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Thursday, November 17, 2011

Strategizing on partner hiring

At the Faculty Lounge, Sharona Hoffman, who is chairing appointments at Case-Western, reports that she is experiencing what I wrote about last month: the rise of candidates with partners looking for academic jobs. Working on the assumption that couple hiring is worth considering (a view I share), Sharona raises several issues: 1) whether committees can ask this question at the AALS meeting; 2) at what point candidates do or should reveal this issue to the committee and the dean; and 3) the extent to which schools in the same city or geographic area might work together to find jobs for both parts of the couple.

Number 3 is an interesting idea that works well for schools like us (and Case), being in a city with four other law schools nearby or relatively nearby. I believe my dean has in the past had discussions with the deans at other law schools about the spouses of people we have been recruiting. Nothing ever has come of it, but it is not inconceivable.

As for # 1, that is tricky. As I understand federal and Florida law, it is unlawful to consider marital status in hiring decisions (and thus improper to ask a question about marital status), but not unlawful to consider the identity of a spouse in hiring (thus the reason anti-nepotism policies remain lawful). But the line between those two is so thin, I imagine most GCs would strongly advise faculty against asking that question.

This is a situation in which the candidate has the informational advantage. Many candidates are very open about the issue early in the process, revealing it as early as the invitation to meet in DC or in DC itself. But note the tricky balance for the candidate in being so forthcoming. The committee might appreciate the candor. Or the committee might find it off-putting, that the candidate is fishing to get her spouse a job or is only interested in the school if it will also hire her spouse. Or the committee may decide not to continue with that candidate, knowing that some on the faculty categorically object to couple hiring. The safest move for the candidate is to wait until she has the offer. But by then the school may be unable to accommodate the spouse (no lines, no money, no need), or at least able to accommodate than it would have been had it had this information earlier. Or it just will have wasted time and money on a candidate it will be unable to get.

Posted by Howard Wasserman on November 17, 2011 at 11:05 PM in Howard Wasserman, Teaching Law | Permalink

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Sharona: Thank you for the stats. One response to your point that we would be asking the question to figure out ways to accommodate the couple rather than to exclude. I agree with you on that, but there are two problems. First, there are some faculty who categorically object to partner hiring, so you would have some faculty members, if not necessarily committee members, using the question and answer as a basis to exclude. Second, the signal many university Offices of Academic Affairs (as well as EEO and GC offices) likely will give is that they do not want the question asked, period, even if it will be used largely positively and as a recruiting tool.

Posted by: Howard Wasserman | Nov 19, 2011 5:39:27 PM

I think this is an important discussion.

Often, this point is made, as to why it might make sense for candidates to disclose this information pre-offer: [post-offer] "the school may be unable to accommodate the spouse (no lines, no money, no need), or at least [less] able to accommodate than it would have been had it had this information earlier."

But until a school is basically ready to make an offer, or at least invite for a callback, are they really going to do much in the way of working to investigate how to accommodate the spouse, or what could be done? They might make a few inquiries, but I assume they won't or couldn't do much. Am I wrong about this?

Additionally, there is a very real possibility that by raising the partner problem, this will tip the balance away from even getting a callback or an offer. And both callbacks and offers are very valuable for candidates, even if the inability to accommodate a partner means that the school inviting for a callback or making an offer might not end up being a real possibility. So it's hard to see how disclosing is in any way advantageous for the candidate.

That said, I've been on a few callbacks and it's been impossible to avoid disclosing this kind of information, just because one wants to be a normal person, and hiring committees do a lot (even just asking directly) to get this information. Do you have kids? Are you married? We have great schools, is that a consideration? And even: I see from your ring that you're married. What does your spouse do?

And I am inclined to agree that this is going to be to the detriment of women candidates, just because women are more likely to be paired with academics than men (of hetero couples).

Posted by: Anonymous Candidate | Nov 19, 2011 5:11:36 PM

I just wanted to supply the accurate employment discrimination information. Twenty-one states and the District of Columbia have state statutes that prohibit marital status discrimination. At the federal level, the Civil Service Reform Act of 1978 prohibits the federal government from discrimination against public employees based on marital status, but federal law does not otherwise govern this type of discrimination. I've written about this in an article published in the William & Mary Law Review, called "The Importance of Immutability in Employment Discrimination Law,"
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1680512.

I don't think law schools would be violating any applicable state laws because they would not be asking about marital status itself. First, it would be important to word the question in terms of "partner" or "significant other," not "spouse." Second, we would be asking only about partners that need academic jobs, not partners in general. Third, the question would be designed to enable law schools, at least in some cases, to figure out ways to hire both members of the couple rather than necessarily to weed out individuals with partner hiring needs. By contrast, if a law school with budgetary constraints finds out about the issue only after offers have been made for any other available slots, it can be nearly impossible to accommodate the partner hiring need.

Assuming that the question is legal, I'm still not sure whether asking it is strategically desirable.

Posted by: Sharona Hoffman | Nov 19, 2011 5:00:05 PM

The data shows, of course, that any policy singling out those with trailing well-educated spouses would not be gender neutral. Why is this? Because American women, including well-educated American women, overwhelmingly "marry up." You can read about the debate over whether this is an enduring phenomenon here: http://www.salon.com/2006/01/05/marrying_up/ but hypergamy (the notion that women marry up in class or disproportionately do not marry at all rather than "marry down") is a reasonably accurate depiction of the American status quo at all educational levels. This means disclosure of a highly educated law teaching job seeking spouse would disproportionately land on women.

Posted by: Ann Marie Marciarille | Nov 19, 2011 4:46:48 PM

Thanks Howard.

On the first: a quick dig in the literature found that
"Nationally, the median age at first marriage has been climbing for decades: It now stands at 28 for men and 26 for women, meaning that half are younger and half are older when they wed. Among married Americans, the median duration of their married life in 2008 was 18 years. Among men, 9% are divorced; among women, 12% are."

A recent Pew study suggested that having a college degree, surprisingly, made you more likely to marry earlier though the difference is probably not statistically significant "In 2008, 62% of college-educated 30-year-olds were married or had been married, compared with 60% of 30-year-olds who did not have a college degree.". http://www.pewsocialtrends.org/2010/10/07/the-reversal-of-the-college-marriage-gap/
they don't break out JDs or other graduate degrees specifically though.

On the second question I was more curious whether a school that wanted to stay within the law and still probe partnership could avoid the anti-discrimination provisions by asking about "significant others" more generally and if accused of violating the law suggest that they treated married or unmarried but partnered alike in all respects. Is that too clever by half?

Posted by: I. Glenn Cohen | Nov 18, 2011 1:48:19 PM

Let me take a crack at both of Glenn's points:

1) It's possible. My guess is there are a whole bunch of factors in the mix at a macro level that vary from candidate-to-candidate and it would be tough to isolate any one factor. The rise of PhDs is one (although that has not caught on at all levels of law schools). Definitely the increasing necessity of having a VAP/Fellowship means the typical candidate goes on two years later. People taking some time off between college and law school pushes the age up. Plus, what is the average age of marriage among highly educated people? It feels like the average candidate is in her early 30s; where does that fit on the average age of marriage.

2) Almost certainly it has to be marital, at least in Florida. I suppose a state with a domestic partner law could extend protection to that. But I doubt most states would extend protection to "significant other" relationships that do not enjoy formal legal recognition.

Posted by: Howard Wasserman | Nov 18, 2011 10:38:36 AM

Great post Howard (and Sharona!) Two quick thoughts: (1) Does it seem plausible that the increased "partner issue" coming up is a function of the preference for fellowship/PhD hiring in the market pushing up the average age of entry-levels? (2) Do most state statutes pertaining to marital discrimination require that it be "marital?" Suppose School X asks about significant others, married or not (indeed for many same-sex couples that would make sense). If it was accused of showing a preference for or against those who were partnered, whether married or not, would that violate the state law against marital status discrimination? Again, this is not my area so I was just curious...

Posted by: I. Glenn Cohen | Nov 18, 2011 10:22:15 AM

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