For US employment, collection of gender and race information is implied necessary by the Civil Rights Act (because if someone files a discrimination / wrongful termination suit, one of the first questions that will come up is "Well, what are the demographics of the organization in the first place" and if the organization doesn't know, that's an automatic bad sign.)
Some federal contracting also places requirements on a company's demographics.
No, the Civil Rights Act does not compel collection of this data. It's not an "automatic bad sign" if a company doesn't collect it. In fact, it can work against you in the case of a lawsuit.
You are correct that the government has started asking contractors and large employers for some of this data. But it is only a requirement for the business itself, not for their customers.
Compel, no [edit: correction: compel yes for over 100 employees]. Heavily incentivize, yes.
"Your honor, my client was paid less than half what her male peers were paid."
"Does the defense have a counter-argument?"
"Well, uh, your honor, we, uh, don't actually know the gender of our employees, so we don't, uh, have that data at our fingertips. We probably don't, we think, but we don't have the numbers to know one way or the other, and..."
> "Your honor, my client was paid less than half what her male peers were paid."
> "Does the defense have a counter-argument?"
No. It should be more along the lines of "Prove it".
To come forth with such a claim carries with it the implication that one actually has /evidence/ for it, however (in)substantial. The response is NOT to automatically deflect to the defense in order to prove innocence.
> "Well, uh, your honor, we, uh, don't actually know the gender of our employees, so we don't, uh, have that data at our fingertips. We probably don't, we think, but we don't have the numbers to know one way or the other, and..."
Nothing wrong with that. Evidence can be procured on demand by court order. And even if it were discovered that this one individual female client were paid less than her male counterparts, you'd have to prove that it was because she was female. That means gathering evidence on what her female peers were paid, as well. This particular client could have been an anomaly (e.g. less hours worked, less responsibility, not exactly a peer to her counterparts, the lower pay was only temporary and/or due to some previous agreement, etc.) leading the courts to find nothing systemically wrong with this employer. Don't be so quick to judge, without evidence or context.
Except your own comment highlighted exactly what’s wrong with that: without the data the court won’t know how to rule. If you insist that the complainant is the one who has to investigate the salaries and work performance of all her coworkers, you’re immediately setting her up for failure. Requiring the company itself to record this information can provide evidence that they’re abusing employees—evidence that the employees themselves may never be able to produce.
> Except your own comment highlighted exactly what’s wrong with that: without the data the court won’t know how to rule.
And the burden of proof is on the accuser. The court doesn't just say "we don't have the data, so we must assume it's what the accuser says".
> If you insist that the complainant is the one who has to investigate the salaries and work performance of all her coworkers, you’re immediately setting her up for failure.
Yes! And that's exactly how the court works: the burden of proof is on the accuser.
> Requiring the company itself to record this information can provide evidence that they’re abusing employees
And why on earth would the company want to do this, when it could potentially harm them?
Civil litigation places less burden of proof in the accuser than legal litigation. They don’t have to prove beyond a reasonable amount of doubt, so all they have to do is get the jury/judge to believe the violation is likely.
They don't have to prove beyond a reasonable doubt like in a criminal trial, but the burden of proof is still on the accuser. The accuser has to convince the jury that discrimination occurred, it's not a default assumption that companies are biased and they have to have the data to prove they are not.
Yea I like it when criminals post their criminal activity online. It's funny cos it shows the low IQ of the criminal and when they are charged for the crime it's also funny.
Collecting employee EEO data is pretty standard, practically universal, esp. since there are things like veteran status or disabilities that have very real implications. You basically just add a checkbox. Pretty much SOP for any org over a certain size.
You could link to a government site that Clarks it is required. https://www.eeoc.gov/data/eeo-data-collections
But you as an individual are not required to give that information to your employer
The counterargument is to ask the plaintiff to explain why she thinks her gender was used as a factor in setting pay. There are all kinds of reasons why a disparity between two employees would exist: a more in demand subfield, different hours, better negotiating, etc. The burden of proof is on the accuser.
A really good defense would be to build a totally race and gender anonymized system of hiring. How could we have discriminated against your race and gender when your name was obfuscated, your voice was modulated, and we took very strict precautions to ensure nobody involved in interviewing or setting compensation even knew your gender? This was not feasible before remote interviewing became normalized during COVID, but I'm interested in seeing if it gains traction.
> The counterargument is to ask the plaintiff to explain why she thinks her gender was used as a factor in setting pay
The evidence the plaintiff brings can be as simple as "I polled ten people with my job title in the company." If the company hasn't tracked this data at all and can't produce it in its defense, then in a civil case the plaintiff would have the preponderance of evidence on their side and the resulting resolution to make them whole could be all the back-pay they are owed between what they made and what their peers made.
So even outside of the need to file EEOC-1, companies are heavily incentivized to track this data (as any competent employment lawyer would indicate); you don't want to be scrambling to satisfy evidentiary burden in a lawsuit.
The company wouldn't just say "we don't have this data." The company would point to the systems in place that ensure that protected class is never revealed to interviewers or hiring managers. "Ms. Plaintiff, how could the interviewers have been biased against or discriminated against you on the basis of your gender, if they did not know and could not know your gender when setting your compensation figures?" Unless the plaintiff has evidence that someone leaked her gender to the interviewers, it's incredibly hard to even approach a preponderance of evidence that there was gender discrimination. In order to perpetrate discrimination, you must have some means of discriminating between applicants.
If someone complains about an orchestra that doesn't have the racial or gender makeup they want, but the orchestra points out they have blind auditions and robust systems to ensure that the identities of musicians aren't leaked to evaluators then it's tough to provide a preponderance of evidence of discrimination.
I am unaware of any companies trying the hard-anonymization strategy you're suggesting (apart from, possibly, Amazon Mechanical Turk, which is not technically doing hiring in the sense that no employer-employee relationships are created). I think it would be an interesting case because there are a lot of "leaky signals" that can lead to systemic discrimination even if the company took no active measures one way or the other (for example, basing a candidate's pay on 110% of their pay at their previous employer can result in implicit wage discrimination because men tend to enter the workforce at a higher pay and catch higher pay bumps in promotions). Whether the CRA or subsequent law implies an obligation on a company to close such gaps is, perhaps, unclear.
We'd have to wait to see what happens if someone tries it. Point is: in the average case, it's setting oneself up to spend time in court, and most companies optimize for staying out of court, not becoming a test subject on the path-dependency of novel caselaw.
"Systemic" discrimination is rarely actual discrimination in the sense of illegal hiring practices. Women enter and graduate from college at higher rates than men. Thus it's "systemic discrimination" against men to require a college degree. But since it is valid to require education credentials to perform related jobs, nobody can sue for this. Almost every hiring practice is systemically discriminating at some level. If I'm hiring a Spanish to English translator, surely it's legal to ask applicants to translate a piece of text, right? But that's going to be heavily biased in favor of Latin Americans. Even the audition-behind-a-veil example is surely systemically biased in favor of people who had disposable income to hire musical instructors at a young age, and lots of free time to practice correct?
The requirements to prove a discrimination suit are far more direct: you need to prove that the company directly used protected class to make hiring or compensation decisions. And if the people making these decisions were never even informed of the candidate's protected class status it's exceptionally difficult to make the case that this was affecting this decision making.
> for example, basing a candidate's pay on 110% of their pay at their previous employer can result in implicit wage discrimination because men tend to enter the workforce at a higher pay and catch higher pay bumps in promotions
Actually, this is a perfect example of something that isn't going to get the company into legal trouble. They didn't make this decision on the basis of race, gender or another protected class. They made this decision based on something entirely objective: the candidate's previous pay. If that employee's previous employer was engaging in racial discrimination, then that's the company that vulnerable to a lawsuit.
I'm interested in this notion that you can sue your current employer, because a co-worker's past employer potentially engaged in gender discrimination that bumped their salary, which in turn was used in negotiations with the current employer. Do you have an example of any such lawsuit succeeding?
... but more importantly, this case has entangled the Fresno County public school system for over a decade. That's expensive relative to the alternative of... Not doing that.
Note that this 9th circuit ruling merely stated that pointing to the use of prior pay isn't an automatic win for the defense - this just let the plaintiff go back to lower court and try the case. The case is still ongoing, the plaintiff has not won the case.
How will promotion decisions be made? At some point I think information from people who’ve worked with the employee (co-workers, managers) will be relevant to their promotion, right?
Promotions would be harder - probably impossible - to anonymize, but at least you're working with a much, much smaller set of potential plaintiffs as compared to everyone who applied to the company. Anonymizing interviews is more feasible than ever, and it provides a very resilient defense claims of hiring discrimination. A straightforward way eliminate bias in orchestra auditions non-biased is to put a veil between the performer and evaluator. It's interesting to see proposals to do the same in tech getting downvoted.
Another great government regulation that has a great intent (stop discrimination) but leads this terrible unintended outcome: all applicants asked for this highly sensitive information.
It is so ridiculous that it gives the information to allow the company, manager, HR to discriminate (even unconsciously), exactly the opposite of what the legislation is trying to achieve.
What is worse from a cyber security perspective is that this information is now proliferated increasing the chances that it will be breached.
None of those concerns were relevant in the era when the Civil Rights Act was passed and people were hired via face-to-face interviews. It's real hard to hide your demographics when you're talking to the interviewer, which is a much larger concern than whatever you put down on a piece of paper.
For all the talk about it in this thread, we aren't moving to some kind of double-blind anonymous voice muffled 60 Minutes interview screening processes anytime soon. It's a goofy idea because once you hire somebody, people are going to work face-to-face with them anyway.
Some federal contracting also places requirements on a company's demographics.