Hiring Requires Choices and Not Every Choice Is 'Discrimination' Even the fairest of employers knows that, for some jobs, gender, age and physical ability are valid reasons for hiring one person and not another.

By Gene Marks

Opinions expressed by Entrepreneur contributors are their own.


A friend of mine is applying for a job as a teacher with a non-profit organization that caters to kids with special needs. When he finished his third round of interviews he was taken aside by the director of the organization. "It's down to you and another candidate who is also a man," she told him. "We're looking for a man to fill this role. We have enough women."

Yes, she actually said this. And my friend understood.

But imagine if the situation was reversed. Imagine if the director was a man and he said to a female candidate "We're looking for a woman to fill this role. We have enough men." Or, better yet, "We're looking for a white person for this role, we have too many black people." The horror!

There are plenty of good female teachers available for the job. But the organization's director wants more men. She feels that would be best for her organization. Is that wrong?

Here's another example. A client of mine owns a company that assembles machinery used in the food processing industry. He has a long time employee who works in the assembly area. The job requires a lot of manual work, long hours standing and the moving and lifting of heavy parts. This employee is now in his 60's. He can be replaced by a younger man who will not only do the job faster but also cost less. My client is in a competitive industry and every dollar in savings could mean the difference between winning an order or going broke. He decided to lay off the older man and hire the younger man in his place. The older worker is suing him for age discrimination. Was my client wrong?

"At what point does age discrimination kick in?" my client grumbled to me. "When the worker is 80? A 110? I have a business to run!"

Webster's Dictionary describes discrimination as "the practice of unfairly treating a person or group of people differently from other people or groups of people." According to the U.S. Equal Employment Opportunity Commission, sex discrimination "involves treating someone (an applicant or employee) unfavorably because of that person's sex." The EEOC says that age discrimination "involves treating someone (an applicant or employee) less favorably because of his or her age."

Maybe these two managers were breaking the law. That's up for debate. But they were not wrong. Sure, they discriminated. But so do you. Admit it. And good for you. You are a responsible, thoughtful business owner. When you hire you're looking for the best qualified person for the job. Sometimes, those qualifications are objective. But sometimes they are not.

A restaurant in my neighborhood is advertising for a "hostess" because the owner clearly wants a pretty girl in the front of the restaurant greeting diners. A manager of a men's clothing store prefers male employees because his experience is that men feel more comfortable taking clothing advice from another man. A casting director hires a black man to play Alexander Hamilton for his Broadway play because the play's script calls for a black man. The pastor of a church prefers to hire people of his own religious faith. The owners of a shipping company prefer younger employees because they can handle the job faster. A major league baseball team hires "ball girls" every summer to idiotically stand on the foul lines. My own Philadelphia Eagles recruits female cheerleaders to distract those lovable Philly fans from violence when the Eagles fall behind.

Of course discrimination is wrong and rightfully illegal. Of course, all things being equal, one should not be chosen over another because of their gender, age, sexual orientation or color of their skin. But many good people, like you, discriminate. You are looking for the best people to do the job as productively and profitably as possible. A director of a non-profit educational facility feels that a man is needed for the open teaching position. The owner of an equipment assembly plant knows that a younger person would be more productive and profitable than an older person. Who's to argue with their judgment? The government?

You have a responsibility that goes beyond a single employee. You are responsible for all your employees (and their families) who rely on your organization for their livelihoods. You are responsible for maximizing the profit and the value of your organization. Oftentimes that means choosing people that fill a specific need. And I bet you those choices would put you at odds with the EEOC once in a while.

Do you discriminate? Of course you do. Is that wrong? No it's not.

Gene Marks

Entrepreneur Leadership Network VIP

President of The Marks Group

Gene Marks is a CPA and owner of The Marks Group PC, a ten-person technology and financial consulting firm located near Philadelphia founded in 1994.

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