This year’s Transgender Awareness Week (November 13-19) is an opportunity for HR pros to educate themselves about daily steps that make a more inclusive workplace. It’s also a good time to review strategies for inclusion for all employees, including those who are transgender, nonbinary, and agender, among other gender identities.
Small Steps to a More Gender-Inclusive Workplace
At this year’s CUPA-HR annual conference, Jon Humiston of Central Michigan University laid out some simple actions everyone can take to make gender inclusiveness a daily practice. They suggest:
Use gender-inclusive language when referring to groups of people. For example, use terms like “people” or “individuals” rather than “ladies and gentlemen.”
Pay attention to the assumptions you make about someone’s gender identity and expression.
Feel free to ask about pronouns or share your own pronouns, but don’t require people to share theirs, as they may be uncomfortable doing so.
Use “pronouns” rather than “preferred pronouns,” since it’s not a preference but an identity.
Do know that it’s OK if you make a mistake by accidentally misgendering someone. Apologize and move on. If you repeatedly make the same mistake, it might be time to practice. Consider using AI, like ChatGPT, as a conversation tool or asking a friend to be a practice buddy.
HR’s Role in Creating a Gender-Affirming Culture
Jon also proposed a framework for higher ed HR to review inclusion policies, focusing on transgender and nonbinary employees, but with potential benefits for all employees. Reviewing the following questions (adapted from sources such as CUPA-HR and Out & Equal toolkits) will help you identify potential gaps in your institution’s efforts to be gender inclusive.
Policies and Procedures
Do you have a non-discrimination policy that includes sexual orientation, sex (or biological sex), gender identity and gender expression?
Do you allow employees to identify their gender outside of the gender binary?
Do you have a name-in-use policy or chosen-name policy that is easy to access and navigate?
Do systems such as software allow for gender pronouns to be included?
Does health insurance cover benefits for transgender and nonbinary employees?
Is gender-inclusive language used in internal and external materials (marketing, job ads, etc.)?
Are gender-inclusive bathroom locations shared with all potential employees during the interview process and all new employees?
Programmatic Support
Do you have an Employee Resource Group for LGBTQIA+ employees?
Does your institution publicly show its support of LGBTQIA+ communities during Pride Month, National Coming Out Day, National Day of Silence, etc.?
Does your institution publicly address hate and bias crimes that occur, or have a plan for doing so?
Does your institution have a presence at local LGBTQIA+ pride events?
Making the Case for Gender Inclusion
Policies that support LGBTQIA+ employees benefit all employees.
For example, flexible work arrangements are desired by two-thirds of the higher ed workforce, yet most campus staff members must work on-site. For employees experiencing misgendering at work or in public, a day working from home might provide them the respite they need from the exhaustion of being misgendered or experiencing gender dysphoria.
Both job seekers and current employees want their workplace cultures to be inclusive. According to a recent Workhuman study, 72 percent of employees see this as somewhat or very important to them. Inclusive cultures also promote creativity and innovation and may reduce absenteeism.
Preventing workplace discrimination and harassment is also a matter of regulatory compliance. The EEOC recently published new proposed guidance on preventing workplace harassment, including several examples of discrimination and harassment on the basis of sexual orientation and gender identity.
The Future of Gender Inclusion
The makeup of the higher ed workplace won’t look the same in the years to come. The share of Americans who know someone whose gender differs from the sex they were assigned at birth continues to grow, with 44 percent of Americans saying they know someone who is trans and 20 percent saying they know someone who is nonbinary.
If a major overhaul of institutional inclusion policies isn’t something you’re in a position to initiate, Jon suggests networking with your colleagues at other institutions to provide support, personally recognizing national days of awareness or remembrance, and encouraging allyship.
Let’s assume we live in a world in which students are going to use ChatGPT or similar tools on their assignments. (Because we do.) Let’s also assume that when those students start their jobs, they will continue to use ChatGPT or similar tools to complete their jobs. (Because they will.) Is this the end of teaching as we know it? Is this the end of education as we know it? Will we have to accept that robots will think for everyone in the future?
No. In this post, I’m going to show you one easy solution that solves the problem of assuming students will use generative AI by incorporating it into assessments. Keep in mind this is just a sketch using naked ChatGPT. If we add some scaffolding through software code, we can do better. But we can do surprisingly well right now with what we have.
The case study
Suppose I’m teaching a college government class. Here are my goals:
I want students to be able to apply legal principles correctly.
I want to generate assignments that require students to employ critical thinking even if they’re using something like ChatGPT.
I want students to learn to use generative AI appropriately.
Let’s throw in a couple of more goals just to make it interesting:
I want students to demonstrate competencies.
I want my assignment to support diversity, equity, and inclusion
Can we do all that?
Yes.
The prompt
I cobbled together a DEI guidelines document from some existing ones I found on the web to create something focused on curricular materials generation. I gave the document to ChatGPT along with the following prompt, which is designed to provide assessment questions that you can’t answer by just copying/pasting them into ChatGPT:
You are instructed to generate 3 fictional legal scenarios assessing The following competency:
Assess whether a case is likely to be heard by the Supreme Court based on an analysis of the Court’s role and selection criteria.
Evaluating Court functions will be consistently required.
For each scenario:
Involve 2-3 parties and a dispute requiring application of the competency.
Make it sufficiently complex so direct questions don’t fully demonstrate understanding.
Generate 1-2 written questions requiring analysis using the competency.
Additionally, construct a rubric table that is appropriate for all generated scenarios to evaluate student responses on:
Mastery of the competency above.
Mastery of the competencies below.
Demonstration of the following additional competencies
Critical Thinking Competencies
Ask probing questions to uncover deeper complexities beneath the surface. Questioning skills are inherently required by the assessment structure.
Critically evaluate source credibility and potential biases when analyzing information. Assessing the AI responses is crucial.
Produce sound arguments and reasoning to justify conclusions.
Written justifications will necessitate this in all cases.
AI Competencies:
Formulate questions and direct dialogue with an AI assistant to extract relevant insights. Strategic probing of the AI agent will be essential.
Efficiently utilize an AI’s knowledge while evaluating its capabilities and limitations. Critically appraising the AI’s responses is key.
Rubric should include levels of performance for each competency (e.g. novice, developing, proficient). Apply the attached diversity, equity, and inclusion guidelines to the content you generate. Incorporate diverse litigants and equity-relevant issues in the cases you generate.
[Note: I’ve added some formatting to make it more legible for humans. The actual prompt doesn’t have bullets and has fewer paragraph breaks.]
The results
Here’s what ChatGPT gave me back:
Legal Scenario 1: The Case of Interstate Water Rights
Background: The states of Aridonia and Riverbend are locked in a legal battle over the rights to water from the Silver River, which flows from the mountains in Aridonia and through the agricultural heartlands of Riverbend. Aridonia, facing an unprecedented drought, has constructed a series of dams to conserve water, significantly reducing the flow to Riverbend. Riverbend’s economy relies heavily on agriculture, which is now under threat due to the reduced water supply.
Parties Involved:
The State of Aridonia (Plaintiff)
The State of Riverbend (Defendant)
The Indigenous Tribes of the Silver River Basin (Intervenors) – They claim ancestral rights to the river and are impacted by the actions of both states.
Complexity: The dispute requires an understanding of interstate commerce, environmental law, and indigenous rights.
Questions:
Analyze the potential arguments each party could make to justify their claims to the Silver River’s water. How might these arguments impact the likelihood of the Supreme Court electing to hear this case?
Considering the Supreme Court’s historical approach to interstate disputes and the involvement of indigenous rights, what precedents might influence the Court’s decision to grant certiorari?
Next, I will create the second legal scenario.
Legal Scenario 2: The Case of Digital Privacy and International Data Exchange
Background: GlobalTech Inc., a multinational tech company, is sued by the State of Freedonia on behalf of its citizens for allegedly breaching privacy laws. GlobalTech’s data centers, located in various countries, process and store data from Freedonian users. The lawsuit asserts that GlobalTech’s practices violate Freedonia’s stringent digital privacy laws. However, GlobalTech contends that they are compliant with international agreements on data protection to which Freedonia is a signatory.
Parties Involved:
The State of Freedonia (Plaintiff)
GlobalTech Inc. (Defendant)
International Privacy Watch (Amicus Curiae) – A global coalition advocating for citizens’ digital rights and privacy.
Complexity: This scenario involves understanding international law, digital privacy, and the implications of cross-border data flow.
Questions:
Evaluate the competing interests of national privacy law and international data agreements in the context of this case. How might these factors affect the Supreme Court’s decision to grant a writ of certiorari?
What are the broader implications for digital privacy and international commerce if the Supreme Court decides to hear this case? Consider historical precedents and current legal trends in your analysis.
Now, I’ll proceed to create the third legal scenario.
Legal Scenario 3: The Case of Health Care Access and Religious Exemptions
Background: A new federal regulation mandates that all employers, regardless of their religious beliefs, must include comprehensive reproductive health services in their employee health insurance plans. FaithFirst, a nationwide chain of craft stores owned by a family with strong religious convictions, files a lawsuit claiming that this mandate violates their religious freedom. The case is further complicated by the intervention of HealAll, a non-profit organization that provides health services to underprivileged populations and argues that exemptions undermine public health efforts.
Parties Involved:
FaithFirst (Plaintiff)
The Federal Government (Defendant)
HealAll (Intervenor) – Advocating for universal access to health care.
Complexity: This scenario encompasses the interpretation of religious freedom, federal regulatory power, and the right to health care.
Questions:
Assess the potential constitutional conflicts at play in this case, particularly the tension between religious liberty and federal health care mandates. How could these conflicts influence the Supreme Court’s inclination to review the case?
Examine how the Supreme Court’s previous decisions on similar health care and religious freedom cases might be used as precedents in this scenario. What factors might the Court consider in deciding whether to hear this case?
With the three legal scenarios outlined, it’s time to generate a universal rubric that can be applied to assess student responses for all three scenarios. I will incorporate the DEI guidelines into this rubric to ensure the content is sensitive to diversity, equity, and inclusion.
Universal Rubric for Assessing Legal Scenario Responses
The following rubric applies to responses for all three legal scenarios, ensuring that students are assessed on the mastery of core competencies along with critical thinking and AI engagement. The DEI guidelines are integrated to promote inclusive and diverse perspectives in the analysis.
Competency
Novice (1-2)
Developing (3-4)
Proficient (5-6)
Mastery (7)
Mastery of Supreme Court Case Assessment
Displays limited insight into the Supreme Court’s selection criteria. Overlooks DEI considerations.
Recognizes basic aspects of the Court’s role and criteria. Considers DEI aspects superficially.
Analyzes the Court’s criteria proficiently, integrating DEI considerations into the analysis.
Provides comprehensive analysis aligned with the Court’s criteria and DEI principles, demonstrating nuanced understanding.
Critical Thinking: Questioning
Questions lack depth and do not reflect DEI considerations.
Questions show an emerging understanding of complexities with some DEI awareness.
Probes complex issues effectively with questions that incorporate DEI awareness.
Asks deep, insightful questions that fully embrace DEI complexities within the legal context.
Critical Thinking: Source Evaluation
Shows limited ability to evaluate credibility and biases, with minimal DEI consideration.
Begins to critique sources for credibility and bias, showing awareness of DEI.
Evaluates sources critically for credibility and biases with a consistent DEI lens.
Expertly discerns source credibility and biases, thoroughly applying a DEI perspective.
Critical Thinking: Argumentation
Constructs basic arguments, lacking DEI perspective and strong justification.
Develops arguments that begin to incorporate DEI considerations with moderate justification.
Presents well-reasoned arguments that effectively integrate DEI considerations.
Articulates complex arguments, richly informed by DEI considerations and robust justification.
AI Competency: Question Formulation
Struggles to craft questions that effectively leverage AI insights, with little DEI focus.
Formulates questions that occasionally lead to relevant AI insights and consider DEI.
Consistently crafts questions that elicit useful AI insights, mindful of DEI implications.
Strategically formulates questions for AI that yield comprehensive insights, fully integrating DEI.
AI Competency: AI Utilization
Demonstrates limited understanding of AI capabilities and DEI considerations.
Shows basic awareness of AI’s capabilities and DEI considerations in utilization.
Utilizes AI effectively, with a clear understanding of its capabilities and DEI considerations.
Masters AI utilization, skillfully balancing its capabilities with DEI awareness in analysis.
The performance levels for each competency are:
Novice: Limited application and understanding
Developing: Basic to moderate application and understanding with some inconsistencies
Proficient: Consistent application and understanding with minor gaps
Mastery: Exceptional application and understanding with insightful integration
These are challenging assignments. You’d need to precede them with lower-level formative assessments to ensure they’re getting the foundational concepts and know what kinds of questions to ask the generative AI.
Which is exactly what you should be doing before any challenging competency application assessment anyway.
I asked ChatGPT to generate three examples, but I just as easily could have asked it to generate 300. In other words, you can create a test bank if that’s what you need. Or just generate them on demand every term. You’d want a human expert to tweak the rubric and review each assignment; it’s a bit more complex and error-prone than algorithmic math problem generators.
Grading the assignment
The key here is that the assignment students turn in is the ChatGPT transcript. (You can optionally have them submit their final analysis work product separately.) The students are, in effect, showing their work. They can’t use ChatGPT to “cheat” because (1) ChatGPT is part of the assignment, and (2) the assignment is designed such that students can’t just plug in the questions and have the AI give them the answer. Their ability to analyze the problem using the new tool is what you are evaluating.
You could use your generative AI here too as a TA. Give it the assignment and the rubric. Write a prompt asking it to suggest scores and cite evidence from the student’s work. You can decide how heavily you want to lean on the software’s advice, but at least you can get it.
Learning to think like a lawyer (or whatever)
Generative AI does not have to kill critical thinking skills. Quite the opposite. These assignments are much farther up on Bloom’s taxonomy than multiple-choice questions and such. Plus, they get students to show their thought work.
In fact, these scenarios are highly reminiscent of how I use generative AI every day. Here is a sampling of tasks I’ve performed over the last several months using ChatGPT and other generative AI that I probably couldn’t have—and definitely wouldn’t have—performed without them:
Analyzed the five-year performance of a business based on its tax returns and developed benchmarks to evaluate the quality of its growth
Cloned a Github source code repository, installed Docker and other needed tools on my laptop, and ran the Docker image locally
Analyzed and hedged the risk to my retirement fund portfolio based on technical and economic indicators
Wrote the generative AI prompt that is the centerpiece of this post
None of these scenarios were “one and done,” where I asked the question and got the answer I wanted. In all cases, I had to think of the right question, test different variations, ask follow-up questions, and tease out implications using generative AI as a partner. I didn’t have to learn accounting and business analyst but I did have to know enough about how both think to ask the right question, draw inferences from the answer, and then formulate follow-up questions.
To score well on these assessments, I have to demonstrate both an understanding of the legal principles and the ability to think through complex problems.
Critical thinking competencies
Ethan Mollick, a professor at the Wharton School of Business who writes prolifically and insightfully about generative AI, wrote an excellent analogy for how to think about these tools:
The thing about LLMs that make them unintuitive is that analogizing them to having a science fiction AI is less useful than thinking of them as infinite copies of some guy named Steve, a first year grad student who is great at coding & art and is widely-read, but makes up stuff based on what he remembers when he is pressed.
Asking AI to do things an incredibly fast Steve couldn’t do is going to lead to disappointment, but there is a lot of value in Steve-on-demand.
This is a great analogy. When I was analyzing the tax returns of the business, I didn’t have to understand all the line items. But I did have to know how to ask Steve for the important information. Steve doesn’t understand all the intricacies of this business, its context, or my purpose. I could explain these things to him, but he’d still just be Steve. He has limits. I had to ask him the right questions. I had to provide relevant information that wasn’t on the internet and that Steve couldn’t know about. I used Steve the way I would use a good accountant whose help I need to analyze the overall quality of a business.
Coming up with benchmarks to measure the business against its industry was even more challenging because the macroeconomic data I needed was not readily available. I had to gather it from various sources, evaluate the quality of these sources, come up with a relevant metric we could estimate, and apply it to the business in question.
In other words, I had to understand accounting and economics enough to ask an accountant and an economist the right questions and apply their answers to my complex problem. I also had to use critical thinking skills. Steve could help me with these challenges, but I ultimately had to think through the problem to ask Steve for the kind of help he could give me.
When you’re teaching students using a generative AI like ChatGPT, you should be teaching them how to work with Steve. And as bright as Steve may be, your student still has much she can contribute to the team.
Generative AI competencies
Suppose you have a circle of intelligent friends. Steve is brilliant. He has a mind like an engineer, which can be good or bad. Sometimes, he assumes you know more than you do or gives you too short an answer to be helpful. Also, he’s been focused night and day on his dissertation for the last two years and doesn’t know what’s been happening in the real world lately. He’ll do a quick internet search for you if it helps the conversation, but he’s not tuned in.
Your friend Claude thinks like a Classics graduate student. He’s philosophical. He pays close attention to the nuances of your question and tends to give longer answers. He also has a longer attention span. He’s the kind of friend you talk with late into the night about things. He’s somewhat more aware of current events but is also a bit tuned out of the latest happenings. He can be analytical, but he’s more of a word guy than Steve.
Then there’s your friend Anna. Anna Bard. She’s not quite as sharp as either Steve or Claude, but, as an international finance graduate student, she reads everything that’s happening now. If you need to have an in-depth conversation on anything that’s happened in the last two years, Anna is often the person to go to.
Also, all of these friends being young academics in training, they’re not very good at saying “I don’t know” or “I’m not sure.” They’re supposed to be the smartest people in the room, and they very often are. So, they’re not very self-aware of their limitations sometimes. All three of my friends have “remembered” studies or other citations that don’t exist.
And each has their quirks. Claude has a strong sense of ethics, which can be good and bad. I once asked him to modify a chapter of an OER book for me. I gave him the front matter so that he could see the Creative Commons licensing was there. He told me he couldn’t do the work unless he could see the whole book to verify that it was ethically OK to modify the content.
I told him, “Claude, that book is 700 pages. Even you don’t have the attention span to read that much.”
He told me, “You’re right. In that case, I’m sorry, but I can’t help you.”
So I took the chapter to Steve, who had no ethical qualms at all but only skimmed the chapter and lost interest about halfway through my project.
When I do my work, I have to figure out which of my AI colleagues can help me and when to trust them. For the business model analysis, Steve answered most of my questions, but I had to get him some information from my friends who haven’t been locked in the library for the past two years. I asked both Anna and Claude. They were somewhat different from each other, both of which were well-reasoned. I had to do some of my own Googling to help me synthesize the analyses of my two friends, develop my own opinion, and bring it back to Steve so he could help me finish the work.
For the software project, surprisingly, Steve was useless. He assumed I knew more than I did despite my asking him several times to simplify and slow down. Also, the software had changed since he last looked at it. While he tried to make up for it by saying, “Look for a menu item labeled something like ‘X’ or ‘Y’,” he just couldn’t walk me through it. Anna, on the other hand, did a superb job. She knew the latest versions of all the software. She could adjust when I had trouble and needed some extra explanation. While I wouldn’t have guessed that Anna is the better co-worker for that type of task, I am learning how to get the most out of my team.
I have a model called Mistral running on my laptop right now. That’s right. It’s running locally on my laptop. No internet connection is required. I don’t need to share my data with some big cloud company. And I don’t need to pay for the usage.
My subjective experience is that Mistral is generally more competent than GPT-3 but not as smart as ChatGPT-3.5 Turbo. However, according to one calculation, Mistral is 187 times cheaper to run than GPT-4. It’s also relatively easy and affordable to fine-tune, which is a bit like sending her out to earn a MicroMasters in a particular subject.
Let’s suppose I’m a building site engineer for net-zero buildings in Nova Scotia. I have to know all the details of the building codes at the municipal, township, provincial, and national levels that apply to any given project. Since I’m using new building technologies and techniques, I may have to think through how to get a particular approach accepted by the local building inspector. Or find an alternative approach. And very often, I’ll be out in the field without any internet connection. Mistral may not be as smart at questions about macroeconomics or software development as Steve, Claude, and Anna, but she’s smart enough to help me with my job.
If I were running that construction company, I would hire Mistral over the others and pay for her MicroMasters. So I have to know how to evaluate her against other potential synthetic employees I could employ. Choosing Steve would be like hiring a Harvard-educated remote-working external consultant. That’s not what I need.
Fear not
Personally speaking, my daily use of generative AI hasn’t made me dumber or lazier. Sure, it’s saved me a lot of work. But it’s also enabled me to do work that was beyond my reach before. It feels a little like when Google first came out. If I’m curious about something, I can explore it instantly, any time I want, and go as deep as I want.
In fact, generative AI has made me a better learner because I’m fearless now. “Can’t” isn’t a viable starting assumption anymore. “Oh, I can’t analyze tax returns.” That answer doesn’t cut it when I have an Ivy League accounting MBA student available to me at all times. I need to know which financial questions to ask and what to do with the answers. But if I don’t at least try to solve a problem that’s bugging me, I feel like I’m copping out. I almost can’t not try to figure it out. The question won’t leave me alone.
Isn’t that what we want learning to feel like all the time?
On October 26, 2023, the National Labor Relations Board (NLRB) released its final rule amending the standard for determining joint employer status under the National Labor Relations Act (NLRA). The rule replaces the board’s 2020 final rule on the same issue and greatly expands joint employer status under the NLRA.
The final rule establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation; work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; and assignment and work rules. Today’s final rule finds that either indirect control or reserved control may stand alone as sufficient for finding that a joint employer relationship exists. The final rule specifically states that an entity may be considered a joint employer if it possesses the authority to control one or more essential terms and conditions of employment, regardless of whether that authority is exercised, or if it exercises the power to indirectly control one or more terms and conditions of employment, regardless of whether that power is exercised directly. This is a departure from the 2020 rule, which found that an entity must exercise substantial direct and immediate control over essential terms and conditions of employment to be considered a joint employer.
Joint employment has recently been a focal point for higher ed institutions as disputes around the worker classification of student-athletes continue. Last year, an NLRB regional office announced it would be pursuing a complaint by a student-athlete advocacy group that filed an unfair labor practice charge against that the University of Southern California, the Pac-12 Conference, and the NCAA, alleging that the three entities are joint employers who violated the NLRA by “repeatedly misclassifying employees as ‘student-athlete’ non-employees.” The case is set to be heard by an administrative law judge in November, but a final decision could take years to come to fruition.
This final rule could have significant implications for private institutions, as they fall under the NLRB’s jurisdiction. Public institutions are not impacted by this rulemaking, as the NLRB does not have jurisdiction over public entities.
CUPA-HR is assessing the final rule and will provide members with more information as it becomes available.
On September 28, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published new proposed guidance for employees and employers on navigating and preventing workplace harassment. “Enforced Guidance on Harassment in the Workplace” highlights and upholds existing federal employment discrimination laws and precedence, such as the Pregnant Workers Fairness Act (PWFA) and the Supreme Court’s Bostock v. Clayton County decision.
The Updated Guidance
The proposed enforcement guidance provides an overview and examples of situations that would constitute workplace harassment. Of particular interest are provisions included that reflect new and existing protections from harassment under federal laws and precedence, as well as emerging issues surrounding the workforce. The guidance discusses the following notable provisions for consideration:
Pregnancy, childbirth and related medical conditions. The guidance states that sex-based harassment includes harassment revolving around pregnancy, childbirth or related medical conditions, all of which are protected under federal laws like the Pregnancy Discrimination Act and the recently enacted PWFA.
Sexual orientation and gender identity. The guidance provides several examples of discrimination and harassment on the basis of sexual orientation and gender identity, which is considered sex-based discrimination under Title VII of the Civil Rights Act after the Supreme Court’s 2020 Bostock v. Clayton County decision.
Virtual and online harassment. The guidance states that conduct within a virtual work environment can contribute to a hostile environment, providing examples such as harassing comments made during remote calls or discriminatory imagery being visible in an employee’s workspace while in a work-related video call. Additionally, the guidance provides examples of conduct on social media outside of work-related contexts that may contribute to hostile work environments if such conduct impacts the workplace.
In the proposed guidance, the EEOC reminds stakeholders that the final guidance will “not have the force and effect of law” and that such guidance is “not meant to bind the public in any way.” Instead, the document “is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.”
Looking Ahead
The proposed guidance is open for public comments through November 1, 2023. Once the comment period closes, the EEOC will review all feedback they received and make changes to address the comments prior to issuing a final rule. CUPA-HR will keep members apprised of any updates on this EEOC guidance, as well as new and existing laws falling under the EEOC’s jurisdiction.
On September 28, 2023, the Department of Education released a report titled “Strategies for Increasing Diversity and Opportunity in Higher Education.” The report was issued in response to the Supreme Court’s June 2023 ruling against affirmative action in college admissions and it outlines ways institutions and states can adapt to prioritize improved accessibility to educational opportunities for underserved students.
The Report
In an introductory message for the report, Secretary of Education Matthew Cardona emphasized the enduring commitment to equal opportunity and student body diversity in higher education on behalf of his department and the president’s administration. While condemning the Supreme Court’s decision on affirmative action, Cardona pledged the Department of Education’s and the Biden administration’s support in promoting inclusivity and equity and stimulating long-term prosperity.
The Department of Education’s report centers around four areas that the administration believes institutions should consider when working to promote diversity and opportunity on campus: student recruitment, admissions, financial aid and student retention. The report focuses mostly on promoting diversity, equity and inclusion (DEI) initiatives in these areas to ensure underserved students have an equitable opportunity to be admitted into and succeed in postsecondary programs.
Relevant to higher education HR, the report discusses the need for improved training of admissions officers and other employees to ensure consistent, equitable evaluations of applicants.
Moving Forward
Prior to the release of the Supreme Court’s affirmative action decision, stakeholders also raised concerns regarding the impact such a decision could have on hiring and employment decisions as well as programs or initiatives focused on creating diverse and inclusive workplaces that align with institutional values. The decision to strike down race-based affirmative action in admissions practices could leave employers open to future legal challenges regarding their hiring decisions and other diversity programs.
CUPA-HR endorses efforts to promote inclusive communities on campuses across the nation. The government relations team continues to track developments impacting these efforts and will inform members of updates as they become available.
Culture was at the heart of the three keynote events at CUPA-HR’s 2023 national conference, which took place recently in New Orleans. Our keynote speakers asked thought-provoking questions that resonate with higher ed HR’s mission. Engaging with these questions can help you boost employee engagement, promote a culture of inclusivity and strengthen collaboration with your campus colleagues.
1. Are You Creating an Ecosystem of Opportunity?
Organizations with strong learning cultures tend to have significantly higher retention rates.
In her keynote presentation on employee retention, business strategist and author Erica Keswin pointed out that the days of climbing the same corporate ladder for 50 years are long gone. Organizations are flatter, which means you need to get creative to give people opportunities to move not only up, but sideways, helping them gain new skills and find new pathways for their careers. Instead of thinking “ladders,” Keswin said, think “lilypads.”
She also encouraged attendees to talk about employee learning opportunities early and often, beginning with their onboarding programs! Managers should be talking regularly with employees about what skills they want to learn and giving them the opportunity to learn with no strings attached.
The mission, values and priorities of higher education have learning at their core, and that culture of learning is a value proposition higher ed is uniquely positioned to provide as an employer. Make it work to your advantage by prioritizing learning and opportunity for all employees.
Another key takeaway from Keswin’s presentation was the importance of being a “human professional” and checking in with your team on a regular basis. She shared the story of a company that starts team meetings with a quick check-in called “Pick Your Nic.” Referring to a popular meme of Nicolas Cage images representing different feelings (happy, relaxed, excited, focused, stressed, meh, etc.), each person picks the Nic that represents how they’re feeling that day. The goal isn’t to address the responses in the meeting, but rather to give the team leader the opportunity to take a pulse and to give team members the opportunity to be seen and heard.
You’ll find more retention strategies in Keswin’s new book, The Retention Revolution: 7 Surprising (and Very Human!) Ways to Keep Employees Connected to Your Company. And be sure to check out the article “The Higher Ed Employee Retention Crisis — and What to Do About It” in the fall issue of Higher Ed HR Magazine.
2. Are You Treating Diversity as a Problem to Be Managed or a Value to Be Cherished?
When it comes to creating and sustaining a more inclusive culture, Princeton professor and religion scholar Dr. Eddie S. Glaude Jr. prompted attendees to consider a question: Do you view diversity as a problem to be managed or a value to be cherished?
Through a problem-solving lens, we might see diversity as a series of goals to be met and obstacles to be overcome. Through the lens of a cherished value, on the other hand, we are more likely to see every situation as an opportunity to expand and celebrate diversity of people and ideas. A problem-solving lens divides “us” from “others,” while a value-based lens sees diversity as constitutive of who we are, as a people, a country and an institution. Instead of envisioning inclusion as something undertaken in response to a mandate or in compliance with a law, what if diversity was seen as key metric of an institution’s success?
The data support the positive impact of diversity on metrics like productivity and creativity in the workplace, and Glaude urged higher education to also view diversity as an integral part of its core identity and a reflection of its regional or national reach.
To see how your institution compares to others when it comes to composition of your workforce and pay equity for employees, see the results of CUPA-HR’s signature surveys.
3. Are You Ramping Up Retention Efforts in Your Most Vulnerable Departments?
Retention and recruitment were on everyone’s mind at CUPA-HR’s annual conference. The closing panel discussion brought together leaders in student affairs, campus facilities and IT and provided insights on how HR can partner with these campus constituencies to support a culture of belonging. Here are a few of their recommendations:
Provide training opportunities.
John O’Brien, president of EDUCAUSE, which represents IT professionals in higher ed, stressed the importance of career pathways to support employees’ desire to grow in their careers.
Noting that “supervisors will make or break us,” Lander Medlin, president and CEO of APPA, which serves the needs of facilities professionals, stressed the critical role that supervisor training has on retention and workplace culture in facilities, where the aging of the skilled craft workforce has posed unique recruitment and retention challenges, and all areas.
Ensure employees feel they belong and are valued.
No matter their role on campus, employees want their opinions to be heard and valued.
Kevin Kruger, president of NASPA, the association for student affairs administrators in higher education, noted that millennial and Generation Z employees especially want to feel cared about at work and to believe their opinions matter. Today, as all student affairs professionals find themselves on the front lines of the mental health crisis, they need supervisors who have the skills to meet them where they are and to create a culture of belonging.
Medlin seconded the importance of feeling heard when it comes to job satisfaction. She would ask supervisors this question: Are you a coach and mentor, or are you a boss?
Offer job flexibility.
Some campus jobs don’t easily lend themselves to remote work, but that doesn’t mean institutions can’t build in flexibility, which CUPA-HR found is a key retention factor.
For example, facilities employees might take advantage of a compressed workweek, with employees having the option to work four 10-hour shifts.
Since student affairs professionals often work outside of a typical nine-to-five day, there’s room for remote work. In fact, students might prefer to meet with student affairs professionals remotely.
If year-round remote work isn’t a possibility, seasonal flexibility might be. When students are off campus during holiday and summer break, your staff might be able to work from home.
See employees as a strategic asset (and pay them accordingly).
The three areas represented by the panel — IT, facilities and student affairs — are among the most vulnerable to turnover and recruitment challenges on most campuses. How can HR lead the way in creating a culture that positions these employees as strategic assets? The panel offered these suggestions, based on their unique perspectives:
O’Brien encouraged satisfaction surveys. Find what’s working well and replicate it.
Kruger recommended streamlining job searches, posting salary ranges, and focusing on internal pay equity and livable wages.
Medlin asked conference attendees to help us help you. How we treat people matters, and HR leads the way in building that culture of belonging.
This blog post was contributed by Elena Lynett, JD, senior vice president at Segal, a CUPA-HR Mary Ann Wersch Premier Partner.
Institutions generally provide comprehensive mental health and substance use disorder (MH/SUD) benefits as part of their commitment to creating a safe and nurturing campus. However, the Mental Health Parity and Addiction Equity Act (MHPAEA) requires that institutions providing MH/SUD benefits ensure parity in coverage between the MH/SUD and medical/surgical benefits. The Department of Health and Human Services, the Department of Labor, and the Department of the Treasury recently proposed major changes to the MHPAEA regulations for group health plan sponsors and insurers.
The proposed changes address nonquantitative treatment limitations (NQTLs) — a term which references a wide range of medical management strategies and network administrative practices that may impact the scope or duration of MH/SUD benefits. Examples of NQTLs include prior or ongoing authorization requirements, formulary design for prescription drugs, and exclusions of specific treatments for certain conditions.
If government agencies issue a final rule similar to the proposal, plans will face additional data collection, evaluation, compliance and administrative requirements. The most significant proposed changes are:
The “predominant/substantially all” testing that currently applies to financial requirements and quantitative treatment limitations under MHPAEA would apply as a threshold test for any NQTL;
New data collection requirements, including denial rates and utilization information;
A new “meaningful benefits” standard for MH/SUD benefits;
Detailed requirements regarding the documented comparative analysis that plans must have for each applicable NQTL;
Introduction of a category of NQTLs related to network composition and new rules aimed at creating parity in medical/surgical and MH/SUD networks;
Prohibition on separate NQTLs for MH/SUD;
For plans subject to the Employee Retirement Income Security Act of 1974 (ERISA), a requirement that a named fiduciary would have to review and certify documented comparative analysis as complying with MHPAEA; and
For non-federal governmental plans, sunset of the ability to opt out of compliance with the MHPAEA rules.
The deadline to comment on the proposed rules isOctober 17, 2023. If interested, your institution may file comments here. CUPA-HR will be filing comments with other associations representing higher education and plan sponsors. As proposed, plans could be expected to comply as early as the first day of any plan year beginning on or after January 1, 2025.
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
Governor Newsom Vetoes Bill That Would Ban Caste Discrimination
California Governor Gavin Newsom vetoed what would have been the first specific state ban on employment discrimination on the basis of caste. Seattle recently became the first U.S. municipality to ban caste discrimination. The California bill would have added caste to the definition of ancestry, which is already included in state law. The governor stated in his veto declaration that existing law already covers this type of discrimination. Commentators weighed in on both sides of this conclusion, some stating there is no specific case law on this question.
Caste is defined as a system of rigid social stratification based on a person’s birth and ancestry and primarily affects people of South Asian descent. Allegations of caste discrimination have recently arisen and gained notoriety in California’s tech industry. This proposal has been subject to much controversy in California, including a hunger strike by those supporting the proposal.
University Trustees May Be Sued for Professor’s Alleged First Amendment Claims
The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) recently rejected a university board of trustees’ motion to dismiss First Amendment lawsuit allegations against them, holding that sovereign immunity did not apply to the board members (Jackson v. Wright (5th Cir., No. 22-40059, 9/15/23)).
The case involves eight members of the University of North Texas board of regents who were sued by a music professor. The professor lost his position as editor in chief of a university music journal because of alleged “racial statements” contained in an article he published in advance of a 2020 symposium sponsored by the journal.
In denying the sovereign immunity defense, the court concluded that the trustees had direct authority over university officials who denied the professor his First Amendment rights. The court noted that the trustees had refused to act on a letter the professor had submitted to the trustees raising the issue.
SEIU Local 560 Files NLRB Petition to Represent the Dartmouth College Men’s Basketball Team
To address the student-athlete employee status issue encouraged by the existing National Labor Relations Board’s general counsel, Service Employees International Union Local 560 has brought a petition to the NLRB to represent the Dartmouth College men’s basketball team in collective bargaining negotiation with the institution. This is nearly a decade after the NLRB denied jurisdiction over student athletes in the Northwestern case. If the SEIU is successful, it would be the first case involving potential unionization of college athletes.
The filing follows on the heels of the favorable Supreme Court decision striking down the NCAA’s ban on compensation of student-athletes for name, image and likeness in the 2021 case NCAA v. Alston. While the Supreme Court did not address the labor organizing question under the National Labor Relations Act for student athletes, it certainly took the first step in recognizing the group as employees.
This case brings an added mechanism for the NLRB to decide whether student-athletes are protected under the NLRA and able to organize into labor unions. The NLRB’s general counsel already raised the issue in May of this year in the case brought against the University of Southern California, the Pac-12 Conference, and the NCAA, in which they are alleged to have violated the NLRA in failing to recognize student-athletes as employees.
On the first day of the NLRB hearing, Dartmouth took the position that the athletes involved are students who do not meet any of the common law attributes of employees and, therefore, are not union-eligible employees under the NLRA.
Undergraduate Student-Employee Union Organizing Is Expanding, Leading the Way to More Organization Drives
Bloomberg reports that there are now over a dozen colleges in the U.S. with undergraduate student-employee unions. This is up from just two before 2022. Pay, sick leave and insecurity due to the COVID-19 pandemic have been reported as reasons prompting this significant increase in undergraduate employee organizing, which appears to be motivating expanded organizing at the graduate assistant and professor levels.
A union-organizing campaign appears to be proceeding across campus lines at the California State University System, where a union is organizing as many as 20,000 undergraduate workers at 23 campuses, Bloomberg reports. Separately, 4,000 University of Oregon student employees are set to vote next month on union representation.
Fired Football Coach Sues University, Seeks $130 Million in Damages
A former Northwestern University football coach has sued the university and its president for wrongful discharge and defamation and is seeking a minimum of $130 million in damages. The lawsuit alleges that the coach was fired for “no reason whatsoever.”
The coach was placed on a two-week unpaid suspension after a six-month investigation revealed incidents of hazing within the football program. The report was allegedly inconclusive as to whether the coaches were aware of the hazing. Details of the actual termination will be the subject of the trial. We will follow developments as they unfold.
Earlier this year, I had the pleasure of consulting for the Education Design Lab (EDL) on their search for a Learning Management System (LMS) that would accommodate Competency-Based Education (CBE). While many platforms, especially in the corporate Learning and Development space, talked about skill tracking and pathways in their marketing, the EDL team found a bewildering array of options that looked good in theory but failed in practice. My job was to help them separate the signal from the noise.
It turns out that only a few defining architectural features of an LMS will determine its fitness for CBE. These features are significant but not prohibitive development efforts. Rather, many of the firms we talked to, once they understood the true core requirements, said they could modify their platforms to accommodate CBE but do not currently see enough demand among customers to invest the resources required.
This white paper, which outlines the architectural principles I discovered during the engagement, is based on my consulting work with EDL and is released with their blessing. In addition to the white paper itself, I provide some suggestions for how to move the vendors and a few comments about other missing pieces in the CBE ecosystem that may be underappreciated.
The core principles
The four basic principles for an LMS or learning platform to support CBE are simple:
Separate skill tree: Most systems have learning objectives that are attached to individual courses. The course is about the learning objectives. One of the goals of CBE is to create more granular tracking of progress that may run across courses. A skill learned in one course may count toward another. So a CBE platform must include a skill tree as a first-class citizen of the architecture, separate from the course.
Mastery learning: This heading includes a range of features, from standardized and simplified grading (e.g., competent/non-yet) to gates in which learners may only pass to the next competency after mastering the one they’re on. Many learning platforms already have these features. But they are not tied to a separate skill tree in a coherent way that supports mastery learning. This is not a huge development effort if the skill tree exists. And in a true CBE platform, it could mean being able to get rid of the grade book, which is a hideous, painful, never-ending time sink for LMS product developers.
Integration: In a traditional learning platform, the main integration points are with the registrar or talent management system (tracking registrations and final scores) and external tools that plug into the environment. A CBE platform must import skills, export evidence of achievement, and sometimes work as a delivery platform that gets wrapped into somebody else’s LMS (e.g., a university course built and run on their learning platform but appearing in a window of a corporate client’s learning platform). Most of these are not hard if the first two requirements are developed but they can require significant amounts of developer time.
Evidence of achievement: CBE standards increasingly lean toward rich packages that provide not only certification of achievement but also evidence of it. That means the learner’s work must be exportable. This can get complicated, particularly if third-party tools are integrated to provide authentic assessments.
The second one is tricky to even characterize but it has to do with the content production pipeline. Curricular materials publishers, by and large, are not building their products in CBE-friendly ways. Between the weak third-party content pipeline and the chronic shortage of learning design talent relative to the need, CBE-focused institutions often either tie themselves in knots trying to solve this problem or throw up their hands, focusing on authentic certification and mentoring. But there’s a limit to how much you can improve retention and completion rates if you don’t have strong learning experiences, including formative assessments that enable you to track students’ progress toward competency, address the sticking points in learning particular skills, and so on. This is a tough bind since institutions can’t ignore the quality of learning materials, can’t rely on third parties, and can’t keep up with demand themselves.
Adding to this problem is a tendency to follow the CBE yellow brick road to what may look like its logical conclusion of atomizing everything. I’m talking about reusable learning objects. I first started experimenting with them at scale in 1998. By 2002, I had given up, writing instead about instructional design techniques to make recyclable learning objects. And that was within corporate training—as it is, not as we imagine it—which tends to focus on a handful of relatively low-level skills for limited and well-defined populations. The lack of a healthy Learning Object Repository (LOR) market should tell us something about how well reusable learning object strategy holds up under stress.
And yet, CBE enthusiasts continue to find it attractive. In theory, it fits well with the view of smaller learning chunks that show up in multiple contexts. In practice, the LOR usually does not solve the right problems in the right way. Version control, discoverability, learning chunk size, and reusability are all real problems that have to be addressed. But because real-world learning design needs often can’t be met with content legos, starting from a LOR and adding complexity to fix its shortcomings usually brings a lot of pain without commensurate gain.
There is a path through this architectural mess, just like there is a path through the learning platform mess. But it’s a complicated one that I won’t lay out in detail here.
While the ongoing turnover crisis impacts all of higher ed, supervisors are among the hardest hit. In our recent study, The CUPA-HR 2023 Higher Education Employee Retention Survey, supervisors say they’re grappling with overwork and added responsibilities (especially when their staff members take other jobs), while struggling to maintain morale.
Supervisor retention is especially critical in a time of turnover, as these are the employees we rely on most to preserve institutional knowledge and provide continuity amid transition. But our research shows that many supervisors are not getting the kinds of institutional support they need. By empowering managers to make decisions on behalf of their staff, institutions make it less likely that their supervisors will seek employment opportunities elsewhere.
The Supervisor’s Perspective
Taking a closer look at the data, it’s clear that supervisors are overworked and under-resourced. Seven in ten work more hours than what is expected of full-time employees at their institution. Nearly double the percentage of supervisors versus non-supervisors agree that it is normal to work weekends and that they cannot complete their job duties working only their institution’s normal full-time hours.
Supervisors are also facing challenges unique to their leadership roles. Filling vacant positions and maintaining the morale of their staff are their chief worries:
Strategies for Supervisor Retention
Given the pressures supervisors are under, what can institutions do to ensure that their top talent won’t seek other employment? While common retention incentives like increased pay and recognition are crucial, supervisors need improved institutional support.
Our data show that supervisors are in need of the following:
When supervisors are empowered in these ways, they are less likely to be among the 56 percent of employees who say they’re at least somewhat likely to search for a new job in the coming year.
