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.