Comment by jerf | Hacker News Reader

Comment by jerf | Hacker News Reader

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When that logic is run in the other direction, the courts smack it down. "We weren't discriminating against race, we just happened to use $CRITERION that effectively discriminated against race." Does it really change its force if it's discriminating "for"?

To concretize the discussion, I suppose I'll stick to the legal aspects here, in that, yes, let's not mince words or pretend otherwise, there is certainly a direction of "discrimination" that courts will prefer, but are you really sure you can be this blatant about it, legally? It is possible to get in trouble for going too far, for instance see http://www.cnn.com/2014/04/22/justice/scotus-michigan-affirm... . (Which I freely acknowledge is not directly related to this business model, but it does show that the courts do have some degree of limits on "affirmative action".)

Edit: To further clarify, I assume you have considered this question, and I'm curious what the answer you already have must be. I am not thinking this is a new thought to you.

> When that logic is run in the other direction, the courts smack it down.

Really? Has there ever been a situation in which the courts have smacked down a firm for including a funnel which overrepresented (perhaps to the extreme of exclusively representing), say, whites and/or Asians in order to compensate for underrepresentation of those groups in its other sources of candidates?

Because I don't think that's happened, or even been tested. So I think you misunderstand the logic here if you claim that the courts have smacked it down when run in reverse.

> "We weren't discriminating against race, we just happened to use $CRITERION that effectively discriminated against race."

That's not the logic behind using Jopwell, which isn't being marketed as a sole funnel for companies, and companies would be pretty clearly breaking the law in most cases were they to use it that way.

"Running it in reverse" would be claiming that you didn't actively discriminate in favor of the majority, it just so happened to happen because you did something else.

This has been tested over and over again... for instance, it is the reason why IQ tests are de facto illegal to use for hiring. (There's some good reason to believe that it could conceivably be used safely, but most people just aren't willing to take the risk for what gain you might get.)

So, yes, it's been tested a ton. You can not "discriminate" by using standards that just happen to discriminate but you can "plausibly deny" any discriminatory intent. The reasons why you're doing it don't matter much to the courts.

"which isn't being marketed as a sole funnel for companies, and companies would be pretty clearly breaking the law in most cases were they to use it that way."

Yes, but again, de facto it's not safe to use things that would be discriminatory as even part of the hiring process if it were going the other direction. It seems like you're opening a dangerous door to even have something like this in your pipeline, where a rejected candidate could sue and then start arguing about how some balance or other was not precisely correctly maintained.

And remember, this isn't just about "white males" suing either... right now Jopwell explicitly mentioned the minorities they're going to start with... how would you like defending against a suit raised by a minority not in that set?

> "Running it in reverse" would be claiming that you didn't actively discriminate in favor of the majority, it just so happened to happen because you did something else.

Again, that's not the reverse of the logic here.

> This has been tested over and over again... for instance, it is the reason why IQ tests are de facto illegal to use for hiring.

IQ tests are neither de facto nor de jure illegal for hiring; they are used in hiring for a number of jobs, and have survived legal challenges in several of those uses.

> Yes, but again, de facto it's not safe to use things that would be discriminatory as even part of the hiring process if it were going the other direction.

Sure it is. Lots of individual components of company's funnels are discriminatory in "the other direction" taken separately.

Person-to-person contact from a manager to a particular potential candidate letting them know of an opening is a frequent component of a companies recruiting system (obviously not the sole component!) and it frequently does discriminate, because of the way human social circles work, in favor of whatever groups are already overrepresented at that firm. Yet its pretty clearly not illegal in practice to have that be part of the hiring system.

You're still not making clear how this is different from e.g. setting up a booth at a job fair at an exclusive event.

When that logic is run in the other direction, the courts smack it down. "We weren't discriminating against race, we just happened to use $CRITERION that effectively discriminated against race." Does it really change its force if it's discriminating "for"?

Utter strawman. The pool of applicants for any given job is largely a function of the people who've already been hired. This startup is providing a tool for counteracting that selection bias. It isn't "discrimination" to strive for the broadest possible pool of qualified candidates.

"The pool of applicants for any given job is largely a function of the people who've already been hired."

That makes no sense. It seems far more likely you've just got correlation effects going on; a given physical office has a certain local distributing of people.

And this is part of the reason I'm trying to keep to the legal aspects. Any new pool of applicants can only broaden the "diversity", but that doesn't mean you could use the complementary service without getting into serious legal trouble.

Preferences are one thing, but this appears to be out-and-out racially discriminatory. Even as part of a recruiting diet it seems legally dangerous, because as I tried to show with my link, there are limits to the preferences that can be displayed.

[The idea that the pool of applicants for any given job is largely a function of the people who've already been hired] makes no sense.

You don't seem to be familiar with how hiring works.

Referrals are a thing, for instance. Job openings tend to get shared within the networks of employees.

I'm honestly amazed that this is a point of debate.

You're basically claiming that the details of this service can't possibly be relevant because effectively nobody ever uses these sorts of recruiting services.

Along with it being pretty "scorth-the-Earth" as defenses go, I would submit the alive-and-well recruiting industry of which this startup is trying to become a part is a sufficient counterpoint. Referral networks are great for Silicon Valley startups... I mean that fully seriously, not merely rhetorically, it's a legitimate advantage that Silicon Valley has over any other region trying to become Silicon Valley because you just can't legislate those networks into existence... but you tap them out as you grow. Especially if you're not in Silicon Valley.

Hence the market for things like, oh, say, Jopwell.

You're basically claiming that the details of this service can't possibly be relevant because effectively nobody ever uses these sorts of recruiting services.

Yet another strawman. We haven't even gotten to the details yet; remarkably, you've argued against increasing the pool of qualified applicants, on principle.

Referral networks are great for Silicon Valley startups

And another strawman! I never claimed referral networks are bad for startups. But those networks also tend to miss large swaths of qualified potential hires. You yourself admitted that eventually those networks get tapped out.

Meanwhile ... is the applicant pool a function of the current employees or not? If not, why are referrals an advantage? In one breath, the claim makes "no sense" to you, but in the next, that fact is a "huge advantage."

"And another strawman! I never claimed referral networks are bad for startups."

Perhaps you ought to be slower to fling about accusations about "strawmen" and actually read what I'm saying. I'm allowed to make points that are not necessarily direct responses to you. You're attempting to control the frame. Well, so am I. I see no reason to hide that.

"In one breath, the claim makes "no sense" to you, but in the next, that fact is a "huge advantage.""

Bollocks. Read more, assume less please.

"remarkably, you've argued against increasing the pool of qualified applicants, on principle."

Again, you're scorching the Earth to save your point. Your point logically explains that it would be perfectly ethical to create a recruiting service that both highly vets its candidates, and only accepts "the majority", because that would "increase the pool of qualified applicants" vs an unvetted population that requires wading through tons of people who barely even read the posting. Your defense is proving far more than you intend. It is perfectly reasonable, and indeed a real hiring company better be considering, the mechanics whereby the "applicant pool is being increased" if they don't want to be sued. You're nuking the ground Jopwell is standing on to defend it, which is precisely the idea that where the pool comes from does matter, beyond just "a big enough pool"!

Come on, you guys—we need established users to set examples of civility when discussing difficult matters.

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