Are companies at sexual discrimination risk for using whiteboard interviews during the job interview? Background Currently, many companies hiring software development engineers use a whiteboard algorithms interview technique. This involves asking the job candidate to code a solution to an algorithm question on a whiteboard while the hiring manager and other team members watch and critique. This interview technique has long been criticized as making the candidate uncomfortable, as ineffective, and perhaps at least a little demeaning. Many in the industry believe it is little more than a hazing ritual. See the following links for more information: Why is hiring broken? It starts at the whiteboard. Tech Hiring Has Always Been Broken. Here’s How I Survived it for Decades. !Whiteboard: A better way to hire the best developers So, even though I and many others don't believe in the effectiveness of whiteboard interviews, I have supported the right of companies and individuals to legally use them, at least until a few weeks ago when I happened across a university study of whiteboard interviews. Does Stress Impact Technical Interview Performance Study This is a study out of North Carolina University conducted last year. An article titled You're testing them wrong: Whiteboard coding interviews are 'anti-women psychological stress examinations', published in July of last year by the Register says about the study: As a consequence, whiteboard interviews may fail to assess coder competency. Rather, the researchers argue, they measure how well job candidates handle anxiety. The researchers found that stress hinders interview performance, with participants in the traditional technical interview exhibiting higher cognitive load, lower scores, and higher stress levels. In essence, social anxiety took otherwise qualified job candidates out of the running because of the circumstances of the interview. What's more, whiteboard technical interviews appear to favor men over women. 'We also observed that no women successfully solved the problem in the public setting, whereas all women solved it correctly in the private setting,' the paper says. This is a link to the study. There is also another article published by the university that summarizes the results of the study. Currently, just 14% of software developers in the US are women. This study suggests that one of the primary reasons for this poor representation is because of sex discrimination. So, is this new study enough to encourage legal experts representing large corporations to at least worry about sex discrimination lawsuits from women that have failed whiteboard interviews? If you are a corporate attorney and it was your job to minimize legal risks to that company, would you recommend to human resources that whiteboard interviews are now too legally risky and the company should avoid them, or do you believe instead that it is nothing to worry about and it is okay to do business as usual?
Barrister to instructing solicitor: “Am I working for the plaintiff or defendant?” Plaintiff Your honour, this excellent study and the expert testimony you have heard from the authors, clearly demonstrates that whiteboard testing is sexual discrimination by another name. The clear correlation between the gender of the interviewee and their ability to perform this task, which is unrelated to the job and is actually a test of how good the person is at handling performance anxiety, is being used to prejudicially and unlawfully screen out female applicants. Defendant Your honour, this discredited paper and the inconsistent testimony of the author clearly demonstrated that the methodology was flawed and the conclusions are unsupportable. When pressed, it turned out that the number of females encompassed by the catch-all word “all” was 6 - hardly a sample big enough to draw any meaningful conclusions from. Further, it turned out that the number of men who also improved was unknown because they didn’t test them! So we have the authors of a study with gender discrimination in its very methodology drawing asinine conclusions from it about gender discrimination! It may be that whiteboard testing is better at finding competent actors than programmers and this may make it a terrible recruitment tool. However, my client can run their businesses in whatever inefficient way they choose so long as it isn’t unlawful discrimination - and this isn’t that.
how does hiring only women comply with our Civil Rights Act (which outlaws discrimination based on sex)? It is compliant. The Civil Rights Act includes an exception where the discrimination or limitation based on sex (or any other protected category) "is a bona fide occupational qualification for employment". That exception is located at the end of 42 USC 2000e-3(b). Although literally referring to employer's publishing of that preference, the very existence of that statutory exception implies a permission to discriminate [for certain occupations] on the basis of sex. At the outset, it would be unreasonable to allow the employer to explicitly state his criteria for hiring and yet be prohibited to implement them. But a more important reason for that exception is the premise of bona fide occupational qualification. That premise indicates that the legitimate purpose of the employment at issue takes priority over the general intent of the Civil Rights Act. The actual &amp; occupational purpose of cheerleading in the NFL context is not to shake pom poms and do choreography on field grass, but to amuse men, who comprise the vast majority of the customer base in the football business. Accordingly, the issue is not whether males are fit or unable to cheerlead, but that male cheerleaders simply would not amuse the average football fan. The occupational purpose would be frustrated if females were replaced with males. The legislative intent of the Civil Rights Act is to preclude discrimination for employment where the protected category (be it sex, religion, etc.) is irrelevant to the actual fulfillment of the occupational purpose.
This is largely a matter of state law. In California, for example, this would be plainly unlawful (my emphasis): All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Unruh Civil Rights Act, California Civil Code section 51) Other states may define "business" more narrowly, or exclude professional services. Also, there is the question of professional ethics. Discriminating against a racial group will likely run afoul of the rules of the licensing board, the AMA, the APA, and other organizations. Finally, remind your friend that every racist has what they regard as good reasons for their racism, and your friend is not special in that regard.
So-called AI software does not enjoy a special legal status (at present: one never knows what new law might be added). The question of whether any software can be distributed "safely" or "responsibly" is also not a legal issue. Nor is "true sentience" a relevant consideration, and nothing is guaranteed. When you distribute software of any kind, there is an implied warranty that the product is "fit", and if software kills you, you may be able to sue the creator for negligence. A software creator may then want to disclaim liability, by saying "WARNING: THIS PROGRAM MAY KILL YOU. OCP IS NOT LIABLE FOR ANY INJURIES ARISING FROM USE OF THIS PRODUCT". This may or may not actually remove liability. In the UK "liability for negligence occasioning death or personal injury cannot be excluded", so such a disclaimer will not prevent a suit against the manufacturer. In the US, the issue is determined at the level of the state – here is a summary of the law in the states. Probably the primary question would be whether such a disclaimer is an unconscionable term, and the second question is whether the act constituted gross negligence (not simply "negligence"). Mississippi exceptionally does not allow disclaimers, but even then, it does allow disclaiming liability when it comes to computer hardware and software. A software disclaimer is not inherently unconscionable, though perhaps some specific disclaimer would be found to be. Courts typically disfavor disclaimers in the case of gross negligence, and again determining what constitutes "gross negligence" is determined on a state by state basis. If the act shows "reckless indifference to the rights of others" and "failure to use even slight care or conduct that is so careless as to show com­plete disregard for the rights and safety of others", then the act might be grossly negligent.
This policy would appear to have a disparate impact on workers age 40 and older, given that most workers obtain degrees in their 20s and few obtain a second degree later. Workers age 40 and older are protected from employment discrimination under the ADEA. Policies with a disparate impact may be considered discriminatory, but not necessarily. The EEOC rule as of 2012 is that such a policy is not illegal if it is based on a "reasonable factor other than age". It is not clear to me whether the 10-year degree policy would pass this test, and it might depend on how the employer justified the rule. Here is the discussion from the EEOC's FAQ: 8.What determines whether an employment practice is based on Reasonable Factors Other than Age? An employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers. Example 1: If a police department decided to require applicants for patrol positions to pass a physical fitness test to be sure that the officers were physically able to pursue and apprehend suspects, it should know that such a test might exclude older workers more than younger ones. Nevertheless, the department's actions would likely be based on an RFOA if it reasonably believed that the test measured the speed and strength appropriate to the job, and if it did not know, or should not have known, of steps that it could have taken to reduce harm to older workers without unduly burdening the department. The rule emphasizes the need for an individualized consideration of the facts and circumstances surrounding the particular situation. It includes the following list of considerations relevant to assessing reasonableness: The extent to which the factor is related to the employer's stated business purpose; The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination; The extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes; The extent to which the employer assessed the adverse impact of its employment practice on older workers; and The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps. Here is the full text of the rule, 77 FR 19080.
That’s legal The New York Human Rights Law prohibits discrimination on the basis of “age, race, creed, color, national origin, sexual orientation, military status, sex, marital status or disability”. Federal law prevents employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history). What law school you went to is on neither list. If Harvard’s policies break the rules, that’s not the firm’s issue. However, AFAIK, Harvard is scrupulously fair in their admissions program - so long as you have the grades and the money, they’ll let you in. It’s not Harvard’s fault that most of the people who get the best secondary education and have the most money are predominantly white, Christian, and US born - that’s do to politico-social-historical-economic factors beyond Harvard’s control.
This page sums up the state of federal law regarding sex segregation and schools. There are various "separate but equal" provisions under the law, for example Boys State or Girls State are not outlawed, there is no requirement for co-ed PE class. But as far as I can see, a school field trip to hear the Petaluma Symphony Orchestra could not be limited to only females (or only males). It's not clear what you mean by "host", or whether the event is educational (the law doesn't say that everything a school does has to be sex-neutral, it prohibits "discrimination under any education program or activity receiving Federal financial assistance").
The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime.