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

[anon926310]

I work in an engineering department at a tech company in the USA. I've worked on many hiring projects over the years but the latest project is different to the others.

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.

[lokar]

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 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.

[ipnon]

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 personally liable.

Ultimately, the whole thing stinks. I have worked in companies before where hiring based on discrimination was applauded. This was because individuals were being judged on the most superficial merits, cogs in a startup machine to be slowly ground into a fine dust. Ask yourself if you think this is a moral thing for a company to do, and if it's moral for you to go along with it. It's easy for talented people to get new jobs in our industry.

[civilized]

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.

[Hamuko]

>However, this is permissible only if the purpose is to remediate past failures to hire minority employees in areas that contain few minorities.

Women are obviously not a minority in the US, but does this apply if they're a minority in a particular field (such as engineering)?

[lolinder]

> So, uh, it depends.

Yep. I highly doubt we have enough info in the original question to give legal advice even if any of us were lawyers. We simply don't know enough about the company to know how the courts would see it.

My advice to OP: consult a lawyer. The law is fuzzy, and we don't have enough information to give a good answer.

[sizzle]

Are you a lawyer or paralegal? How did you land on the specific cases? Are they cherry picked or how do we know if there is other cases that are newer and set different precedents? I’m honestly curious, I know paralegals will go into some database and search for case law to cite like you did and then build the case arguments with a lawyer.

[emodendroket]

Well that clears things up!

[hwers]

To me that sounds like sexist hiring is indeed perfectly legal (towards men).

[tempnow987]

I'd be VERY careful here!

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.

[svloophole]

Many tech companies are actively discriminating against asian/white males. Often it is tech companies run by asian/white males. Affirmative action is the default policy.

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.

[__turbobrew__]

> Many tech companies are actively discriminating against asian/white males

Reminds me of a saying I heard once: “always try and get an asian male doctor because they are discriminated against the most in med school admissions programs. The asian men who made it past the discrimination had to be so much better than the others to make it.”

[publicdaniel]

I work as a machine learning engineer on search & recommender systems, mostly focused on relevancy ranking in the recruiting space. It's unbelievable the pressure I have encountered to give "diverse" candidates a boost across the board in our scoring algorithms. Almost every client's talent acquisition team has asked what we can do to help them meet their diversity goals (which they loosely define as hiring more women and non-white / Asian people). I keep up with what some of the major players are doing (LinkedIn, Indeed, etc.), and they come straight out and say they preferentially weight diverse candidates

> For a given search or recommendation task, our algorithms seek to achieve a desired distribution of top ranked results with respect to one or more protected attributes.

https://arxiv.org/abs/1905.01989

[nostromo]

It’s shocking to me how much the courts and executive branch have hollowed out the Civil Rights Act.

> 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.

[Digory]

Activist judges didn’t make this spreadsheet. The company is responding to social pressure. It’s people trying to atone for the immorality of their social caste.

The courts have been clear that this kind of discrimination is illegal. “Our next engineer must be female” isn’t legal, unless there’s something bizarrely gender specific about this task.

If the Company is a federal contractor, this could be nuclear. Talk to a lawyer, not HN.

[raincom]

You can have laws on the books. Prosecutors have all the discretionary power: discretion NOT file a case to please their political allies, discretion to file a case using flimsy grounds to seek revenge against their political opponents, etc.

As long as federal prosecutors don't care, "the law of the US" has no teeth.

[giantg2]

It's mostly that they simply don't want to prosecute, nor have the resources to fully enforce all the laws. We're supposed to be a nation ruled by laws. We've become a nation ruled by men due to their power to simply ignore the laws when they feel like it.

[raxxorrax]

Typical red tape bureaucracy where some people who propose they know better and believe they are to decide who discriminates against whom.

The last 20 years civil liberties were made into a joke with anti-terror legislation. Some overextended bureaucrats believe they can counter these self-imposed developments by being the savior of womanhood, but nobody would propose discrimination in jobs that aren't prestigious. It is a complete paper tiger an lawfare. I fully believe judges will make decisions against the letter of the law, they are a suboptimal safeguard for civil liberties by now. They just legislate an exception and these clauses suddenly have no values anymore. Some people also thought humanism must be improved by making sex and race an issue again.

Companies might like to comply so that nobody looks closer at their business models.

[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.

[wyager]

> 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).

The only difference between these two things is perhaps a matter of degree. The net result is that you preferentially hire a group based on sex/race/etc.

[BaronVonSteuben]

I totally agree with this, and this is what I try to do myself.

However after being part of dozens of hiring panels I noticed a clear trend toward rating females/minorities hire on technical skills than they would give to a white male with the same performance. After having conversations about it I truly don't think the people noticed what they are doing. Even after pointing it out some would still deny it, and of course it's not possible to prove given that it's highly subjective. It's just a really, really hard thing to see in ourselves.

I don't know what the answer is. I'm going to keep striving for the standard you laid out, but it's continually difficult to know how you're doing.

[schwartzworld]

IMO the right way to improve DEI outcomes is to reach outside traditional recruitment pools. My last job spent months talking about DEI only to have a similar outcome to yours, just telling HR to hire more women and POC to senior roles. But it doesn't do anything for representation to scramble over the handful of "diverse" senior+ candidates that already exist. Ultimately improving diversity in tech is going to require hiring more people with less experience and training them.

[azth]

> IMO the right way to improve DEI outcomes

They need to take a step back and ask why equal outcomes is the goal to begin with? They can't seem to fathom that men and women naturally have different interests and inclinations. And if somehow the arbitrary identity groups that they decide on and end up hiring do end up reflecting the underlying society, then what? All problems are solved?

[lokar]

In a real world organization it can be hard to get individual managers and teams to do this. Even when they want to, time pressure often means they just do the easy things.

Setting aside even a handful of slots forces the issue, and this can lead to orgs figuring out how to find people.

[raxxorrax]

That would be discrimination if there are people that have the qualifications and want to apply them.

Where is the goal of DIE reached? Is there are limit when "discrimination" is gone? A certain percentage that needs to be reached? I would be completely surprised if that were the case and I believe this will only end in a bureaucratic hell hole.

[rdtwo]

Yeah but managers don’t train and nobody has time or interest to train the lowest preforming candidate just because of their skin color.

[giantg2]

"must be female"

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.

[raincom]

Don't report to NLRB, FBI/DOJ, or to the state AG. They will leak to your HR, and ruin your career. NLRB, FBI/DOJ, AGs are just run by politics du jour.

[azth]

The problem is that even if they remove the "must be female" requirement from documents, it's still going to be enforced because that's their goal. How did the industry allow such sexism and racism to penetrate?

[projektfu]

This is likely a matter for the EEOC or the state version. I don't see why those other agencies would be involved. Unlike OSHA, I don't think the EEOC has a process for accepting tips, and I don't think they open original investigations. I believe someone has to claim they have been harmed.

OP could encourage someone to apply, see if they get turned away on the basis of sex, and then they could file a charge of discrimination. That would probably be the most direct way.

However, I think this sort of explicit in-the-docs discrimination is unusual, and OP might find that they have already identified themselves to the employer. Of course, there are also rules against retaliation.

[BaronVonSteuben]

If you say anything, it's possible that you would be ending your career. If you do, it is likely that you will be hunting for a new job (and your reputation as a bigot may follow you unless you move to a new industry, and even then depending on how profile your departure is).

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.

[raxxorrax]

At some point you have to stand up for this. Yes, it might cost you, but it is easy to punish companies for their behavior here. SV is still an exception, but I believe companies with such HR policies have a severe problem with drawing talent.

While it might be nice to work with more women for once, such discrimination isn't worth it. People supporting this are terribly afraid of dirt and the best strategy is to turn the most ideological followers against them. That isn't as hard as you might believe as everybody will make mistakes at some point.

[Deebs12]

It's gone farther than "if you say anything". I recently got an "improvement needed" evaluation on one of my goals to support the Diversity and Inclusion initiatives of my department. I am a hiring manager, and not only did I abide by all of the guidelines and processes, but I also hired and promoted multiple female and minority applicants at a higher rate than the department as a whole. I still insisted that they were qualified, of course.

When I questioned the evaluation, I was told that it wasn't enough to support the initiatives and get the results, but you also "NEED TO BELIEVE IN THEM FULLY". Apparently, my boss believes that I am not in 100% alignment with the philosophies behind them. He's correct in that I do not agree with flagrant discrimination based on sex, race, or any other characteristic, regardless of which direction they are in. I'd fire anyone who discriminated against women, minorities, etc., but if I even SEEM TO QUESTION or be troubled about whether the same shouldn't be done against "some people", then I "need improvement."

[Volundr]

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 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.

[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.

[CodeGlitch]

So the company's performance suffers and their competition who don't indulge in DIE will benefit from those male candidates.

Sounds like another case of "go woke go broke". This is why we see a lot of progressive policies in academia and government... Where losing money doesn't matter.

[throwbigdata]

How did they do?

[NoImmatureAdHom]

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 both under-privileged people and everyone else.

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.

[anon926310]

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

[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...

[sydd]

I'd file it as a violation of title VII of the civil rights act:

"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"

https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964#Title...

[xyzzyz]

> Quota-based hiring / candidate selection is one way to solve this problem.

Quota based hiring is explicitly illegal in the US (Gratz v. Bollinger)

[pnathan]

My understanding of US labor law is this is flamingly illegal. And you would be well served to talk to a lawyer for yourself before you make any moves.

[fangthrow0548]

I'm familiar with a smarter version of this: HR created a DEI working group of self-selected employees. This group is given a stack of resumes and charged with screening them for compatibility with the company's DEI goals. This way they can have a process to reliably screen out unwanted demographics without anyone being ordered or even suggested to do so.

[jjoonathan]

Ah, the good 'ol "if we don't leave a paper trail they can't prove we broke the law" technique.

[mimikatz]

Not a lawyer take

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.

[irvingprime]

Legal. Illegal. Don't know. You should ask a lawyer.

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.

[Plasmoid]

At best, it's unethical. Like someone else said, it's maybe possibly legal if done in a very specific and supervised way. That is almost certainly not happening. What's likely is that someone has decided to be diverse and people over the org are doing this on an ad-hoc manner by institution hard and soft quotas. This is absolutely illegal.

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.

[elil17]

Here are a few things you should do, as well as explanations of why you should do them.

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.

[devoutsalsa]

IANAL, but I did work as a recruiter. This sounds illegal from what I know about hiring. Diversity good. Discrimination bad (and stupid).

[mcculley]

If your company competes with mine, then I encourage you to select for attributes other than fitness for the job.