The Higher Ed. “Sham” Interview – A Title VII analysis of a common hiring scenario

Equal Opportunity, Labor Relations

While the unethical practice of conducting “sham” job interviews has been explored, considered and analyzed in the corporate setting and in sports, it has largely been ignored in higher education.  The “sham interview” of course being the practice of conducting a bad faith job interview where the unwitting candidate has no actual chance at being hired for the position, but the interview is offered despite this fact in order to satisy a diversity-driven quota, rule or requirement that the employer must meet.

To be sure, this practice is unethical and clearly erodes confidence in the hiring process.  But is it a violation of the law and illegal under Title VII?  This question presents uncharted ground in Title VII legal analysis.  Title VII, the federal law that prohibits most workplace harassment and discrimination, covers all private employers, state and local governments, and educational institutions with 15 or more employees.  In addition to prohibiting discrimination against workers because of race, color, national origin, religion, and sex, those protections have been extended to include barring against discrimination on the basis of pregnancy, sex stereotyping, and sexual harassment of employees.


In higher education, the sham interview is especially egregious because of the scarcity of resources of many institutions and the legal and PR fallout that may occur afterwards.  The practice may be found to be illegal not necessarily because of the act itself, but because the person who is ultimately hired for the position may not be as qualified or experienced as those who were given the “sham” interview.  If evidence reveals that the sham interview candidates were treated in this way due to race, color, national origin, etc., then a claim would be actionable under Title VII.

Best practice dictates that higher education employers avoid “sham” interviews and only interview candidates who are qualified and who have an actual good-faith opportunity to be hired for the postion.  See 2004 WL 2075159 for the financial impact in higher education for conducting sham interviews and a subsequent Title VII claim.

Title IX and Defamation: An Emerging Challenge Facing Higher-Education Institutions

Equal Opportunity, title IX

There is currently a national focus on gender-based harassment. College campuses are no different. Even with the changes to Title IX guidance in the past months,1 eliminating sexual harassment and assault on campuses remains a national priority. One overlooked result of this focus is defamation litigation facing higher-education institutions.


Students found to have violated university sexual harassment and sexual misconduct policies are fighting back in the courts. According to a 2015 study by United Educators (a large national insurance provider for colleges and universities), approximately 60% of Title IX-related lawsuits are brought by respondents (those accused of sexual misconduct).2 Respondents are asserting defamation claims against the individual who accused them as well as the university that disciplined them. The idea is that statements made by the accuser, through the course of a campus sexual assault investigation, are defamatory if the statements can be shown to be false. It has been reported that 72% of accused students who file a Title IX-related lawsuit against their university also sue their individual accuser for defamation.  For the full article, click here… 

Judge has to decide if discrimination claim against Duke sees trial

title IX

Hoping to stave off a mid-summer trial, Duke University has once again asked a federal judge to dismiss a former student’s gender-discrimination lawsuit that claims it botched the handling of a sexual-misconduct investigation.

University officials uncovered the incident, found the woman and encouraged her to report it, investigated it and offered her support services, all in line with their obligations under federal Title IX anti-discrimination law, lawyers for Duke said in a recent motion asking U.S. District Court Judge Catherine Eagles to end the case.

All that’s very far from the sort of “deliberate indifference” that would justify a finding of discrimination, they said, adding that when schools investigate misconduct complaints, federal courts in this part of the country “have not allowed juries to second-guess” the choices they’ve made along the way.  Pending since 2016, the lawsuit concerns an incident that happened in March 2011 and an investigation that concluded in 2013. Durham lawyer Bob Ekstrand – of Duke lacrosse case fame – is representing the former student and has argued the fact that one of the two men she accused is the stepson of former Provost Peter Lange, which he alleges influenced the university’s handling of the case.


Ekstrand’s original filings alleged his client was the victim of a “drug-facilitated rape” that one of the men secretly videotaped.

The court file, however, paints a much more convoluted picture.

Originally, Ekstrand’s client wasn’t even the focus of a campus police investigation that began in April 2011 when Duke’s student affairs office learned of rumors that a woman had shown up outside a campus dorm “apparently very intoxicated and unaware of her location.”

That initial report didn’t pay off directly, as police never found that woman, who wasn’t a student. But it tipped them to the March incident, leading them to the two men, the video and eventually Ekstrand’s client.

She turned out to have no direct memory of the incident, and apparently flip-flopped at least once on whether she’d consented. She admitted to having used alcohol and inferred from her lack of memory that someone might have drugged her.

Campus police consulted Durham prosecutors, but eventually decided not to pursue a criminal case, in part because she waffled about her willingness to testify. Another factor, former campus policeman David Dyson said in a 2012 report, was “serious doubts that the incident was non-consensual,” based on a video where the woman’s “speech was not slurred and she was making quick responses to what the males said.”

A parallel campus student-conduct investigation, meanwhile, was slow to develop momentum again because the woman wasn’t sure how she wanted to proceed. She took a semester off in the spring of 2012, and by Duke’s account didn’t give the student affairs office a statement on the case until the spring of 2013.

That led to a mid-summer student-conduct hearing that, by the woman’s account, led to one of the men being “fully acquitted” and the other receiving a light punishment – probation, other court filings indicate. Rather than appealing that ruling, she complained to Duke’s Office of Institutional Equity, which eventually decided there was “insufficient evidence” to say the university had “denied rights under Title IX or subjected [her] to a hostile environment.”

Ekstrand, meanwhile, likely is on the back foot because a 10-month pretrial “discovery” evidence-gathering period came and went in 2017 without him asking to depose any witnesses in the case. He essentially ceded the field on that to Duke.

At the end of November, he asked for another two months, but Judge Eagles said no.

“Deadlines are in place for a reason,” namely so cases can move “efficiently and fairly” toward a conclusion, she said.

Former Provost Lange’s attorney, Kerry Sutton, is tracking the case and on Friday said she thinks Duke’s stance is “well-supported by the facts and the relevant law.”

Duke has asked Eagles to shut down the case before, but in late 2016 she declined that request.

Illinois federal court rules—again—that “a school policy that subjects a transgender student to different rules, sanctions, and treatment than non-transgender students violates Title IX”

title IX


Arizona Fires Rich Rodriguez; Former Employee Claims Sexual Harassment, Files Intent To Sue

title IX

Arizona fired Rich Rodriguez as head football coach tonight after a former athletics department employee accused him of sexual harassment; a university investigation into those accusations found “information” that led the department to be “concerned,” according to a statement from the university.

Per the university, the investigation was closed last week after specific harassment claims could not be proven with the given evidence. “However, Arizona Athletics did become aware of information, both before and during the investigation, which caused it to be concerned with the direction and climate of the football program,” the statement goes on to say.


The former employee who accused Rodriguez has filed a notice of claim with the state, saying she intends to sue the university. The Arizona Daily Star has an excerpt of that document:

The notice of claim alleges, among other things, that Rodriguez and his closest aides followed a “hideaway book” that detailed such sayings as “Title IX doesn’t exist in our office.” Those who had the most interaction with Rodriguez — the former employee and two assistant coaches — referred to themselves as the “Triangle of Secrecy,” according to the claim. The three were charged with lying to Rodriguez’s wife on his behalf, according to the claim.

Rodriguez reportedly was fired without cause and the original terms of his contract will be honored, meaning that he should receive his full $6.3 million buyout. The full statement from the university is below.

Arizona made the announcement shortly after USA Today published a story saying that the university was considering firing Rodriguez following the workplace misconduct investigation and the team’s 0-3 finish to end the season.

Update (11:31 p.m. ET): Rodriguez has posted a statement of his own. He mentions some details that were not present in the university’s statement, including that the employee who filed the allegations was his former administrative assistant and that the potential lawsuit was for $7.5 million.

He calls her claims “baseless and false” and says that the university “determined that there was no truth to any of her accusations and found me innocent of any wrongdoing.” That’s markedly different from the language the university used to describe the investigation’s conclusion, which was that “the specific harassment allegations could not be substantiated based on the evidence and witnesses available to it.”


UC San Francisco Title IX Director Fired for Changing, Hiding Complaints


An investigative report determined the former Title IX director changed dates on complaints and hid files from auditors.


UC San Francisco officials have confirmed its Title IX director was fired earlier this year after an investigation determined she ordered employees to change dates on sexual assault complaints to make it appear they were handled more efficiently.  Cristina Pérez-Abelson was fired in April after being placed on paid leave for 10 months pending an investigation. The investigation determined that Pérez-Abelson also instructed staff to hide files from an auditor, according to the SF Chronicle.  The school made its announcement on the heel of several sexual harassment lawsuits that have been filed against the school in the past few months.  For the full article, click here