The State of New York is hiring a new intern for its summer internship program. Unfortunately, for a particular internship, they posted the job saying "Internship candidates must be underrepresented minorities (African American, Native American, Hispanic/Latino American) college seniors graduating SPRING 2018 OR currently enrolled graduate students."

Let's unpack this, shall we? Can you see what is wrong with this job posting? 

Right. You cannot recruit only people of certain races. It doesn't matter what your goal is, race must be irrelevant. 

Clearly, someone pointed this out to the recruiters who posted this job listing, because shortly after one of my readers sent me a screenshot, the job posting changed to remove the references to race, saying only that the candidates must be graduating seniors or grad students. However, the description still says

The goal of this internship program is to: 
-Foster the interest of under-represented minority college students by providing meaningful and relevant experience in preparation for employment in the health care industry, preferably at Upstate, and/or for advanced or doctoral degrees related to occupations in an academic health care setting. 
 

I asked employment attorney Jon Hyman if there was any way this was legal. He responded via text to me:

The OFCCP, the federal agency that administers affirmative action plans for federal contractors, has already told us the language one is to use to encourage under represented groups to apply for positions -- "All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, or disability."

Anything else is discriminatory. Just as you can't say, "Whites only," you can't say, "African Americans only," or "African Americans encouraged to apply." It's laudable to want to increase minority representation in employment, but you can't do it by actively, or tacitly, discriminating against others.

I contacted SUNY, which is running the internship program yesterday and have not heard anything back from them. Specifically, I asked:

  • If a white or Asian candidate applied, would they be considered?
  • Would their race be a strike against them?
  • If not, why the wording about underrepresented minorities?
  • If white and Asian candidates are not eligible, how does this comply with state and federal non-discrimination laws?

If I hear back, I shall update.

Look, almost everyone is concerned about diversity. Almost everyone wants to see more underrepresented minorities succeed in their careers. There are many things that can make it more difficult for certain groups to succeed, but actively discriminating against other groups is not the way to do this.

And on a small side note, the use of the term "American" is also problematic. Federal law prohibits discrimination based on national origin. Foreign students with the proper work permits should be equally eligible to apply for this job. For whatever reason, it seems nice to say "African American" rather than "Black" but that necessarily eliminates Blacks from Africa, Jamaica, or France.

While I would like to say I'm sure this was inadvertent, students at Cornell University demanded that first generation and second generation American Blacks not be counted the same as multi-generation Blacks, when it comes to diversity statistics. Black Students United at Cornell University wrote:

We demand that Cornell admissions come up with a plan to actively increase the presence of underrepresented black students on this campus. We define underrepresented black students as black Americans who have several generations (more than two) in this country.

When there was a public outcry, the group apologized, saying the issue was more complex than they had originally stated, and extending a hand to "Africans, Caribbeans, and Black Americans."

Indeed, racial inequality is complicated. Goals to level the playing field for all people are laudable. But, regardless of intentions--good or bad--, you can't discriminate on the basis of race or national origin. It's illegal.

Published on: Mar 8, 2018