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The idea would be that its optional, and the company would still treat candidates choosing either optional equally during the hiring process - it would not be a condition of applying.

So, you aren't signing away your legal rights in exchange for a chance at the job, you get that either way. You are agreeing not to exercise some legal rights in exchange for feedback, not in exchange for your application to be considered.

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If you're agreeing not to sue, then the company can use any criteria they like to hire or not hire you and there are zero consequences.

Imagine you check the box, you don't get the job, and your feedback turns out to be "You're a man and we don't like to hire men." You have no recourse because you agreed not to sue.

You can argue that that's obviously illegal hiring criteria and you should be able to sue anyway, but then you're back to square one.

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