The effects of implicit bias create huge potential for age, race and gender discrimination on college campuses—not only in the faculty recruiting process, but also in the recruiting process for students on campus. According to the Kirwin Institute for the Study of Race and Ethnicity at Ohio State University, implicit bias is “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner. These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual's awareness or intentional control. Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social or political correctness. Rather, implicit biases are not accessible through introspection.” In a 2000 study, Cecilia Rouse, an associate professor at Princeton's Woodrow Wilson School of Public and International Affairs, and Claudia Goldin, a professor of economics at Harvard University, found that the use of blind auditions during the audition process for symphonies, where the candidates' identities were concealed by a screen, increased the probability that a woman would advance from the preliminary audition rounds by 50 percent. In a 2003 study conducted by the Massachusetts Institute of Technology and the University of Chicago, researchers sent out 5,000 résumés responding to job ads placed in the Boston and Chicago metro regions, randomly assigning stereotypical white-sounding names to some and stereotypically African-American names to others. The findings showed that those “applicants” with white-sounding names received an astonishing 50 percent more interview invitations than those with African-American names.

Even though bias tends to be an unconscious act (which is why it is so hard to address), there are steps university leaders can take to reduce biases in both the recruiting and hiring processes and facilitate a more diverse campus. Diversity creates a culture of acceptance, inclusion, and different perspectives, and is arguably needed now more than ever. According to the National Center for Education Statistics (NCES), college enrollment rates for young adults have been higher for women than men since 2000, and the total undergraduate fall enrollment increased for every racial/ethnic group from 1976 to 2008. However, according to an Association of American Colleges & Universities article, NCES also reported in 2008 that just under 20 percent of the nation's professoriate consisted of people of color and, in certain disciplines (electrical engineering, mechanical engineering and physics), women make up less than 10 percent of the professors at the top 50 research universities.

In addition to fueling a less open and inclusive campus, a lack of diversity in hiring can also lead to litigation. In 2016, Noble Maseru, an African-American male with over 30 years of experience in public health, sued the University of Cincinnati after he applied for an associate professor in health policy management position and was passed over for a Caucasian male. The U.S. District Court for the Southern District of Ohio held that the plaintiff had successfully stated a claim for intersectional sex and race discrimination because although the university ultimately hired a male for the position, under the intersectional theory, discrimination against an African-American male can still exist even in the absence of discrimination against white males or African-American females. In other words, this theory is based on a consideration of the combination of race and sex. At Auburn University, the former chair of the department of aerospace engineering resigned and alleged that he was forced out of his position after colleagues conspired to remove him because of his race. While creating a public relations nightmare for a university, hiring discrimination can also be costly. The University of Arizona faces a $20 million class action lawsuit alleging a pattern and practice of gender discrimination and a former Columbia University assistant professor was recently awarded $1.25 million after a finding that a professor retaliated against her after she accused him of sexual harassment and gender discrimination.

However, as opposed to current employees, the water is murkier when it comes to discrimination against potential hires. There is a circuit split in terms of whether “would-be” employees have standing to sue for employment discrimination at all. This January, a U.S. Court of Appeals for the Seventh Circuit decision was issued in Kleber v. CareFusion holding that only current employees are protected against unintentional effects of neutral recruitment practices. Institutions beware—using this as an excuse to discriminate in the hiring process could mean risky business. The U.S. Equal Employment Opportunity Commission (EEOC) guidelines state that use of tests and selection procedures can violate federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex or another covered basis. We will have to wait and see where other circuits come out on this issue.

Regardless of the split in law, it is good practice and has proven beneficial for institutions of higher education to do what they can to encourage diversity and limit bias in faculty hiring as mishandling of these accusations can have monetary consequences even if the initial claims are unfounded. For example, beginning in fall 2018, the University of Pennsylvania instituted a requirement that all faculty members on hiring committees receive unconscious bias training after more than 80 faculty members signed a letter in support of expanding university programming for reducing bias. The following are some steps that colleges and universities can take to recruit and retain more diverse faculty:

• Establish a designated committee to address diversity issues.
• Broaden the search and the job posting terms. For example, do not use masculine terms such as “competitive” or “dominant” in the job posting and broaden the experience requirements. Advertise open positions in publications geared toward minority communities, conferences and the like.
• Enact and require diversity and implicit bias training prior to reviewing applications.
• Utilize anonymous or blind recruiting. For example, the University of Helsinki in Finland uses anonymous recruiting by removing candidates' names, dates of birth, ethnicities and genders from applications. However, opponents argue that this is impractical as it is difficult to anonymize published work and research.
• Try Britain's “Recruiting for Difference” approach, where curriculum vitaes are no longer utilized. Instead, applicants state which journals they have published in and the roles they played in the papers, but their names, gender and ethnicity are not revealed at any stage in the hiring process.
• Involve current employees with diverse experience and backgrounds in the interview process to assess candidates, as this is more likely to result in diverse faculty.
• Enact policies that enforce and encourage faculty diversity and outline these policies in employee agreements, employee handbooks and codes of conduct.
• Expressly reward and commend departments that have increased their diversity.
• Appropriately and diligently investigate discrimination claims and consider bringing in experienced outside counsel because, if these claims are not handled properly, any other policies or procedures in place may prove meaningless.

While bias is still a prevalent factor in higher education hiring and recruitment, change is possible if colleges and universities continue to remain committed to diverse campuses and to take affirmative steps to rid employment and enrollment decisions of unconscious bias.

Melissa Hazell Davis is a senior associate at Griesing Law, where she focuses her practice on complex commercial litigation and labor and employment matters. She can be reached at 215-732-3924 or [email protected].

Fara A. Cohen is an associate at the firm, where she focuses her practice on corporate transactions, commercial litigation and employment law. She can be reached at 215-501-7849 or [email protected].