Please Do Not Forward [List of Available Jobs] to Cisgender Straight White Males: Legal Implications

[Darren_Garrison]

@Dewey_Finn

And as I said, in the real-life case the email was not the only way the jobs were advertised. If it was, the discrimination claim might be stronger.

Seems to be confirmed.

[Defensive_Indifference]

I know the OP wants to discuss this as a hypothetical, but FWIW, there is another threadabout the specific case that prompted the question. The person who sent the email doesn’t appear to be in any kind of management or hiring role. As the email appears to be the work of a random low-level employee and not the policy of the organization, it would seem the legal implications are small a long as the employee is disciplined/terminated.

[md2000]

I don’t know if “where it was advertised” matters. The person (or one of them) presumably in charge of or participating in collecting resumes, and therefore winnowing candidates, has expressed that they would have a tendency to discriminate against protected classes. This would presumably give any excluded candidates who are “better than” the winning candidate some leverage in a lawsuit. Just because a person limited the range of who heard his desire to discriminate does not mean he was not going to discriminate - ultimately it’s up to a judge or jury to decide.

[Really_Not_All_That_Bright]

@Patx2

Have any attorneys stopped by to answer this one? I don’t know legally, but it seems to me this goes against the whole idea that a company does not discriminate on the basis of race, gender, or religion. I might be way off base here, but isn’t that part of Title VII of the Civil Rights Act? It sounds to me like there could be legal ramifications to put that out there, idk.

42 U.S.C. §2000e-2. [Section 703 of Title VII]:

It shall be an unlawful employment practice for an employer… to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Since the OP specified we are treating this as a hypothetical, I’ll assume the hypothetical employer has 15 employees so as to bring it within the ambit of Title VII.

[Procrustus]

@Patx2

Have any attorneys stopped by to answer this one? I don’t know legally, but it seems to me this goes against the whole idea that a company does not discriminate on the basis of race, gender, or religion. I might be way off base here, but isn’t that part of Title VII of the Civil Rights Act? It sounds to me like there could be legal ramifications to put that out there, idk.

Here’s a good summary, found on alaw firm’s website:

So how do you prove a case of “reverse discrimination”? Like any other claim of race discrimination, a victim of race discrimination at work must prove a prima facie case under the McDonnell Douglas test. Under McDonnell Douglas, an employee must show that: (1) the employee is a member of a protected class; (2) the employee is qualified for the position; (3) the employee suffered an adverse employment action; and (4) either non-members of that employee’s class were treated more favorably than the employee, or the circumstances give rise to an inference of discrimination. Sarullo v. United States Postal Service, 352 F.3d 789, 797 (3d Cir. 2003). For “reverse discrimination” cases, this test changes altered to take into account the fact that the employee is not a member of a minority class. Some United States federal circuit courts require the employee to show that “background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” On the othe hand, other United States Courts have held that “a plaintiff who brings a ‘reverse discrimination’ suit under Title VII should be able to establish a prima facie case in the absence of direct evidence of discrimination by presenting sufficient evidence to allow a reasonable fact finder to conclude (given the totality of the circumstances) that the defendant treated plaintiff ‘less favorably than others because of [his or her] race, color, religion, sex or national origin.’” Iadimarco v. Runyon, 190 F.3d 151, 163 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978). Under this test, the employee is not required to present direct evidence, but only enough evidence to create an inference of discrimination. Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 352 (3d Cir. 1999).

[Ravenman]

@Dewey_Finn

And as I said, in the real-life case the email was not the only way the jobs were advertised. If it was, the discrimination claim might be stronger.

Hold on, why is this?

If a landlord is renting an apartment and has a “for rent” sign for everyone to see, but tells his friends to try to find non-African Americans who would be good renters, I don’t see how the public sign would undercut a claim of housing discrimination.

[Fotheringay-Phipps]

Questions in the OP remain. Who has standing to sue? Hard to imagine anyone proving that they would have been hired absent this email. And who exactly is in violation of the law?

[Colibri]

@Fotheringay-Phipps

I specifically avoiding referencing any actual alleged instance in the OP because I didn’t want to get tied up in a discussion of whether it happened or the political angle if it did. This is a GQ question about a hypothetical case.

Legal hypotheticals are not really suited to GQ. Moving to Great Debates.

Colibri
General Questions Moderator

[iiandyiiii]

IANAL, but ISTM that if this were an organization’s policy (written/formal or unwritten/informal), then they could be sued by someone who didn’t get the job. But it doesn’t seem like random flunky writing an idiotic email would be enough to say that it’s the organization’s policy, especially if the organization makes it clear that this is not their policy.

[Clothahump]

@Fotheringay-Phipps

What are the legal implications if the person in charge of a department sends out an internal email with a list of available jobs but includes the message in the thread title?

Discrimination is discrimination, no matter what direction it takes.

[Kimstu]

@Ravenman

Hold on, why is this?

If a landlord is renting an apartment and has a “for rent” sign for everyone to see, but tells his friends to try to find non-African Americans who would be good renters, I don’t see how the public sign would undercut a claim of housing discrimination.

But AFAIK it wouldn’t be illegal discrimination if he tells his friends to try to find African-American tenants, because he wants more diversity in his rental housing or whatever.

This is why it’s legal for employers to practice “inclusive recruitment” by putting phrases like “We especially encourage applications from members of underrepresented minority groups” etc. etc. in their job ads. And they can contact, say, alumni organizations of historically black degree-granting institutions to increase their outreach to potential minority applicants, and so forth.

The example in the OP sounds like an incredibly hamfisted (and possibly illegal? though IANAL so I don’t know) attempt to encourage an extreme version of “inclusive recruitment” by specifying what kinds of people they don’t want to direct extra recruitment efforts towards instead of what kinds of people they do.

[Odesio]

@Crazyhorse

Saying “I personally would prefer…[someone other than a protected class]” in an internal email is not discrimination as long as all applications are still considered. Adding the words “personally” and “prefer” were very likely a deliberate choice of words to prevent any such charges from being made.

Are you kidding? I work in HR and if I ran across an email from anyone in the company who wrote that they’d “personally prefer [insert protected class]” not be forwarded a job posting we’d come down on thim or her like a ton of bricks. Here’s the problem with that statement.

1. Erosion of confidence with current employees.

Does this person have any white male subordinates? If so, those employees have legitimate concerns about the ability of this person to treat them fairly when it comes to evaluations and opportunities for advancement.

2. The EEOC.

Any white male who doesn’t get the job has a legitimate complaint to make with the EEOC. The DNC will likely have to explain that Madeleine Leader’s statements were not reflective of their hiring practices, that they are in compliance with EEOC requirements, and they are taking corrective action/training of some kind to avoid this kind of thing in the future.

3. Public Perception

This is an embarrassment for the DNC and gives its enemies ammunition to use against them.

There’s absolutely nothing wrong with wanting to diversify your workforce but there are much better ways of doing that. “Make sure our recruitment efforts reach out to veterans, women, and minorities” is a perfectly acceptable statement. Honestly, I’d recommend Leader be fired.

[nearwildheaven]

Within the past decade, I saw a want ad for RNs to work in the intake clinic of a nearby prison - male RNs only. Some people thought that was discriminatory (“Why don’t they hire anyone and provide extra security to female nurses?”, that kind of thing) but I didn’t. There are places where women do not belong, and also places where men do not belong either.

[Lord_Feldon]

@Pantastic

It depends on what state you’re in. Discriminating on the basis of ‘male’ and ‘white’ are both illegal across the US. In more conservative states, there’s no protection for discriminating on cis/trans status or sexual orientation.

The EEOC believes that federal law protects against the latter two as well (as it’s ultimately just a form of sex discrimination), but I don’t think anybody has appealed the matter to an actual court yet.

[Euphonious_Polemic]

@nearwildheaven

Within the past decade, I saw a want ad for RNs to work in the intake clinic of a nearby prison - male RNs only. Some people thought that was discriminatory (“Why don’t they hire anyone and provide extra security to female nurses?”, that kind of thing) but I didn’t. There are places where women do not belong, and also places where men do not belong either.

However, your point is moot, since that is not the case with this hypothetical.

[Odesio]

@nearwildheaven

Within the past decade, I saw a want ad for RNs to work in the intake clinic of a nearby prison - male RNs only. Some people thought that was discriminatory (“Why don’t they hire anyone and provide extra security to female nurses?”, that kind of thing) but I didn’t. There are places where women do not belong, and also places where men do not belong either.

If there’s a bona fide occupational requirement this allows employers to consider qualities their applicants possess such as gender, race, or even age that they would not normally be able to consider as qualifications for the job. I certainly don’t know enough about prison clinics to provide an informed opinion.