Hacker News Reader

Comment by yieldcrv | Hacker News Reader

> Employees who have historically been entrenched in the majority are also entitled to protection under laws that were intended to assure equal treatment for women and racial minorities.

To me this is obvious. A plain reading of EOCC employment discrimination regulations make this obvious.

The mere fact that this is deemed as "novel" or newsworthy or intriguing is a poor reflection of society itself. Fortunately the judges all understand it, even if this diverges so heavily from the general population (including employer's) understanding of race and sex inclusion/discrimination.

But it kind of reminds me of academia, when all the students get it wrong, then maybe its the teacher! Leaving everyone to their own devices to implement an abstract concept of DEI and Affirmative Action keeps leading to the same implementation flaws and polarizing resentment over and over and over again.

View on HN

>> Employees who have historically been entrenched in the majority are also entitled to protection under laws that were intended to assure equal treatment for women and racial minorities.

>To me this is obvious. A plain reading of EOCC employment discrimination regulations make this obvious.

I don't necessarily disagree, but I think this is less obvious when looking at how they define age discrimination. Specifically the protected class is people over 40. Why is that distinction made instead of a blanket "no one can be discriminated against based on their age"? Doesn't that imply it is trying to protect a specific group rather than force equal treatment? Why can't a young person sue for age discrimination? How is that logically different from a white person suing for racial discrimination?

I think part of this is that, obviously it is totally fine to discriminate based on age. Children aren't allowed to work, vote, buy certain items, etc. You're also not allowed certain public offices if you're too young.

I don’t know if the term discrimination fits there. Employers would gladly employ children if not for the law.

I'm not sure why you're being downvoted. I'm fairly sure this is the correct reasoning. We generally think it's acceptable to discriminate on the basis of age in many contexts, one of the most important of those being experience. If you are selecting candidates with more experience or "maturity" than is possible for someone of a particular age, you are effectively discriminating by age.

Perhaps people have morphed their internal definition of the word "discrimination" into something that differs from the dictionary and therein lies the objection?

The difference is that we can conclusively show that children are intellectually under developed.

Old people are often just as intelligent as their younger colleagues, and often wiser as well. Of course there are exceptions, but there are poor performers at every age bracket for a variety of reasons.

Let's abolish these discriminatory labour laws. If a child can go to school he can also work, why rob 8 year olds of this opportunity & force them to school when they could be working in a sweatshop?

Perhaps age is just an oddball compared to the other protected classes, because there are legitimate reasons not to employ someone young (e.g., if the position requires x years of professional experience but the candidate has only been of working age for <x years) while there aren't many legitimate reasons not to employ someone old. Gender, race, etc. don't have this natural asymmetry.

Another interesting angle is that everyone eventually will become old and therefore in this protected class. It's not like race, gender, etc. in that way.

Everyone old was once young, but not everyone young will live to be old.

There's similarly good reasons to not hire somebody old though - theyve already been trained in some other work method, have/spend time with their families, have retirement sooner, etc

> have retirement sooner

By that logic, you shouldnt hire women, since they may get pregnant and take extensive leave on your company’s dime. Or men, whose partner could get pregnant (or adopt).

> have/spend time with their families

Applies to anyone over the age of 18. Probably under 18 too.

> theyve already been trained in some other work method

Which is why once you learn one programming language, you are immediately banned for working with any other language.

I just want to comment that your comment reminded me of min wage requirements. I'd love to hire a really Jr DevOps engineer but because of min wage and benefits that makes it impossible. If there was no min wage requirements I could hire a high school student with interest and not get destroyed financially by regulations

Which is exactly why there are regulations in the first place, to protect also that high school student with interest from being kicked out next year when a new round of high schoolers with interest comes around.

Maybe you can't hire anyone because your business model just sucks.

No, the req just becomes a senior role because comp has to be adjusted accordingly. Do you think min wage creates jobs?

> By that logic, you shouldnt hire women, since they may get pregnant and take extensive leave on your company’s dime

Although you're presenting this as obviously absurd, taking that risk into account was long practice wasn't it? Forcing companies to pretend women are as likely to suddenly disappear for long periods as men is ultimately an economic choice and debatable as such in economic terms. It's essentially a kind of welfare that companies are made to pay, except instead of being an insurance scheme with actuarial rigor and smooth risk sharing over the entire population, it's a form of regressive taxation that disproportionately impacts smaller firms.

It can therefore be argued that it'd be better for society to take a different approach here, maybe more similar to (non-US) healthcare, e.g. mandatory maternity leave insurance, and then allow companies to simply price in the higher risk of extended absences. If they're no longer on the hook for paying wages this difference would be basically disruption risk and shouldn't be a particularly large difference for any but the tiniest firms, especially as motherhood comes with a much longer notice period than the typical resignation.

Feel free to not hire someone because they say that they're going to use obsolete methods, or because they say they're going to take leave in excess of what's offered, or because they say they're going to resign in short order. Just don't use old age -- instead of statements like these -- to make assumptions!

When someone is too young, however, there can be some guaranteed deficiencies that don't require any assumptions in order to know the requirements can't be met; for example, if you are looking to hire someone to create and execute a 10-year plan with prior experience doing so, it's impossible for a very young person to be qualified.

A young person could simply argue that requiring prior experience is a form of age discrimination no different to saying "We are looking to hire someone to run a project, no usage of obsolete methods allowed" and then not defining what that means. After all, "years of experience" is a rather arbitrary measure, it's easy for people to rack up years on projects and learn nothing, and it's common for young people to have insights their elders lack despite the YoE difference. See: Larry Page, Sergey Brin, Mark Zuckerberg, Bill Gates, the young Steve Jobs etc. Lots of young world-changing founders out there who easily beat people with far more experience.

> theyve already been trained in some other work method,

We hired them for prior experience on purpose, yes.

> have/spend time with their families,

If that stands out, your company has a serious culture problem.

> have retirement sooner,

Isn't the average time at a job like 3 years in tech? Who cares if they leave for another company or retire at the end? Outside of tech I'm still skeptical that the odds of jumping for another job vs retiring is that different, actually.

One could argue that a younger person could still be developing mentally and their decision quality and impulsiveness is undergoing change. Someone under 21 or 18 for example. But the same argument would be pretty nasty if applied to race.

The cutoff for discrimination is 40. It is perfectly legal (at least at the federal level) to discriminate against someone for being 39. That seems to imply that mental development is not a consideration here. The law is pretty clearly "don't discriminate against older people" rather than "don't discriminate based on age".

Also for all the other comments mentioning experience. Decisions based on experience are not discrimination because experience is pertinent to one's effectiveness in a job. It isn't discrimination if an NFL team decides not to hire a disabled player because the job of being a football player has strict physical requirements. It doesn't matter that the player's disability might normally qualify as a protected class in another line of work. It isn't discrimination because the job requires that selection criteria.

It’s at least valid to consider a young person insufficiently experienced for the job, as long as the hiring decision is legitimately made according to experience not numerical age alone.

That's not age discrimination though, that's having insufficient experience. You can be denied for lack of experience at any age.

The similar concept of "protected class" exists in many states' race-crime laws. In New York, for example, only members of the protected classes are protected by race-crime laws, as per a statement by the NY AG office.

law school grad here--generic white males are not afforded the same protections as protected classes

Based on what?

Based on the rulings of liberal judges. The constitution and civil rights statutes are written in a race neutral way. The judges have refused to enforce the law, and made up their own.

> judges have refused to enforce the law, and made up their own

Do you have cases which survived appeal which sustain this? Judges' opinions tend to be way more sober than they're portrayed in the media, which mostly focusses on which side won.

Griggs vs. Duke Power. The CRA explicitly allows testing. It was amended to introduce the word “intentionally.” The courts ignored the text of the bill and the intent of the congressmen who voted for it in developing disparate impact theory.

> Griggs vs. Duke Power.

Griggs vs. Duke Power does not, in any way, establish that White males are less protected than anyone else, which was the question. And your rants about it in this post wouldn't make that different even if they were accurate.

> The CRA explicitly allows testing.

So does Griggs. If, and here Griggs quotes the language of the statute authorizing the use of professionally-developed tests, they are not “designed, intended or used to discriminate because of race. . . .”; and the EEOC had, at the time, under its explicir regulatory authority under the act, specifically allowed only job-related tests.

> It was amended to introduce the word “intentionally.”

It's a big act, and I am sure that word exists somewhere in it, but nowhere germane to the case. And if it did, you, being the law-school grad you are, would surely quote it in context, and explain the conflict with the ruling in Griggs.

> The courts ignored the text of the bill and the intent of the congressmen who voted for it in developing disparate impact theory.

No, they didn't, but even if they had, that wouldn't make your case: disparate impact applies equally to discrimination against White candidates as that against blacks.

The word “intended” is right there.

> The word “intended” is right there

Right before the word "or."

It isn’t “designed” or “used” to racially discriminate if it’s not intended.

The word “Intententionally,” specifically, is present in section 706(g) to expressly prevent accidental discrimination from violating Title VII.

> It isn’t “designed” or “used” to racially discriminate if it’s not intended.

You are trying to read the qualifications other than “intended“ in 703h into surplusage, since despite the “or”, “intended” would be the one and only consideration in your reading.

> The word “Intententionally,” specifically, is present in section 706(g) to expressly prevent accidental discrimination from violating Title VII.

706(g) of the Act, 42 USC 2000e-5(g), deals with the terms for equitable relief (injunctions, focus mostly specifically on injunctions for rehiring with back pay ), which, as is often the case with equitable relief, have higher standards than for legal relief (damages). In it, “intentionally” modifies “engaged in an unlawful employment practice”, which acknowledges that an employment practice may be umlawful without being engaged in intentionally (in which case, the type of remedies in 706(g) are not available, but compensatory damages remain available.)

“not designed, used, or intended” means neither designed, nor used, nor intended. You seem to be insisting that the “or” must be read as an “and” which is, obviously, an affront to the plain language of the test.

Not only does the Court in Griggs not ignore the legislative concerns motivating the inclusion of the explicit allowance for testing, it relates the debate, it's proximate cause, and the concern cited, and announces a rule very precisely aimed at avoiding the problem the provision was designed to avoid [see, most particularly, Footnote 10, p. 401 U.S. 434].

While there might, I suppose, be a not-insane argument that the Griggs Court took the wrong view of some elements of the legislative history and context, the claim that they blithely ignored it is untenable on its face.

> Griggs vs. Duke Power

This [1] one? With the majority opinion written by Chief Justice Burger? Burger the Ike supporter and Nixon appointee, now somehow a "liberal judge"?

[1] https://en.wikipedia.org/wiki/Griggs_v._Duke_Power_Co.

I didn’t make the original comment about liberal judges, but Burger voted for Roe vs. Wade.

Grutter v. Bollinger. Supreme Court approved racial discrimination in public university admissions.

What the hell is a "generic" white male? Imagine if this was used for other groups...it's messed up

As opposed to a brand name white male?

In this context, I read it as the poster emphasising the lack of any other legally protected class attribute (eg disabled).

Maybe they meant non-hispanic

um, well, an older white male is not a generic white male because age is a protected classification...a disabled white male is also part of a protected class.

Not law school grad here but my understanding of protected classes - sex, age, race, religion, national origin, disability, veteran status - is that it’s that particular characteristic, not the values of those classes.

I can’t fire someone for being male or female. It’s not ok to fire someone for being male, or white. It’s not like only some religions are protected, while others aren’t.

You may want to check into a rebate on that law school tuition.

You can legally deny an Asian (or white) male's college application on the basis of race though, see Grutter v. Bollinger. The Fourteenth Amendment might be worded in a universal way, but the application of its protection is currently very selective.

How many people are in the unprotected class?

The details depend on the jurisdiction, but I think we're talking about straight cis white able bodied US born men under 40?

That minority is maybe 20% of the workforce at most?

> How many people are in the unprotected class?

To not be in any protected class in US labor law, you need to:

(1) Not be a veteran.

(2) Not have a physical or mental disability.

(3) Not be over 40.

(4) Have neither a religion nor the absence of one.

(5) Not have a race (including White.)

(6) Not have a skin color (including any of those typically described as “white” when discussing skin color.)

(7) Not have a gender (either gender assigned at birth, perceived gender, or gender identity; including “male” for any one or more of those.)

(8) Not have a national origin.

(9) Be neither a citizen nor non-citizen.

(10) Not have genetic information.

There is no one to whom this applies, obviously.

Did you really go to law school? Or do they not teach the Constitution anymore?

magna cum laude

Lol. Then I must be a Rhodes scholar

I would not bet on it

White males are, by being white males, in two protected classes under the 14th Amendment as well as virtually all domains with statutory anti-discrimination laws.

Heck, the cass that established gender as a protected characteristic under the 14th Amendment, subject to intermediate scrutiny rather than merely the rational basis test that is the minimum for any legal distinction, was brought by male plaintiffs against a state law placing higher minimum age limits for men in a law controlling alcohol purchases. Craig v. Boren, 429 U.S. 190 (1976).

Reply on news.ycombinator.com