3 ms·

Like many things, companies can avoid the illegal aspect by adjusting the parameters slightly. In this particular case, one easy way to avoid legal problems is

Like many things, companies can avoid the illegal aspect by adjusting the parameters slightly. In this particular case, one easy way to avoid legal problems is to remove protected attributes from the final hiring decision, and only consider them at the candidate selection phase. This has been found to be legal, though the moral aspect is more grey, IMO.

Manuel_D 3y ago
> In this particular case, one easy way to avoid legal problems is to remove protected attributes from the final hiring decision, and only consider them at the candidate selection phase. This has been found to be legal, though the moral aspect is more grey, IMO. Absolutely not. Using protected class as a factor at the selection phase is still illegal, too. Can I just tell my recruiter, "only consider Catholic candidates at the selection phase." And when someone accuses me of discrimination I say, "Hey, those Catholics still had to pass the onsite interview loop. We only used religion as a factor in the candidate selection phase." It's still illegal. You cannot use discrimination on the basis of protected class at any stage, outside of narrow exemptions like Bona Fide Occupational Qualifications [1] (yes, you can discriminate on the basis of race to cast an actor for instance). 1. https://en.m.wikipedia.org/wiki/Bona_fide_occupational_qualification https://en.m.wikipedia.org/wiki/Bona_fide_occupational_quali...
- infotainment 3y ago
  Ah good point, I wasn't clear enough! I was referring to rules like this one, which I believe are considered legal, despite taking into account protected attributes during the candidate selection phase: https://www.visier.com/blog/how-hr-can-tackle-diversity-using-the-rooney-rule/ https://www.visier.com/blog/how-hr-can-tackle-diversity-usin... It does seem like it would be on kind of shaky legal ground, but IANAL.
  - Manuel_D 3y ago
    This is mandating a specific number of candidates belong to a protected class. There are a very specific set of circumstances where use of protected classes like race and gender are permitted. Rectification of previous discrimination is another. This government web site describes it well [1]. A particularly important passage: > ...over time a contractor’s workforce generally will reflect the demographics of the qualified available workforce in the relevant job market. An example of such permitted affirmative action is when a US steel company only hired workers trained by a given union, and that union was exclusive to whites. The example you linked stems from loads of black athletes not landing coaching jobs, despite similar experience and qualifications as white hires. The organization could credibly claim that racial discrimination was excluding a significant percentage of the workforce. By contrast, it would not be permitted for a company to engage in affirmative action to bring one gender to, say, 30% of the company when the workforce for that role is 20%. Because that's the same thing as saying the opposite gender (and non-binary) is capped to 70% despite making up 80% of the workforce. It's addressing disparities relative to the workforce, not the geneal population. A lot of DEI programs justify discrimination on the grounds of equity with respect to the general population and that's not the law. Another common DEI justification is that diversity improves company performance. It doesn't matter if you think discrimination on the basis of protected class improves your bottom line. A hospital, ev n if it can definitively prove that having at least 30% male nurses improves patient outcomes can't use DEI policies to increase male representation.

Manuel_D 3y ago

> In this particular case, one easy way to avoid legal problems is to remove protected attributes from the final hiring decision, and only consider them at the candidate selection phase. This has been found to be legal, though the moral aspect is more grey, IMO. Absolutely not. Using protected class as a factor at the selection phase is still illegal, too. Can I just tell my recruiter, "only consider Catholic candidates at the selection phase." And when someone accuses me of discrimination I say, "Hey, those Catholics still had to pass the onsite interview loop. We only used religion as a factor in the candidate selection phase." It's still illegal. You cannot use discrimination on the basis of protected class at any stage, outside of narrow exemptions like Bona Fide Occupational Qualifications [1] (yes, you can discriminate on the basis of race to cast an actor for instance). 1. https://en.m.wikipedia.org/wiki/Bona_fide_occupational_qualification https://en.m.wikipedia.org/wiki/Bona_fide_occupational_quali...

infotainment 3y ago
Ah good point, I wasn't clear enough! I was referring to rules like this one, which I believe are considered legal, despite taking into account protected attributes during the candidate selection phase: https://www.visier.com/blog/how-hr-can-tackle-diversity-using-the-rooney-rule/ https://www.visier.com/blog/how-hr-can-tackle-diversity-usin... It does seem like it would be on kind of shaky legal ground, but IANAL.
- Manuel_D 3y ago
  This is mandating a specific number of candidates belong to a protected class. There are a very specific set of circumstances where use of protected classes like race and gender are permitted. Rectification of previous discrimination is another. This government web site describes it well [1]. A particularly important passage: > ...over time a contractor’s workforce generally will reflect the demographics of the qualified available workforce in the relevant job market. An example of such permitted affirmative action is when a US steel company only hired workers trained by a given union, and that union was exclusive to whites. The example you linked stems from loads of black athletes not landing coaching jobs, despite similar experience and qualifications as white hires. The organization could credibly claim that racial discrimination was excluding a significant percentage of the workforce. By contrast, it would not be permitted for a company to engage in affirmative action to bring one gender to, say, 30% of the company when the workforce for that role is 20%. Because that's the same thing as saying the opposite gender (and non-binary) is capped to 70% despite making up 80% of the workforce. It's addressing disparities relative to the workforce, not the geneal population. A lot of DEI programs justify discrimination on the grounds of equity with respect to the general population and that's not the law. Another common DEI justification is that diversity improves company performance. It doesn't matter if you think discrimination on the basis of protected class improves your bottom line. A hospital, ev n if it can definitively prove that having at least 30% male nurses improves patient outcomes can't use DEI policies to increase male representation.