• Confessions of a Community College Dean

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Designing for Pushback

Wisconsin's strategy to avoid passing harassers.

September 26, 2018

This one is radioactive. Without getting too specific, for obvious reasons, I’ll try to show why.

Apparently the University of Wisconsin system is developing a protocol by which colleges who fired employees for misconduct, or who were preparing to do so when the employees resigned, can reveal that when called by prospective employers to check references.  The IHE article outlines some of the mechanics of the process; the short version is that referees with a sense that something was amiss are instructed to refer callers to HR central. HR central will do the reveal.

The article correctly notes that there’s a widespread fear of litigation around disclosure of charges, particularly if they were never settled.  That often leads to new employers unknowingly hiring folks who’ve engaged in misconduct before. The process is meant to offer a way for, say, Hypothetical State U to inform North Wherever State U that Professor So-and-so abused his authority with students.  NWSU, in theory, can weigh that information in the hiring process.

It makes a world of sense until you start anticipating counter-responses. 

The issue the policy is attempting to solve is real.  Hiring someone who turns out to be a nightmare places vulnerable people, and institutions, in danger.  In the current academic job market, it also denies scarce opportunities to good people.

Referees and callers have even developed a code to say things without saying them.  It goes like this:

Caller: How would you describe So-and-so as an employee?

Called: I can only confirm dates of employment.

That’s usually understood to mean “I wouldn’t hire him if my life depended on it.”  But some litigation-shy places have defaulted to “confirm dates of employment” for everyone, good or bad, thereby corrupting the code. 

In practice, though, I could see disclosures getting complicated.

What happens when the investigation was never completed?  The policy states that investigations should be completed even after an employee resigns.  But what if the call comes before it’s completed? Say that someone is accused in February and resigns in March.  The employer gets a reference call in April, but the investigation won’t be complete until June. The attorney for the employee would argue that disclosure to the caller in April would be prejudicial, and would do material harm to the former employee.  And I could easily imagine a due process claim brought by a former employee saying that his inability to defend himself after leaving resulted in a kangaroo court.

In the age of #MeToo, it’s easy to imagine that this issue is about rape or sexual assault.  But those are crimes; there’s an entire criminal justice system whose job it is to prosecute those.  (It’s imperfect in many ways, heaven knows, but it exists.) The issues likelier to fall into this category aren’t crimes per se, but are violations of employee codes of ethics or conduct.  This might be the employee who keeps calling women derogatory names, and/or habitually uses racial slurs. Those are fireable offenses, but they aren’t crimes. Asking applicants whether they’ve been convicted of felonies won’t catch those.

To the extent that employers are permitted to share more information, I would expect to see much more preemptive pushback, both from the accused and from their unions.  If employers are permitted to disclose that investigations are under way, I envision due-process counterarguments. If they are permitted to disclose that “credible evidence” exists -- the standard proposed in California’s proposed bill -- I see pushback on the determination of credibility prior to the conclusion of the investigation.  Given tight academic job markets, it strains credulity to argue that it’s on the prospective employer to weigh the facts. The prospective employer presumably wouldn’t even have access to the facts. Likely, it would just default to ‘no.’ At that point, the accused has been punished without even a finding of actual guilt.

Colleges fearing the cost of extended litigation -- even if they’re pretty confident that they’d win, eventually -- may make the calculation that it’s easier just not to push.  At that point, we’re right back where we started.

The Wisconsin law does put in some protections for those who disclose; that’s definitely helpful.  And the problem it’s trying to solve is real, and urgent. Honestly, I don’t have a better alternative at hand; I’ve actually been in situations where I was frustrated by the gap between what I knew about someone and what I could prove.  But I’m pretty confident that the first few folks accused through this new system will push back, hard, and along predictable lines. I’d love to see Wisconsin find workarounds for those so we can protect our employees and students without walking into a legal buzz saw.  If it can be designed for pushback, it might just work.


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