Lisa McCarrick filed a lawsuit against Amazon on Monday, alleging two significant problems. The first: She's paid less than her male co-workers. The second: Her manager told her to "scour" a job candidate's social media to determine race/ethnicity and gender, and then fired her when she complained.
As is typical of all lawsuits, you hear only one side of the story--in this case, McCarrick's. Amazon said only that her claims are not accurate, and otherwise, they don't comment on pending legal actions. (This is normal and doesn't reflect on any company facing a lawsuit.)
McCarrick claims that her managers wanted her to search out race and gender to increase diversity at Amazon. Her lawsuit states: "Although Plaintiff [McCarrick] recognized that AMAZON has been publicly criticized for its lack of diversity in the workplace and Plaintiff supports diversity in the workplace, she reasonably believed that scouring social media accounts for the purpose of ascertaining race and ethnicity was unlawful."
She was fired shortly after complaining. She believes the stated termination reason "not meeting expectations" was a coverup for the real reason--her complaints about hiring practices.
Additionally, she claims, at the termination hearing, the Amazon HR director said that pay discrepancies between male and female employees happen all the time.
So, let's break this down and make sure this doesn't happen to your company.
Stay away from social media
Social media is a two-edged sword. Sure, you can find out that this candidate likes cat videos (a positive), and that candidate does drugs on the weekend (a negative). But, you can also find out a bunch of things you cannot consider in hiring, such as race, ethnicity, native language, religion, pregnancy status, age, gender, disability status, etc. To seek those things out purposely, as McCarrick claims, puts you in legal hot water.
It doesn't matter that your goal is to increase your minority or female hires. You cannot discriminate based on race or gender for almost all positions. (There are rare exceptions for gender, but none for race or ethnicity.)
Legally you want to know as little as possible about a candidate's protected characteristics so that no one can accuse you of illegal bias. If you're going to do a social media background check, do so as part of the formal background check at the offer stage, not at the application stage.
Do not retaliate
Let's say that McCarrick misunderstood what her manager wanted her to do, but she believes this is a problem and makes a complaint. You'll still get your head handed to you on a legal platter if you punish her for making a good-faith complaint. Conduct an investigation, explain what the policy is, and let your employee go about her life.
If you fire, demote, move, or even give unpleasant assignments after someone makes a complaint of illegal discrimination, you're illegally retaliating--even if they were wrong about the discrimination.
So, it's possible that Amazon could prove that it was not scouring social media for information about candidates' race and gender and still end up losing the lawsuit because a jury finds it retaliated.
Federal law prohibits paying people differently based on any protected characteristic. McCarrick was new in her job, so it's possible that her pay was lower than her male co-workers because of experience, but if it was based on gender, as she claims the HR director said, that's a massive problem for Amazon.
Add into the equation California, which has additional laws surrounding paycheck fairness.
Look, you may think you're saving a few bucks by not paying everyone the correct market rate because someone didn't negotiate or someone asked for a lower salary than you would have offered, but what matters is the paycheck. A security guard's job is not to negotiate wages, so her pay shouldn't be dependent on her ability to negotiate salaries.
If you wouldn't feel comfortable with your employees sharing their salaries and if you couldn't defend any discrepancies in court, you need to make some significant changes.
You can't ever tell from the initial lawsuit filings what the truth is. But, if this is how Amazon behaved, it should expect to pay up.
And stay off a candidate's social media. It's so much easier than defending yourself.