employment civil-law corporate-law labor-law sex-discrimination
Are companies at sexual discrimination risk for using whiteboard interviews during the job interview?
<p><strong>Background</strong></p>
<p>Currently, many companies hiring software development engineers use a whiteboard algorithms interview technique. This involves asking the job candidate to code a solution to an algorithm question on a whiteboard while the hiring manager and other team members watch and critique.</p>
<p>This interview technique has long been criticized as making the candidate uncomfortable, as ineffective, and perhaps at least a little demeaning. Many in the industry believe it is little more than a hazing ritual. See the following links for more information:</p>
<p><a href="https://www.freecodecamp.org/news/why-is-hiring-broken-it-starts-at-the-whiteboard-34b088e5a5db/" rel="nofollow noreferrer">Why is hiring broken? It starts at the whiteboard.</a></p>
<p><a href="https://medium.com/javascript-scene/tech-hiring-has-always-been-broken-heres-how-i-survived-it-for-decades-b7ac33088de6" rel="nofollow noreferrer">Tech Hiring Has Always Been Broken. Here’s How I Survived it for Decades.</a></p>
<p><a href="https://rads.stackoverflow.com/amzn/click/com/B07FJ6N8P1" rel="nofollow noreferrer" rel="nofollow noreferrer">!Whiteboard: A better way to hire the best developers</a></p>
<p>So, even though I and many others don't believe in the effectiveness of whiteboard interviews, I have supported the right of companies and individuals to legally use them, at least until a few weeks ago when I happened across a university study of whiteboard interviews.</p>
<p><strong>Does Stress Impact Technical Interview Performance Study</strong></p>
<p>This is a study out of North Carolina University conducted last year. An article titled <a href="https://www.theregister.com/2020/07/15/it_hiring_whiteboard/" rel="nofollow noreferrer">You're testing them wrong: Whiteboard coding interviews are 'anti-women psychological stress examinations'</a>, published in July of last year by the Register says about the study:</p>
<p><em>As a consequence, whiteboard interviews may fail to assess coder competency. Rather, the researchers argue, they measure how well job candidates handle anxiety.</em></p>
<p><em>The researchers found that stress hinders interview performance, with participants in the traditional technical interview exhibiting higher cognitive load, lower scores, and higher stress levels. In essence, social anxiety took otherwise qualified job candidates out of the running because of the circumstances of the interview.</em></p>
<p><em>What's more, whiteboard technical interviews appear to favor men over women.</em></p>
<p><em>'We also observed that no women successfully solved the problem in the public setting, whereas all women solved it correctly in the private setting,' the paper says.</em></p>
<p>This is a <a href="http://chrisparnin.me/pdf/stress_FSE_20.pdf" rel="nofollow noreferrer">link to the study</a>. There is also <a href="https://news.ncsu.edu/2020/07/tech-job-interviews-anxiety/" rel="nofollow noreferrer">another article</a> published by the university that summarizes the results of the study.</p>
<p>Currently, <a href="https://builtin.com/women-tech/women-in-tech-workplace-statistics" rel="nofollow noreferrer">just 14% of software developers in the US are women</a>. This study suggests that one of the primary reasons for this poor representation is because of sex discrimination.</p>
<p>So, is this new study enough to encourage legal experts representing large corporations to at least worry about sex discrimination lawsuits from women that have failed whiteboard interviews? If you are a corporate attorney and it was your job to minimize legal risks to that company, would you recommend to human resources that whiteboard interviews are now too legally risky and the company should avoid them, or do you believe instead that it is nothing to worry about and it is okay to do business as usual?</p>

<p>Barrister to instructing solicitor: “Am I working for the plaintiff or defendant?”</p>
<h2>Plaintiff</h2>
<p>Your honour, this excellent study and the expert testimony you have heard from the authors, clearly demonstrates that whiteboard testing is sexual discrimination by another name.  The clear correlation between the gender of the interviewee and their ability to perform this task, which is unrelated to the job and is actually a test of how good the person is at handling performance anxiety, is being used to prejudicially and unlawfully screen out female applicants.</p>
<h2>Defendant</h2>
<p>Your honour, this discredited paper and the inconsistent testimony of the author clearly demonstrated that the methodology was flawed and the conclusions are unsupportable. When pressed, it turned out that the number of females encompassed by the catch-all word “all” was 6 - hardly a sample big enough to draw any meaningful conclusions from. Further, it turned out that the number of men who also improved was unknown because <em>they didn’t test them</em>! So we have the authors of a study with gender discrimination in its very methodology drawing asinine conclusions from it about gender discrimination!</p>
<p>It may be that whiteboard testing is better at finding competent actors than programmers and this may make it a terrible recruitment tool. However, my client can run their businesses in whatever inefficient way they choose so long as it isn’t unlawful discrimination - and this isn’t that.</p>

<blockquote>
<p>Are companies at sexual discrimination risk for using whiteboard interviews during the job interview?</p>
</blockquote>
<p>No. The conclusion that a criterion for hiring is suboptimal or defective does not mean it is unlawful. For it to constitute sexual discrimination, a male candidate would have to perform worse than female candidates in the interview &amp; tests and still be hired in lieu of those more competent females.</p>
<blockquote>
<p>This study suggests that one of the primary reasons for this poor representation is because of sex discrimination.</p>
</blockquote>
<p>That suggestion seemingly ignores that the supply of workforce in software development is predominantly male. This is palpable, in part, from the significantly lower percentage of female enrollment in IT (or related) college/university degrees.</p>
<p>Some proponents of theories of feedback loops and systemic reinforcement of stereotypes would posit that the collective perception of &quot;sexual discrimination in the IT labor market&quot; reinforces the gender gap in IT education/enrollment (that is, that the rationale of &quot;<em>why bother enrolling if only males will be hired</em>&quot; discourages females from enrolling at all). However, that perception falls short of proving that a company indulges in sexual discrimination by selecting candidates via whiteboard interviews.</p>
