Complimentary Discrimination and Complementary Discrimination in Faculty Hiring

This Article focuses on one form of discrimination in faculty hiring. Specifically, this Article concentrates on discrimination against the “overqualified” minority faculty candidate, the candidate who is presumed to have too many opportunities and thus gets excluded from faculty interview lists and consideration. In so doing, this Article poses and answers the question: “Can exclusion from interviewing pools and selection based upon the notion that one is just „too good‟ to recruit to a particular department constitute an actionable form of discrimination?” Part I of this Article begins by briefly reviewing the changes in faculty diversity and inclusion at colleges and universities. Part II lays out a hypothetical of a superstar, bidding-war minority faculty candidate in English and explicates how the exclusion of this candidate, although accompanied by high praise and not racial animus, may constitute actionable discrimination. In so doing, it examines how federal courts have analyzed the concept of “overqualification” when employers have articulated it as the reason for not hiring a job applicant in discrimination lawsuits. It then explains why the myth of the “overqualified” minority faculty candidate as the “highly sought-after” candidate can render that candidate‟s exclusion from interviews, and thus hiring, a unique and specific form of racial discrimination. Part III further explicates how this form of “complimentary discrimination” works to create the  Professor of Law, Charles M. and Marion J. Kierscht Scholar, University of Iowa. B.A., Grinnell College; J.D., University of Michigan Law School. The author can be contacted via email at angela-onwuachi@uiowa.edu. Thanks to Dean Carolyn Jones and Charles M. and Marion J. Kierscht for their research support. I also thank Monica Bell, Arthur Bonfield, Anupam Chander, Guy Uriel Charles, Miriam Cherry, Karla Erickson, Michael Green, Mitu Gulati, Khanh Ho, Kevin Johnson, Stephen Lee, Melissa Murray, Michael Olivas, Hari Osofsky, Ediberto Roman, Davin Rosborough, Catherine Smith, Peggie Smith, Madhavi Sunder, Jacob Willig-Onwuachi, Adrien Wing, and Tung Yin for helpful comments and many illuminating conversations. Finally, I give special thanks to my husband, Jacob Willig-Onwuachi, and our children, Elijah, Bethany, and Solomon for their constant love and support. This Article gained much from comments at a faculty workshop through the Francis Lewis Law Center at Washington and Lee University School of Law in Lexington, Virginia and a presentation in the Law and Society Series at Suffolk University Law School in Boston, Massachusetts. Washington University Open Scholarship 764 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 87:763 “complementary discrimination” of keeping other “less qualified,” but certainly qualified minorities locked out of the academic market or out of particular schools. Specifically, it explains how faculties‟ dreams of one day recruiting the superstar minority candidate—generally the only type of minority candidate whom they truly find acceptable—can function as an excuse for not “settling” for racial minority candidates who are well qualified, but not as highly credentialed as the superstars, which, in turn, continues the cycle of low representation of minorities on college and university faculties. To illustrate this point, this Part details a hypothetical involving a minority female candidate on the entry level market in law. The Conclusion of this Article then expresses and details the need for and importance of increasing diversity on college and university faculties in today‟s society and the importance of carefully evaluating one‟s own biases when creating and serving on faculty search committees.