What prevents 'disguised discrimination' in employment?

Factual Questions
1

What prevents an employer from skillfully disguising discrimination on the basis of race, gender, or sexual orientation by pretending that the job applicant was rejected for some other reason?
Seems that there a number of ways an employer could do so that would be virtually impossible to prove or defeat in court:

"We had 30 people applying for **one *job opening. Mathematically, 29 out of 30 applicants had to be rejected. This lesbian woman simply happened to be among the rejected ones, just like 28 others. No discrimination."
“Sure, this African-American had a bachelor’s degree in engineering, but the other job applicant, a white person, had a higher GPA in certain computer courses. So we chose the white guy. No racism.”
*“This woman had excellent grades and qualifications, but her personality came across as irritating. So we decided to go with a less-qualified but nicer man instead. No sexism.”
*

It requires the ability to read an employer’s mind to know the **real **reason for hiring or rejection - but who can do that?

2

Clarification - what I’m really trying to say, is, employers can cook up a convincing-sounding reason for almost anything.

3

They don’t have to give any reasons for anything. Yes, if they send each other documents saying “Ew, one of those people applied, we don’t want their kind here”, and those documents end up being discovered in a discrimination lawsuit, then they’re in trouble if “those people” are a protected class.

Most people making hiring and firing decisions nowadays are smart enough not to write that shit down.

So of course it’s extremely hard to prove that you weren’t hired because you were one of those people. Really hard. Often it’s a lot easier to prove you were FIRED because you were one of “those people”, because if your employer is gonna fire you over being a black guy he probably was already a big dick about it when you were working for him.

The only easy way to prove discrimination is if the employer has some objective method of evaluating candidates, and one candidate scored higher but was rejected because they were a member of a protected class. Government jobs often work that way. But most jobs don’t.

4

I claim no special knowledge.

I would think that an employer can do this in any particular case and get away with it. Over the long run however, a statistical pattern would emerge which could be used as evidence.

5

The OP has described why discrimination cases are very difficult to prove.

6

Not sure what your point is exactly…in my experience in evaluating job candidates, the candidates chosen to interview almost always have the requisite qualifications on paper already, so our goal is to see how they approach problems, if they’re assholes or weirdos, and how they will fit into our group.

Clearly this gives a lot of opportunity to just stealth discriminate against minorities, women and older workers, but there’s not really any other way to do it that I can see.

7

There is very little that prevents disguised discrimination.

Sometimes the qualifications are such that a candidate can make a strong case that they were rejected for reasons other than capability. But even then, it would be valid to reject, say, Dr House because his skill as a doctor doesn’t offset the fact that he’s an ass.

An applicant’s best bet in suing a potential employer is not so much looking at their particular instance, but by creating an overall image of the employer’s hiring over time. If the employer has 100 employees and they are all white men, then you can look at the hiring of each one of those and perhaps see a pattern of excuses.

It’s a little like testing a loaded die in that sense. If I roll it once and get a 6, I’ve proved nothing. But if I roll it 100 times and 90% of the results are a 6, then I can be virtually certain that the die is loaded.

8

Through statistics. If the people hired, over a period of time, under-represent some protected class many standard deviations away from how many in that class would normally be present in a population, prejudice may be inferred.
Relevant article.

9

As others have said, you look for overall hiring patterns. If you’re looking at a small company with only ten employees and none of them are black, you might figure it’s just a coincidence and let it slide. But if you’re looking at a larger company with three hundred employees and none of them are black, you’ve got reason to be suspicious and investigate their hiring practices.

10

Speaking as an HR professional:

In individual cases, it is hard or next to impossible to prove discrimination in hiring unless there is specific evidence that the person was rejected for a reason such as race or age or gender or other protected attribute. Sometimes patterns can be discerned over longer periods of time.

Often regulators will identify specific hiring process that, while not discriminatory on their face, have a disproportionally adverse effect on a protected class. An example is a company that refuses to hire anyone with a criminal conviction of any kind: since minorities and especially black men are disproportionally convicted of certain crimes, such a policy could have the effect of (intentionally or not) discriminating against that population of applicants.

11

Until the “Truth Machine” is invented, the answer is nothing. But that doesn’t mean it occurs regularly.

But FWIW, it seems like the prevalent attitude among many dopers as evidenced by threads in IMHO and the BBQ Pit, is that “corporate America” is out to get everyone if possible, especially minorities and liberals.

12

It’s worth nothing.

13

First of all - HR is paid to protect the company from the employees. Not the employees or applicants from the bad people/policies of the company.

In my experience, there is very little disguised discrimination at the lower or mid-levels. There’s a lot of it at the upper levels. Come to think of it - you’ll find 20-30 more qualified people in the same company for every VP you’ll see. So the choice of a VP is very subjective - and often based on perceived loyalty than actual effectiveness.

14

Why do you equate “perceived loyalty” with “disguised discrimination”? Loyalty is not a protected class. It’s perfectly legal to say “Bob will be here for 20 years. Fred will jump ship if he gets a better offer. Let’s promote Bob to VP.”

There’s no discrimination unless someone says something like “All women will interrupt their career to have children, therefore we won’t promote women to VP.” Now you have a protected class (women) being discriminated against.

15

I agree. If, over the years, they end up hiring 47 people and not a single one of them is black, despite the fact that one fourth of the qualified applicants were black, it gets harder and harder to maintain innocence.

16

And then, on boards like this, people will still argue that such statistics are meaningless and racism/sexism doesn’t really exist because they don’t see it or no one’s dying or it’s just that those unhired people were less qualified as those people generally are.

17

How is that in any way relevant to the topic of this GQ thread?

18

Just like anything else, it’s possible to get away with, but there are ways to make it more difficult. And just like in anything else, people think they’re smarter than they are. If you think you’re going to make it “virtually impossible to prove in court,” you’re sometimes going to find out that you didn’t know that much about what it’s like to prove a thing in court.

Take the cases described in the OP. You’ve got your lesbian, your black guy, and your woman (L, B and W). We don’t have to read anyone’s mind about real reasons, all we have to do is the following magic trick: Hey, L/B/W says you discriminated against him/her. Why didn’t you hire him/her?

And then they have to answer the question. If the answer is she was rejected just like the 28 others, OK, cool. Can I see the applications? What’s the hiring process? What’s the job description? Who made the decision?

If the answer is, sure he had a bachelor’s but this guy had a higher GPA in computer courses, OK, cool. Can I see their resumes? Can I see the job posting? Have you hired into this position before? What were those people’s qualifications?

If the answer is, she was the most qualified but her personality was irritating, who made that decision? Who else has that person hired/fired over the last, oh I dunno, five years? How many men, how many women?

The employer, it turns out, by law has a burden of demonstrating that it had a legitimate and non-discriminatory reason for making the hiring decision it made. If it can do that, then we’re done, unless the person who is claiming they were discriminated against has enough evidence to demonstrate that the asserted reason is a pretext for some discriminatory ulterior motive. I don’t want to be a Pollyanna about it – discrimination that exists in the grey areas will pass muster just by virtue of being in the grey area – but you certainly aren’t going to get away with not hiring from an entire certain class of qualified people for long. At some point, you’re either skillfully operating on the margins so much that you’re forced not to discriminate, or alternatively you’re still discriminating but it isn’t on the margins anymore, and you’re fucked.

19

I think the burden of proof is on the plaintiff, not the defendant.

What if the employer says “No?”

20

This is it. If you’re the first gay Estonian midget to apply, and you get rejected for vague “you weren’t a match for the position” reasons, you really don’t have a case. If you can show that over the past five years, 30% of applicants to the company have been gay Estonian midgets but only 5% were hired, and can also show either that their qualifications did not materially vary from the general population, or that they were, on average, superior, you have the beginning of a case.