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Comment by srdev | Hacker News Reader

I really hope you looked into suing them, because that was transparently unethical and illegal.

Statements like this are the problem. You've heard one side's version and have very few facts.

What is an employer to do? Never fire anyone in a protected class?

You would be surprised how many employers are afraid to boost female/minority hiring because they are afraid of opening themselves up to lawsuits if the need to let that person go in the future.

Edit: Downvote away. The truth is, rushing to judgement and vilifying an employer without having facts is only going to make this problem worse.

They should fire someone for well-documented causes, in which case there is no issue. I happen to think that it should be non-trivial to fire someone. If they are a poor performer then it shouldn't be hard to actually document that. If you're going to outsource a division, then lay off your pregnant women along with the rest of the workers that are going to be part of that lay off. Singling out a single pregnant woman for a pre-emptive firing, separate from the rest of her coworkers, reeks of discrimination and should rightly be cause for lawsuit.

> You would be surprised how many employers are afraid to boost female/minority hiring because they are afraid of opening themselves up to lawsuits if the need to let that person go in the future.

I wouldn't be, actually, because people in general tend to hold onto unfounded ideas. I find that its pretty simple to fire someone in a protected class in practice if you are actually professional about it and document the reasons. Its just not trivial, which is what bad employers tend to want.

> Edit: Downvote away. The truth is, rushing to judgement and vilifying an employer without having facts is only going to make this problem worse.

Lawsuits are how facts in disputes are established. The question is whether there is enough doubt here to warrant a lawsuit, and it really seems like there is.

So, what if you want to fire someone because they're just really annoying to be around, and their coworkers are complaining that they hate coming to work and dealing with that person? (This is commonly euphemized as a "lack of culture fit.")

There's no actual productivity loss in such a case; there's just a bunch of unhappy coworkers who have one fewer reason to stay when a head-hunter approaches them.

This is basically why companies fight for at-will employment: they want the ability to fire people for what are essentially petty, yet still important reasons, without having to ever say that sort of thing out loud. Because, you know, any company that actually admitted that it did that would be tarred in the press—not for doing it, but for failing to be discreet about it.

I find it distressing that I could be fired, despite (presumably) doing my job well, because my coworkers disliked me.

I realize that's America, but that does not seem like the kind of world I would want to live in, if I were making the rules.

In the past we've documented interpersonal issues in the performance review and developed goals around fixing any glaring issues. But coworkers are also expected to be professional and raise issues that are actually affecting team effectiveness, and not just complain about a person because they are not fun or personable.

Employers who purposefully limit hiring of women and minorities out of fear of legal risk are acting unlawfully.

This is the real world. Perceptions matter.

Do you imagine that these people will openly disclose that they are discriminating?

Good luck proving that a manager has an (un)conscious bias against women/minorities because they are afraid of lawsuits.

This is the real world. If I worked at a firm that I learned was doing this (for instance, because I was on the hiring committee, saw the resume feed, and noticed women weren't getting interviews), I'd blow the whistle. If we got evidence that a company was actively pursuing a strategy like this, they'd be a pariah overnight. Team members would quit. Every job ad they posted would be accompanied by comments and catcalls. Candidates would be embarrassed to consider jobs there. A huge fraction of the best-qualified candidates would select themselves out of consideration.

You'd have to be a comprehensively incompetent manager to allow this to happen at your company.

Self-policing firms/whistleblowers is your solution for squashing discrimination?

It sounds like you and I have had rather different professional experiences.

It does indeed.

While bias is a big issue, so is individual manager bias (two+ managers completely different evaluations from each) As I've mentioned before, it's all nice that companies are inclusive, etc., yet that does little to prevent managers from hiring people who agree with them and retroactively finding clever ways to fire people who disagree with them.

It's like Ellen Pao, to use an example. She was a great employee till the day she wasn't and then she became incompetent. And the best reason to use for fire someone is to have "no reason". Just because. Or they can retroactively find "reasons" if necessary.

The idea that we should be less vigorous in pursuing the rights of women and minorities because managers will retaliate by discriminating against them is a form of concern trolling. Yes, policy changes come with unintended consequences. But this consequence is especially unlikely and silly, because it is culturally taboo, overtly unlawful, and hard to conceal from employees.

It's not diversity should not be pursued at the expense of something else. It's that you also have to plug those other insidious holes while you're at it, else it's more show than go.

Great, you hire lots of underrepresented groups, but then you can just push them out and keep the grinder going.

This is the real world, in the USA, your particular city, in software engineering, software security.

Sure, it's still very commendable that you would do that, I can at the same time easily imagine other contexts where such actions would not have much of an effect and that's where the skepticism of the parent poster comes from.

Conversely, given that the whistle is not blown at most tech companies, team members aren't quitting, and job ads are not accompanied by catcalls, we can conclude that discrimination is rarely/never happening in the tech industry.

That's the probabilistic converse of your claim. Do you endorse it? If not, why not?

I don't think it was implied that a particular form of hiring funnel discrimination was the only form of discrimination in tech.

What forms of discrimination does tptacek's argument not apply to?

Is there some reason that irrational taste-based discrimination would not trigger candidate embarrassment and self-selection, but rational lawsuit-fear based discrimination would? (More precisely, rational in a world where tptacek's hypothetical perfect market self-regulation mechanism did not apply, but irrational in such a world.)

a world where women are hired but not promoted? Or where the discrimination falls under the heading of "culture fit" instead of explicit policy? Or even where women are hired and promoted equally, but otherwise treated like shit in the office?

Why would non-promotion or "treated like shit" not trigger the negative consequences tptacek proposes? Would he and his fellow travelers not blow the whistle, quit or catcall their job ads?

What's perceived as discrimination varies. Society at large disapproves of discrimination, so everyone believes "it's not me". It's harder to pretend something as overt as a policy against hiring women is anything but discrimination, as opposed to "just having fun" or "random chance".

> What forms of discrimination does tptacek's argument not apply to?

Job ads that say let's bro down and crush some code? (Generally speaking if women are a small percentage of the applicant pool, it would almost certainly be the case that the optimal hiring funnel makes you more likely to hire a given man than a given woman.)

That would be discrimination on the part of the female applicants, not on the part of the employer. The woman is not hired because she chose not to apply, not because she was rejected by the employer's choice.

Just like how black people discriminate between businesses that have "whites only" signs in front and businesses that don't.

The kind of discrimination alluded to upthread? No, I do not think it's common. That's my point.

What kind of discrimination (if any) do you believe can be common without triggering the negative consequences you describe?

I ask because you seem to be describing a world in which discrimination basically can't exist due to market self-regulation - i.e., all our industries problems are basically solved, which seems to differ from your usual position.

With apologies, I do not believe you are discussing this in good faith, and I think the distinction I am drawing is clear enough.

Just respond with a clear answer if there is a distinction. Don't resort to ad homs.

Fwiw I think the parent of your comment asked a very reasonable question and it's not really clear what distinction you are drawing from your GP comment.

That was a beautiful deflection. Your career is in politics tptacek.

Your second sentence is more hostile than needed.

One of the reasons I ask Tom these questions that he is one of the more rational folks on HN, particularly on other issues. It's pretty clear that he realizes he made a mistake, hence the deflection. Making a mostly rational person feel attacked is only likely inhibit their logical mind.

The parent seemed to be describing a world in which that specific and blatant form of discrimination can't exist, not all forms of discrimination.

Hence my question - what kind of discrimination can exist in such a world?

Not the kind where a board of wangbangers sit in their castle surrounded by scantily-clad ice sculptures and give toasts "to female misery," believe it or not.

Don't get me wrong, but that is easy to say when you are you ;)

Most folks need that paycheck and don't live in the magical Bay Area where they find jobs laying in the street when they go for a stroll.

I personally would think about moving to a different company if that was the case, but I wouldn't make a fuss about it as I wouldn't know what the future lies ahead of me and who I'll meet in future companies (burning bridges and all that)

Exactly. The real world.

I have posted in the comments here about Reddit's hiring policy where they now weed out people who don't embrace diversity and gender-balanced teams: http://archive.today/y6PJD#selection-1567.0-1570.0

Since no candidate with a functioning brain cell would ever admit to not liking a certain race, religion or gender, it's a stupid HR policy and the only way you could weed somebody out would be to resort to dirty tricks e.g. drinks after work to socialize with the candidate, deliberately let slip a few misplaced comments and see what the candidate says.

> Do you imagine that these people will openly disclose that they are discriminating?

Actually yes, since mid-size or larger companies are required to file EEO reports [1] that are used to compare the hiring/retention rates of protected groups against the available labor market and competitors in the area.

Even unconscious bias (to say nothing of deliberate bias against women) could result in nasty lawsuits if actions are not taken and enforced by hiring managers to correct biases against protected classes.

[1] http://www.eeoc.gov/employers/eeo1survey/whomustfile.cfm

And yet ironically that legal exposure may be a risk worth taking to shield yourself from an even greater legal problem.

Exactly! It's easy to rush to judgement and say "sue the employer" when you've only heard one side of the story. My wife's friend recently had a baby, and she exploited the situation to the full. She didn't come to work for almost 7 months using various excuses, and she was openly telling her friends at work about how she was exploiting the situation. I don't know how much management knew about it, but they didn't fire her because they were afraid of getting sued. Management isn't always bad by definition!

I am obviously not saying that everyone exploits maternity. I'm just highlighting that there can be another side to the story. Isn't it possible that the management was already considering letting the Director of Engineering (a role that by definition is not going to have a lot of peers) go? What do they do if she's pregnant at the same time? Wait for 6 months just so they don't get sued?

EDIT: Can't respond in a reply, so I am responding here. "Exploiting a situation" doesn't mean utilizing benefits legally given to you. An example of exploiting the situation will be: My employer is required to give me paid sick leave. So, even if I'm not sick, I'll claim that I am and get paid for taking time off. And usually, it's not the employer who gets hurt by something short-term like this. It's my peers who have to pick up the slack.

How dare someone exploit the benefits that are legally available! Employers can insure against the economic risk of having someone become pregnant. And you know what, just budget for that in your cost of hiring once you are big enough to have a full time payroll and HR person on staff. And start planning to give fathers leave as well.

If you (qua hypothetical business owner) can't cope with the fact that your employees are human being and that human beings have reasonable needs, then what good are you?

What's the latest HN rule? Assume the best intention of the poster? You did the exact opposite!

I was responding to: My wife's friend recently had a baby, and she exploited the situation to the full. [...] And I'm basically saying, why shouldn't she?

Maybe it's just me, but I thought it was clear that the author was referring to the abuse of such benefits, not that she was wrong for using that benefits legitimately.

Just to clarify again, I was talking about exploiting as in "the action or fact of treating someone unfairly in order to benefit from their work." Not "the action of making use of and benefiting from resources." To make the difference clear in my edit, I used the term "utilizing" for the latter.

I would commend your friend's wife for choosing the right priorities. Family is the most important thing in the world. 7 months is a really short time for maternity leave.

How can someone "exploit maternity"? Maternity is not the same thing as being sick. Being sick is a transient personal thing while parenthood is a process that lasts through a lifetime.

People need sleep and eating. People are not machines. The fact that people are not required to work 24 hours a day recognizes this. People also need an occasional time off. This is recognized as well.

Family is a similar natural need, but with different temporal cycles. Any workplace that does not recognize the allowances required for family is not really in it for the long term.

Any coworkers that begrudge a maternity or paternity leave are themselves at fault, not the parent.

> How can someone "exploit maternity"?

When they tell work that they need to stay home due to some "medical complications." while they hang-out with their coworker friends in evenings and show-off that they were exploiting the situation. Yes, people do that.

Family is the right priority. No doubt about that. In that case, such a person should say so to the employers. "I can't come to work for 7 more months because I prefer to take care of my baby. Please make appropriate plans." is very different from "My doctor said I shouldn't come to work for another few weeks. Continue paying me, and don't hire my replacement, because it's just a matter of few weeks." Especially if you then show-off to your coworkers in the evening how you were exploiting the situation. Who picks up that slack when the employer doesn't hire a replacement? Those same coworkers.

> Any coworkers that begrudge a maternity or paternity leave are themselves at fault, not the parent.

Oh come on! Nowhere did I say that her coworkers begrudge just because she took a maternity leave.

Statements like this are the problem. You've heard one side's version and have very few facts.

What is an employer to do? Never fire anyone in a protected class?

You would be surprised how many employers are afraid to boost female/minority hiring because they are afraid of opening themselves up to lawsuits if the need to let that person go in the future.

You're defending a company that fired a woman who was 9 months pregnant.

I did not downvote your comment. I downvoted you as a person for your comment.

All you know is this person is a woman and was pregnant.

Imagine a man who was recently discovered he had cancer was fired.

That sucks.

But it doesn't make sense to automatically assume the cancer is why he was let go. Sure, maybe the employer is shitty, or maybe he was just a shitty employee.

Well we know what they claimed, which is that they were a pregnant woman who was laid off because of outsourcing but mysteriously she was the only one who lost her job. It may not have been a discriminatory firing, but that would be one hell of a coincidence.

We don't know if what she claims is accurate, true, or even if this company exists. Any comments made are in the context of her statements and assuming they are accurate. Obviously, if she is mistaken then consulting with a lawyer would help reveal that. Telling her to investigate a lawsuit is the correct course given the information we have, and I don't feel any need whatsoever to give the employer a benefit of the doubt. If they are in the clear, then that will be revealed if said employee's lawyer states she has no case.

"Corporate Confidential" by Cynthia Shapiro draws a particular picture how corporate management thinks. If there is any personal detail that would reasonably lead to expect the persons performance to drop in near future and there is a legal way to let go of the person, there is a very strong motivation to do exactly that.

"What is an employer to do?"

Don't be a fuckhead? I can't honestly say I care about their "problems" in this situation.

I can sue you, if I wanted. It doesn't mean you're guilty of wrongdoing. It means I'm exercising my right to use the legal process to resolve conflict.

I really don't see how you think that's the problem.

PS: The UNNAMED employer was really vilified here. Damn them!

If some employers think people in protected classes are more likely to sue when let go (even if the employer did nothing wrong), they might be less likely to hire them in the first place.

This isn't hypothetical. This is actually happening.

> If some employers think people in protected classes are more likely to sue when let go (even if the employer did nothing wrong), they might be less likely to hire them in the first place.

The solution is to make them also think that people in these classes are equally likely to sue if not hired, and particularly likely to win if the employer is, in fact, discriminating against them in hiring.

I don't disagree with that solution, I just don't know how it would be implemented.

I seems like it is much easier to prove discrimination existed when firing vs. discrimination when hiring.

I think that instead of being focused on enforcement and punishments, we should be focused on eliminating discrimination by changing perceptions.

I think that instead of being focused on enforcement and punishments, we should be focused on eliminating discrimination by changing perceptions.

I don't think those are mutually exclusive.

Either way, it is the law they have to answer to, and you don't get that by saying "be timid and don't stand up for yourself."

Fear of this outcome isn't the answer.

I can confirm this anecdotally with my father's factory. Even with documented piece rates, documented averages from all employees, and having a very racially and gender positive hiring policy, it became a running issue of having to spend time in court every time someone was fired for cause. Over a 15 year span they were sued 18 times and lost 'none' of them because they were very strict in documenting everything.

While not a the 'major' factor, it was a factor in reducing the size of the company and specializing rather than growing it and working on more generic product lines. by reducing the size of the company they were able to reduce the need to hire and plan for being sued at least once a year by someone in a protected class that decided that they had been discriminated against.

Based on conversations with him and others in similar positions this is not uncommon.

> The truth is, rushing to judgement and vilifying an employer without having facts is only going to make this problem worse.

The employer hasn't been identified, and so can't be vilified. Sure, people responding to the characterization are responding to a one-sided characterization, but they are mostly providing recommendations of how the person providing that characterization should deal with it, based on the assumption that the characterization is accurate.

I'm not sure what problem you suppose this is going to "make worse".

> I'm not sure what problem you suppose this is going to "make worse".

Discrimination.

How, exactly, is what has gone on in this thread supposed to do that?

If some employers think people in protected classes are more likely to sue when let go (even if the employer did nothing wrong), they might be less likely to hire them in the first place.

This doesn't help fix discrimination at all, it makes it worse.

> If some employers think people in protected classes are more likely to sue when let go (even if the employer did nothing wrong), they might be less likely to hire them in the first place.

If they are more likely to sue when they receive an adverse employment outcome (firing) why wouldn't they be more likely to sue when they receive an adverse employment outcome (not being hired), and, if the employer is actually discriminating, as you suggest, in hiring (but would be doing "nothing wrong" in firing), wouldn't the hiring discrimination pose a bigger risk than not discriminating, since they face the lawsuit risk with either adverse action, but a greater risk of losing the lawsuit in the situation where the facts will actually bear out that they are discriminating based on legally-prohibited criteria?

lol you cannot be serious

> What is an employer to do? Never fire anyone in a protected class?

FWIW, in Brazil it's illegal for an employer to fire a pregnant woman.

Thank you for this comment.

Adding anecdotal evidence using a throwaway for obvious reasons (some minor details changed for the same):

A long time ago in a location far, far away, I was hired into a mid-size (300 employees), relatively successful, few-years-old B2B startup (growing, starting to become profitable) to sort out major issues with a department that happened to be my specialty.

I rapidly figured out the problems stemmed from the top: the head of the department was a woman with an MBA who was utterly incompetent at her job, and who had been there for about a year and a half to build it. I came to this conclusion in various ways.

First, her work was abysmal when I looked at it, and demonstrated complete ignorance of the technical field she was supposed to work in - she had an MBA and her attitude was "I don't need to learn anything technical because it's my underlings' job", but her underlings had about the same technical skills. Her lack of output adversely impacted fundraising for the C round, which strained the company finances and caused management to hire me in desperation.

Second, every single stakeholder I talked to in the company - from heads of departments to junior staff - thought she was abysmally incompetent and her work was severely lacking. In some cases, the frustration was so strong as to border on the personal. I talked to over 40 people and could not find a single champion of her work. It was clear that the company expected me not just to fix her problems but to make a good case to get rid of her as well.

A month into the project, I realized management was very evasive whenever I tried to bring evidence to the case to be made to replace her. I learnt through the grapevine that she had gotten the management team into a room and announced her pregnancy ("hey guys, I have some really good personal news to share with you!" - yes, she was that transparent). The news spread gradually throughout the company, and as it did, an eerie silence replaced the comments as stakeholders resigned themselves to their fate.

I left the project unable to effect the change I had been hired to do (she refused to use any of my work and blocked anybody else from using it), and she was still employed there two years later.

For what it's worth, I've seen plenty more evidence of bias in the other direction, including an employee I had personally hired for her exceptional skill who was later fired - I am about 80% certain - because my replacement as team lead didn't like working with women (he argued budget cuts but she was the only one fired in a team of 30). But thought I'd throw this story in as an example from the other side.

No one is "rushing to judgement". The response wasn't "you win your lawsuit, here is lots of money". The person simply encouraged them to look into a lawsuit, which in itself just means you take your case before a judge and the judge decides who should win the case.

You really did your best to create a strawman and beat the crap out of it here. If you are saying things like "You would be surprised how many employers are afraid to boost female/minority hiring because they are afraid of opening themselves up to lawsuits if the need to let that person go in the future." to discourage a woman from considering a lawsuit when she got fired over maternity leave than YOU are the problem, plain and simple.

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