The Disparate Treatment and Disparate Impact doctrines are diametrically opposed, yet both can lead to lawsuits. When a company gets big enough, it's going to start running into discrimination lawsuits no matter what they do. There are things they can do to offset the damages (diversity training, diversity department, certain types of donations), but the end result can still be settlements in the tens of millions of dollars.
If you have a real estate office and somebody walks in, you might offer them a cup of coffee. If another person walks in later and you forget to offer it to them, and that person is part of a protected class...you've just violated equal housing.
This is why a lot of real estate offices will put out drinks, snacks and coffee with a "help yourself" sign now.
Well over half of the course was basically "how not to get sued."
Laws like these are not criminal laws, and are not meant to be enforced if by that you mean policed. It's up to someone to file a lawsuit, if they think the law is on their side. Then a judge will have to rule whether or not the law applies in that particular case, and in doing so they may set a precedent which will influence how later cases will be judged.
And following that further along, in this way, I can see a pretty straightforward method of declaring any job advertising as discriminatory under that decision
You may think so, but this is why we have judges. Just because you can make and argument, it doesn't mean that argument will be persuasive to a judge. You may further think that this means that the outcome of a trial is arbitrary, and you would be right in the sense that law is not an exact science, and the result of a verdict can be difficult to predict if the evidence is weak and/or there is no precedent. But you would also be wrong in the sense that each verdict rendered helps to set precedent, and judges (and lawyers) always look to see what precedent has been set, both when it comes to how to interpret the law, but also when it comes to establishing what counts and doesn't count as evidence.
Disclaimer: IANAL. I'm not even American.
It's basically the civil equivalent of an actively enforced law nobody can possibly comply with at all times that gives the cops the power to harass whoever they want whenever they want (e.g. the 55mph speed limit on I95 in the Boston area) except instead of empowering cops to harass people on flimsy pretext they're empowering plantiffs to harass companies on flimsy pretext.
Laws and precedents (in the case of civil litigation) that well meaning parties can't possibly comply with are bad.
This is one of the reasons that the "loser pays" approach to the cost of litigation used in much of the rest of world would not work well in the US. We use private civil lawsuits to enforce things that would be enforced by government agencies in much of the rest of the world, so it is important that individuals can bring lawsuits against much bigger, much better funded entities without having to worry about getting wiped out financially if they lose.
That's worse, because then it shifts the burden of en^W^W policing onto those who actually want to go through the time and expense of a lawsuit, so only the most egregious abuses against the most powerful people will ever see judicial oversight, providing an extremely noisy signal that never provides reliable guidance, esp when (as parent notes) huge classes of activity are violating the ostensible "disparate impact" criteria but never prosecuted.
> But you would also be wrong in the sense that each verdict rendered helps to set precedent,
But those verdicts don't help when the set of cases going to trial is skewed as above. The only real signal it sends is "hey, don't do it in a way that might get noticed by someone who actually matters".
I think the precedent is the opposite. Companies and governments in the US do this all of the time without legal risk.
> And following that further along, in this way, I can see a pretty straightforward method of declaring any job advertising as discriminatory under that decision.
Perhaps a bit of a stretch here. Companies and governments will continue to advertise jobs
> So in that way it's not used to fight discrimination, but instead becomes yet one more way to fight the oldest battle in history: The battle to consolidate and preserve the power of existing institutions of control and weaken the influence of competition and punish outsiders.
This sounds like good old competition to me. Why would an established player not weaken competition with pricing or product value?
It's pretty crazy. They are legal adults. They vote. They serve on juries. These are the people that fight america's wars and actually risk their lives but at home large companies are discriminating against them in an rapidly expanding sphere of things.
Actually you can by lying to Facebook. I have been doing this for a long time and the bullshit ads I get are kind of amusing.
Basically it just says you can't actively discriminate against someone because of gender identity. Which had been the defacto law for a long time.
I suppose that's as far as Facebook's support for gender choices goes.
Is why we have species that impersonate other species, or that have camouflage patterning.
"Yeah, um, we want programmers and I thought targeting people into Python was reasonable." That does sound reasonable. It's not meant as a proxy for gender, but for an interest/skill that is closely related to the job
Ok, I'm not deeply informed on Disparate Impact, but as you just described it, as intent doesn't matter, if your "job listing targeting Python developers" skews male and doesn't pass the 80% test, you're still discriminating & liable right?
You make a lot of interesting points and its a difficult problem, for sure, but I think this is a bit of a straw man. Even for company that explicitly intended to discriminate by hiring only men for a position could avoid the vast majority of what you wrote here by posting the position on their company jobs website and just only seriously considering applicants with male names. Trivial, even.
Its also possible that a company could be using gender targeting in advertising specifically to _mitigate_ the tendency for certain roles to have gender-skewed candidates, by targeting women on Facebook for python roles because their applicants through the passive/non-targeted listing sites skew male as an example.
I can't say one way or the other if that's what Uber did, but its impossible to look at the activity on one platform and somehow extrapolate that to the entire company's hiring strategy.
(And for anyone who doesn't know much about digital advertising, despite all of the crazy complexities, all of these systems are basically trying to maximize displays toward people who are going to respond to the ad and eliminate displays to people who won't. The definition of a response at the simplest is a click, but at the most complex is a lead, app install, purchase over a certain order size, etc. In many cases even the deepest pocketed brand advertisers will not be able to out-bid a highly optimized ad campaign for specific inventory.)
On the other side of the internet advertising pie you have Google (excluding Indeed and LinkedIn because I know only a little about their platforms.) An advertiser is going to bid on "driver jobs" or whatever, and Google is going to do the rest. Way back when, before Google collected user demographics, the ad is going to show just for the people who searched it. I'm going to take a guess that some job keywords split 50/50 while others skew heavily toward certain genders or age groups (e.g. 0 females over 65 are searching for manual labor jobs.) With Google's demographic data and machine learning based targeting, what is really going on today, in 2018, is a mystery to me. I would assume that these algorithms are not demographically neutral. They probably learn that males respond more to driving ads. Almost certainly on the display side of things (which Google's less sophisticated ad buyers might not realize they are purchasing) the ads are going to start skewing toward certain demographics.
Solely based on the way Facebook's platform works, I would question if it is ok for any advertiser to place ads on Facebook's platform as Facebook can place the blame on the advertiser even though it is ultimately a consequence of how their system is designed. On Google's side, the same discrimination is likely happening but the advertiser can probably blame Google.
At the end of the day, larger questions persist. How much money should employers be spending on letting employees know that they have a paying job available to them? And, is it ok that job opportunities, which may be superior, and being buried by those that have deeper pocketed employers?
Because of Google's semi-recent launch and expansion of Google Jobs results, which almost certainly will end up heavily monetized, I think these are very important questions.
One thing you might be interested in reading about is Disparate Impact. Discrimination cases can be proven by showing that a practice has a disproportionately adverse impact on members of a protected class, even in the absence of intentional discrimination.
The Supreme Court noted in Griggs v. Duke Power Co that the Civil Rights Act bans "not only overt discrimination but also practices that are fair in form, but discriminatory in operation." In fact, "absence of discriminatory intent does not redeem employment procedures" that operate in a discriminatory manner. Unintentional discrimination is still discrimination.
In a piece on age-based discrimination, Facebook said, "age-based targeting for employment purposes is an accepted industry practice and for good reason: it helps employers recruit and people of all ages find work." (https://www.propublica.org/article/facebook-ads-age-discrimi...).
I think a lot of the industry has been casual about job ads, but Facebook is kinda the first platform that really lets you be exact with a lot of your targeting. Before, maybe you feign ignorance that "Men's Health" doesn't have a lot of women readers. Plus, women can read Men's Health. However, I can't get Facebook ads targeted to a different gender. Facebook lets you be reasonably exacting.
If I create a Facebook ad for a job application with no other promotion of the opening (including on my company's website) and target it just to men, is that discriminatory? IANAL, but in Griggs the court held that procedures that act as built-in headwinds for protected groups are illegal. Making it so that women could only hear about the job from a man seems like quite a headwind working against their likelihood of getting the job. Griggs is about job qualifications that were used as a proxy to keep black workers from getting jobs, but making it so that a group of potential workers can't even see the job application seems similar.
Going back to your example: if someone used a gender proxy like "people who like action movies", I think it would be hard to defend in court. 1) They don't need to prove discriminatory intent, just disparate impact. 2) It seems likely that a company adopting such targeting would have communication indicating their discriminatory intent. "Facebook won't let us target by gender anymore! What can we do?" "Let's use things like action movies to get the same result!" If that comes out in discovery, it would seem like a simple case. 3) At some point, a court is going to want to know what the basis of that targeting was and it's going to sound really hollow. But it doesn't even matter if they come up with a good cover story, because even if it was unintentional, it can still fall afoul of the law.
On the other hand, if I run a tech company and wanted to target "people you are into the Python programming language", that's a group that will likely skew male, but it kinda passes a sniff-test. It just doesn't smell funny. "Yeah, um, we want programmers and I thought targeting people into Python was reasonable." That does sound reasonable. It's not meant as a proxy for gender, but for an interest/skill that is closely related to the job. Action movies aren't related to my job, but a programming language is.
Going back to the magazines: I think much of the same might apply, but I'm guessing that we've been relatively lax about it as a society. It might not feel inherently discriminatory, but disparate impact doesn't rely on intentional discrimination. You say, "that's just how advertising works," but you could easily place ads in multiple places to reach a wide variety of people. One program might not reflect the population at large, but I don't think it's rocket science to advertise in multiple places to reach a more representative sample.
As I noted above, Facebook says that job targeting (at least on age) is an accepted industry practice. There are people that don't like the disparate impact theory (though it is established Supreme Court precedent since 1971). Plus, I don't know if disparate impact has ever been used in terms of narrowing the field before applications even come in. In Griggs, the procedure disproprotionately weeded out black applicants. In the Facebook case, those potential applicants never even knew the job existed.
I have definitely thought the same things you've thought. Society is hard. Fairness is hard. But I think it's important that we work toward fairness. This isn't meant to be anti-company. I just think companies should have a bit of a justification for doing something if it runs contrary to fairness. If you're only advertising your programming jobs to people under 40, why? If the answer is, "we mostly don't want to hire older programmers, but if a good one happens to come along we'll take them", that doesn't feel like a great justification. In fact, it basically admits discrimination. If the answer is, "there are more young programmers than old programmers", I think the retort has to be, "given the loads of ways you can target, why not target based on interests rather than age or gender? Targeting to people interested in CS, various programming languages, etc. seems both better for you and for potential applicants...unless you're trying to discriminate." It's not always simple, straight-forward, or easy, but I think we're trying to build a better, more fair society and that requires hard-work and questioning.