Tuesday, May 04, 2010

 

Ask the Administrator: Hiring Without Searching

A cagey correspondent writes:

A former colleague of my husband (at another college) tells my husband that she was just offered a tenure track position in the new department at a small public college. She tells my husband that the spouse of a colleague of her husband got her the opportunity to apply.

Let's give them fake names:

Yuppy: the small local public college expanding with a new department
BigMed: public grad school with tons of money where my husband used to be research track

Leftout: let's call my husband Leftout. Leftout used to work at BigMed public college but he was research track and his grant ran out so he is now teaching at another public college as an adjunct.
Lucky: Lucky is Leftout's ex collegue at BigMed. Lucky is like a post doc but was given title of Assistant Professor
BigShot: BigShot is Lucky's husband and works at BigMed too. He has his own lab.
LabBuddy: LabBuddy works with BigShot at BigMed.

Now let's tell the story again...

A few weeks ago, Leftout met Lucky and she announced that she had received a tenure track offer from Yuppy College.
She was really surprised because she only started looking 2 months ago. She said her husband BigShot has a colleague LabBuddy whose spouse works at Yuppy and that's how she heard of the opportunity and sent her CV through to the Provost before there was even a search. She was invited to give a talk and BANG she got the offer letter for a tenure track position.

An Interim Chair has just been hired for the new Department at Yuppy and he is very unconfortable about this hire. But this was done before him he says to his defense.

How can Leftout challenge this hire? Leftout already called the Equal Opportunity Office and placed a complaint. And they came back with the Provost Hire policy. The one that says 3 exceptions for not having a search are Opportunity Hire, Spouse Hire, and Exceptional Candidate, but they did not even say which of the 3 exceptions the provost is claiming...

We know it cannot be Spouse Hire since BigShot does not work at Yuppy; cannot be Exceptional Hire since Lucky is not exceptional.
Opportunity Hire? Lucky was not going anywhere....



There's no shortage of issues here, but to my reading it boils down to the wisdom and legality of impulse hiring.

"Legal" is a funny word. In common usage, it refers to stuff you can't get arrested for doing. I very much doubt that the provost would get arrested for this, unless it came out that the impulse hire was a family member or a blackmailer. But there's another sense of 'legal,' which refers to stuff for which you could lose a lawsuit if someone bothered to bring one.

In that sense of 'legal,' it's possible to get away with all manner of things as long as nobody challenges it. But if/when someone does, you're in a world of hurt.

Different states have different guidelines, and different colleges have different policies and practices. And I'm not a lawyer. All of that said, I'd be concerned that any administrator who made 'snap' hires without formal position announcements, let alone searches, would be incredibly exposed to discrimination lawsuits.

The HR department gave you three categories, of which one and a half make sense to me. "Spousal hire" I understand, though it doesn't seem relevant in this case. (I'm conflicted on the ethics of spousal hiring preferences, but that's another issue.) "Exceptional candidate" seems awfully elastic, and therefore awfully open to challenge, but I suppose one could come up with cases in which it might apply. I have no idea what an "opportunity hire" is.

In my own world, where collective bargaining is the order of the day, every full-time hire is published and searched. (The only exception I can imagine getting away with would be to fill in for a professor who had an abrupt medical emergency at the start of a semester.) That comes with costs of its own, mostly in committee time, but it prevents any one person from exercising undue influence and it insulates the college from liability. Every posting includes language about equal opportunity and affirmative action, and the college affirmative action officer meets with each search committee before it starts interviewing to make sure that everyone knows the various shalts and shalt nots. The idea is to ensure that decisions aren't made arbitrarily, and that everyone has a fair shot at jobs that are ultimately funded through public and student dollars.

In bypassing all of that, the provost puts himself in a shaky position if challenged by a candidate from a protected class. (If you're not in a protected class, or if you're in the same protected class as the person who got hired, you're out of luck.) Assuming that the impulse hire was white, a qualified minority candidate who never had a shot at the job would have a pretty good basis for claiming discrimination. Good luck defending that.

What many people don't get is that the claim above doesn't need to show intent. The provost may not have had racial animus as a motive. But if the impact is the same as if he had, he's toast.

Academia is prone to legal challenges like these, I think, mostly because the job market is so bad. In hot industries in growth spurts, impulse hiring can go unchallenged for a long time since a disappointed candidate can quickly and easily find something good somewhere else. But in a market in which any job is precious, missing out on one is a very big deal.

But getting in trouble for this stuff is contingent on someone with the right legal standing actually following through on a claim. Unless that happens, it's what a lawyer once described to me as "mind over matter: if nobody minds, it doesn't matter."

Good luck. Cases like these just make me shake my head.

Wise and worldly readers, I suspect you've seen some impulse hires in your day. Is there a good argument in their favor that I've missed? Or should they be reserved just for abrupt emergencies?

Have a question? Ask the Administrator at deandad (at) gmail (dot) com.

Comments:
That sort of hire would be impossible in any institution I've worked at and is the sort of thing that can leave a lot of bad vibes in the department and institution.


I have had experience with opportunity hires, though, which I have generally understood as a broad category that would include spousal/partner hires, hires that diversify the faculty, or hires that add a Big Name in a Key Area (big and key being subject to definition, of course). In my prior department, one such hire let us bring in a new assistant professor who was hirself a racial minority and whose scholarship and teaching addressed two areas where the college was building programs. This scholar was available, having just moved to the area following hir spouse (who worked in a nonacademic field).
 
Yup, for us (them?) an opportunity hire is one for which there is "extra" money outside the standard hiring budget. Spousal is one category, and diverse is another. Actually, I'm infinitely more bothered by diverse hires than spousal. First, how can one person be diverse? I'm having flashbacks to the "Army of One" campaigns. Second, I find it repugnant that my skin color (because let's face it, that's what determines diversity) makes me more qualified for an academic job than my PhD. Which, for the record, is in anthropology--a field I'd naively think would be more aware of such issues.

Sorry for the soapbox.
 
We make hires without open searches fairly frequently, including in the vague category "target of opportunity" hiring (which requires demonstration both that the recruitment is an unusual opportunity for the institution and that there is an urgency that doesn't allow for an open search). There are additional layers of both faculty and administrative review for such appointments, charged with ensuring that such hiring is not used in a way that disproportionately harms protected classes of candidates. Recall that open searches are not required (at least by federal law); they are only one method used to reduce legal risk. But open searches can actually be more risky than hiring without searching in some cases, if they appear to be sham searches with a pre-selected candidate. Good university counsel is important; fear or misunderstanding of legal risk shouldn't determine policy. Of course, in most cases open searches are desirable because they are the most reliable path to quality hiring, so the strictest scrutiny of direct hiring needs to be on matters of candidate quality.
 
While it is not explicitly stated what discipline "Lucky" is in, it is strongly implied that it's some sort of science discipline, given that the writer refers to the prior college as "BigMed" and that Lucky's husband has a lab and it seems that they all go in the same circles. Also, LeftOut was previously in a soft money position, which is common in med schools but not as common in other fields.

Also, Lucky is a "she", so unless the writer is using "she" as a generic pronoun (rare but done by some people), Lucky is a female scientist. In that case, Lucky would qualify as an opportunity hire from a diversity standpoint. Now, it might be fair to ask why there wasn't a search, since Lucky was hardly the only female postdoc out there in the sciences, but LeftOut won't have a leg to stand on if he wants to challenge the opportunity hiring of a female scientist.
 
Heck, we hired a President without a search! As part of the transition deal with the outgoing President, we hired a 'CEO' to handle many of the administrative duties during the transition. The CEO was a local business executive known by some Board members. Once the outgoing President finally left, guess what? The Board simply elevated the 'CEO' to President!
 
My state college has advertised hiring, but it does not stop them from setting up a teaching position to fit the adjunct, who has been there twenty years, they want to hire. But, it does give the appearance of fairness of opportunity when it is advertised.

When I worked at a prop. u. they had a hiring policy, but decided to ignore it when hiring a new chair position. They decided to promote someone from within the department and announced it at a faculty meeting. Many people on staff knew I was interested in the position and even when that person stepped down years later I was outmaneuvered. I like to think some older people on staff were threatened, but it created a lot of bad feelings in the department. The initial promoted person did such a terrible job at all the administrative tasks, but it amazed me that the higher ups would have rather cleaned up the mess rather than promote someone who was competent. This also happened to another colleague in a connected department. He just had too many grand ideas for them and we both left the school for better opportunities and more respectible institutions.
 
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