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I've been working in a mid-size BI department of a large company for years. At the start, the group of about 30 people was 30% American caucasions, 30% (non-citizen) Indian, 30% (non-citizen) Chinese, and 10% American citizens of minority backgrounds.

Starting about 3 years ago, several of the Chinese were promoted to management positions. Since that time we have only interviewed Chinese candidates and hired Chinese employees. The American citizens and other non-Chinese have been downsized or attrited. It struck me that today we announced the resignation of our last non-Chinese employee and we're only considering Chinese candidates.

This facilitates communication as we're able to speak Mandarin at work, it promotes a comfortable and supportive environment, we have a common culture, and we face the same challenges and obstacles as Chinese immigrants.

I'm aware that a lot of groups are run this way; our IT department is nearly 100% Indian immigrants and there are many Chinese and Eastern bloc shops I know of in the San Francisco bay area.

Is this generally considered acceptable though?

Also note that this isn't related to HR and I'm not asking about the law. HR sends us lots of candidates, we just don't give serious consideration to any who are not Chinese. Of course, even though someone is Chinese we still require them to be highly qualified.

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    @Hackz, Sorry, I was actually trying to say that I think your question is okay as is to preempt people who will say otherwise. And I would say this is an HR issue. Is your HR aware that your group only considers those who are Chinese? – David K Oct 14 '16 at 15:34
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    Also, congrats, this question will almost certainly be used against your company if a lawsuit is filed and this is traced back to you. – justinm410 Oct 14 '16 at 18:10
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    For the record, the legal name of what you are asking about is a "Bonafide occupational qualifiaction." – mkingsbu Oct 14 '16 at 18:48
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    I think it's super weird you guys are stalking the guy for his race and company he works for. This can be a hypothetical question and the author could just be interested in the topic for any purpose? – ksiimson Oct 16 '16 at 18:34
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    " HR sends us lots of candidates, we just don't give serious consideration to any who are not Chinese." That's an admission that you are engaging in discrimination. I wonder why the hell you all are in the United States if you can't stand complying with our laws regarding discrimination in the workplace. You claim that speaking Chinese - not all Chinese Americans speak Chinese aka "Mandarin" - makes for a more cohesive firm. Those whites who used to discriminate against Asians and others would make your argument that being white would make for a more cohesive firm. I hope you all get sued. – Vietnhi Phuvan Oct 17 '16 at 12:08
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No, it's not. Discrimination laws are written without regard to which group a party belongs to. Meaning that if a perceived minority discriminates, it's just as illegal.

You've specifically stated that you don't hire or consider people who are not chinese. It would seem to me that this fits directly under the laws prohibiting national origin discrimination.

According to the EEOC:

National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).

And that's essentially what's happening. Sure, you might say that it's a preference but that preference is a negative bias when stated another way, such as "We don't hire black people, Europeans and Hispanics, among others" which is what you are saying when you say you don't consider anyone who isn't Chinese. If your company also denies Koreans, Filipinos and Japanese then you are also directly in violation of this.

TL;DR: Not just no, but heck no. It's not acceptable to hire or not hire someone because of their race or country of origin.

https://www.eeoc.gov/laws/types/nationalorigin.cfm

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    They shouldn't do that, but in some cases it happens. Also sometimes companies specifically try to diversify themselves. So they hire based on those goals. – Dan Oct 14 '16 at 16:24
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    Its worth mentioning that there are industries which have exceptions to this, ie modeling or acting. If you're making a show about a black family its perfectly fine to say 'we're not hiring white people for this role'. However that doesn't seem to be the case here at all. – David says Reinstate Monica Oct 14 '16 at 17:57
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    @DavidTan You don't need to be Chinese to be able to speak Mandarin, if speaking Mandarin is an actual requirement of the job. – Cypher Oct 14 '16 at 18:56
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    The term that many people are missing is "disparate impact" - you don't need a long court action to prove illegal discrimination. All it would take is a comparison between national origin of applicants to national origin of those extended offers/hired, and would quickly violate the 80% guideline. Then it would suddenly be on the company to prove that they had a legitimate, necessary business requirement that supported the outcomes. If you have to prove you aren't discriminatory, that's a really bad position to be in because if you aren't super convincing, you lose. – BrianH Oct 14 '16 at 18:58
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    @jwenting The EEOC is currently suing Palantir for allegedly discriminating against non-Asians: amp.usatoday.com/story/91131284 – Andrew Medico Oct 16 '16 at 0:23
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It is no more acceptable than shops that hire only white men. Can it be a common practice? Yes because human beings are often full of prejudices.

More importantly it is actually harmful to the company as you are missing on some of the best talent in your need to discriminate for things that are not relevant to the job. There are great while male programmers, great Indian programmers, great gay programmers, great Muslim programmers, great female programmers, great African-American programmers, etc. When you turn these people down simply for the their cultural background, you are losing the talent they could bring to make your company soar.

I have not seen many instances of a company that hired only Chinese people, but I have seen what happens in organizations that hire only white men. At first, you might get some really good people. But eventually you end up hiring the mediocre ( because you have used up the talent pool available in that particular group) when significantly better people are available, but were weeded out for irrelevant factors. You complain that you can't find someone to fill a particular specialized position because no one of the group applied.

Everyone in the organization starts to think very much alike because their backgrounds are identical, so the organization becomes stagnant and loses a lot of the creativity that having a diverse group of views will give you.

And once you start using one irrelevant factor to eliminate candidates, then it becomes easier and easier to introduce more limiting factors. So hiring only Chinese employees becomes hiring only Chinese men which become hiring only Chinese men who are immigrants becomes hiring only Chinese men who are immigrants who attended my particular university or came from my particular region of China.

Just as an example I sat down and made a list of the ten most capable people I have worked with in my 39 years in the workforce. I ended up with 2 African American Women (one of whom graduated from the number 1 university in the US), 3 White Males (one of whom has Asperger's), 1 Filipino woman, 1 Ethiopian Male, 2 Indians (1 male and 1 female), and 1 Vietnamese woman. The next 10,20, 30 , 100 people I have worked with would be similarly diverse. Note there weren't even any from my own group of white women (although there would be some in my next ten). Every one of the companies and government agencies these people have worked for was far better off for having hired them.

My bottom 10 would be somewhat diverse, but would have 6 white males because of all the places I worked earlier in my career where the discrimination ran strongly in favor of white men and they hired mediocre and incompetent men over highly qualified women and people of color. This is the real consequence of discrimination for a company. You end up tolerating the less qualified for the sake of keeping the group pure.

I have worked with 1000s of people through the years, no one group has a lock on being more competent or less competent. There are good and bad employees of all races, all religions, all genders, all educational backgrounds, all physical abilities. When you hire, you owe it to the company to stop considering irrelevant factors and hire the best people you can find no matter if they are in a wheelchair, or deaf, black, white, asian, gay, straight, Hindu, Muslim, Christian, male, female, trans, etc.

  • Thank you for this. I upvoted your answer. Having said that, I have to ask - isn't it different than if it were white male citizens, since they're not minorities, they have past transgressions of slavery and discrimination, and the anti-discrimination laws are meant to to protect minorities from them? Not to mention those guys will get jobs somewhere anyway, but we just want to work together so that we don't have to be minorities within our own immediate group? Just asking. Thanks again. – Hackz Oct 14 '16 at 16:17
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    @Hackz No. If you reject a qualified Indian candidate because he's not Chinese, that is a violation of the rights of that qualified Indian candidate. The history of Indians and Chinese is not relevant to the fact that you have judged an individual based on a prohibited characteristic, thus violating his right to be judged based on his individual merit. The rules that permit affirmative action are very narrow exceptions to the general rule. – David Schwartz Oct 14 '16 at 16:25
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    @Hackz er no discrimination is discrimination that that you are discriminating against white males as well as females, and BME as well does not make it all right – Pepone Oct 14 '16 at 16:47
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    @Hackz This is a common misconception, but if you read, for example, the Civil Rights Acts (en.wikipedia.org/wiki/Civil_Rights_Act_of_1968 ), you'll note that there is no mention at all of minority status or historical discrimination, the same with EEOC regulations. It's not that people wanting to be around people they view as "like" is unreasonable - it's that we now know that the result is a society that's ultimately more hostile and segregated due to factors a person has no personal control over. The goal of the law is a more civil, equitable society in the long term. – BrianH Oct 14 '16 at 19:19
  • I think the bold-faced statement is wishful thinking. You haven't seen any good research on the benefits or harmful effects of hiring just one race or culture because gasp, it's illegal (and wrong, for reasons having little to do with that particular company's quarterly earnings). Brian^ gives a more accurate interpretation, which is that correcting racist hiring practices is more of a collective action problem. – user42272 Oct 15 '16 at 17:36
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A small but sharp suggestion:

Have you considered whistle-blowing?

If hiring practices are as you described, they would be blatantly illegal, at least in the U.S. jurisdiction.

(And honestly - this is an "if". I certainly do not know if OP is giving a credible account, but that is not my business.)

If you don't want your firm to get away with this, you can whistle blow. Maybe a state's Better Business Bureau. I'm not actually sure to whom.

If you want to look the other way (which I also don't know if is legal), you probably should not have posted a highly discoverable question about it.

Discrimination on language is probably legal (IANAL), for instance many firms discriminate on English language ability, although it sounds like if that is something your firm is about to start doing, it's not what they've been doing up to this point.

8

Discrimination is Illegal

HR sends us lots of candidates, we just don't give serious consideration to any who are not Chinese.

In the United States, affirmative action is legal, but this special type of hiring preference can only be applied to certain legally-protected classes. Being Chinese is not a protected class, and even if it were, a clearly-biased selection for racial background in the way that you describe would still be considered job discrimination.

I am not a lawyer, but you should certainly consult one to discuss your level of personal liability. If you are actively part of the hiring process then you are most definitely practicing workplace discrimination. If you're aware of illegal activity and do nothing then you are still a party to breaking the law, and may be held personally liable.

Personal Liability for Discrimination

There is case law supporting personal (not just corporate) liability for discriminatory behavior. Consider the following excerpt from a review of Smith v. Bray, No. 11-1935 (7th Cir. May 24, 2012):

The Smith v. Bray decision substantially expands the list of potential defendants to those employees who participate in adverse employment action and act with a discriminatory or retaliatory motive. Lawsuits under Section 1981 (a federal discrimination law) allow for individual liability and they carry a relatively long four year statute of limitations. Additionally, Section 1981 allows for uncapped damage awards and does not require that a plaintiff exhaust his/her administrative remedies before filing a lawsuit in court.

Whether or not this specific legal theory applies to your circumstances, or whether there is additional case law that would be more relevant, is something you should discuss with your attorney. The point being made here is that knowing that discrimination is taking place can open you up to personal liability, so if the fact that it is wrong isn't enough to motivate you to take remedial action, perhaps knowledge that you might be personally sued for it will.

3

Not to detract from or dispute any answers, especially those with moral considerations, but there is at least one exception to the general rule. In Alaska, Native Corporations are legally allowed to preferentially hire other Alaska Natives and potentially other Native Americans as well, as part of the Alaska Native Claims Settlement Act. I'm not entirely sure why this exception exists.

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    because treaties probably – veryRandomMe Oct 16 '16 at 0:18
  • There are LOTS of laws around Alaska natives, exceptions, preferences, and such. – MikeP Oct 17 '16 at 19:20
-1

This is not okay. Discriminating against people on the base of them being "not Chinese" is illegal. Other answers go into more detail about that.

However, you did list reasons that would make it legal in other jurisdictions. You said your office language is mandarin and that helps a lot in communication. Now that could be a skill requirement. A skill you are allowed to discriminate for. Put that in your job ads. Candidates must be able to fluently communicate in mandarin and have a basic understanding of Chinese culture. This is no discrimination, if you seriously consider non-Chinese people who do speak mandarin and have a grasp of your culture. It's not your fault if only Chinese people apply. Make sure you hire a good lawyer because US law may still consider this racial profiling based on how strong your "requirement" actually is.

Please keep in mind that the way you got to this point of having an office language of mandarin is probably still worth a lawsuit.

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    I doubt that "you need to know our culture and language" would fly as a requirement to do the job, unless the JOB involves them. That means that unless you're making products about Chinese culture in Mandarin, you're probably still not in the clear. – Erik Oct 15 '16 at 8:19
  • Why not? Every single other job ad implies "must be fluent in English and know basic US culture" even though you might be able to do the job mute and naked. Both language and knowledge of culture are skills you can learn and at least in Europe you are perfectly fine to discriminate based on things everybody can learn and get a certificate for. And by the way... if the whole office speaks Mandarin, then Mandarin is required to do the job. – nvoigt Oct 15 '16 at 8:59
  • @Erik What if OP's office is a call center for a Chinese company? It is no different from an ad posted in India or China, asking for candidates to know American English and have some familiarity with US culture. – Masked Man Oct 15 '16 at 16:22
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    +1 because this is an important point... and I'm pretty sure a company is allowed to sanction a non-English business language... but holy crap if the company, as described by the OP, is not already in very hot water morally and legally (also given that this post is basically discoverable). – user42272 Oct 15 '16 at 17:38
  • @Erik you should probably keep in mind that U.S. (if that is the jurisdiction) has no official language. At least one state, NM I think, is officially bilingual. I've interviewed a large number of candidates in English and rejected some who had shaky comprehension, and I don't know of any legal distinction between English and every other language. – user42272 Oct 15 '16 at 17:39

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