Comment by Manuel_D
5 days ago
2 and 3 are also likely illegal.
> They spend a lot of time and effort actively recruiting and seeking out employees from underrepresented minority groups, meaning that it is effectively easier for minority groups to get interviews at this company for this position, but still tries to hire based on actual ability and talent once they get to the interview stage
Discriminating against candidates on the basis of protected class at the application review stage is no less illegal than discriminating during interviews.
#2 may or many not be illegal, depending what you mean by, "goes out of their way to interview a greater proportion of historically disadvantaged minority groups than necessarily would naturally apply to their positions." If this involves using protected class as a factor, in any way, on which candidates to advance to interviews, then yes it is illegal discrimination.
part of the issue is that there are multiple laws and legal frameworks even at the federal level in the US that are kind of contradictory here. See "disparate impact" law, where using a neutral standard (such as a background check, or an ability test) that affects different protected groups differently can be considered illegal discrimination. 2 might be illegal, but 1 might be illegal too in the other direction! It kind of seems like the only solution is to basically maintain plausible deniability and try your hardest not to leave an auditable paper trail about any of the reasoning you use to hire a candidate or not.
Fear of disparate impact claims do not justify discrimination on the basis of protect class. This was argued all the way up to the Supreme Court: https://en.wikipedia.org/wiki/Ricci_v._DeStefano
Furthermore, disparate impact theory has been largely rolled back in recent years.
The Sheetz disparate impact case was in 2024, post Ricci. Griggs is still the law of the land even though some justices have signaled they might want to revisit it.
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