Zappos Hiring: Culturally Fit? Legally Defensible?

Zappos has two separate sets of interviews. The hiring manager and his or her team will interview for the standard fit within the team, relevant experience, technical ability and so on. And then the HR department does a separate set of interviews purely for culture fit. Zappos has questions for each and every one of their ten core values. "They [applicants] need the relevant skill set and experience and so on," CEO Tony Hsieh says. "But far more important is, are they going to be good for the culture? Is this someone we would choose to have dinner or drinks with, even if they weren't working for Zappos?"

One of Zappos' core values is, "Create fun and a little weirdness." So, during an interview, a candidate gets asked, "On a scale of 1 to 10, how weird are you?"  "If you're a 1, you're probably a little bit too strait-laced for us. If you're a 10, you might be too psychotic for us," says Hsieh.  Another potential deal-breaker is saying you don’t socialize with co-workers outside the office. That could undermine another of Zappos’ core values: “Build a positive team and family spirit.”

Michael Hyter, senior partner at Korn Ferry has states, “The word ‘‘fit’’ in the absence of that support factor [fair consideration for jobs for people who happen to be different] can easily be misinterpreted as ‘‘being like me,’’ instead of what the position requires. Many organizations make the mistake of assuming that those tasked with selecting new hires are equipped to do so fairly because they are nice people or good workers. But failure to ensure the selection process is based on standard criteria with trained interviewers can result in unintentional bias in the spirit of looking for someone who’s a perceived ‘‘good fit.’’

Built-In Headwinds

As Natasha Tiku wrote in ValleyWag, "Taken at face value, "not a culture fit" sings: Nothing personal, you'd probably be happier somewhere else! But what prioritizing "fit" really allows a company to do is reject an applicant for not matching the pattern. For being an "other" in some way. For coming from a different background, looking different, acting different, having different interests, all of which should be considered an asset.

More than forty years ago, the Supreme Court ruled in Griggs v Duke Power Co. that "good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability." The Court found that some of Duke’s hiring requirements, like a high school education or a certain I.Q. level, were irrelevant to some jobs and had the effect of excluding qualified black workers. The Court held that the law "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."

As previously noted, failing to socialize with co-workers outside the office is a potential deal-breaker for Zappos. According to the company, that could undermine one of its core values: “Build a positive team and family spirit.”  This out-of-office socializing "deal-breaker" eliminates many persons from employment consideration, including single parents, children whose elderly parents need care, persons going to school part-time, and well-rounded persons who have interests outside the company - persons who engage in charitable activities, participate in civic functions or practice their faith.

A frequently-mentioned aspect of the Zappos culture involves the consumption of alcohol:

• According to Business Insider, "Zappos prides itself on a fun, quirky company culture where the CEO Tony Hsieh has been known to dole out shots of Grey Goose."
• A Zappos press release reads, "I had three vodka shots with Tony during my interview," says Rebecca Ratner, Zappos's head of human resources. "And I'm not atypical."
• As Ms. Ratner stated, "While we rack up some pretty big bills for happy hours and parties, we believe that every one of those dollars comes back to us threefold in employee engagement, which to us is really what success is all about."

The prominent role alcohol plays in Zappos' hiring for "cultural fit" would seem to present built-in headwinds for Mormons, Baptists, Muslims, recovering alcoholics, diabetics, and persons scarred - physically or mentally - by the acts and actions of alcoholics. As noted in Zappos: The Future of Hiring and Hiring Discrimination, many of the persons experiencing those headwinds are Protected Persons under federal and state employment discrimination laws.

During an interview at Zappos, a candidate gets asked, "On a scale of 1 to 10, how weird are you?" According to Zappos' CEO, "If you're a 10, you might be too psychotic for us." In a company that has "Create Fun and a Little Weirdness" as one of its core values, the word "weird" is associated with mental illness.

Historically, many employers asked applicants to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities -- particularly nonvisible disabilities, such as mental illness -- despite their ability to perform the job.The Americans with Disabilities Act (ADA) prohibits all disability-related inquiries pre-job offer.

The use of tests and other selection procedures, like Zappos' cultural fit interview, can violate the ADA if an employer intentionally uses them to discriminate based on disability or if they disproportionately exclude persons with disabilities, like persons with mental illness.

EEOC guidance notes that employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. If a selection procedure screens out a protected group (i.e., race, gender, age, disability), the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure.

Core Values and Transparency

Zappos established ten core values to clearly define the Zappos Family culture, values that are to be reflected in everything they do and every interaction they have. When searching for potential employees, Zappos looks for people who both understand the need for these core values and are willing to embrace and embody them. The ten core values are explained by Zappos employees in the following video:

With the exception of the CEO, there appear to be no persons of color among the seven employees interviewed in the video. It may well be that the video is not a representative sampling of employee diversity at Zappos and, if so, the company, acting in accordance with the core value “Build Open and Honest Relationships With Communication,” could publish information on its workforce diversity along the lines of Google's recent disclosure. As Google's Senior Vice President of People Operations wrote:

We've always been reluctant to publish numbers about the diversity of our workforce at Google. We now realize we were wrong, and that it’s time to be candid about the issues. Put simply, Google is not where we want to be when it comes to diversity, and it’s hard to address these kinds of challenges if you’re not prepared to discuss them openly, and with the facts. 

The same spirit of openness that leads Zappos to supply information on sales to its suppliers through its extranet should lead it to provide its workforce diversity information to its employees, applicants, and the general public - Zappos' customers.