The previous sections of this Handbook have highlighted ways to broaden the pool of applicants in order to achieve greater diversity. Once the pool of applicants has been established, however, the committee will then proceed to select the candidate who is the most qualified for the position. To determine which candidate is the most qualified, the committee primarily should compare the candidate’s credentials to the position advertisement and job description. This is one of the reasons why the job advertisement must be carefully developed as it is this advertisement, along with the committee’s notes and selection justification that evidences the legitimacy of the employment decision. Such documentation is also imperative to defend allegations of an improper or discriminatory decision by the committee.
It is improper to intentionally discriminate by making a decision regarding a person’s employment status based upon that person’s race, sex, national origin, religion, disability, veteran status, etc. No decisions at the university, including hiring and other employment decisions, should be based on any such criteria. However, people often fail to consider that an employment criterion may result in unintended discrimination. This type of discrimination is referred to as disparate impact discrimination and requires some explanation.
Even where an employer is not motivated by discriminatory intent (that is, there is no intentional discrimination), the employer may not use what appears on its face to be a neutral employment practice if that practice has an unjustified adverse impact on members of a protected class. An obvious example of disparate impact discrimination would be to require all candidates for a position as assistant professor in an academic department to be at least six feet tall. Because this height requirement has no job-related justification and would statistically have a negative impact on the number of women eligible to be hired, this would constitute disparate impact discrimination.
Another example that demonstrates that having a disparate impact is not always improper would be a hiring department’s legitimate requirement that a successful candidate have a particular kind of experience or training that reflects a certain philosophy or theory. If that philosophy or theory happens to be current or recent (such as deconstructionist theory), the result may be that only those with recent training and experience (who are often younger) are qualified for the position. Thus, there could be a “disparate impact” on potential candidates who are older. However, as long as that requirement is justified by the needs of the hiring department, there is no other requirement that could be used as an alternative, and this requirement is not a pretext for hiring only younger candidates, it should be legitimate.
To achieve the university’s goals of fairness and legal soundness, search criteria and decisions on initial appointments should be examined and documented to ensure that only legitimate job-related criteria have been used. Even when such legitimate job-related criteria have been used, it is possible that there will be a disparate impact on a protected group. In such cases, it is important to examine whether an alternative standard is available that would eliminate the disparate impact while still achieving the university’s legitimate business goals. The Affirmative Action Office (ext. x72804) is available to assist the committee regarding its search criteria if there is a concern of possible disparate impact.