Principal as Personnel Officer: Legal Compliance in the Hiring Process

Matthew Bristow-Smith NELA Cohort III December 8, 2012

Activator/Motivator
In coordination with each countys human resources office, the building-level principal typically defines and coordinates the hiring procedures for his/her school. In this role as school personnel officer, the principal must know how to comply with the legal issues regarding recruitment and hiring. Additionally, and equally important, the principal must educate other staff members involved in the hiring process about how to avoid legal compliance issues. A conscientious attention to legal compliance during the hiring process is necessary in all schools; however, in eastern North Carolina and specifically my own school, Tarboro High School, legal prudence related to hiring could not be more critical for several reasons: Nearly 50 percent of the administrators in the North East Region served by the North East Leadership Academy (NELA) are expected to retire in the next three years. This massive exodus of senior administrators is accompanied by the loss of institutional memory and contemporary knowledge related to legal compliance. The teacher turnover rate in the North East Region exceeds the state average by several percentage points. Consequently, the building-level principal is faced with numerous challenges related to hiring, including a potential lack of qualified candidates and the revolving door of staff vacancies. One of the commonly accepted best hiring practices is to involve nonadministrative staff members, particularly classroom teachers, in the hiring process. However, many of these teachers have far less specific knowledge of legal compliance as it relates to hiring than do their administrators. Without a mechanism in place to provide a sufficient, if not optimal, knowledge of the law, many well-meaning teachers on hiring committees can inadvertently violate the legal rights of prospective candidate and potential colleagues. Many school systems in eastern North Carolina, faced with numerous systemic challenges, may neglect to refresh principals routinely on legal compliance issues. A deliberate approach to ensuring legal compliance during the hiring process can help schools and systems avoid conflict with the Office of Civil Rights and other compliance organizations.

Rationale/Objectives
The goals of this professional development plan are as follows: To provide a common basis of legal knowledge for all members of the hiring process; To specify the statutory laws related to hiring that require compliance; To identify some common pitfalls and hiring missteps to avoid; To recommend several best hiring practices that can ensure legal compliance during the hiring process.

Legal Overview
Legal compliance in hiring practices begins with knowledge of the federal statutes, including the Equal Protection Clause of the U.S. Constitution and including other federal statutory laws, several of which are identified below. Federal Protections U.S. Constitution, 14th Amendment, Equal Protection Clause

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Civil Rights Act of 1964, Title VII (SEC. 2000e-2. [Section 703])

Title VII of the Civil Rights Act provides federal legislation that forbids employers from discriminating against prospective or current employees in regards to several protected characteristics, specifically race, color, religion, sex, or national origin. The Civil Rights Act was updated in 1991 to provide additional protections and details regarding legal compliance and also punitive damages in cases of workplace discrimination. This excerpt serves as an exemplar of the protections afforded job candidates during the hiring process as defined in the CRA. It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals race, color, religion, sex, or national origin. Other Federal Legal Protections Age Discrimination in Employment Act of 1967: prohibits age discrimination in hiring specifically for qualified individuals over 40 Americans with Disabilities Act of 1990: prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments Genetic Information Nondiscrimination Act of 2008 (GINA), Title II: prohibits employment discrimination based on genetic information about an applicant, employee, or former employee Equal Pay Act of 1963 (EPA) and Lilly Ledbetter Fair Pay Acts, which provide protections for men and women from sex-based discrimination if they perform substantially equal work in the same establishment

North Carolina State Protections North Carolina Equal Employment Practices Act, N.C. GEN. STAT. ANN. 143-49A The NCEEPA essentially reinforces the federal protections cited above. It does not offer any new or additional protections for prospective employees, such as protection from discrimination based on sexual orientation. Article 49A. Equal Employment Practices It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees. It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and

development, and substantially and adversely affects the interests of employees, employers, and the public in general. Other related NC statutes include the North Carolina State Personnel Act and the North Carolina Persons With Disabilities Protection Act.

Local Issues Within federal guidelines, state and local education agencies have flexibility to add additional legal protections, many of which are procedural, related to the hiring process. The fine print in many job contracts specifies job expectations and duties that go beyond federal guidelines but are still legally compliant. For example, some districts contractually require teachers to agree not to have amorous relationships with other staff members. Consequently, although there is general compliance with federal antidiscrimination guidelines from state to state and county to county, a wide degree of flexibility exists in what local Boards of Education can require of new hires. For this reason, it is critical that both hiring committees and prospective employees be aware of the contractual details (fine print) of the LEA and that these expectations are communicated transparently prior to an offer of employment being made or accepted.

Application of Content to Practice

When it comes to hiring, it is important to remember that the interview begins when a candidate enters his/her prospective workplace and ends when he/she leaves. Technically speaking, this means everyone he/she comes into contact with, either formally or informally, is an agent of the school and participant in the interview process. For this reason, it is advisable that this training be provided to all staff members, not just members of the hiring committee, to ensure legal compliance at all levels. Whether the training is provided in small groups (e.g., Professional Learning Communities) or a larger setting (faculty meeting), staff members need to know how to be legally compliant when interacting with candidates for a job at their school. In particular, the assessment portion of this lesson plan will demonstrate an earnest attempt to train staff members in case an infraction does occur during the hiring process that might be reported to the Office of Civil Rights.

Elements of the Lesson Plan

Suggested Time Element of Lesson Description Teachers are provided an anticipatory set of questions to answer about realistic questions that might occur in an interview setting (Table 1.1). Silently and individually, teachers read each interview question in the anticipatory set and answer the following question: Does this interview question violate the rights of the candidate? Teachers respond: Yes, Possibly, or No. After brief discussion of the items in the anticipatory set, facilitator informs teachers that ALL of the questions provided are likely violations of the rights of a prospective employee. The facilitator will use the attached PowerPoint presentation entitled Principal as School Personnel Officer to review the pertinent federal anti-discrimination laws. Emphasis will be placed upon the Equal Protection Clause and the Civil Rights Act of 1964, along with other statutory laws that protect job candidates. Continuing the PowerPoint, the facilitator will provide training participants a Scenario Challenge that asks them to apply the information from the Legal Overview to practical, real-life settings. The facilitator will distribute an accompanying print material (Table 1.2) that will guide the scenario challenge. After completion of the activity, the facilitator will review the correct answers and will identify common pitfalls that hiring committees should avoid.

5 7 min.

Warm-Up

7 10 min.

Legal Overview

7 10 min.

Scenario Challenge

5 8 min.

Best Practices for Legal Compliance Review

Following the scenario challenge, the facilitator will provide an overview of Best Hiring Practices that promote legal compliance. This overview will continue and conclude the PowerPoint. The facilitator will administer an assessment (Table 1.3) to training participants that will allow them to demonstrate mastery of the key points related to legal compliance during hiring. The facilitator will conclude the training by providing participants several print materials as exemplars for the hiring process. This will include a model set of interview questions, a confidentiality agreement for members of a hiring committee, and a release statement for prospective candidates. An additional resource will include a more detailed description of anti-discriminatory hiring practices for future reference.

7 10 min.

Assessment

3 5 min.

Closure

Assessment
There are two primary assessment components to this legal lesson plan:

The first assessment occurs as an element of the training. It documents the concerted effort by the facilitator (building-level administrator) to educate the members of the hiring committee about relevant antidiscrimination practices. Combined, the training and assessment should demonstrate some measure of legal protection should an inadvertent compliance infraction occur and an investigation by the Office of Civil Rights take place. The second assessment is performance-based: it is the real-world application of this training during the hiring process. The ultimate end-goal of this training is to better prepare public school hiring committees, especially those that include classroom teachers, to conduct legallycompliant interview processes that do not discriminate against any applicant based on race, color, religion, sex, age, national origin, disability, or genetic information.

Current Legislation Under Review

The Employment Non-Discrimination Act (ENDA) is legislation proposed in the United States Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity. This legislation, or similar versions of it, has been proposed in every Congress since 1984 but has yet to pass. As a result, no broad federal legal protection exists related to sexual orientation or gender identity in the hiring process.

Sources
U.S. Equal Employment Opportunity Commission (www.eeoc.gov) Findlaw (www.findlaw.com) Cornell University Law School (www.law.cornell.edu)

Legal Compliance in the Hiring Process Anticipatory Question Sets

Table 1.1

Directions: Independently review each set of questions that might be asked of prospective candidates interviewing for a job at our school. Indicate whether each question violates the legal rights of the candidate by checking Yes, Possibly, or No. For this exercise, assume the job offer is in North Carolina. Set 1 Hypothetical Question
1. Hello, should we call you Miss, Ms., or Mrs.? 2. How old are you? 3. In what country were you born? 4. Are you having a boy or girl? 5. Bradyis that Irish? 6. Do you have any disabilities? 7. Does heart disease run in your family?

Does this interview question likely violate the rights of the candidate? Yes Possibly No

Set 2 Hypothetical Question

1. You have beautiful eyes; what color are they? 2. Have you ever been diagnosed with anxiety, depression, or mood swings? 3. How many years do you have left before retirement? 4. Do you have any religious objections to the teaching of evolution at our school? 5. When did you graduate from high school? 6. Do you celebrate Christmas, Hanukkah, Kwanzaa, or Ramadan? 7. Have you ever undergone treatment for alcoholism or drug abuse?

Does this interview question likely violate the rights of the candidate? Yes Possibly No

Legal Compliance in the Hiring Process Scenario Challenge

Table 1.2

In small groups, discuss each scenario and decide together whether a legal compliance violation has occurred. Has a legal compliance violation occurred?
Yes SCENARIO 1: After interviewing a candidate for a science position at your school, the chair of your hiring committee decides to give the candidate a tour of the school. During the tour, the candidate, who is visibly pregnant, meets several faculty members, who greet her warmly and discuss the family-friendly culture of the school. Although the candidate has not acknowledged or discussed her pregnancy, one of the faculty members on the tour asks, When is your baby due? SCENARIO 2: As principal of your school, you are committed to involving both teachers and community stakeholders in the hiring process for new staff members. For this reason, you assemble a hiring committee comprised of the School Improvement Team chair, a counselor, three teachers, and a parent representative, who happens to be a local minister. Before the interview, each member of the hiring committee is introduced to the candidate, and the interview proceeds pleasantly. During the interview, the parent representative says to the candidate, I notice the cross you are wearing. If you do not have a home church, we would love for you to visit Sunrise Baptist Church. SCENARIO 3: The hiring committee at your school is meeting to discuss the anticipated vacancies for next year and to formulate a standard set of interview questions to be asked of all candidates. In addition, the committee will conduct a preliminary review of applicants for a current vacancy in your math department. During the meeting, the chair of your hiring committee says to the group: Our school system has a district goal of improving the diversity of our teaching staff. Our student population is becoming increasingly Asian, so we need to hire someone for this position who is Asian if at all possible. Lets look at those applications first. SCENARIO 4: The hiring committee at your school has reviewed several applications for a vacancy in your English department and wishes to meet and interview three of the candidates next week. One candidate is African-American, one candidate is Caucasian, and one candidate is Hispanic. After the interviews, the committee agrees that the Hispanic candidate is most qualified. However, the principal disagrees and chooses to hire the African-American candidate instead. The principal does not disclose her reasons for choosing the African-American candidate to the group. No

Scenario

Legal Compliance in the Hiring Process--Assessment

Table 1.3

Part I. Which of the following are protected characteristics that should not be addressed directly or indirectlyduring the interview and hiring process? Circle all that apply. Race Disability Ethnicity Education Religion Work Experience Age Sex Personality Professional Goals National Origin Family planning

Part II. Which interview questions are legally complaint and which ones are not? Would this interview question be legally compliant? Yes
1. If we hire you, would you be interested in joining a morning prayer group at our school? 2. Tell us a little about yourself. 3. Do you plan to have kids one day? 4. What will your references say about you when we call them? 5. What are your philosophy and procedures for handling classroom discipline? 6. Why do you want to work at our school, in particular? 7. What strengths and weaknesses do you haveas a teacher that may not be evident in an interview? 8. Can you honestly say that you will be a Christian role model for our student body? 9. Tell us about a teaching strategy you use that is particularly effective. 10. If we hire you, will you be able to climb the stairs to the second floor if our elevator is out of order? Are you ambulatory without your wheelchair?

Interview Question

No

Part III. Name three strategies that hiring committees can utilize to eliminate discriminatory hiring practices and improve their legal compliance. 1. ________________________________________________________________________________________________________ 2. ________________________________________________________________________________________________________ 3. ________________________________________________________________________________________________________

Legal Compliance in the Hiring Process

Principal Toolkit 1.1

BRADY PUBLIC SCHOOL SYSTEM EQUAL OPPORTUNITY NON-DISCRIMINATION STATEMENT It is the policy of the Brady Public School System to provide equal opportunities without regard to race, color, national origin, religion, sex, age, disability, or veteran status in its hiring, employment, educational, and related programs. The School District does not discriminate on the basis of race, color, national origin, religion, sex, age, or disability.
The following contact has been designated to handle inquiries regarding the districts nondiscrimination policies: Kevin Brady Associate Superintendent, Human Resources Brady Public School System P.O. Box *** Skeetville, NC 25684 ***-***-****

Legal Compliance in the Hiring Process

Principal Toolkit 1.2

BRADY PUBLIC SCHOOL SYSTEM Confidentiality Agreement

I, , acknowledge and understand that I will be participating in the review of confidential and private information pursuant to the interview, consideration and selection of a ____________________ for the Brady Public School System (BPSS). I acknowledge and understand that I may be given access to personnel information that is considered confidential pursuant to North Carolina state law and that there may be penalties for unauthorized use and disclosure of such information. I hereby agree to maintain the confidentiality of all documents and/or information to which I may have access during the application review, interview and selection process for this position, whether such information is submitted by the applicant or otherwise obtained by BPSS. I further agree that I will use such information solely in order to participate in the application review, interview and selection process as requested by the Brady Public School System and that I will not disclose, reveal or discuss such confidential information for any other purpose. I further agree to return to the school system any documents or information supplied to me upon the conclusion of the application review, interview and selection process.

_____________________________________ Print name

_____________________________________ Signature

_______________ Date

Legal Compliance in the Hiring Process

Principal Toolkit 1.3

BRADY PUBLIC SCHOOL SYSTEM Consent to Release of Information

I, , acknowledge and understand that the Brady Public School System (BPSS) may include teachers and members of the community in the application review, interview and selection process for filling the position of ______________________. I understand that community members are not school officials or employees. As an applicant for the position of _____________________________, I hereby give my express consent for all participants in the application review, interview, and selection process, including community members, to review my application, including any documentation and/or information submitted by me and/or otherwise obtained by the BPSS, during the application and selection process. I understand that confidential pre-employment information may be considered during the selection process and also that this information may not be made available to me. In exchange for consideration of my application for the position of ______________________, I hereby agree to release the Brady Public School System and the Brady Board of Education, its agents and employees from all claims and liabilities of every kind, known or unknown, which may arise from the disclosure of confidential information pursuant to consideration of my application. _____________________________________ Print name _____________________________________ Signature ________________ Date

Legal Compliance in the Hiring Process

Principal Toolkit 1.4

Exemplar Interview Questions

1. Tell us a little bit about yourself and why you are interested in this position. 2. What specific background, education, and/or experiences made you want to be a teacher? 3. Please describe your teaching experience and work history. 4. What is your philosophy of education in your content area? 5. How do you communicate your academic expectations to your students? 6. What does a great lesson in your classroom look like? Help us see your class in action. 7. What is your approach to classroom discipline? 8. Two students are talking disruptively in the back of your classroom during your lesson. What steps do you take to handle this and redirect them back on task? 9. How do you create two-way communication with the parents of your students to keep parents informed and engaged in their childs learning? 10. What has been your most challenging professional moment as a teacher, and how did you handle it? 11. What are your specific strengths and also weaknesses as a teacher? 12. What experiences have you had with Professional Learning Communities? 13. Are you National Board Certified, or do you plan to pursue certification? 14. What questions do you have for us about teaching in the Brady Public School System?