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How to Legally Discriminate

 
 
mrcolj
 
Reply Thu 22 Apr, 2004 10:32 am
I'm writing a paper for my MBA school on various tricks/techniques people use to legally discriminate in hiring. Meaning, every boss seems to have things they do to scare away, or draw in, people from his or her favorite subclass. I live in Utah, and every employer asks "how do you feel about the amount of swearing that you may hear in this office?" or "are you willing to work on Sundays?" as a veiled attempt at, for either reason, determining your religion or religiosity.

On the opposite end, in a software company, 99% of your applicants will be white males, aged 25-40. For EEOC, they'll want to see that you made some attempts at marketing to women and minorities. How do you hire blindly, if that is your philosophical view, without getting penalized and denied loans, etc, for being discriminatory?

Another common example is a company may believe in hiring minorities, and thus would discriminate for those who fit some characterization.

Overall, there are a lot of legit reasons people will want to do things that would be considered discriminatory by purists. What legal or generally accepted ways have you found to discriminate for or against a group? How do you not get sued when you have to hire from a pool without a great deal of variety?
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rosborne979
 
  1  
Reply Thu 22 Apr, 2004 11:50 am
Re: How to Legally Discriminate
mrcolj wrote:
I'm writing a paper for my MBA school on various tricks/techniques people use to legally discriminate in hiring. Meaning, every boss seems to have things they do to scare away, or draw in, people from his or her favorite subclass.


I don't think you should start your thesis by generalizing that every boss discriminates between people in different classes. I can believe that some managers do this, and maybe even most managers, but certainly not all managers.

You might want to include in your thesis, some type of analysis which defines the different types of discrimination, and then what percentage of managers indulge in this practice.

The company I work for tries very hard to be non-discriminatory, and I myself only care about hiring people who can do the job, no matter what group they represent. As a result, I have a very wide range of variation in my department.
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mrcolj
 
  1  
Reply Thu 22 Apr, 2004 12:19 pm
And that's thesis with a lower-case t, meaning it's just a paper, not the big one... Wink

And I didn't mean the bad type of discrimination. I just mean that bosses, and yes, every one I've asked, is very open about tricks they have up their sleeve to filter out qualified people they don't like, or filter in less-qualified people they like.

So I'd suspect that you, like most people, hire largely based on your gut-feeling, and not just who had the highest GPA in college. Life isn't about always hiring he who has the best qualifications, or there would be no purpose for an interview in the first place.
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rosborne979
 
  1  
Reply Thu 22 Apr, 2004 01:22 pm
mrcolj wrote:
And I didn't mean the bad type of discrimination. I just mean that bosses, and yes, every one I've asked, is very open about tricks they have up their sleeve to filter out qualified people they don't like, or filter in less-qualified people they like.


If multiple candidates are qualified, then I figure out which ones compliment the team the best; ie. who is the easiest to get along with, who has an additional skill which the others in the group lack, who seems to have the most energy, the best sense of humor. If I like a candidate, or don't like a candidate, I'll simply say that. There isn't any need for tricks.

Do you consider discrimination and selection to be the same thing?

mrcolj wrote:
So I'd suspect that you, like most people, hire largely based on your gut-feeling, and not just who had the highest GPA in college. Life isn't about always hiring he who has the best qualifications, or there would be no purpose for an interview in the first place.


It depends on how you define "qualifications". For me, qualification has very little to do with GPA because I know from experience that not everyone who comes out of college is good, and not everyone who is good comes from a college.

For me, qualification is the result of my assesement. But the assessment is not just based on "gut-feel". It is based primarily on a technical assesement followed by an estimation of relative benefits to the team into which the person will be included.

So in a sense, yes, I discriminate. I discriminate based on my estimation of a person's ability to do the job, and their ability to compliment the teams ability to accomplish the job.

But I don't consider my decisions to be based on "tricks up my sleeve" to exclude anyone.

Maybe I'm misunderstanding your question here. Maybe you can give me an example, and I can tell you how I would handle it.
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mrcolj
 
  1  
Reply Thu 22 Apr, 2004 01:41 pm
So many companies, for some reason or other, want to increase the percentage of women or minorities in their company.

Again, the software company. I'm thinking of a specific company, where 99% of the applicants are white males aged 25-40, and they can't get funding because 99% of their employees end up being white males aged 25-40. What do they do? Passing out flyers at women's centers really isn't going to work. They either have to ignore EEOC laws, or ignore hiring laws.

Third situation. I've worked at many companies where the boss exercises his right to choose the direction and personality of his company, meaning to not hire people that don't fit his personality or image. Maybe he's a hippie who only wants people with good auras there. Maybe he's strongly religious and wants his company to be more in accordance with his ideals. Maybe he just doesn't want to hire someone because of their political ideals--or simply "what they'll do with the money." These are all common concerns, concerns that are acted upon in reasonable companies by reasonable people. Any sole-proprietorship is going to factor in things other than blood and qualifications when planning successorship. You don't give your business to your oldest son, you give it to the kid who's most qualified, most interested, or you split it up altogether. Likewise with employee selection.

And we've all seen the restaurants and companies that only hire beautiful women to work at the front desk. Somewhere out there is an Olive Garden regional manager training his managers on how to reject ugly girls, or how to overtly hire (maybe less qualified, ceteris paribus) beautiful girls.

So yes, I meant merely selection when I said discrimination, but I said that because I'm looking for things people do or say for the purpose of selecting, when said selecting may be legally or public-relations-ally hazy if we don't veil our true intentions behind a certain technique or phraseology.
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rosborne979
 
  1  
Reply Thu 22 Apr, 2004 03:15 pm
mrcolj wrote:
So many companies, for some reason or other, want to increase the percentage of women or minorities in their company.


I think the argument is that "all things being equal", companies should select to increase diversity. But the "all things being equal" part is important. Otherwise, I think companies are exercising affirmative action, rather than just diversity when viable. And I think there's a difference.

mrcolj wrote:
Again, the software company. I'm thinking of a specific company, where 99% of the applicants are white males aged 25-40, and they can't get funding because 99% of their employees end up being white males aged 25-40. What do they do? Passing out flyers at women's centers really isn't going to work. They either have to ignore EEOC laws, or ignore hiring laws.
...

... or not get funding.

I guess it's a choice of which track better benefits your company, the funding or the viability of the candidates.

By the way, the software company I work for is not 99% white male 25-40. I don't even think that's the majority any more. Asians and Indians are probably the majority now.

mrcolj wrote:
So yes, I meant merely selection when I said discrimination, but I said that because I'm looking for things people do or say for the purpose of selecting, when said selecting may be legally or public-relations-ally hazy if we don't veil our true intentions behind a certain technique or phraseology.


Ok, I get it. It sounds like you are asking for euphamisms.

Like when hiring a pretty girl for a bartender instead of an unattractive one, you might say, "this particular applicant has better assetts".

Or when hiring a religious person who matches the Presidents preferences, you might say, "this applicant has a view which fits the team".

I'm sure there are a lot of creative ways to say, "I want this person, not the other one", but I'm not very creative.
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mrcolj
 
  1  
Reply Thu 22 Apr, 2004 04:13 pm
Thank you. And I'm not just talking about euphemisms either; there are magical phrases, ie loaded phrases that lawyers made up. The euphemisms can get the company sued if they're not extremely well-phrased (meaning "she has better assets" could easily lose in court.) There are explicitly legit reasons you can choose not to hire someone, and the hard part when it comes to codified law is to find which specific category to file the candidate under.

Any accounting firm would hire a Mormon accountant over a non-Mormon accountant these days, especially after Enron. My only question is how are the accounting firms accomplishing it, besides either breaking the law, or explicitly recruiting solely from BYU? And could solely recruiting from BYU be seen as discrimination?

So the software company I'm referring to is a real one, and has no "diversity." I'm not sure I agree with whatever is called "diversity" in the first place, but the point is they have none. Now, if they try to get a federal contract, the government will ask questions like how many women or minorities work there, and base their decisions on the software company's answers.

So if you've worked for a church or a political lobbyist, you're largely seen as unhirable, especially in big companies. No one wants to risk the unhired contenders coming to sue them for hiring you. Yet at some point the money becomes more important than the complainers.

I'm just looking for discussion, and thank you for discussing. The more I vent in this format, the more my paper will make sense in the end.
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rosborne979
 
  1  
Reply Thu 22 Apr, 2004 04:47 pm
mrcolj wrote:
I'm just looking for discussion, and thank you for discussing. The more I vent in this format, the more my paper will make sense in the end.


Discussion is good. That's why we're here Wink

I don't know why this thread isn't getting more attention, except that the "life at work" category may not be as active as say the "politics" category.
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mrcolj
 
  1  
Reply Thu 22 Apr, 2004 06:40 pm
maybe we should get a moderator to cross-post it... (move it with shadow).
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JoanneDorel
 
  1  
Reply Thu 22 Apr, 2004 07:10 pm
White males under 40 generally speaking don't have class under Title VII.
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mrcolj
 
  1  
Reply Fri 23 Apr, 2004 10:49 am
Well yes, but that's entirely the problem. If people under 40 aren't protected by the law (they are by the EEOC,) and white people are never protected by anyone ever, how do you get funding when your company is 99% white males?

Here's another good example. How do Chinese restaurants make sure to hire only chinese people? Ditto with any ethnic restaurant...
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Craven de Kere
 
  1  
Reply Fri 23 Apr, 2004 10:58 am
Mostly through nepotism.
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patiodog
 
  1  
Reply Fri 23 Apr, 2004 11:37 am
They can communicate with the kitchen staff and with customers who don't speak English.
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mrcolj
 
  1  
Reply Fri 23 Apr, 2004 12:18 pm
Still, if it was totally blind, the kitchen staff would all evolve to be mexican, wouldn't they? I mean, there are many factors in there, but if you lined up all the italian, chinese, and indian places in town, you wouldn't find a mexican cook. That's statistically significant.
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Craven de Kere
 
  1  
Reply Fri 23 Apr, 2004 12:21 pm
Actually, most of the Italian restaurants around me have no Italian cooks (all Mexican).

Your point still stands of course.
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JoanneDorel
 
  1  
Reply Fri 23 Apr, 2004 01:49 pm
Mrcolj I have lots to say but not the time right now. For many years I was in labor relations on the union side and I have done about 20-30 discrimination arbitrations and presented several cases before ALJs at the EEOC. Of course I won all my case, nah. But I did prevail on behalf of my complaintant about 80% of the time.

I can tell you how I developed the cases and how myself along others made the decision to go the discrimination route. It has a lot to do with patterns of practice within the whole food chain er I mean the company. We of course had two options; either using the grievance procedure or to initiate a complaint with the EEOC.

Be back either this evening or in the morn with more of my real life experience in what I call the incredible EEO voyage. It is a long process minimum I would say two to three years from beginning to end.
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