Hacker News Reader

Comment by fapjacks | Hacker News Reader

Speaking of smells, my initial reaction is that Disparate Impact smells broken. I can see pretty clearly how it would be possible to argue legally that advertising a job internally and not externally (to a company) is discriminatory. And following that further along, in this way, I can see a pretty straightforward method of declaring any job advertising as discriminatory under that decision. I think law like this is broken because it's like many (American) laws where it ends up selectively enforced, because the base of people violating the law is effectively infinite. So in that way it's not used to fight discrimination, but instead becomes yet one more way to fight the oldest battle in history: The battle to consolidate and preserve the power of existing institutions of control and weaken the influence of competition and punish outsiders.

View on HN

I think law like this is broken because it's like many (American) laws where it ends up selectively enforced

Laws like these are not criminal laws, and are not meant to be enforced if by that you mean policed. It's up to someone to file a lawsuit, if they think the law is on their side. Then a judge will have to rule whether or not the law applies in that particular case, and in doing so they may set a precedent which will influence how later cases will be judged.

And following that further along, in this way, I can see a pretty straightforward method of declaring any job advertising as discriminatory under that decision

You may think so, but this is why we have judges. Just because you can make and argument, it doesn't mean that argument will be persuasive to a judge. You may further think that this means that the outcome of a trial is arbitrary, and you would be right in the sense that law is not an exact science, and the result of a verdict can be difficult to predict if the evidence is weak and/or there is no precedent. But you would also be wrong in the sense that each verdict rendered helps to set precedent, and judges (and lawyers) always look to see what precedent has been set, both when it comes to how to interpret the law, but also when it comes to establishing what counts and doesn't count as evidence.

Disclaimer: IANAL. I'm not even American.

The fact that it's not actively enforced by the state doesn't matter.

It's basically the civil equivalent of an actively enforced law nobody can possibly comply with at all times that gives the cops the power to harass whoever they want whenever they want (e.g. the 55mph speed limit on I95 in the Boston area) except instead of empowering cops to harass people on flimsy pretext they're empowering plantiffs to harass companies on flimsy pretext.

Laws and precedents (in the case of civil litigation) that well meaning parties can't possibly comply with are bad.

The law is written assuming that it won't be abused even despite it being ripe for abuse.

>Laws like these are not criminal laws, and are not meant to be enforced if by that you mean policed. It's up to someone to file a lawsuit, if they think the law is on their side.

That's worse, because then it shifts the burden of en^W^W policing onto those who actually want to go through the time and expense of a lawsuit, so only the most egregious abuses against the most powerful people will ever see judicial oversight, providing an extremely noisy signal that never provides reliable guidance, esp when (as parent notes) huge classes of activity are violating the ostensible "disparate impact" criteria but never prosecuted.

> But you would also be wrong in the sense that each verdict rendered helps to set precedent,

But those verdicts don't help when the set of cases going to trial is skewed as above. The only real signal it sends is "hey, don't do it in a way that might get noticed by someone who actually matters".

> Laws like these are not criminal laws, and are not meant to be enforced if by that you mean policed. It's up to someone to file a lawsuit, if they think the law is on their side. Then a judge will have to rule whether or not the law applies in that particular case, and in doing so they may set a precedent which will influence how later cases will be judged.

This is one of the reasons that the "loser pays" approach to the cost of litigation used in much of the rest of world would not work well in the US. We use private civil lawsuits to enforce things that would be enforced by government agencies in much of the rest of the world, so it is important that individuals can bring lawsuits against much bigger, much better funded entities without having to worry about getting wiped out financially if they lose.

Are you a lawyer?

> I can see pretty clearly how it would be possible to argue legally that advertising a job internally and not externally (to a company) is discriminatory.

I think the precedent is the opposite. Companies and governments in the US do this all of the time without legal risk.

> And following that further along, in this way, I can see a pretty straightforward method of declaring any job advertising as discriminatory under that decision.

Perhaps a bit of a stretch here. Companies and governments will continue to advertise jobs

> So in that way it's not used to fight discrimination, but instead becomes yet one more way to fight the oldest battle in history: The battle to consolidate and preserve the power of existing institutions of control and weaken the influence of competition and punish outsiders.

This sounds like good old competition to me. Why would an established player not weaken competition with pricing or product value?

Reply on news.ycombinator.com