I agree with you in principle, but I think we’re (in the U.S.A., at least) farther from a free market than most people believe. In particular, disparate impact can be claimed as a result of any policy change—whether to hire on a criteria or not to do so—and success or failure of these cases, accordingly, is determined primarily by precedent and the preferences of the ruling judge. Business owners I’ve spoken to have cited this as a reason every company in the country seems to have a very similar position on which non-protected characteristics are grounds for hiring/firing and which ones aren’t.
As an example, suppose I determine that workplace cohesion increases enough from a 100% teetotaler employee base that the smaller hiring pool is worth it. If someone I’ve ruled out takes issue, they can print out a set of statistics saying that protected demographic A is less represented among teetotalers than in the general population and that my alcohol-free workplace is “functionally discriminatory”, and they have a decent chance at winning a lawsuit on that basis.
I agree with you in principle, but I think we’re (in the U.S.A., at least) farther from a free market than most people believe. In particular, disparate impact can be claimed as a result of any policy change—whether to hire on a criteria or not to do so—and success or failure of these cases, accordingly, is determined primarily by precedent and the preferences of the ruling judge. Business owners I’ve spoken to have cited this as a reason every company in the country seems to have a very similar position on which non-protected characteristics are grounds for hiring/firing and which ones aren’t.
As an example, suppose I determine that workplace cohesion increases enough from a 100% teetotaler employee base that the smaller hiring pool is worth it. If someone I’ve ruled out takes issue, they can print out a set of statistics saying that protected demographic A is less represented among teetotalers than in the general population and that my alcohol-free workplace is “functionally discriminatory”, and they have a decent chance at winning a lawsuit on that basis.