[Spivak]

Change the framing from “white person was fired” to “black person was retained” and you’re suddenly back into affirmative action territory and the case whether it’s a civil rights violation becomes iffy.

You don’t actually have to avoid depriving a protected class of anything by relative omission. Otherwise affirmative action and diversity programs would be illegal, and until the courts change their mind they’re currently allowed. If you allow your reasoning to be unconstrained there is no way to provide any benefit whatsoever in any form to particular races because that would be necessarily be depriving that benefit to the compliment.

[NeverFade]

> Change the framing from “white person was fired” to “black person was retained” and you’re suddenly back into affirmative action

Change the framing from "a victim was robbed of $1,000" to "a poor person gained $1,000" and the clear crime of armed robbery becomes a positive event!

Fortunately, playing these types of games with language doesn't change the facts, or else there would be no justice; you can always "change the framing" to make any crime sound positive, by emphasizing its positive impacts and ignoring the adverse impacts.

As a matter of law, the SCOTUS unfortunately let their political views override a clear reading of the law in one case (Grutter v. Bollinger), and allowed a very limited form of affirmative action in a very specific context.

Discrimination based on race or sex in hiring and firing is still very much illegal. It's not hard to see why it's both immoral and destructive if we allow it in our society.

[Spivak]

Your example doesn’t work because you’re just pointing out some positive aspect, it doesn’t make it not robbery. In my case the difference between firing a white person and retaining a black person changes the nature of the act as it’s viewed by the law. What is in the mind of the person carrying out an act that affects different races disproportionately matters. And if we’re we following precedent this would probably be allowed as another narrow case.

So I don’t disagree with your overall point but I also don’t think anyone is going to win a lawsuit over this without a huge case that makes it to scotus because the practice of diversity hires is common and currently tolerated. And “we looked at all our employees and chose who to retain” is isomorphic to regular affirmative action.

[NeverFade]

> I don’t disagree with your overall point but I also don’t think anyone is going to win a lawsuit over this without a huge case that makes it to scotus because the practice of diversity hires is common and currently tolerated.

According to this pessimistic viewpoint, there was no point in the civil rights movement of the 1960s that led the to revolutionary Civil Rights Act of 1964.

Black people would look around, and realize that discrimination against them is "common and currently tolerated", especially in the South, and just throw their hands in despair and live with it.

Fortunately, they didn't. And if even a single Twilio employee was fired for his race, I hope he doesn't, either. Not just for his sake, but for our sake as a society.

I don't want to live in a society where people are judged and treated according to the color of their skin.

[polski-g]

Affirmative action in the private sector is 100% illegal.

[Spivak]

No it isn’t, in fact private companies are encouraged (and in some cases required) to have an affirmative action policy in place.

The thing you think affirmative action means “hiring less qualified employees because of their race” is illegal. You can’t base your hiring decision on someone’s protected characteristics but you are totally free to base other things on that.

Here are some anti-* takes that are totally legal.

* Someone you’re interviewing is Latino that has only worked on small projects or small features and when asked about it they expressed that they always asked to be given bigger projects but was always turned down. You get the feeling that this was likely due to his race and so you don’t hold it against him.

* You’re interviewing a trans woman who recently quit her job while not having anything lined up. She describes the last few months as suddenly having her workload increase, her code reviews getting more critical, and her pto being denied that never had before. By your estimation it seems like she was quiet fired because of her gender alignment and so you don’t consider it a red flag.

* You have the unfortunate task of needing to drastically cut payroll expenses and finance says it will be around 20% of the workforce. You talk to your senior staff and managers to recommend low performing candidates and collect metrics like cards worked and performance reviews. You’re reviewing a woman selected for termination and notice that she seems to be closing more cards than some of her male teammates which is odd, and when you dig into the PRs they’re fine, she’s seemingly not taking on easier work, and from the comments her teammates seem to love her. So you ask the manager’s manager and find out that she’s very much a girls girl and usually passes on the “boyish” team building activities that always get voted on like doing a work fantasy league and fishing. You think it’s pretty clear what’s going on and pick someone else from that team.

[crackercrews]

> You get the feeling that this was likely due to his race and so you don’t hold it against him.

What would cause someone to get this feeling? Does a candidate just have to indicate that he wanted bigger projects but didn't get them? Seems like the exact same thing that would happen to someone who was not ready for bigger projects.

Would you do the same thing for a dev with a strong southern accent who worked at a company with mostly left leaning employees?

[Spivak]

> Would you do the same thing for a dev with a strong southern accent...

Abso-fucking-lutely. In fact I've actually done something similar, when you work in the somewhat affluent urban blue specs on the political map you will find genuinely talented engineers, usually self-taught too, who grew up in a small town/village and just don't have the usual pedigree of a CS degree from a random college and tech internships. I felt so bad for this one guy we hired, dude was and still is a fucking wizard at networking -- he literally runs his own ISP now as a side hustle but in the interview he didn't even have to say it, it was clear from how defensive he was saying stuff like "I know you would be taking a chance on me", "I would be fine with a probationary period" that he was getting rejected other places. So we had to interview him differently to set him up to show off what he was good at because random whiteboard algo problems wasn't it.

So it's not exactly textbook discrimination, but it is recognizing the systematic disadvantages this guy had as a result of who he is.