Algorithm to Liability

by Roger Clegg

The Wall Street Journal has an article this week titled, “Can This Algorithm Find Hires of a Certain Race?” It’s about how Entelo Inc. has created an algorithm that, for a fee, other companies can use to “help[] recruiters identify candidates who are women” and/or “of particular races or ethnicities.” All in the name of increasing “diversity,” of course.

Entelo’s CEO acknowledges that “the product will raise eyebrows among legal and HR teams” who think this “may cross legal lines or represents reverse discrimination.” But, he cheerfully concludes, this kind of thing is already being done and, who knows, this might even result in there being less discrimination. 

He also suggests that, since this is done only to assemble a politically correct mix of applications, and not to make a final hiring decision, there’s no problem. And the article notes that, besides, it can only be used against whites and males, and not against racial minorities or women.

Well, it’s just not true that the law has been successfully circumvented because the discrimination occurs only in the earlier stages of the hiring process, or because only whites or only men are discriminated against. Title VII of the 1964 Civil Rights Act prohibits employment discrimination and provides (emphasis added): “It shall be an unlawful employment practice for an employer . . . to limit, segregate, or classify his . . . applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.”

So white and male applicants are protected from this sort of discriminatory classification. It’s always useful to put the shoe on the other foot in these instances (see my 2007 testimony before the EEOC of these “diversity” issues, here): Any doubt that employers using an algorithm that was designed to help them sift out women and minorities would violate Title VII?

Entelo is, however, unfortunately right about one thing: This kind of discrimination is already widespread, algorithm or no algorithm. But this provokes the question: Why do so many companies think that the law allows them to engage in politically correct hiring discrimination, so long as it is in the name of “diversity”? It doesn’t.