A lesson from Twitter sex-bias lawsuit: Post those jobs!

Should an employer post high-level vacancies? Do Twitter birds fly?

Shortly before Ellen Pao lost started a "conversation" about sex discrimination in the tech industry, yet another lawsuit was filed alleging sex discrimination in the tech industry. In the latest one, software engineer Tina Huang has sued Twitter in California on behalf of herself and other female employees.

Twitter Bird.flickrCC.CreativeTools
"A class action? Against a cute little bird like me?"

I have read the complaint, and I expect Twitter to have "another side to the story" (or the complete story?) when it gets its chance to respond. At this point, I'm from Missouri.

But Ms. Huang's lawsuit raises an issue that I don't believe I've ever posted about before - the importance of posting vacant jobs, even at the top levels.

Ms. Huang claims that women were systematically excluded from promotions at Twitter, and she says that people (male people, apparently) were selected by a "shoulder-tap" method using subjective and ill-defined criteria. In other words, the boss would sidle up to the guy he wanted to promote, tap him on the shoulder, and give him the new job. Allegedly, no one else even knew the job was vacant until the announcement of the promotion went out. And by then it was too late for anyone else who might have been interested.

Woman Tech.flickrCC.MikeLicht.PortraitofLauraBattiferro
"See? I toldja! Vinny's job was NOT posted!"

This may not be true, and even if it is true, it doesn't necessarily mean there was discrimination. It could be that the guys who got the alleged "shoulder taps" were obviously the most qualified candidates for the vacant positions.

But this "failure to post" allegation is one part of Ms. Huang's story that I don't have much trouble believing. It's not unusual for a company to fail to post vacancies, and it becomes even less unusual the farther up the ladder you go. I suspect failure to post may be even more common in the tech industry, which has a reputation for not worrying too much about "HR."

Speaking of tech, be sure to read Facebook on Trial: Part II of the Social Media Series, in which Tamara Jones of our Dallas Office reviews some of the more noteworthy court decisions concerning social media. And if you have not done so already, you will want to read Part I -- The Social Media World According to the NLRB, by Dan Murphy of our Atlanta Office. 

Unless there is a really compelling reason not to post (for example, you're planning to fire the CEO and want to have the new CEO in place and ready to go immediately but for obvious reasons can't advertise the impending "CEO vacancy"), employers should post all vacant positions and let anyone who is interested put their hat in the ring. Even if they're not qualified. Here are some reasons why:

*The posting process requires you to think about and articulate what you really want in a candidate. This "thinking" process (as opposed to "going with the gut") will result in better candidates and may also open your eyes to a good candidate - maybe even a *gasp!* female? - who you wouldn't have thought about otherwise.

Woman Tech.flickrCC.MichaelLicht.LadywiPad
"Gee, I wish I were a man! Then I could program computers, too!"

*No one will be able to claim they didn't know about the vacancy.

*Most people will not bid on the position. This can include the person (let's call her "Tina") who later sues you for failing to promote. If Tina doesn't put her name in, you normally* have an airtight reason for not considering her for the position.

*There are exceptions. Maybe the employer formally posted the position but informally told Tina that she would never get the job even if she were to bid on it. Again, this doesn't equate to discrimination, because Tina may not be qualified for the job. But it is a legitimate excuse for Tina not to bid.

*After you get all the bids, you can still eliminate anyone who doesn't meet the minimum qualifications for the position -- say, the hourly employee with a GED who applied for Chief Financial Officer -- leaving you with a (relatively) small pool of "minimally qualified" candidates. If you're a federal contractor, you can use this smaller, "minimally qualified" pool for affirmative action purposes, which can help immensely with your adverse impact statistics. A systematic approach like this will also make it easier for you to determine when you need to seek outside candidates, and to justify that decision.

*When you start interviewing and selecting from the "minimally qualified" pool, again you will be forced to think about and articulate why the candidate you choose is better than the other minimally qualified candidates. Again, your conclusions may surprise you. And, even if they don't, you'll be more likely to make the best choice and to be in a strong position to defend your choice if you have to.

The other thing I like about posting all - or almost all - vacancies, even at the highest levels, is that it's transparent, and I am generally pro-transparency. In addition to making you feel good about yourself, there some compelling "selfish" reasons for an employer to be transparent in this context:

*It may start the statute of limitations on failure-to-promote claims running earlier (because you'll be able to prove that employees knew or should have known about the position earlier).

*It may flush out some internal complaints that you can explain and resolve. For example, an employee who feels that she was unfairly rejected in an open process may promptly complain to HR, get an explanation for the decision, and be satisfied with the explanation. If the process is "opaque," she might speculate and become resentful, which can fester and lead to charges and lawsuits.

*If you do wind up in front of a government agency or in court, it will look good that you were open about the vacancy and gave everyone the opportunity to submit their names for consideration.

Image Credits: All from flickr, Creative Commons license: Twitter bird by Creative Tools; Portrait of Laura Battiferri with iPad by Mike Licht, after Agnolo Branzino; Portrait of Lady with iPad by Mike Licht, after Rafael de Penagos.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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