See You In Court - September 2021

The members of the Nutmeg Board of Education were frustrated with the low-energy, long-serving assistant superintendent, and they were delighted to receive a confidential email from Mr. Superintendent that the assistant superintendent had finally decided to move on.  Veteran Board member Bob Bombast was right on it, emailing back to Mr. Superintendent that the Board would like to be “very involved” in the search for a new assistant superintendent. 

“Thank you for your interest in helping me identify a new assistant superintendent,” Mr. Superintendent wrote “Replay all” in response to Bob’s email.  “I value the perspective of Board members, and I will request your assistance in the selection process.”

True to his word, some weeks later Mr. Superintendent sent the Board members the resumes of the top twenty applicants and asked for them to rank the candidates in order and send him their rankings.  Surprisingly, there was unanimity in the Board members’ rankings, shared by “Reply All” emails, and three candidates stood out from the crowd as the best prospects.  Mr. Superintendent then scheduled Board interviews with the three candidates.

Mr. Superintendent posted the interviews as “Executive Session: Personnel Matter,” and Mr. Superintendent told the Board members to stick to scripted questions so that each candidate would have a fair opportunity to answer the same questions.  Moreover, the Board members were to fill out prepared forms with their impressions of the candidates between the interviews.  Mr. Superintendent described these procedures in an email to the Board members, along with the questions he had prepared for each of the Board members to ask.

The first interview had just started when Bob Bombast went off-script.  The candidate stated that she had earned her undergraduate degree at UCONN, and Bob jumped right in.  “I went to UCONN too!” Bob told the candidate excitedly.  “What class were you in?”  When the candidate answered Bob, he was surprised, and he told the candidate that she didn’t look that old!  The candidate thanked Bob for the compliment, and the candidate made a good impression on Bob and the other Board members.  During a scheduled break, the Board members filled out their interview forms on the first candidate, and the next candidate came in.

For the most part, the interview with the second candidate also went well.  But in filling out the interview form, Board member Mal Content noted that the candidate had an “ethnic” hairstyle that could be a distraction for some of the Nutmeg parents.

As it turned out, the Board members liked the third candidate the best, and they gave her their unanimous endorsement.  Mr. Superintendent thanked the Board members for their assistance, and he collected the forms.  In reading through the forms the next day, however, Mr. Superintendent was concerned about Mal’s comment about an “ethnic” hairstyle. 

Would it be OK for Mr. Superintendent to discard the comment forms now that the interviews were over?  Do you have any other concerns about this hiring process?

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It would not be appropriate for Mr. Superintendent to discard the comment forms, and there are other concerns with the Board members’ participation in the interview process.

In conducting job interviews, board of education members and others participating in the hiring process must be aware of the extensive protections against discrimination that exist for employees and prospective employees under Connecticut law.  It is unlawful for employers to discriminate against employees and prospective candidates on a number of protected characteristics, including age, sex, race, national origin, ancestry, religion, marital status, sexual orientation, gender identity or expression, veteran status, genetic information, and disability.  Moreover, such claims are often decided without any direct proof of discrimination.  Many years ago, the Connecticut Supreme Court described the problem: “One who indulges in discrimination does not usually shout it from the housetops. All too frequently persons publicly announce abhorrence of racial prejudice while privately practicing it.”  Reliance Insurance Company v. CHRO, 172 Conn. 485 (1977).  Accordingly, the courts will draw inferences from words and actions to determine whether illegal discrimination has occurred.

The hiring process often gives rise to discrimination complaints, and those complaints are typically decided by drawing such inferences.  It is not illegal per se, for example, to ask a candidate how old he or she is (or to compliment a candidate for looking young for her age).  But such information is (or should be) irrelevant to the hiring process, and the CHRO and/or the EEOC would be ready to infer that such a question was asked for an improper, discriminatory purpose.  It is therefore important that board members, administrators, teachers, parents or anyone else who participates in interviews be aware of discrimination prohibitions and avoid questions that elicit information about a protected status.

We note that the Nutmeg Public Schools adopted a procedure whereby the interviewers were supposed to ask all candidates the same questions.  That makes sense because asking different questions of different candidates could result in a claim of differential treatment on a prohibited basis.  However, to interview effectively, there should be some flexibility, and follow-up questions are an appropriate way to get to know the candidates.

In training persons involved in the hiring process, two new statutes are of particular interest.  Effective October 1, 2021, Public Act 21-69 makes it a discriminatory employment practice for employers, including boards of education, to request or require a prospective employee's age, date of birth, dates of attendance at or date of graduation from an educational institution on an initial employment application.  While understandable, Bob’s asking the first candidate when she graduated from UCONN could be a problem, and he did himself and Nutmeg no favors with his follow-up comment that the candidate did not look that old.

Similarly, Public Act 21-2 (known as the “CROWN Act”) now defines “race” as “inclusive of ethnic traits historically associated with race, including but not limited to, hair texture and protective hairstyles.”  Mal Content’s inappropriate note about candidate two’s “ethnic” hairstyle could well support a finding of illegal race discrimination. 

That said, Mr. Superintendent should certainly not discard the comment forms.  Per EEOC regulations, records related to the hiring process must be retained for two years.  Moreover, when such records are destroyed in violation of that rule, the courts may draw an inference that such records would have supported the plaintiff’s claim.  Byrnie v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001).

Finally, there were at least two FOIA violations here.  Decision-making through “Reply All” emails constituted communication among a quorum to do Board business, which was in effect illegal unposted “meetings.”  Moreover, the FOIC has repeatedly ruled that the reason for an executive session must be stated more specifically than “Personnel Matter.”  Given that the assistant superintendent is an executive-level position, the Nutmeg Board could have (and should have) avoided the FOIA problems by naming its members a “personnel search committee.”  By taking that action, the Nutmeg Board, as such a committee, would have been able to conduct the search without having to follow the FOIA meeting requirements.