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

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.

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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.

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