Are tech screens inherently biased? (No. 1)

Anatomy of a software engineer’s age discrimination suit against Google

Google very recently settled an age discrimination suit alleging it discriminated against older software engineers (e.g., 40+) during the interview process.

WHY IT MATTERS: as a software industry, we’re becoming more aware of why diversity on teams helps, including different ages. Diversity and legal issues start during the interview process. This case cost Google over $10 million and is a cautionary tale.

ACTIONS TO TAKE: engineering leadership should always be thoughtful about engineering interview experience (for more than just legal reasons, of course!). Even if your processes seem neutral (like inverting a binary tree), just like any algorithm, they could have a discriminatory effect that you didn’t intend.

Once you know how you want it to go, make sure everyone who’s doing interviews knows how you want it to go. The “technical screen” phase of the interview is often left to a software engineer on the team who has little or no training on how to conduct interviews the right way.

ANATOMY OF THE COMPLAINT: there is a lot of documentation in the case, so for today, I’ll just focus on the way the plaintiff’s lawyers framed the complaint. A complaint is the first document that gets filed that tells the plaintiff’s story. The plaintiff’s story reads as follows (remember none of it had been proven at the time). The original plaintiff was named Heath.

The median age for software engineers in the US is about 42. From 2009 to 2011, Google grew from 9,000 to 28,000 employees yet the median age remained 29 years old. Google “failed” to hire Heath because he was 60 years old.

Despite his age, Google’s recruiters said Heath as a “great candidate.” Heath graduated in 1978 with a CS degree and worked for IBM, Compaq, and General dynamics. He took certifications on Java and C++ and scored in the 90% on those exams.

After an initial screen with a Google and some email back and forth, Google scheduled a technical screen with a software engineer.

The interviewer was 10 minutes late and had a hard stop, leaving only 20 minutes for the tech screen. According to the complaint, the interviewer was “barely fluent” in English and was using a speaker phone, which made it more difficult to talk. The interviewer opened with “how Heath can help Google,” and as Heath responded, the interviewer cut him off and proceeded to three technical questions.

The first two asked him to calculate application size requirements based for an app with a lot of arrays and the other related to the complexity of a sort algorithm. Heath thought he did well on those questions.

The second was a coding exercise using Google Docs (this was 2011, remember). For some reason, Heath or the interviewer had trouble sharing the link to the document (remember, there were only 20 minutes on this interview), so Heath had to read his answer out loud, which was complicated by the language and audio barriers just mentioned.

The technical interviewer never asked him about his experience, background, or accomplishments.

Later, Heath received a generic email telling him that Google was not moving forward with the interview process. Heath contacted Google HR department to complain about the tech screen, and a HR representative generally agreed it was not handled professionally.

Sound familiar? Sure sounds like dozens of interviews I’ve been on over the past few decades!

Heath sued under federal and state (California) age discrimination laws alleging that Google only used “cultural fit” to describe older workers and had a pattern of excluding workers over 40.

The lawyers asked for, and received, class action status and represented 227 other software engineers who had similar complaints. Each received around $35k. The lawyers received $2.75 million. I’ll try to dig deeper in the case because I’m sure there is a lot more interesting stuff to discuss.

FOR MORE:

  • The complaint that I just described is available here.

  • Once source of federal law on age discrimination is the ADEA at 29 USC 621

  • California Gov’t Code 12900 et seq also has provisions governing age discrimination

  • An article on the case is here.

  • I thought this list of six tips for preventing discrimination during hiring was pretty good.

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LEGAL DISCLAIMERS AND OTHER MUMBO JUMBO: since this is a newsletter from an attorney, it is possible that this could be construed as attorney advertising (in blinking lights, of courts). I should also tell you that anything I say or opinions I offer in the list should never be construed as legal advice — even if you think the facts from some case or situation I discuss are pretty close to yours, small details make a big difference. And besides, since I’m just broadcasting information without seeing your individual situation, how could I possibly be giving you legal advice? Never forget the lesson of the Selfish Giant. And finally, my name is Michael Rice, I wrote this content, I’m licensed in California, and, with rare exception, can only work with clients in California.