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Comment by LyndsySimon | Hacker News Reader

Serious question - since Ohanian has publicly stated that he urged the board to replace him with black candidate, is there a possibility that could face an EEOC charge?

Perhaps this doesn’t apply, as there may not be “applicants” depending upon how their bylaws are set up - without applicants I’m not sure who would have standing.

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EEOC says "In most circumstances, individuals who are partners, officers, members of boards of directors, or major shareholders will not qualify as employees."

https://www.eeoc.gov/laws/guidance/section-2-threshold-issue...

Just because Ohanian asked doesn't mean they had to do it. One can therefore conclude that they still chose a suitable candidate and would have chosen a differently colored candidate could they not find a suitable black candidate.

I think it's all fine. But do you, or anyone else, really believe anything but a black person was going to be picked?

They said that they were going to honor his wish...

I saw media coverage claiming the board agreed to his request. I don't know how accurate it was, though.

Reddit publicly committed to selecting a director based on race.[0]

Hiring and firing in the US based on race is typically unlawful, even if the candidate is qualified. You can’t use race as a qualification.

It’s a challenge to the laws, and I assume Reddit(or Conde Nast) wants to raise it.

https://www.nzherald.co.nz/business/news/article.cfm?c_id=3&...

Perhaps I am naive, but I'm going to guess that whoever Reddit's counsel is was briefly cleared on this.

Absolutely. It’s a bet. Heads, it works. Tails, Condé Nast becomes known for litigation against the Trump DOJ, fighting against systemic racism.

For the lawyers, it beats mopping up Bon Appetit’s editor in brownface.

So requiring to pay for a position only for a specific skin color is not actual systemic racism, as long as color is not white, because white people are racists and this fights against that, or am I completely missing the mark?

I'm sure people here are also well versed in silicon valley HR hiring practices regarding skin color based quotas.

I think OP's point has to do with the perceived value of their moral signaling vs the actual morals themselves.

It is a win-win for Reddit in terms of perception, whether they have to fight a case because of it or not. If anything, this would be an 'any publicity is good publicity' situation.

Now if it is actually inline with a truly moral stance...who cares. In this system there are only 3 morals. Money, money and more money.

I was explicitly not taking a position on the action itself. I’m honestly interested to see how this might open a company to litigation.

1. A director looks more like an employee post-AB5, so it could be employment discrimination in California.

2. Independent contractors are protected against some race-based mistreatment in California.

3. The Unruh Act prohibits California businesses from race discrimination in offering “advantages” and “privileges” to non employees.

4. The next employee fired will have a much better case that their employment was terminated based on race — as Reddit openly does make decisions based on race.

Granted, there are responses to all of these. Maybe even constitutional defenses. Maybe they’ll argue some other state’s laws apply, but all US states have pretty broad non discrimination laws — for a reason.

Section 2750.3 of the California Labor Code was added by AB5, and specifically excludes board members as employees.

Like many things around AB5, that's not straightforward. They'd have to severely limit his actual involvement to avoid employee status.

https://www.natlawreview.com/article/do-directors-avoid-empl...

A director of the company will easily pass the ABC test anyway. Especially given that he's a director at lots of other companies and has an existing full time job.

In the past, SCOTUS has ruled that laws banning discrimination only grant new rights to the group the legislators were interested in helping. So anti-age discrimination laws only prevent discriminating against the old, not the young. If you understand the politics of race in America, it will actually not be very interesting to see how US courts will rule here.

The fact that you can write “We are an equal opportunity affirmative action employer.” and not get sued gives the lie to this. The plain reading of the law and how it is interpreted and enforced are at odds.

The problem is you're missing an important aspect: members of the board of directors aren't employees.

One, you can't use race, gender, etc unless it's relevant to the job, but here it could be seen as being relevant to the job. Two, a board director position is not a job, and so it's not covered by this law.

I’m sure they’ll argue whatever they can. AB5 makes it more difficult to not be an employee in California. And there are far more non-discrimination laws than “employee.”

A member of the board of directors of a company is not an employee.

If you think some specific, non-employment nondiscrimination law is relevant here, please cite it. But note that this is a shift in your previous position, which is that this is a job.

Had to go back and check, given the bold assertions of others in the thread.

https://www.natlawreview.com/article/do-directors-avoid-empl...

It's worse than just illegal, now that they announced that, everyone will assume his skin color is the only reason he was appointed (or at least a major factor) - despite an impressive resume.

Reddit hasn't been owned by Conde Nast for a long time.

Board members aren't employees, so discrimination rules don't apply. In fact California already has a law requiring discrimination based on gender (another protected class) for boards. All California companies must have one female board member and have at least two by 2021.

Heh. It’s still connected by the old Newhouse empire at the top, but you’d know that better than most, I’d wager.

For one thing a board position isn't a job.

Also for some reason whenever a company tries to fight discrimination some people accuse them of discrimination, it's wierd

It’s kind of hard to argue that excluding candidates based on the color of their skin isn’t discrimination. Keep in mind that black folks aren’t the only minority in the US. All the rest just got a giant middle finger.

Now you can rationalize it by saying that this was bringing some balance the representation on the board, which is also true. That’s fair. But it’s still discrimination.

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