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Wednesday, August 29, 2012

A Reminder to Hiring Committees: Don't Google The Candidates?

Here's some advice to hiring committee members travelling to the AALS conference: While it may be natural to search the internet for additional information about candidates for faculty positions, how you use the information you find may subject your university to legal liability. Here are two cautionary tales involving university hiring to keep in mind.

Cautionary tale number one illustrates that the refusal to hire an employee based on information gleaned from social media can sometimes give rise to a discrimination claim under Title VII.  Two years ago, the University of Kentucky faced a Title VII lawsuit brought by a rejected job applicant who claimed that the University refused to hire him based on information about his religious views found by the hiring committee during an Internet search. Gaskell v. University of Ky., 2010 U.S. Dist. LEXIS 124572 (E.D. Ky. Nov. 23, 2010). Evidence in the case indicated that the chair of the department conducting the search asked the candidate about his religious beliefs, which the chairman had "personally" researched on the internet. In addition, an email from a staff member to hiring committee members during the process noted: "Clearly this man is complex and likely fascinating to talk with, but potentially evangelical."  The case settled for $125,000 after a judge denied cross-motions for summary judgment. 

Cautionary tale number two illustates that discrimination against hiring candidates on the basis of their political beliefs can subject state universities to liability for constitutional torts. This tale involves the University of Iowa's College of Law and the hiring of a legal writing instructor. In Wagner v. Jones, Teresa Wagner alleged that the College of Law refused to hire her because of her conservative political beliefs, and she sued under 42 U.S.C. § 1983. The trial court granted summary judgment to the college, but a panel of Eighth Circuit Court of Appeals reversed.

The Eighth Circuit determined that Wagner had made a sufficient claim of political discrimination to get to a jury. The court applied the following test (drawn from the Supreme Court's decision in Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle):

A plaintiff alleging First Amendment retaliation must first make a prima facie showing that (1) she engaged in conduct protected by the First Amendment; (2) she suffered an adverse employment action; and (3) the protected activity was a substantial or motivating factor in theemployer’s decision to take the adverse employment action. If a plaintiff makes this prima facie showing, then “a presumption of retaliation arises and the burden shifts to the defendant to advance a legitimate reason for the employment action.                                 

The court found Wagner had presented evidence from which a jury could conclude that her polticial beliefs were a substantial or motivating factor not to hire her.  Specifically, a deposition in the case indicated that the candidate's conservative views may have been discussed at a faculty meeting on her candidacy; there was also evidence that she was advised to hide the fact she'd been offered a job at Ave Maria during the interview process at the College of Law, and a contemporaneous email from an associate dean expressed concern that Wagner's politics could have played a part in the faculty's decision not to hire her. In addition, the court noted (several times!) that only one of the fifty faculty members of the College was a registered Republican at the time Wagner interviewed. There's more to the decision, of course, including full discussion of why the court rejected the argument that the Dean was entitled to qualified immunity. Regardless, the decision should be a reminder to hiring committee members at state schools not to use information found on the internet or anywhere else to discriminate against potential hires in violation of their First Amendment rights.


Posted by Lyrissa Lidsky on August 29, 2012 at 02:17 PM in Constitutional thoughts, Employment and Labor Law, First Amendment, Getting a Job on the Law Teaching Market, Life of Law Schools, Lyrissa Lidsky, Web/Tech | Permalink


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Suppose Googling turns up a candidate's involvement with a "white power" group? Is it OK to then 'discrimintae' against that candidate based on those political views? Are they really irrelevant to his judgment, intelligence, moral character, etc.?

Suppose Googling turns up a candidate's involvement with Scientology? Is it OK to then 'discriminate' against that candidate based on those religious views? Are they really irrelevant to his judgment, intelligence, moral character, etc.?

That being said, I agree with Anonanon that Google is a dangerous investigatory tool, since it turns up nonsense as well as reality.

Posted by: Brian | Sep 4, 2012 1:27:20 PM

In response to Prof. Adler's comment: Given how high the stakes are for candidates, I hope anyone who Googles as part of a "background check" will make sure they're relying on reliable information that relates to the right person.

There are two other people with my name who come up with equal frequency when I Google, and one has done policy work (and given interviews) in an area related to mine. My name isn't a common one, so I think it would be quite easy for a Googling committee member to assume he was reading a quote from me, and not from this other woman with my name.

(There's also someone with my fairly uncommon name who has a public MySpace page that would be quite embarrassing, if it were actually mine...)

Posted by: Anonanon | Sep 3, 2012 3:02:43 PM

I think Googling candidates is part of a hiring committee's due diligence. It is irresponsible to rely solely on that information provided by a job candidate. Additional backgruond checking of this sort poses no problem for hiring committees that aren't inclined to discriminate. So perhaps the real lesson is that academics should learn not to discriminate on the basis of religious or political views -- or is that expecting too much?

Posted by: Jonathan H. Adler | Sep 3, 2012 2:43:17 PM

I would think for conservative schools the opposite is true (discriminate based on liberal views). However, religious entities are likely free to discriminate against professor candidates courtesy of the Hosanna Tabor SCOTUS decision.

Posted by: Kendall Isaac | Sep 3, 2012 2:04:30 PM

On Orin's view, is there no lesson in this post for Ave Maria, Regent, Pepperdine, and similarly inclined schools, since they won't discriminate against candidates on the basis of conservative political/religious views?

Posted by: RJC | Sep 3, 2012 12:38:51 PM

Unfortunately Kerr is correct, because loose lips sink ships! One would expect law professors to be smarter than to act in this capacity, but it doesn't pay to assume.

Posted by: Kendall Isaac | Sep 3, 2012 11:47:54 AM

Certainly one lesson is be careful what you put in email!!

Posted by: Lyrissa | Aug 30, 2012 8:00:54 AM

Perhaps the lesson is just that when discriminating against candidates who have conservative political and/or religious views, don't be explicit about it.

Posted by: Orin Kerr | Aug 30, 2012 4:25:51 AM

The title was a bit of hyperbole for attention-grabbing effect (hence the question mark). I didn't say you shouldn't Google in the text of the post, but instead said that you need to be careful how you handle the information you turn up.

Posted by: Lyrissa | Aug 29, 2012 5:03:37 PM

Not sure how you go from these cases to general advice not to Google. Googling can turn up a lot of relevant information (eg, criminal or unethical behavior) that could never form the basis for a discrimination suit. The real advice here is not to discriminate on the basis of religion or (for public employers at least) political beliefs.

Posted by: AF | Aug 29, 2012 4:52:10 PM

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