As the Wall Street Journal reports, Facebook has been experimenting with its hiring policies “to help diversify its largely white, largely male workforce.” Thus, two years ago the company began to incentivize in-house recruiters by offering them 1.5 points “for a so-called ‘diversity hire’—a black, Hispanic or female engineer—according to people familiar with the matter.” That was a half point more than the company offered for hires who were not black, Hispanic, or female—nor, by inference, Asian American. But when “the numbers didn’t move,” recounts the Journal, Facebook “sweetened” the deal and began awarding recruiters two points for each “diversity hire.”
For a recruiter, points matter financially, since “more points can lead to a stronger performance review . . . and, potentially, a larger bonus.” Yet even with the more generous, two-points-per-minority-hire incentive in place, the company has made “little progress,” the Journal reveals, in getting the numbers it wants.
Facebook is managing, however, to violate federal civil rights law. Title VII of the landmark Civil Rights Act of 1964 says this: “It shall be an unlawful employment practice for an employer to . . . classify his employees or 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.”
Facebook classifies applicants according to race, color, and sex. And it does so to improve job opportunities for those classified as black or Hispanic or female—even if that means depriving (or tending to deprive) of job opportunities someone not so identified. That can happen when there is competition for a job, as surely, at Facebook, there is.
It’s a wonder that no one has taken Facebook to court for violating Title VII. The statute does not include a diversity rationale for racial classifications in employment. No federal appeals court has interpreted Title VII to allow for a diversity exception in employment, and at least one—the Third Circuit in the Piscataway case more than 20 years ago—has explicitly rejected such a reading. The Supreme Court has never opined on the matter. Only in the field of education has a diversity rationale received the Court’s approval. Yet the 2003 Michigan cases in which the Court granted that also stated its expectation that diversity-based admissions policies would soon be phased out.
Facebook “wants its workforce to better reflect the diversity of its 1.7 billion monthly users.” But in pursuit of that goal it risks discriminating against applicants of the “wrong” race or sex. And as for Facebook employees of the officially “right” race or sex whose qualifications are such that the company would have hired them under a policy treating all applicants equally, without regard to race or sex, their achievement is obscured, indeed diminished, by the company’s hiring policy. That’s hardly what anyone could want.
Facebook needs reminding of a basic civil rights principle, which is, as the law professor William Van Alstyne once put it, that “individuals are not merely social means; i.e., they are not merely examples of a group, representatives of a cohort, or fungible surrogates of other human beings; each, rather, is a person whom it is improper to count or discount by race.”
Since Facebook is “experimenting” with its hiring policies, one can hope that the company is not wedded to its current policy and might do the right thing. Which is to stop classifying applicants by race and sex and awarding its recruiters points for the “right” sort of hires.
