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My last post produced a lot of comments, the most since another issue centered on individual versus institutional interests, collecting royalties when assigning one’s own textbook. As with all issues on the fuzzy boundary between law and ethics, it’s a tough and often emotional issue. There was also a kind of defense essay, one which I think rather served to underscore my points and to in fact raise further questions about whether we really need (or want) spousal hiring. But I wanted to answer here one particularly complex question that I received anonymously and that may have broad applicability to many institutions.
The question centered around my statement that nepotism and cronyism are not illegal, even though their effects might be. It came from someone at an institution that does spousal and some other hires without open searches. At the same time, their institution is claiming that it cannot simply move a number of long-time, annually renewable lecturers who were locally hired to a category where they would qualify for multiyear contracts and promotion opportunities without doing a national search, thereby forcing those who have worked at the institution for many years to re-apply in a competitive process. The institution states it is required by Equal Employment Opportunity Commission (EEOC) and Affirmative Action (AA) policies to do this.
As I understand it, the questioner is asking about a possible inconsistency in university practice: it claims it does not have to conduct an open search in one instance, but that it must in another. The questioner also realized that the institution may be just offering an excuse not to offer better positions to lecturers.
First, Title VII and its associated regulations (or the law generally) does not require an institution to conduct open searches or particular geographically based searches per se, or even to have particular AA policies. What it does do (and what the EEOC enforces) is protect certain classes (and only certain classes) from employment discrimination, often framed as “disparate treatment” or “disparate impact” in its effects.
So is the institution in this case rationalizing? Not necessarily, in the sense that it may look at its current lecturers, see a potential basis for a claim (e.g., they are all one race or gender, and there are lots of them), and wish, out of an abundance of caution, to conduct national searches before making a big change. They may even see this as a way of pursuing AA, a permitted objective and perhaps an institutional goal. That is, they may be thinking that if they are going to change a job status, it would also be a good time to pursue diversity objectives.
But, and we would need more information to say, caution may not be the underlying reason, because the institution has continued to rehire the same people for very long periods without this concern, which, if it exists now, would have existed then. Presumably, there have been no challenges. An alternative possibility is that the institution does not want to commit more than year-to-year for financial or other “business interest” reasons that, if they could establish them as legitimate, could serve as a defense were the lecturers to sue over a status that limited their compensation or advancement relative to others doing similar work (which is a risk factor for the institution).
The reality is that “at will” covers both hiring and firing: outside of the relatively narrow protections afforded by Title VII, employers have broad leeway to hire whomever they wish under the terms they wish, and must be challenged directly by employees or others who believe the institution is in violation of the law to their detriment. So I will reiterate that hiring practices and procedures are more of an ethical than a legal issue, and would encourage the lecturers to call the institution’s bluff and say, sure, go ahead and do a national search. That costs money: for advertising, transportation/lodging, moving expenses, administrative and faculty time, etc. If the administration moves forward, the lecturers will simply need to re-apply (they would have much to gain and have the advantage of being known quantities). True, there is a risk that some may end up not being renewed, but the lecturers ostensibly face that risk every year, and retaliation against the group would be a very bad idea (despite yesterday's narrowing of retaliation protections); national searches also would produce lots of useful data if needed. And if the administration declines to do what it said it had to do (conduct national searches), then you have your answer about motivation.
What if they claim the need for national searches but that they don’t have the money to conduct them? That alone would not be credible, if it meant doing nothing. The institution would have a legitimate business reason not to conduct a national search (not enough money), and the issue becomes one of conducting a local or regional search that satisfies a good-faith effort to be competitive if there were a real Title VII concern. Perhaps that would bring the institution and the lecturers together to forge an organizational solution that would be an important step in improving what sounds like a rather distrustful climate—the inevitable outcome when institutions don’t attend to the organizational impacts of variable hiring and promotion practices.
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