The Legality of Hiring for Diversity


There is a great discussion on the thread about diversity in philosophy departments at undergraduate institutions, with many thoughtful comments and constructive suggestions still coming in.

One set of concerns that arises in these discussions has to do with the legality of trying to hire in a way that will make for a more diverse department. This was a topic addressed at length in a comment in the thread by Alex Guerrero (University of Pennsylvania), in which he clears up some misconceptions that appear to play a role in hiring decisions. I reproduce his remarks in full, below, and invite further discussion of these concerns in the comments.

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Alex Guerrero says:

I think there is another issue here that affects the decisionmaking at many public institutions: what it is legal to do.

I have heard people at public institutions say that, although they would like to do more to improve the sex/gender and ethnic/racial diversity of their department, they are legally barred from taking a person’s sex or race into account in making a hiring decision. People say things like: “it would be illegal!” or “we would be breaking the law!” when the suggestion is made that a candidate’s sex/gender or race might be taken into account, even only after the top 10 very best candidates (out of 300 or whatever applicants) have been identified. And one hears this even from people in departments, like WWU, that have a very imbalanced track record (20 straight years of making offers just to white men, for example).

These people purport to be bracketing out all the ethical or practical debates we might have about the appropriateness, effectiveness, or general wisdom of affirmative action along any particular dimension. They purport to be talking about just what it is legal for them to do. So I want to restrict focus to that question. I should say that although I have a law degree, I am not an expert on this topic, so in some ways what I say below is an invitation to get someone with more relevant expertise.

The above scenario typically involves people who are concerned about doing anything *intentionally*. In particular, they are concerned about intentionally discriminating against men by doing something that would take sex/gender into account in order to give some points or advantage to women candidates in the pool. They are afraid of violating the law with respect to disparate *treatment* on the basis of a protected status (race, color, religion, sex, or national origin at the Federal level; and “race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability” in, for example, WA state).

What those people fail to realize is that one can also be guilty of illegal discrimination through the disparate *impact* of using facially neutral tests or selection procedures that have the effect of disproportionately excluding persons on the basis of their protected status. These policies and procedures can be completely *neutral* in terms of how they are framed, and they can be implemented with no *intention* of bringing about any kind of discriminatory effect, and yet they can still be found to be illegal. All that matters is that the hiring policy or procedure is having a disparate impact, and that the policy or procedure is not the “least discriminatory alternative available” that is consistent with “business necessity” for that particular job.

Both disparate treatment and disparate impact claims are based on Federal law (in particular: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act of 1967), and so apply everywhere. Some States go beyond this Federal “floor” in including other protected statuses, such as sexual orientation (as WA state does).

So, if I were at a department like WWU, I would be worried about the real possibility of a disparate impact claim, given that striking history. I would think that any woman who applied to WWU in the recent past and was not made an offer could bring such a claim. Women who made it to some shorter list status would have a particularly compelling claim.

What policy or procedure of WWU (or a school like it) would be singled out? Well, it would depend on the details, but there might be many candidates. One broad category that has been the subject of recent discussion are those hiring and selection policies that either heighten or fail to counteract or account for the well-documented phenomenon of implicit bias and subconscious prejudice in a variety of arenas.

In academic hiring, one might think this arises when we look at well-documented implicit/subconscious biases in terms of (a) how hiring evaluators assess written work that is identified as being by a woman or member of a minority race, (b) how hiring evaluators assess CVs that are identified as being CVs of women or racial minorities, and (c) how hiring evaluators assess the intelligence and competence of those women or racial minorities that they have had a chance to interact with (say, on a fly out or at a conference interview).

Additionally, if a department fails to correct for the implicit bias on the part of others, such a policy (or absence of policy) would also be subject to legal challenge, given these background statistics in terms of always making offers to white men. So, failing to take into account (by eliminating the effects of) the well-documented biases against women in terms of (a) student evaluations of teaching, (b) the content/form of letters of recommendation, and (c) professional citation practices, among other possible concerns, might also be subject to challenge.

A department that did absolutely nothing to address its own implicit biases (and had many policies which allowed those biases space to have an effect), and which had a record like WWU, might well be subject to a successful disparate impact challenge.

This is a fairly new area in law (in part because the “implicit bias” literature is relatively new), but there are some useful things to read. A very useful piece by Christine Jolls (at Yale Law) “Antidiscrimination Law’s Effects on Implicit Bias” (2006) is available here (and I suggest others below):

http://www.law.yale.edu/documents/pdf/Faculty/Antidiscrimination_Laws_Effects.pdf

A department that had a history like WWU and which implemented some policies to both reduce and correct for implicit bias would run little risk of violating the law. (Employers are in a bit of a bind: do anything explicit, and you risk disparate treatment claims. Don’t do anything explicit, and—given substantial background factors like implicit bias—you risk disparate impact claims. So there’s always some legal risk.) Indeed, given the remarkable history, I would think that those policies would actually be legally required.

One general difficulty is that it is very hard to either (a) eliminate the effects of implicit bias or (b) quantify those effects precisely. It is hard to eliminate those effects, because even if one moves to anonymizing dossiers (letters, CVs, etc.) there still are the effects of implicit bias that have affected the evaluation of the candidate up until that point. And it is hard to anonymize effectively, given professional conferences, informal interactions, conversations, publications, etc. The difficulty of precise quantification of the effects goes to the difficulty of crafting an appropriate ‘accounting for’ of the bias. Arguably, this will be much worse in contexts like academic hiring, where evaluators are making complex, subtle, and subjective determinations of “merit” and “fit” amongst candidates (at least at the end stage) all of whom are quite excellent. It is natural to resist “artificial” but precise “bumps” in favor of a candidate, when all one knows is that the candidate has suffered some imprecise measure of disadvantage as a result of bias. The result of all of this is that departments can be reluctant to do anything at all. But the result of that, unfortunately, is that situations like the one at WWU are not uncommon. What I hope to have suggested is that there is no legal bar against attempting to respond to implicit bias. Indeed, there is a legal requirement to make such attempts.

Additionally, moving from the candidate’s viewpoint to the student’s viewpoint, I think there are good legal grounds for complaint under Title IX of the Education Amendments of 1972. This is also a new legal area, but this has already been happening with respect to STEM fields, on the grounds that women have unequal access to higher education in those fields due to implicit bias, stereotype threat, lack of mentorship, isolation, negative climate, and inadequate numbers of role models. See this 2012 report from the National Women’s Law Center:

http://www.nwlc.org/sites/default/files/pdfs/nwlcstem_titleixfactsheet.pdf

This has also been getting support from the Obama Administration. See this 2012 report from NASA on Title IX and STEM fields:

http://odeo.hq.nasa.gov/documents/71900_HI-RES.8-4-09.pdf

And see this statement from the Obama Administration itself:

http://www.whitehouse.gov/the-press-office/2012/06/20/obama-administration-commemorates-40-years-increasing-equality-and-oppor

Philosophy is very bad with respect to many of these issues—as bad as any of the STEM fields. As a result, it is plausible and definitely legally arguable that universities and their administrators have a legal obligation to address the gender biases that affect philosophy departments, particularly those that make it so that women have effectively unequal access to education in philosophy due to implicit bias, stereotype threat, lack of mentorship, isolation, negative climate, and inadequate numbers of role models.

I should be clear: the law in both of these area is still being worked out. What I want to suggest is just that it is facile to think that the only possible violation of the law in the neighborhood—given the facts at a place like WWU—is one of discrimination against men, if some sort of affirmative steps were to be taken to counteract the effects of explicit and implicit bias. (Given WWU’s history, which is highly relevant in cases like these, it is impossible to imagine an unsuccessful male candidate bringing a successful discrimination suit, almost no matter what WWU did in the way of taking affirmative steps to counteract the effects of bias.) Instead, there seem to be two clear legal concerns for a department with a history like WWU: a Title VII disparate impact claim by unsuccessful women and minority candidates, and an unequal access to higher education claim under Title IX by women undergraduates.

Given that, I think we should meet claims that “it would be against the law” with skepticism, and we should challenge administrators in our departments or our universities if they respond with such claims. I think that the correct view is that what is currently being done (and not being done) is against the law. It’s worth stressing that almost all of this sits in relatively unsettled legal terrain, although both disparate impact claims under Title VII and unequal access claims under Title IX are well established routes to legal redress. But there are clearly a large number of things that could be done without raising any legal concern; indeed, many of those things would clearly *help* departments and universities better meet their full legal obligations.

Here is a helpful general website about employment discrimination law:

http://www.eeoc.gov/policy/docs/factemployment_procedures.html

Here are some good readings on implicit bias and discrimination (available via Google, or email me):

Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structured Account of Disparate Treatment Theory, 38 HARV. C.R.-C.L. L. REV. 91 (2003)

Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM L. REV. 458 (2001)

Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995)

Linda Hamilton Krieger & Susan Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CALIF. L. REV. 997 (2006)

David B. Oppenheimer, Negligent Discrimination, 141 U. PA. L. REV. 899 (1992)

Christine Jolls and Cass R. Sunstein, “The law of implicit bias,” California Law Review (2006): 969-996.

Ian Ayres & Peter Siegelman, The Q-Word As Red Herring: Why Disparate Impact Liability
Does Not Induce Hiring Quotas, 74 TEXAS L. REV. 1487 (1996)

Barbara Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking, 104 YALE L. J. 2009, 2018-30 (1995)

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Dale Miller
6 years ago

My university has an office—Institutional Equity and Diversity—whose duties include ensuring that our searches remain within the relevant laws. As university employees, we’re told essentially that as long as we do what this office tells us to do we won’t personally be at any risk in a lawsuit that comes out of a search; the university will pay for our defense and will pay if there’s a judgment against us. If we depart from the guidance of IED (I know), however, then we’re on our own. This doesn’t preclude us from discussing diversity issues in searches, but I think it would inhibit us from using these considerations to hire someone who wasn’t as qualified as the other candidates in terms of the desiderata spelled out in the ad. Of course, there’s no way for us to be entirely certain that implicit bias doesn’t distort our judgments about candidates’ qualifications. But if we pass over a diversity candidate then IED can require us to explain our reasons to their satisfaction. I assume that all of the above is true at nearly every university, except for the name of the relevant office.Report

LK McPherson
LK McPherson
Reply to  Dale Miller
6 years ago

“This doesn’t preclude us from discussing diversity issues in searches, but I think it would inhibit us from using these considerations to hire someone who wasn’t as qualified as the other candidates in terms of the desiderata spelled out in the ad.”

What relevantly is supposed to be meant by “wasn’t as qualified”? Why seem to imply that this is a special issue for “diversity” candidates? Couldn’t the “desiderata” include substantive qualifications far more likely to make a difference? Given a narrow conception of the legal and ethical space, why discuss “diversity issues” at all–since nothing of real significance will be done?

“But if we pass over a diversity candidate then IED can require us to explain our reasons to their satisfaction. I assume that all of the above is true at nearly every university….”

Usually, such offices are easily enough pacified. Everyone knows that the go-to move by philosophy departments is to cite the “pipeline problem” and lesser qualifications.Report

Louis deRosset
Louis deRosset
6 years ago

Alex wrote, “contexts like academic hiring, where evaluators are making complex, subtle, and subjective determinations of “merit” and “fit” amongst candidates (at least at the end stage) all of whom are quite excellent.”

For what it’s worth, the leader of our AA/EO training for our hiring effort at Vermont last year advised us not to use `fit’ as a desideratum. In fact, she said she hated hearing the word.Report

Kristina Meshelski
Kristina Meshelski
6 years ago

I know that in California things are legally more complicated because of Prop. 209, and I imagine things are similar in Washington. There are admins at CA public universities that must ensure compliance by making sure no one is using race or gender as a factor in their hiring decision. (I hear this requirement is interpreted as “do not even mention the candidate’s gender in any discussion ever” but I am not sure the exact legal argument for that.) After California passed 209, Washington passed Initative 200, which I believe is similar and prevents public universities from taking account of race or gender in hiring. Michigan, Oklahoma, Arizona, Nebraska, Florida, and New Hampshire have similar laws. Of course state law does not override federal law, but the supreme court has specifically said that Michigan’s law is constitutional.

Given the way that people have interpreted the law in CA then, things that can be done to counteract implicit bias cannot include making note of a candidate’s gender or race, right?

(I do not have a law degree but am very interested in the topic. Thanks for the post!)Report

Alex Guerrero
Reply to  Kristina Meshelski
6 years ago

Well, I just wanted to point out that there are actually legal requirements on both sides. The relevant text of the CA Constitution post-Prop 209, for example, says: “(a) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

The argument I was setting out was that disparate impact through neutral policies (+ implicit bias) can be a way of discriminating against an individual or group, and remedial efforts against that discrimination do not constitute “preferential treatment.” Importantly, these efforts would have to be made in a way aimed at counteracting the implicit bias, not just as giving “preferential treatment,” but that would be the natural way to describe those efforts anyway. Given a history of only offering positions to white men, for example, would be excellent evidence that a school was actually violating its obligations under the Prop 209 amendments.

Furthermore, Prop 209 itself states that “Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.” Compliance with Title IX is actually required in order to maintain eligibility for federal funding.

So, I actually think that administrators have been far too quick to see these “anti-affirmative action” measures such as Prop 209, Initiative 200, etc., as also barring “remedial action” measures to combat implicit bias and other contributing factors to ongoing discrimination.

In my experience, those charged with overseeing AA/EO compliance within the law are often woefully ignorant of implicit bias remedy arguments, despite those having gained considerable traction with the recent research findings.Report

Kristina Meshelski
Kristina Meshelski
Reply to  Alex Guerrero
6 years ago

Helpful clarification, thanks a lot! I agree also that faculty ought to arm ourselves with some awareness of the relevant laws rather than trusting administration to inform us.Report

JCK
JCK
6 years ago

An interesting FYI:

Here at the University of Helsinki there is a government mandated quota for hiring Swedish speaking professors, i.e. the university must employ a fixed number of professors who give instruction in Swedish. The regulation was written in, I believe, 1917 (the date of independence), and is aimed at providing instruction in their own language to the 6% minority of Swedish-speaking Finns (of which 2% speak no Finnish). Some figures: In theoretical philosophy, of 3 full professors, 1 is Swedish speaking; in mathematics, of 15 professors, 1 is Swedish-speaking.

Swedish-speaking Finns are often mistaken by outsiders for being Swedish, but they are Finnish to the bone; it is just a matter of what language they speak. The view from here is that this bilingual aspect of Finnish culture is an essential, unique and precious part of it and should be preserved.

On the other hand it is illegal to hire a university professor on the basis of gender.Report

Alex Guerrero
6 years ago

This seems like a relevant addendum, about how some discrimination via racism works from “ingroup helping” rather than “outgroup harming”: http://nymag.com/scienceofus/2014/05/racism-doesnt-work-the-way.htmlReport

LK McPherson
LK McPherson
Reply to  Alex Guerrero
6 years ago

From the article: “If the question isn’t really about who is oppressing whom (whether explicitly or implicitly), but rather about how, through our acts of kindness, we are unwittingly driving segregation and other aspects of the racial divide….”

I’m fairly confident that “we” generally aren’t driving segregation–especially since some of us have hardly been in a position to do so with much consequence. Moreover, “we” generally don’t subscribe to beliefs and assumptions about the racial inferiority of others–beliefs and assumptions that have a longstanding history of being put into oppressive practice. And, finally, the notion of “racism” at play in this article is naive and underdescribed: “ingroup helping” on the basis of perceived racial kinship is not by itself racist.Report