal behavior), and heard many stories from colleagues of similar things.

If you decide to fight this type of discrimination, good on you, and I sincerely hope that you will prevail; but one cannot pretend that success is guaranteed, that it will be an easy battle, or that you will not suffer any negative consequences, even if you do end up prevailing, and even if you are tenured professor. Good luck in any case!

Answer 3

All this depends upon how far you're willing to stick your neck out. To some extent, this also depends on who gave you the instructions.

Certainly, if you've been asked to do something that you find to be seriously ethically or legally compromising, you shouldn't do it. There are a variety of ways to approach not doing it. You can go to your Chair, and say "I'm not comfortable with the search guidelines this committee is being tasked with, and I'd rather not participate in this search".

You can up the ante, and write an email that includes your Chair and the person providing your guidelines, asking for clarification. This email should include your understanding of the guidelines you've been given. Now, the verbal instructions are in writing! If you want to up the ante a little bit more, you can point out which instructions may not conform to the law. This can certainly tick people off, but it also might give you whistleblower status.

As a word of caution -- I'm not a lawyer. If I personally were going to make a stink over this, I'd consult an employment attorney first, and I 100% recommend that you do the same (and try to find one with education experience). A lawyer will be able to tell you whether the guidelines you were given were legal, and whether the University can legally retaliate for any action you might take.

Answer 4

I suppose "playing dumb" could be an option.

Write an email saying something like

I wasn't feeling well when we talked, and was having trouble concentrating on everything that was said. Could you please recap the hiring criteria for me?

This gives them the chance to recant what they said before, and gives you a chance either to have the questionable criteria rescinded, or to have them put in writing, which would give you a much stronger case either to refuse or to complain to whatever powers-that-be would be in control of such things.