Ask HN: Is it legal for companies to intentionally discriminate in recruiting? | Hacker News Reader

Ask HN: Is it legal for companies to intentionally discriminate in recruiting?

5 pointssvloophole6 comments

In my own experience, and in talking to some friends, it seems that many Silicon Valley tech companies have devised a legal loophole for discrimination, in an effort to bump up their "Diversity" numbers.

The CEOs are facing lot of social shaming for not having more "URMs" and female employees but it's illegal to actively reject candidates merely for being white/asian and male, which make up the majority of qualified candidates for many roles.

So, the "trick" seems to be that CEOs are telling their recruiters to actively recruit candidates that are non-white/east asian and non-male as much as possible.

So, for example, they might recruit 10 candidates for a role, and make sure that 80% of them are "URMs" or female, based on looking at their LinkedIn profile picture/name.

In other words, they very deliberately pass over qualified candidates on the basis of them being white/east asian males. Clearly this is racial/gender discrimination but, by virtue of the candidates not knowing they were passed over, and not having actually been interviewed, it seems to be legal?

The discriminated-against people have no standing because they can't prove anything, at least not without going to court, and that would require standing I assume.

The hushed tones that people discuss these policies seems to indicate that they know it's legally grey, but I'm curious how legal it is.

Here's the thing about "dsicrimination" - it happens.

All the time.

In fact, it's pretty much required.

If it weren't, they wouldn't bother with interviews, and instead would just hire whatever person first said, "do you have a job?"

Here's the other thing about "discrimination" - you can [almost] never prove someone illegally discriminated against you.

I'm white and male (two instastrikes for some places in today's politically-correct climate). But was I not contacted because I'm white and male? If so, then the other few 100 millions white males should sue for discrimination, because they were passed-over, too.

You wanna hire "under-represented minorities" or women? Cool. Recruit whomever you want.

The "unlawful" discrimination comes when I, or someone else also qualified (but not fitting your looks-based "criteria") apply and you turn me down because I don't fit your looks-based criteria. So if you're going to turn me down, you had better have some documented reasons from the interview process (and trust me, this isn't especially hard) that pass the legal sniff test over discrimination :)

I want to hire people who can do the job.

I don't care what skin color you have, or whether you've got a penis or a vagina - the only thing that matters is: can you do the job?

Maybe more accurately, "can you do the job here?"

I think of the odd fact that Oracle has been sued by old white men who think they've been laid off in preference to young south asians and by young south asians who think that Oracle exploits them by paying a less than market rate.

Both are right.

It depends if you are a protected class, but race and gender are protected. As said by another you would need to prove that it was discrimination and have hard evidence to prove it. Once such example: https://www.texasemployerhandbook.com/2012/09/believe-it-or-...

However, companies that have diversity goals have not been found to be discriminatory as it’s been argued that the diversity goals create a multicultural environment that benefits the business. A company cannot and would not list a candidate as being rejected because of their race or because the company needed to meet a quota. As you said it’s a gray area.

> However, companies that have diversity goals have not been found to be discriminatory as it’s been argued that the diversity goals create a multicultural environment that benefits the business.

Is there an "it's okay if it benefits the business" clause in US anti-discrimination law? If so, could one find a few studies that highlight the ills of diversity [1,2,3], and use them to argue they're allowed to discriminate to achieve an ethnically homogeneous workplace?

[1] A Harvard political scientist finds that diversity hurts civic life. - http://www.boston.com/news/globe/ideas/articles/2007/08/05/t...

[2] Living in Ethnically Homogenous Area Boosts Health of Minority Seniors - https://www.publichealth.columbia.edu/public-health-now/news...

[3] Our analysis shows that peace does not depend on integrated coexistence, but rather on well defined topographical and political boundaries separating groups - http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjourna...

You could try but I don’t think it’s the best argument since you’ll find equal or more research saying the opposite and courts don’t arbitrate business decisions in that way.

There’s the lawsuit against Harvard that’s unfolding now to try to strike down such policies, they’re using Asian Americans as the minority that is being harmed by the admittance process.

When this has been brought before the Supreme Court before they’ve sided with business and colleges by arguing the process is a holistic review rather than being a decision made on one criteria.

The most recent Supreme Court decision is here. Affirmative action may allude to a critical mass of diversity but this cannot be defined in quantities or percentage. Applications cannot be scored on race, it can only be part of a holistic review.

https://en.m.wikipedia.org/wiki/Fisher_v._University_of_Texa...

For Harvard, they use a personality scoring metric, but the Asian Americans have argued that this metric disproportionately disadvantaged Asians.

Personally - my thinking is that meritocracy is a flawed model that leads to stratification of society. Knowing that life is largely a deterministic process, I can’t say that the best way to run things is to let those with the luckiest genetics, inherited wealth, or connections continue to be rewarded over those that are less fortunate. The underlying factors do need to be dealt with somehow. We’re focused on race, but that’s one of many things out of your control that affect your future.

I think it is legal indeed to filter candidates by these metrics prior to the interview.

As a hiring manager at a previous company, I was explicitly told by HR to automatically move all female candidates to the phone screen step, regardless of their resume, to improve our chances to get a "diversity hire". I assume HR knew what they were doing from the point of view of the law.

That being said, this is just one anecdote. I have not seen it at another employer. I don't know how common it is.

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