Assignment:
Review Section C: Staff Selection on p. 274 of The Principal's Quick-Reference Guide to School Law: Reducing Liability, Litigation, and Other Potential Legal Tangles.
According to Hachiya (2022), discrimination in the selection and hiring process is "a dangerous error for any school district, and when done intentionally it is illegal, as well as ethically and morally unacceptable." To effectively mitigate liability, school and district leaders must be aware of their vulnerability to litigation during various pre-employment stages. Need Assignment Help?
Consider the following scenario:
Dr. Brown is wrapping up the first year as principal at Phoenix High School. It is the spring hiring season, and Dr. Brown wants to create a hiring process that is smooth, effective, and meets federal and state guidelines. When speaking with the superintendent, Dr. Brown was given permission to explore best practices for hiring staff members to create the ideal hiring process.
Evaluate the scenario. What questions should guide Dr. Brown's thinking and understanding for hiring staff members? What are the seven major steps or outlines Hachiya (2022) draws from the research of Milner and Miner (1978) and Panaro (1990) that should guide all education leaders when hiring staff members? Which of these steps do you believe poses the greatest risk of litigation for Dr. Brown?
Section C:
School districts throughout the United States have developed several methods of staff selection depending on the size and administrative structure of the particular district. The management style of the superintendent determines the degree to which principals are involved in the staffing process. For example, in highly centralized school districts, teachers and support personnel may be assigned to a building with little or no input from the building principal. However, in a decentralized or site-based school district or in a smaller district, the principal is often involved in all phases of teacher and support personnel selection, from recruitment to recommendation for employment. In many districts, the central office maintains a pool of applications and allows principals to review appropriate files and select and interview candidates prior to making a recommendation to the superintendent.
Discrimination in selection and hiring is a dangerous error for any school district, and when done intentionally it is illegal, as well as ethically and morally unacceptable. Principals need to be aware of their vulnerability to litigation when they act as agents of the board in any preemployment matters. This chapter examines the problems that school districts and principals must avoid in the recruitment, selection, hiring, and evaluation of qualified personnel. A wealth of resources exist related to the hiring of educational personnel that are designed to improve the hiring process, increasing the number of qualified applicants as well as increasing the likelihood of the selection of the best candidates. The purpose of this chapter is to provide awareness of potential legal pitfalls in that process.
Regardless of the method of staff selection used, it is imperative that school principals have a working knowledge of the legal aspects of employee selection. As indicated in the previous examination of legislation, a number of federal laws and court cases have instituted constraints on employment decisions in an effort to reduce discrimination in the workplace. Employment decisions must be based on nondiscriminatory factors or factors that can be justified as legitimate exemptions under the law. It is important to remember that equal employment opportunity laws apply to both employees and job applicants and that all selection criteria and employment decisions must be based on job-related standards. In other words, any criteria used, information required, or interview questions asked must be directly related to required job performance or be justified as a bona fide occupational qualification (BFOQ) for a particular job. Principals and other interviewers are faced with the three-pronged task of recommending the best qualified teacher or staff person (after a careful and deliberate process), complying with a multitude of employment laws (and school board policy), and protecting the rights of all the applicants for an open position.
No one expects to be sued for asking frank questions of a prospective employee. However, litigation in the area of personnel matters continues. This legal activity may be attributed to the public's willingness to go to court but, more likely, is based on an increased awareness of equal employment rights by prospective employees.
Before examining the various facets of the selection process, it is important to note that it is impossible to provide unambiguous guidance as to what inquiries or practices are permissible during the preemployment phase. There are few, if any, categorical rights and wrongs in selection, either legally or professionally. Every employment situation has to be evaluated individually to determine what selection standards are valid and legal. This ambiguity, however, does not relieve school officials of the responsibility for ensuring equal employment opportunities in the school system, while legally and ethically securing the services of the best qualified individuals for particular jobs. Equal employment laws have been, and continue to be, enacted specifically to expand employment opportunities for qualified minorities, females, and others in a protected classification who have been at a disadvantage in the labor market and workplace.
Employment Selection:
Improving your school is dependent on great principals and great teachers. The quickest way toward school improvement is making great hires, by hiring better teachers than the ones they replaced, or improving the teachers that are already on staff. The improvement of teachers is not the focus of this text; however, the hiring of quality teachers in a deliberate, legal, and ethical process is the focus.
Keep in mind that when hiring for any position, the hiring team or individual is essentially attempting to answer just three basic questions during any job search, regardless of the job description of the vacancy they are in need of filling. These questions are (1) Is this candidate qualified to do the job? (2) How well can the candidate do the job? (3) How will this person fit within our existing needs?
Often determining if a candidate is qualified to perform the job is the easiest to determine, because some qualifications are mandated, such as required licensures or certifications. However, how well that otherwise qualified candidate can perform the job is more difficult to determine, and that is where past experiences and recommendations play a significant role. The final question of determining how the person fits into existing needs involves knowing your own school culture, how the candidate may fill gaps in current skillsets, and what additional roles the candidate could assume. But the question also frankly comes down to factors that are important yet could cloud the decision-making process and result in missing an otherwise quality candidate, such as simply whether you personally like the candidate. Extra caution needs to be considered with this final question, and proper interviewing and due diligence helps to minimize problems at this final stage.
Hiring presents a quandary at times, because any given candidate may be highly qualified and capable, but they may not necessarily be a great overall fit into the school needs or culture. Or the candidate may appear to be a great fit and someone you would like to hire, yet they don't fully meet the qualifications set forth for your open position.
The following information outlines the major steps in the selection process and suggests guidelines that can be used by district-level administrators and school principals to evaluate the process. The material presented has been adapted to fit the education enterprise and was drawn largely from the comprehensive work of Milner and Miner (1978) and Panaro (1990).
Position analysis: Once it has been determined that a position becomes available and is authorized to fill, a job analysis helps to determine the job description and the skills, knowledge, and abilities needed to perform the job. This additionally develops more valid and fair measurements of job performance in the future. You should be able to justify all standards as necessary for requirements for the job and ensure that there are no listed requirements that might disqualify a disproportionate number of members of a protected class. Some required qualifications are mandatory, but others may be those you have chosen. However, those must be legal to require, and should not be deviated from once you have posted the job opening.
Recruitment: It is essential that recruitment efforts reach the most diverse audience as possible. The more diversity that is already employed in a school or district allows for the inclusion of a greater number of people in the process, which is a part of the cycle to increase overall diversity. Records should be maintained that document these efforts.
Initial applications and screening: It is particularly at this step where implicit bias and discriminatory practices can occur. Steps can be taken to minimize these risks, including training and awareness of implicit bias, as well as overall training in human resource hiring practices to increase hiring skills. In addition, the following are important considerations:
Do not ask preemployment questions that may lead to charges of discrimination.
Ensure that all information required on the application form or asked in an initial interview is job related and designed to give information about the applicant's qualifications for a particular job.
Ask all applicants the same questions.
Do not use information volunteered by an applicant as a basis for rejecting the applicant if it would be illegal to ask for such information in an interview. Liability for discrimination exists on whether the information was solicited or volunteered.
Investigate further to determine whether the applicant can be reasonably accommodated to perform the job if the applicant volunteers information that indicates a problem with the applicant's suitability for the position (e.g., a disability).
Be sure that notes or summaries of interviews with job applicants
Refer only to job-related aspects of the position.
Use neutral, objective words and language.
Have no negative inferences. (The interviewer should be sensitive to the negative inferences that can be drawn from seemingly harmless written comments.)
Do not include coded information (e.g., colored-in circle to indicate Black applicant, clear circle to indicate white applicant).
Interviews: Those who are on interview teams should have some type of training, and at the very minimum must be cautioned about illegal questions. If those on a team are skilled at listening, you can have multiple people asking questions, but often even with a team, it may be better to have just one skilled person guide the process. Documentation of the interviews is an essential practice, including dates, times, locations, those involved, and the questions asked.
To gain the most from the interview process, all team members should know in advance what they are listening for, based on knowing the answers to their own questions. What teacher qualities are you listening for? What school culture factors are you listening for? In addition, it's imperative that you allow the person being interviewed do most of the talking. You will learn nothing from a candidate if you as the interviewer dominate the conversation.
Other things to listen for are patterns of success, increasing levels of responsibility, and their own personal educational and personal codes and beliefs. What questions candidates ask is critical, so make certain you provide candidates with the opportunity to do so.
Illegal questions: Case law has demonstrated that the most dangerous questions, from the perspective of legal liability, are questions that the interviewer regards as the most innocent-from icebreakers or small talk from even outside of the formal interview. Interview questions should be based on what was determined in your position analysis and based on your expectations, culture, and demands.
Ignorance regarding the asking of illegal questions is not a defense against claims that such questions occurred. This is a nonnegotiable element to the hiring process. Avoid questions that are not only clearly prohibited but also those you may suspect might be prohibited, because if you suspect the question may be illegal, there is likely no real justification for asking it. Only focus on questions that may relate to a BFOQ when in doubt. Examples of areas to avoid include, but are not limited to, the following:
In the area of health: disability, mental illness, whether currently under a doctor's care
In the area of income: Social Security income, garnishment or bankruptcy record, credit record, alimony or child support paid or received, charge accounts, own or rent home, furniture, car, method of transportation, lowest salary you will accept, spouse's occupation
In the areas of marital status or lifestyle: married, intent to marry, engaged, LGBTQ+, living with someone, divorced, prior married name, maiden name, spouse's name
In the areas of race, religion, politics: race, ancestral origin, nationality or national origin, place of birth, citizenship, parentage, native language, fluency in English, color of eyes, hair, religion, religious holidays observed, belief in the existence of a Supreme Being, available for Saturday or Sunday work, feelings about Equal Rights Amendment, National Organization of Women, various interest groups
In personal areas: age, date of birth, height, weight, gender
In the area of issues not related to work: leave job if spouse transferred, friends or relatives working for the district (lawful if pursuant to an antinepotism policy and there is no adverse impact)
In the area of children: plans to have a family, children under eighteen, arrangements for care of minor children, intent to become pregnant, time off to have baby, resign or request leave, practice birth control, been pregnant or given birth, abortion, female problems, age (to determine whether of child-bearing age).
Reference checking : It cannot be more strongly emphasized that it is 100 percent totally inexcusable to not check references on any candidate under consideration for the final job offer. It is not only professional malpractice, but the failure to check references could lead to a hire that puts others in danger at worst, or potentially with an incompetent or otherwise unsuitable person in a position under your responsibility and supervision. That being said, to not check references put your own employment in jeopardy and for good reason.
Although checking references cannot guarantee the candidate will end up being the employee you had hoped or expected to hire, having checked the references increases the odds that the candidate will be what you expected. Additionally, you cannot be totally certain as to the quality and honesty of the reference you have received. That problem can be minimized to a degree by checking multiple references. Being able to discern what the reference is saying is important as well. You could be intentionally deceived perhaps, which creates its own set of problems. But you must also be able to "read between lines" at times, knowing how to analyze a generic reference or one filled with ambiguous statements. To ignore or disregard negative references would also be difficult to justify.
Always comply with district policy regarding the authorization to release information by references, as well as other district policies. Finally, the checking of references should be conducted in the same manner for all candidates.
The hiring decision: Don't just look for those who can lead students, but also look for those who can be teacher leaders as well. And even though everyone can improve in their job performance, great talent is inherent and not learned. So can those you hire improve? Certainly. Is there a ceiling to their abilities? Probably.
It is wise to become familiar with hiring decision factors that make the difference in selecting the best candidates. There are factors that relate to such things as ability, motivation, and compatibility that increase the likelihood of success as a teacher. It is also better to avoid a single rating of candidates because the criteria are complex and a single rating risks over- or underrating. It is better to give a range on different measures.
The emphasis in terms of the legal aspects is to ensure that no decision is based on discriminatory elements such as age, gender, race, nationality, religion, or sexual orientation. And amplifying the importance of reference checking, you decrease the odds of a successful hire, and substantially increase the odds of a poor hire and potential legal implications if you do not prepare and do not do your homework in advance of the hiring process