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Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

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Re: Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

#41

Post by anon926310 »

NoImmatureAdHom wrote: post #35

This is something I've tried to figure out in detail due to past similar circumstances. What you're being asked to do is almost certainly illegal. There are a couple small carve-outs for very specific situations, but I would bet almost anything your company has not set up the paper trail to make sure they're in those small carve outs. Either way, what they're doing is morally wrong and will lead to worse outcomes for…

Thanks for these ideas. Do you have any recs on where or how to find a lawyer for the advice call?

Re: Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

#42

Post by civilized »

lokar wrote: post #7

A quick web search finds some answers. eg https://www.spigglelaw.com/employment-blog/employers-affirma... """ Title VII prohibits employers from making employment decisions because of an individual’s skin color, national origin, sex, religion, or race. Therefore, it is illegal to give an applicant an advantage solely because of the applicant’s race. However, this is not always the case. Under United Steelworkers of A…

Not clear to me whether you can mandate that a particular position go to a minority. United Steelworkers says racial preferences are sometimes permissible but cannot be an absolute bar against hiring non-minorities. So the question is whether that requirement applies at the level of individual jobs or only at a higher level (some positions can be reserved for minorities so long as the department or institution isn't exclusively hiring minorities in all positions).

The law here seems quite vague and I wonder if the interpretation would depend on the ideological composition of the court and perhaps what they had for breakfast that morning.

If I had to guess though, I think the court that decided United Steelworkers would also rule favorably on the legality of the OP's situation, and would apply basically the same principles to do so.

Re: Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

#43

Post by [deleted] »

qbasic_forever wrote: post #34
Volundr wrote: post #29

Assuming you have one, it might be worth talking to your HR department to clarify these instructions. Maybe there is something you aren't getting, or this is something setup by clueless management and they are unaware and would want to intervene. Beyond that when in doubt, talk to a lawyer. At first glance to me (I am not a lawyer) this seems like it's probably illegal, but it's entirely possible there are nuances to…

HR only exists to protect the company from liability and lawsuits. Talk to them first at your own risk, and realize that almost no good can come from doing so. At best they will now see you as a 'problem' employee that is asking too many questions, and at worst it could start a chain of actions that lead to your termination or leaving the company (for completely unrelated reasons of course).

[deleted]

Re: Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

#45

Post by anaisbetts »

pesenti wrote: post #26

Legality aside, this is a terrible and naive way to think of DEI. Candidates recruited this way will have a stigma attached to them (“they were recruited because they were X”). A better way is to enforce DSA - Diverse Slate Approach - which ensure that you don’t recruit anybody without having considered multiple genders and/or ethnicity before making the offer. The goal of DSA is to recruit the best candidate for the…

Yep, I have to agree. Candidates (rightly!) are upset when they are explicitly considered the "token" hire and avoid these roles - some companies even have the gall to put this in their job listing!

The real solution to diverse hiring is to actively recruit from sources that have the kind of people you're looking for. Your (not you parent comment, but the anonymous "you") current candidate sources are probably not very diverse so the end result is that your hiring is mirroring that.

Actively recruit and go after diverse candidate sources, and you'll hire diverse candidates.

Re: Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

#46

Post by ThePhysicist »

I'd file it under affirmative action [1], which is not illegal in most countries/states (on the contrary). Lots of commenters here simply cite single paragraphs from anti-discrimination laws but what they don't understand is that the laws often allow organizations to correct bias by giving preferential treatment to underrepresented groups. The logic behind is that the majority group (e.g. white caucasian young males) might have bias to hire peers that they identify with, hence perpetuating their majority. Quota-based hiring / candidate selection is one way to solve this problem. Different jurisdictions have different rules though, in Germany hiring practice for certain professions (e.g. professorships) is that if two candidates are equally qualified but one is a woman then she will always receive preferential treatment (which is fair IMHO).

1: https://en.wikipedia.org/wiki/Affirmative_action_in_the_Unit...

Re: Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

#47

Post by buro9 »

Extremely likely you would be breaking the law by discriminating against anyone not female.

The way to do this properly is by "Positive Action" (when all else is equal, prefer a candidate that fulfils a diversity criteria)... not to be confused with "Positive Discrimination" (the setting of quotas or in your case excluding a demographic from being considered for the role).

You can find an example of this enshrined in UK law https://www.legislation.gov.uk/ukpga/2010/15/part/11/chapter... (I know you're in the US, but I find the UK law very easy to find and to read).

The spirit of it is simple: Interview everyone equally, give all the opportunity... but if you have to choose between 2 candidates who fare equally through interviewing then you may factor in any disadvantages that arise from their sex, gender, race, background, etc... and in those cases you may now favour that candidate.

This process does not exclude people or "lower the bar" for the diverse demographic... it favours only when everything else is equal.

Re: Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

#48

Post by kyrra »

qbasic_forever wrote: post #34
Volundr wrote: post #29

Assuming you have one, it might be worth talking to your HR department to clarify these instructions. Maybe there is something you aren't getting, or this is something setup by clueless management and they are unaware and would want to intervene. Beyond that when in doubt, talk to a lawyer. At first glance to me (I am not a lawyer) this seems like it's probably illegal, but it's entirely possible there are nuances to…

HR only exists to protect the company from liability and lawsuits. Talk to them first at your own risk, and realize that almost no good can come from doing so. At best they will now see you as a 'problem' employee that is asking too many questions, and at worst it could start a chain of actions that lead to your termination or leaving the company (for completely unrelated reasons of course).

This seems like a case where HR would actually care, because the person raising it is trying to protect the company from doing something potentially illegal.

Re: Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

#49

Post by umvi »

A similar thing happened at a previous company I worked for. We had lots of male candidates apply to an opening but only one female candidate. The female candidate was by far the weakest and I strongly advised not hiring her, but I was overridden by higher ups desperate to improve DEI and she was the candidate hired.

Re: Ask HN: Am I being instructed to do something illegal? (DEI hiring practices)

#50

Post by lolinder »

mrkurt wrote: post #36
ipnon wrote: post #31

Earlier quoted context omitted.

It seems pretty clear cut to me that if your company hasn't been found guilty of discrimination in the past, then it's illegal for the company to institute "affirmative action." That being said, it's usually the company that receives penalties in these situations, and not individual employees. If a lawsuit is made, and the lawsuit is successful (a big "if" in itself), it's not a guarantee that you will be held person…

> It seems pretty clear cut to me that if your company hasn't been found guilty of discrimination in the past, then it's illegal for the company to institute "affirmative action." That's not what United Steelworkers v. Weber established though. The supreme court said: > An affirmative action plan has to be (1) necessary (2) aiming to correct a statistical imbalance (3) not result in an absolute bar to hiring non-mino…

You're right, but point 3 means that even under United Steelworkers v. Weber the policy in the original question may be illegal. "Must be female" is an instruction to bar the non-minority completely from this position, so as another comment says it depends on if that bar on complete bars applies to individual positions or whole departments.
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