MOVING TO FRONT FROM APRIL 9, SINCE TIMELY AGAIN (ALSO SEE THE INSTRUCTIVE DISCUSSION IN THE COMMENTS)
In a discussion of the earlier poll, one junior faculty member asked:
I was a bit surprised to see so many people admit to doing more than #1 [i.e,. outreach to candidates from underrepresented groups]. My impression was that even #2 [using "diversity" as a tie-breaker] violates most universities' nondiscrimination policies and was illegal in the U.S. I wonder if some legally or other institutionally informed readers might be able to shed some light here.
Title VII says that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice" (https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964). The Department of Labor says that universities' affirmative action obligations as federal subcontractors do not allow "the use of race to be weighed as one factor among many in an individual’s application when rendering hiring, employment or personnel decisions, as racial preferences of any kind are prohibited under the authorities administered by OFCCP" (https://www.dol.gov/agencies/ofccp/faqs/AAFAQs). What am I missing here?
Apart from the legal issue, my own institution's DEI compliance office has told me that it violates our university's nondiscrimination policies to consider a candidate's race or gender once they have applied, even as a "tiebreaker." That's why HR doesn't pass that information along to hiring committees. I would be interested to hear whether individuals or departments who practice #2 or #3 have actually consulted their compliance offices about this, and what their institutions' policies are.
I put this question to Professor Michael Selmi, a leading employment law and civil rights expert, now at Arizona State University. He kindly gave permission to share his answer:
The question of whether race or other characteristics can be used in a break-the-tie situation varies some but has generally been perceived as permissible under existing legal obligations. A number of states (including California) have passed laws that ban the use of race in hiring or admissions and states may impose tighter restrictions than the federal government. Private universities under Title VII are generally seen to have more leeway than public universities under the Constitution but the law is murky in this area, in large part because there are few challenges to affirmative action policies or practices in hiring and the admissions' cases, like Harvard's, are not directly applicable. As a result, and this is true in discrimination cases generally where hiring cases are relatively rare, what Universities and employers do with respect to diversity and inclusion issues often flies under the radar so to speak but I suspect that in a challenge to a situation where a University used race to break a tie, the University would likely prevail against a legal challenge taking into account the importance of diverse faculty to a University, issues of academic freedom and perhaps past discrimination….
Under Title VII and likely the constitution using diversity to do more than break ties is problematic; there might be some circumstances where it could be justified (depending on the job, the history of the institution etc) but it would be more difficult. (Many of the cases are quite old now and it is certainly possible that if a case reached the current S. Ct., it would create a per se rule against the use of race but it has not done so yet.) Of course, in most circumstances, it would be difficult to prove diversity was used to do more than break ties and a tie can be seen in a number of different ways.
I'll open this for comments from other law readers knowledgeable about this area. Because, as Professor Selmi notes, these cases are rarely litigated, a lot of possibly unlawful behavior flies under the radar. The current Supreme Court will, if it considers the issue, likely impose more constraints, as Profesor Selmi also notes. As some other readers wrote to me, there is obviously a lot of bad faith operating here: institutions, on the one hand, promote "diversity" continuously, but officially disapprove of using race etc. as a hiring criterion, yet often expect it sotto vocce as it were.
Leave a Reply