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IANAL... I am also not a hiring manager.
But if I were one, and had a bias against some category
of age, race, gender, marital status, political leanings,
body-mass-index, etc., I would still hire whom I liked,
but with perhaps a little care in the spin. That is,
make all the laws you want; they'll "sensitize" me only
to the extent of making me careful about how I word my
bogus rejections.
I would simply discard the resumés of those who
fell into the offending category(ies) -- and most of those
are categories that would not become apparent until
the first (and thus last) interview -- on the basis
of "best fit with the team" or "observed interpersonal
skills" or some other fuzzy disqualifier that could
not easily be attacked in court.
I'm not saying that I'm a dirt-bag. I'm saying that
you can discriminate "illegally" by just disguising
your reasons.
If you have large numbers of qualified applicants,
it's easy to do, and you won't lose much, if anything
by doing so - many of the others will be as good
as the one you unfairly reject.
If you have very few qualified applicants, it's
probably still easy to do, but you're an idiot for
excluding any applicant who might shorten the
time to fill the position, or who might be a
top performer despite being too black, too white,
too catholic, too hindu, too fat, too skinny,
too liberal, too conservative, too old, too young,
too... whatever offends your personal prejudice.
The real operational question is how much the
applicant needs the job. If they think they
recognize a prejudice in action, but are seeking
employment in a very tight market, they might
choose to overlook what might be an indicator
of a nasty work environment, and push the issue,
just to put bread on the table for a while.
If they have plenty of choices (seller's market),
then they'll want to walk away from any situation
that smells of mindless prejudice.
If the applicant is independently wealthy, then
they might just choose to hunt down such "-ist"
employers and harrass them for sport, but I
expect that none of us are in that comfy position...
As a hiring manager with half an ounce of political
savvy, I have to worry only about the situation
where good applicants are thin on the ground and
I'm hurting from not filling the position. The
other situations, I can negotiate with little effort.
On the third hand - or is it the fourth, by now(?)-
if you exclude certain otherwise well-qualified
people for personal prejudice, you could very
well be increasing the chances that the young,
white, male, geek with the limited social skills and
questionable hygiene will get a job. He's _never_
going to get legislative help for his distinctive
traits, so your prejudice might be his only "in".
The foregoing doesn't help applicants much, but
answers those who look for legislated "solutions"
to every sling and arrow that the world offers.
Of course, for government jobs, where it's my
taxes paying the shot, or for publicly traded
companies where it's my investment dollars
involved, I want to see hiring managers transparently
offer as level a playing field as humanly possible,
hiring purely on merit and long-term cost effectiveness.
So there. The waters are still muddy, but with
a different color/age/flavor of mud. :-)
Kevin
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