Can government employers softly discriminate without breaking laws?
July 9, 2023 2:47 AM   Subscribe

I'm wondering if it's possible that a government entity can get away with using protected criteria data to lower standards on customers expectations without outright refusing them service and it slide under the radar? (Cont'd)

For instance, the employees of government offices who have protected leave under FMLA could be demoted based on a lowered annual appraisal but since there is no proof it had to do with their FMLA leave and they weren't fired could that be overlooked in the EEO. Or the correspondence sent from an office to users of a government service service could target the racial minority to give them a phone number that stays busy all the time while other races get a different number and since it wasn't a refusal to help get overlooked by the agency who oversees fairness. I'm just wondering if in those circumstances the possibility exists for the government agency to get away with a "soft discrimination" of sorts
posted by The_imp_inimpossible to Law & Government (10 answers total)
I'm confident many of those kind of policies exist, and I'm sure I've read about interference in voting rights for known groups against the current government of the time, making it very difficult for them to vote.

In a separate comparatively low key example though, I used to have friends who worked in one particular government department that largely dealt with customers through a 'behind protective glass counter service', but also had more confidential private side meeting rooms for face to face discussions.

A significant number of their clients had histories of physical abuse towards others. But due to the various client rights, the staff couldn't directly state on the client records their abusive history.

However the staff could happen by chance, to use a different colour folder spine for the client paper records. So client would come to the counter and ask for a private room to discuss their case, staff member would retrieve the paper notes, see the spine colour and apologise that no-one was available for a private rooms right now, but that they could still be assisted with their query through the protective glass barrier.

So a protection for staff for sure, but resulting in a lesser service for a group of clients via an undocumented policy.

Is that the kind of specific example you're after?
posted by many-things at 4:17 AM on July 9

Response by poster: If being an abuser was a class of individual thar was federally protected from discrimination yes it would fit. I don't downplay those customers though they are also being played. But I mean someone who is protected from being fired or racially singled out having the powers that be actually discriminate in a way that can't be proven
posted by The_imp_inimpossible at 4:25 AM on July 9

The examples you give - demoting federal employees because of protected leaves or giving people of one race a phone number that does not work - are illegal. Are you asking whether something like that could happen and not be caught? That’s pretty hard for anyone to answer because it’s basically trying to observe something that’s not observed, by definition. There are agencies like the EEOC and plaintiffs’ attorneys and federal employees’ unions who spend all day looking for discrimination, so my gut sense is that if there was widespread discrimination affecting a lot of people, someone would notice it and do something, but is there 100% legal compliance for anything? The EEOC’s reports have more info.
posted by Mid at 4:54 AM on July 9 [1 favorite]

Your first example could happen and probably sort of does because it doesn't leave much of a paper trail. Actually demoting someone would potentially get a lot of scrutiny and a pattern would quickly emerge if it always happened in response to FMLA, but disparate incidents where someone's career stalled out because of health-based discrimination seem pretty plausible.

Giving a racial group a different phone number in paper documents seems unlikely to happen at the federal level on a large scale. It would require setting up several phone numbers for one service which would require involving telecommunications and a request to telecommunications and internal billing from telecommunications, and LOTS of people would have to touch those. It would leave a paper trail which would point very clearly to one office or even one person. It would require being able to identify and track every client's racial background, which would not be available to staff unless it was specifically relevant to a service.

Like, I work for a public institution that tracks race and gender data and I do not have access to that part of people's data - it is restricted to need-to-know roles. I see need-to-know payroll data and that's it. To see race and gender data, I would need to have a very different job, receive several trainings and have several senior people sign off before I'd get access.

Discrimination of that type would need to be very fine-grained - it could happen maybe at a county clerk's office where most decisions passed through only a few sets of hands, or at one office that could use a color-coding system on a limited number of files. Inferior service, deprioritized follow-up, "defensible" decisions that reduced services or increased scrutiny, that's more of what I'd expect. I would not expect people to be given literally a separate phone number, but I might expect that they would not be told verbally about some important contact information, or that if they were obviously confused by something, their confusion would be ignored. If an outreach system specifically failed a marginalized group due to lack of a fixed address or a bank account, for instance, just ignoring those lacks and carrying on would be a way to discriminate.

The federal government actually has had some of the more effective methods of preventing job discrimination, which we can see because more POC and white women have been able to rise in the ranks than in comparable private sector entities. That's one reason that the right hates the civil service. "Effective" in this case does not mean "actually fair like we'd see in a just society", it just means "not as bad as elsewhere".

Alternatively, a bad scenario would be deepening fascism causes authorized use of this data to discriminate - all women, all POC, etc get worse treatment based on their data because that is the formal policy in so many words.
posted by Frowner at 5:33 AM on July 9 [8 favorites]

I think it would help if you could explain the motivation behind the question. Non-discrimination protection is only as useful as it is enforceable, in both the public and private sector. So, yes, people experience retaliation for using FMLA, but it'll be more subtle than you suggest. People get pushed out of jobs because they're a member of a protected class, but they'll never be able to prove it. (I knew someone this was happening to and he didn't even realize until someone else pointed it out. He thought his personality was at fault or something.)

Minneapolis is drastically more efficient at plowing the streets in the richer, whiter parts of town. The city claims this is due to where the snowplows are based, but no one thinks this is coincidence.
posted by hoyland at 7:10 AM on July 9 [2 favorites]

You might have luck searching the term "disparate impact." That is the legal term for policies or processes that appear neutral on their face, but whose impact unfairly impacts a protected class. The seminal example is voter ID laws, which sound fair and reasonable, until you account for which groups have easy access to legal identification and which don't.

ETA: Government entities are really just people. So, to the extent that the people within an entity, governmental or private, are inclined to discriminate against protected classes, that can and does happen. Sometimes through policies themselves, sometimes through selective application of those policies, sometimes in contravention of agency policies.
posted by ailouros08 at 8:21 AM on July 9 [4 favorites]

Yes. As others are saying, some of it is that laws aren't being enforced and companies have plausible deniability, like with firing someone for discriminatory reasons but pretending it was due to something else. (And that could be combined with keeping shitty records on employee race/ethnicity and other demographics, such that it becomes hard to prove a pattern because the data's not easily accessible.) That could be conscious bias, as in assuming that all women who have babies and young kids are not focused on work and so trying to force them out. Or it could be unconscious, such as thinking of BIPOC people as lazy and so scrutinizing any who take leave and then starting to think of them, and describe them in evaluations, as "unreliable" or "unmotivated" or other code words.

For client services, language access is a huge way clients get discriminated against. Our agency has not enough Spanish-speaking staff, for instance, so Spanish-speaking clients end up having to wait for services much longer than English-speaking clients. Which I think is happening out of a reasonable desire to want to provide services directly in Spanish rather than forcing clients to use a translator (we're in public healthcare, so it's not like a one-interview situation), but it ends up with Spanish-speaking clients not getting services in a timely manner, which is not ok. Good intention, maybe, but racist outcome. I think there's also subtler instances in which White employees are not responding to BIPOC clients in culturally responsive/humble ways, which makes the clients reluctant to open up, which makes the White employees either write them off as not needing or wanting help or else as oppositional. This is a major, major issue in healthcare.
posted by lapis at 8:37 AM on July 9 [7 favorites]

There's definitely plenty of discrimination at the top ("We're going to underfund this program because the wrong type of people use it") and the bottom (no shortage of SNAP clients will you they feel their caseworker discriminated against them because of their race). Frowner does a good job of explaining why your mid level targeted phone example might be less likely.

When thinking about "getting away with it", it could be helpful to think about the avenues for discrimination to be discovered and called out. This includes things like: a member of the public complaining to the ombudsman, an advocacy group complaining to the supervising authority, a routine audit, an audit as a result of a whistleblower, a lawsuit, a journalist getting a tip, etc. These all require someone(s) noticing something is wrong, reporting it, and being taken seriously. Whether or not that happens depends on all the usual factors.
posted by umwelt at 10:17 AM on July 9 [2 favorites]

There is lots of stuff like this that is built right into systems. Things like running visa applications for African nations through an understaffed consulate but applications from whiter countries through better staffed channels.

But here's another example from personal experience - I went to renew my drivers licence and health card and say waiting while one clerk hassled a brown man about his ID being not precisely what was required and then they didn't even look at my ID. It is hard to say officially that the guy with the inadequate ID was discriminated against after the fact because he didn't meet a clear requirement. But when they literally didn't even look at my white lady ID, in the moment, it was pretty obvious what was happening. Letting things slide from majority people but expecting perfect compliance from protected classes is one way this stuff hides.
posted by jacquilynne at 10:55 AM on July 9 [7 favorites]

You can get away with a lot quite a long time if you don’t write it down.

So if your question is "can a government entity have, long term, an official written policy of illegal discrimination" the answer is probably not.

If your question is if a government entity can foster an internal culture of illegal discrimination (by, for example, failing to punish known cases) and never document it then that could go on for a very long time.

In neither case is it legal for them to do so. They are bound by the same laws as everyone else.
posted by Tell Me No Lies at 2:22 PM on July 9 [1 favorite]

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