In the spreadsheet that lists all the open positions, there's a new column next to open positions with DEI comments. It has a line like this:
Senior Software Engineer (must be female)
If I follow this spreadsheet and exclude male applicants, then would I break any laws? Or if not laws, then would I violate other regulations or ethical standards in the industry?
I ask because my understanding of anti-discrimination law is that there are certain classes of people that cannot be excluded from job openings. Things like sex and race.
If this is illegal then what's the right way to handle this? Are there other ways I should think about this besides legal/illegal or ethical/unethical? Does region or state within the USA matter?
A little more context:
As a SSE I would do interviews or screen candidates but now in a Sr Manager role I'm more involved in the early planning and management of the process. In the first meeting where I saw the comments I said nothing. I followed up a few days later with an email to VP eng to say I opposed. 2 days after that I had a call with VP eng where I raised the issue again and they insisted that the requirement remain. I've taken no more action after that.
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 America v. Weber, an employer may voluntarily implement its own affirmative action plan. However, this is permissible only if the purpose is to remediate past failures to hire minority employees in areas that contain few minorities.
Under Executive Order 11246, certain government contractors must have affirmative action policies to identify instances where they are not hiring qualified minorities. Contractors can take steps to fix any such hiring discrepancies.
Despite these two major exceptions, employers may not use affirmative action to hire more minority employees solely to increase the diversity of their workforce. As a result, the Fisher case only applies to schools, not employers.
"""
So, uh, it depends.
Please evaluate YOUR OWN downside risk vs upside risk.
Your supervisor has asked you discriminate.
Politically, under current administration, almost EVERY enforcement body will not actually take action here even if its clear cut discrimination. Ie, they won't care.
Out in the job market, if you are anti-diversity / take any steps to undermine a diversity initiative - that can follow you now for a very long time.
Wilberg, who recruited candidates for engineering and technology positions for YouTube and parent company Google, also alleges in the suit that for several quarters Google would not make employment offers for technical positions to applicants “who were not ‘diverse,’" which the lawsuit alleges Google defined as women, black and Latino.
The lawsuit said Wilberg complained about this to his managers and HR. He was fired in November for, among other things, “not meeting goals” and “talking too much in meetings,” reasons that the lawsuit called “pretextual.”
“Plaintiff was an exemplary employee and received positive performance evaluations until he began opposing illegal hiring and recruiting practices at Google,” the complaint asserts.
The reality is that to get diversity anywhere close to what Silicon Valley is being asked to get it too, pretty significant steps like this will need to be taken. The company may have evaluated that the downside of NOT having women / minorities in positions is too high.
The main way I've seen this implemented is by controlling who gets recruited through LinkedIn. Obviously qualified asian/white men simply get skipped over, filtered out, in many cases. They never even know they were discriminated against.
The other way is that managers are highly "encouraged" to say yes on hires that they would on the merits say no to.
As a hiring manager, I was told by an HR recruiter that there would be "problems" if my next hire wasn't a "DIBs candidate" (Diversity Inclusion Belonging) after hiring two non-URM (Under Represented Minority) candidates in a row.
All I would receive in the way of candidates to interview were non-asian/white males. And most were obviously unqualified based on the technical screening criteria we had established.
The big question is whether the current policy of tech companies is legal, ethical, and effective in the long-term or whether it's a short-term fix that causes long-term harm.
> It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin
This is the law of the US. It couldn’t be more clear that your company is breaking the law. And yet it’s been completely neutered by activist judges and well-meaning executives and bureaucrats.
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.
Yes? It's illegal. This instruction removes the chance of any other member type of that protected class from being hired.
You can report it to the NLRB, FBI/DOJ, or your state AG. You'll have to document everything while being careful not to break any recording/privacy laws. Not sure anything will really be done. Probably just bring hardship on yourself.
This has become a common practice in the tech industry, and unquestioned support is expected at a minimum. If you have non-standard hardware on your body, then you can push back a little, but if not then you best stay quiet. If you continue to push back, depending on how hard you push what you can expect is many awkward conversations, decreasing performance reviews, and career stagnation. Getting to the "next step in the ladder" typically requires you to demonstrate your willingness to implement these policies, let alone simply allowing them.
You also need to be careful what you say, as anything you put in writing could come back (potentially out of context) to bite you. You may be recorded a few times in private IRL meetings, so remember that just because it's in a closed-door meeting doesn't mean it is private. I know this sounds paranoid, but I've watched a friend of mine in SV go through this very thing. This is a man who spends his free time volunteering to help underprivileged students learn to code and build robots with raspberry pis in his spare time. I've known him for years and he is not a chauvinist, he just doesn't think it's right to discriminate based on immutable characteristics.
I wouldn't worry about any legal liability on your part. IANAL but I'm certain many good lawyers have reviewed the policy as it's fairly common now. I also can't imagine anyone being sued/prosecuted for giving females preference in the tech industry.
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 which I'm not privy both in terms of legality and in terms of what's actually happening. A quick consult with an employment lawyer isn't that expensive and will give you a much better idea on how to proceed than HN ever can.
If you don't mind skipping straight to whistle-blowing, you can also talk to your State's department of labor, or the US Department of Labor. They tend to take such things seriously and will no doubt investigate.
You have a couple different possible moves here:
1) Bring it up to your company's HR, compliance people, or legal team. If you want to stay and look good, this is an okay move. Frame it as, "This probably exposes us to A LOT of liability, no? Just thought I'd let you know".
2) Report them to the relevant authorities. This is the EEOC at the Department of Labor (Federal) and your state's EEOC or EEOC-equivalent. If you're planning on leaving I would definitely do this. Gather evidence of the illegal activity first and then submit. Many states will have whistleblower protections such that what the company can do to hurt you is very limited. You may even end up getting paid for no work.
3) Develop a list of candidates who were illegally discriminated against and notify them. They can then sue the company themselves.
1, 2, and 3 aren't exclusive. You can do a combination: for instance, let the company know and report them to EEOC. If you have the means and want to do a little good in the world, I think spending a couple hundred dollars on talking to a lawyer for an hour or two is a good move as well.
1: https://en.wikipedia.org/wiki/Affirmative_action_in_the_Unit...
1. Likely illegal
2. Likely no one will ever care
3. On the off chance they do care, very unlikely you will be in any trouble or hurt by it
4. It is a bigger risk to question it
5. This is wrong and bad, but choosing if you want to fight it is a hard choice.
I can tell that you are not comfortable with this. You suspect it's illegal and might still be uncomfortable even if it's not. Were I in your shoes, I would be looking for an exit strategy right quick.
(For full disclosure, I should mention I'm looking for an exit from my current job for entirely different reasons).
Do not swallow your own sense of right and wrong. Do not go along to get along. You will regret that deeply later on. Find an environment that doesn't make you worry that you might be participating in something illegal, or unethical, or immoral.
Speak with an attorney for 30m to discuss this properly.
What should you do though?
1. Go along with it. Some of the discovery during the Damore v Google lawsuit found that some Google employees was doing exactly this. Specifically holding positions for under-represented minorities or lowering the hiring bar.
2. Find a new job. A lot of work, and a lot of other companies do similar things.
3. Ignore the instructions. Depending on how invested upper management is in this, it may be a career limiting move and end up requiring (2) anyways.
4. Become a whistle-blower. More of a career limiting move than participating.
1. Do not delete or destroy any files. Doing the work your directed to do won’t put you in any personal danger (your company can be sued, you can’t). Destroying evidence could make you liable personally.
2. Let your VP know again that you think this violates US non-discrimination law. Let them know in an email and copy your personal account so you always have a record. Also copy your company’s legal or ethics department if possible. I would write something like “Hi [VP]. I was asked to create a list of job requirements which were based on gender and race. I support increasing diversity in our company but doing this would violate US equal opportunity employment law and would put the company in legal jeopardy. I will not perform this action because it would result in discrimination. I will gladly perform other actions to support our DEI initiatives.” That way, it’s clear you protested. If anyone tries to say it was your fault, you’ll have evidence showing that you protested.
3. If you wish, you could advise your boss on other DEI initiatives that would not be discriminatory, such as recruiting at women in STEM events or offering a leadership training course for underrepresented groups.
4. Refuse to perform tasks that would result in discrimination. Know that US EEO law also protects you against retaliation for refusing to discriminate. According to EEOC.gov, “It is unlawful to retaliate against applicants or employees for… refusing to follow orders that would result in discrimination.” Having an email record that you refused to perform the discriminatory action (see point #2) will help you win a lawsuit or settlement if you are fired or turned down for a promotion due to this.
At the end of the day, you are doing your company a favor by not taking this action. If the line “Senior Software Engineer (must be female)” ever showed up in an employment discrimination case your company would lose the trial pretty much instantly.
No, this is covered by Federal law.
> If this is illegal then what's the right way to handle this?
This is incontrovertibly a direct and intentional violation of Title VII. Call the EOC immediately and get it on record that you have informed them of this. Otherwise you are in danger of being seen as an accomplice or otherwise complicit—even if you are not involved directly at implementing the illegal policy. Intentional violations of Title VII open up the possibility of punitive damages in any suit brought by any man who believes that he has been discriminated against. You can be named as a defendant. Protect yourself now.
Obviously, this is also deeply immoral.
I'm not sure about the USA but in the UK discriminating is acceptable as long as you are discriminating in favour of a category which is under-represented.
Of course, given you can split humans in an infinite number of categories, this is basically meaningless and it's just plain discrimination.
One of my previous employers in the UK was working primarily with recruiters that brought candidates with the correct gender / race.
https://www.eeoc.gov/contact-eeoc
Sex and gender are protected classes, an employer cannot discriminate based on a protected class.
The law forbids the company from retaliating against you in any way as a result of an EEOC complaint investigation.
If you have signed a waiver or arbitration aggreement, you should take a look at that and talk to a lawyer.
I'm not trying to be a jerk - it's just that the legally depends on the particular specifics. Sounds illegal to me at first pass, but if government contacting is involved or other special cases it gets more complicated.
You should probably make a report to the EEOC if you can't consult legal. You should also ask your engineering VP if they consulted legal before instituting the requirement.
The best way to combat this nonsense is peaceful protesting.
There are ways that this can play out that might seem discriminatory but are not. For example, if your goal is to have X% of final stage candidates be women and you haven’t gotten there yet, not hiring a non-woman final stage candidate that is otherwise hirable is not discriminatory. See the “Rooney rule” and other examples.
What I think you should do: * assume positive intent. No one person is responsible for this systemic shitshow / imbalance, and people are doing the best they can to fix it. Understanding how to do that in the context of the law is sometimes difficult. * advocate for the use of appropriate goals that support the initiative. * politely object when someone asks you to do one of the “should not dos” above. Ask them to restate in the context of goals. * don’t get caught up in culture warrior nonsense that circulates around this issue. You’re an engineer, recruitment is a system. Treat it like a systems problem. * support your women colleagues and women in tech in general. Systemic bias is real. People who believe women shouldn’t be in tech exist. Do what you can to help overcome these obstacles.
It was all handled in back room meetings at a manager, director or VP level, so they could meet diversity quotas and get personal share bonuses.
First be 100 percent sure you've got something in writing to back up what you are claiming, then, bring it to the US Dept of Labor.
But you won't get everything in writing, and it's a dangerous short term career move, even though it might be right/moral/legal thing to do.
I have had many software job interviews that were illegal. Most of that were interviewers asking about my familial status because parents are perceived as more dependent upon the employment with less mobility and spouses are perceived as more stable and less likely to commit inter-personnel policy violations. I just disclose the requested information.
If you actually are a senior manager you should already know this is illegal.
IMO limiting hiring pools based on race or gender is not a good thing and can only lead to animosity and eventually employee churn.
One of the reasons why a lot of SV companies like Google have a problem with diversity is because they focus almost all of their recruiting drives on a few schools and hire mostly people with degrees from those schools, which themselves have diversity problems.
If you keep going to the same wells you shouldn't be surprised to buy find different results.
The reason why you need to talk to a lawyer is that your lawyer is ethically obligated to represent your best interests, not your company's.
Prohibited Employment Policies/Practices
Under the laws enforced by EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
The law forbids discrimination in every aspect of employment.
The laws enforced by EEOC prohibit an employer or other covered entity from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business. The laws enforced by EEOC also prohibit an employer from using neutral employment policies and practices that have a disproportionately negative impact on applicants or employees age 40 or older, if the policies or practices at issue are not based on a reasonable factor other than age.
Job Advertisements
It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
For example, a help-wanted ad that seeks "females" or "recent college graduates" may discourage men and people over 40 from applying and may violate the law.
On the other hand, I mentored a female intern last summer. After talking to her, I’m convinced that attractive females in tech have it a lot harder than males. They have to be extra careful to set boundaries and not give off the wrong signals by mistake.
And who knows, maybe when your country of choice is up – there'll be a self-hating non-white country adopting this crap and you'll be able to get the minority treatment.
"I was just following orders" is not a valid legal defense in this situation. And beyond the legal sphere, what do you know is the right thing to do?
Either way, I'd recommend you preserve whatever documents and notes that you can for the future.
I would have loved for you to have followed that up with "Ok then. Do you also have particular breast size requirements?" and watch them squirm as they realise how the "must be female" requirement could be interpreted in other ways.
And to use phrase like “try for more female”, instead of “must be female”.
For anyone who is curious and has an open mind, since women are half of the population and attain a large number of degrees (as opposed to many decades ago when they were not allowed in education at all), why does OP not have access to female candidates OP feeels meets their requirements?
Since I am studying statistics, I looked up the answer in a lecture about women, collected in a book called the Past, Present, and Future of Statistical Science[1]
There are interesting comments about sexism within the science of statistics, for example:
Thwarted employment search after college Having discarded high school and college teaching, actuarial science, and medicine, I sought employment after college graduation in 1960. I was aware of only two methods to find a job: look in the newspapers’ “Help Wanted” sections and talk with employers at job fairs on campus. The newspaper route proved fruitless. Younger readers may not be aware that newspapers had separate “Help Wanted Female” and “Help Wanted Male” sections until the late 1960s or early 1970s when such practice eventually was ruled to be illegal sex discrimination. In 1960 advertised positions using math skills and interest were in “Help Wanted Male,” and I assumed that it would be futile to apply. Job interviews on campus with employers played out similarly; all positions were segregated by gender and all technical positions were for males. One vignette, among many, illustrates the employment culture for women in the US in 1960. When I registered for an interview on campus with IBM, I was required to take a math aptitude test. The IBM interviewer commented that he had never seen such a high score from any applicant and offered me either a secretarial or an entry sales position. I countered that I was interested in their advertised technical positions that required a math background, especially given my score on their math aptitude test, but he simply said that those positions were for males. End of conversation.
-
Clearly, this process explains why OP does not have access to female applicants he feels are qualified. Perhaps OP is judging the history of candidates and applicants, but many other people judged their gender in the past when excluding them.
What should OP do? Of course, OP can't force others who excluded women from going back in history and including them instead. Is there anything OP can do now to try to rectify the injustice?
I think that one thing that OP could potentially do is follow the process outlined in the company. He could hire a woman for the role.
I think it is the right thing to do in OP's situation and given the history of the industry.
[1] if you search for this title on Google one of the top results is the full PDF so I think it's okay to post it here: https://higherlogicdownload.s3.amazonaws.com/AMSTAT/71a758c7...
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 role, but ensure a broad set of candidates has been considered. It’s a win win for all and it works.
So the real question is do you want to go out into the world again and look for a job, or not? Because if this is true, you have absolute evidence of racism in hiring which is very, very, very illegal.
I'm asking because if you want to "take them down" you totally can. Capture evidence and involve an employment lawyer. But what is in it for you? The lawyer will get paid handsomely. What about you? I don't think you're particularly damaged by this to ask for damages.