Is Racial Data Privileged?

The San Jose Mercury News has been trying to collect racial data from the biggest firms in Silicon Valley, with some but limited success.

SAN JOSE, Calif. — Google, the company that wants to make the world’s information accessible, says the race and gender of its workforce is a trade secret that cannot be released.

So do Apple, Yahoo, Oracle and Applied Materials. These five companies waged an 18-month Freedom of Information battle with the San Jose (Calif.) Mercury News, convincing federal regulators who collect the data that its release would cause “commercial harm” by potentially revealing the companies’ business strategy to competitors. A sixth company, Hewlett-Packard, fought the release and lost.

For what it’s worth, my opinion is that it’s hard to tell which is sillier — the argument of Apple et al. that the racial make-up of their work force is a highly sensitive business secret that can reveal their strategy to competitors, or the argument of the race data fanatics that democracy itself requires the release of such data.

Here’s a sample of both arguments:

Experts in the area of equal employment law scoffed at the idea that public disclosure of race and gender data — for example, the number of black men or Asian women in job categories such as “professionals,” “officials and managers” and “service workers” — could really allow competitors to discern a big tech company’s business strategy. A bigger issue, they said, is the social cost of allowing large, influential corporations to hide their race and gender data.

“One of the main ways that we track how society is doing in terms of race relations, in terms of eliminating discrimination, in terms of promoting diversity, is by looking at statistics,” said Richard Ford, a Stanford University law professor who is an expert in civil rights and anti-discrimination law. “But if we can’t get the data, we can’t know if it’s a problem or not.”

John Sims, a law professor at the University of the Pacific and an expert in FOIA law, called the objections of Google, Apple and other companies “absurd.”

“The whole debate on affirmative action is based on the question, ‘Is racial discrimination a thing of the past, or is it still going on?’ “ Sims said. “These companies are very interesting to look at, because they are new and they are not just in the rut of what they were doing 50 years ago, because they didn’t exist 50 years ago.”

The Apple et al. argument does sound absurd, but I don’t find the law professors’ argument any more persuasive. (This is not the first time I’ve found Stanford Prof. Richard Ford unpersuasive; this is.) Even if Apple or Yahoo or Oracle don’t have as many, say, female Hispanic managers as Prof. Sims or Prof. Ford would prefer, that fact will reveal absolutely nothing about whether race or sex discrimination “is still going on.” Maybe such ethnically and genderly qualified professionals are in such high demand (to keep the professors and their friends at bay) that they are hard to find, hard to hire, and hard to retain.

Come to think of it, I think there is a strong business necessity to keep such data as secret as possible: so as to avoid endless arguments and litigation with those always see “underrepresentation” as discrimination.