It’s become commonplace to beat up Silicon Valley companies for lack of diversity. Fear of PR repercussions probably had a lot to do with Google’s extreme response to James Damore’s internal memo.

There is a lot of emotion on both sides of this issue, but it is something that needs to be discussed.  I’d like to share my own perspective.

I have worked and managed in Silicon Valley for more than 40 years. I’ve worked at some of the best-known companies in the Valley, as well as a number of venture-funded startups. Throughout my career, affirmative action has been a major goal, and has become institutionalized in the culture and practices of most companies.

But after more than 40 years, efforts to increase diversity have not solved the problem. In fact, these efforts have barely moved the needle.

I was once congratulated by the HR department at Oracle, because my department had the best record in the company for “hiring, retaining, and promoting women.” Oddly enough, I pretty much ignored the affirmative action goals that I was given. I tried to hire the best people for the job, and then give them opportunities (and mentoring) to help them be successful in their jobs. I don’t recall ever taking into account supposedly gender-related factors in my management decisions.

And as it happened, that worked out pretty well. I had a great team… probably the best I’ve ever worked with.

But here’s the thing: when I exceeded the company goals for hiring and retaining women, it probably meant that another department failed to meet theirs. Or perhaps another company missed their targets. Because, at the end of the day, we were all hiring from the same pool.

Now, I understand that there are barriers to women and minorities in the workplace, and I am not dismissing them. Certainly there are some companies in Silicon Valley where discrimination and sexual harassment are egregious. But by and large, most companies try to do the right thing. And they have been trying for a long, long time.

It’s time to recognize the fact that this is a broad societal problem, and there is only so much that any company can do to solve it. Believe me, the biggest challenge in Silicon Valley has always been recruiting good people, and I think most managers don’t care anything about a person’s gender or race if they can get the job done.

We need more people in STEM fields, and that means we need to draw on a large and diverse pool. But it’s time to get real. Building that pool is not the sole responsibility of the companies that do the hiring.

40 years of affirmative action have not worked. Isn’t it time to look elsewhere for solutions?

The Consumer Review Fairness Act, signed into law by President Obama in December 2016, protects consumers’ rights to post online reviews.

In recent years, many companies and service providers have required their customers to sign contracts that prevent the consumer from posting online reviews.  Some contracts assert a copyright interest in any review written by the customer, effectively preventing publication and sharing of the review.  One of the biggest offenders in this regard is a company called Medical Justice, which provides standard contracts for use in the medical profession

In some cases, companies have even sued customers who broke the agreements and posted disparaging reviews.

The new law invalidates contracts that prohibit consumers from posting reviews.  The law does not invalidate existing laws against libel and slander.

Learn more about the business of online reviews at the Rating and Review Professional Association.

Related Posts

Internet Law and Your Web Business

Manage Your Business Reputation Online

As the population in the United States ages, business leaders are discovering that older workers are not only “up to the job,” but may in many cases be better at it than younger employees.

Here are a few of the reasons:

(1) Focus on the Job

Early- and mid-career workers are often preoccupied with career advancement. Their focus is on the things they need to do in order to move on to the “next job.”

Older workers tend to be less concerned with advancement, and more focused on satisfaction and accomplishment in their current job.

(2) Good Interim Workers

Older workers have the experience and skills to fill many positions. They can be an excellent choice to fill a position on a temporary basis, while you conduct a search for a permanent hire.

(3) Great Learners

Older workers have had to re-invent themselves many times over the course of their careers. They know how to go about acquiring new knowledge and skills.

While short-term recall and rapid recall decline as the brain ages, studies show that older brains are actually better at integrating new knowledge with existing knowledge. Studies also show that the decline in rapid recall is largely due to the fact that older people simply know more, so there is more knowledge for the brain to sift through.

(4) Strong Work Ethic

According to a 2010 Pew Research Center survey, “Nearly six in 10 respondents cited work ethic as one of the big differences between young and old. Asked who has the better work ethic, about three-fourths of respondents said that older people do.”

(5) Strong Networks

Older workers have larger networks of colleagues and associates to draw on. A study conducted by The Center on Aging and Work at Boston College found that 46.3 percent of employer respondents said that their older employees have stronger professional networks and client networks compared to younger workers.

(6) More Productive

Surprisingly, studies have shown that productivity increases as workers age. This may be due to greater knowledge and experience, or to better focus.

(7) Better Leaders

Older workers score high on tasks requiring leadership, detail-orientation, organization, listening, writing skills and problem solving — even in cutting-edge fields like computer science.

Businesses are Taking Note

These are a few of the reasons why companies are starting to turn to older workers. Fifty-four percent of private-sector employers hired workers age 50 and older in 2014 – up six points from the previous year!

When people launch websites, they usually think about technology, marketing, and financials, but they rarely give much consideration to potential legal issues… and that can cause serious problems!

In this post, I’m going to discuss a few of the key legal issues affecting websites. I’ll discuss mainly US law, with a few comparisons to other countries. The purpose of this post is to alert you to issues that you should consider.

I am not a lawyer and I am not offering legal advice, so you should discuss these issues with an attorney specializing in Internet law, or cyberlaw. Note that this body of law is made up of specific legislation, as well as precedents set by judges attempting to adapt and apply existing law to the Internet.  As such, it is changing rapidly, and there are many gray areas.

Trademarks

A trademark is a collection of words or symbols that uniquely identifies the source of goods or services. For example, when we talk about Kodak® film, we are identifying the Kodak brand as the source of the film.

In the United States, trademark rights are acquired through using the mark in commerce. Additional rights are secured by registering the mark with the US Patent and Trademark Office, but that is not required. The point here is that there are literally tens of millions of trademarks, registered and unregistered, in use in the US alone. When you launch your website, there is a good chance that you might be conflicting with someone’s trademark.

That’s why, before investing in a domain name and marketing for your brand, you should contact an attorney to conduct a trademark search. You can do a very basic trademark search yourself by using the search feature on the USPTO website, and also using Internet search engines to find unregistered brands. But if you are serious about building your business, you should invest in a professional search, rather than risk a lawsuit just as your site starts to take off.

You should also discuss the merits of registering your trademark, in the US and possibly other countries. (Each country has its own trademark registration process.)

Copyright

When you create original content for your website, it is automatically protected by copyright law. You can strengthen those rights by registering your copyright with the US Copyright Office, but that is not necessary to secure your basic rights. Unlike trademarks, copyright protection is worldwide; you don’t need to register your copyright in each country.  If you are operating a content-rich website, you should be familiar with the basics of copyright law.  You should also conduct periodic searches for violations, in order to protect your rights.

Bear in mind that copyright protection also protects other websites. Material that you find on the Internet is protected by copyright (with some exceptions that we won’t discuss here). You can’t simply copy someone else’s work because you “found it on the Internet.”

Your website may allow 3rd parties to post content, in the form of a social network, a discussion forum, comments, or ratings and reviews. If a user posts something on your site that violates copyrights, you could be held liable.

You can avoid this liability by complying with the takedown provisions of the Digital Millennium Copyright Act (DMCA). Briefly put, you must provide a way for copyright owners to file a takedown request if material on your site violates their copyrights. (You, as the site operator, may contact the party who posted the content to ask if he or she wishes to contest the copyright claim.)

Provided you follow the DMCA process, and remove infringing material from your site, you cannot generally be held liable for damages. Note that this safe harbor protection is not absolute.  For example, if it is determined that your site systematically encourages copyright violation as a core part of its business, then complying with the DMCA will not protect you from liability.

Libel and the Communications Decency Act

In most of the world, if a user commits libel by posting false and damaging allegations on your site, you could be held responsible, and sued or even prosecuted. But in the United States, your site is protected from legal liability by Section 230 of the Communications Decency Act of 1996 (CDA).  Section 230 also protects the website from liability for other types of user-posted content… even criminal acts!

However, you could still be sued in another country… perhaps Canada or the United Kingdom, where anti-libel laws are much more stringent, and you are not protected by Section 230. In that case, you may well lose the overseas lawsuit. But when the plaintiff attempts to have the judgment against you enforced in the United States, their claim will be denied. Under the terms of the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act of 2010, foreign libel judgments cannot be enforced unless the suit would also be valid under US law.

Section 230 has been called the most important Internet legislation ever enacted; it has made possibly the proliferation of social networks, discussion sites, review sites, and more. However, the law is under attack.  A number of state attorneys general have petitioned congress to amend the law to exclude certain types of user-supplied posts.

Even under current law, states have tried to hold websites responsible for user-generated content. For example, several states have threatened to prosecute Craigslist.org over ads for prostitution posted by users of the site.  Despite the protection of Section 230, Craigslist ultimately bowed to the pressure and blocked the ads for sex services (at least the most blatant ads).

In addition, some judges have ignored Section 230 protections because they simply don’t agree with a law that provides such blanket immunity.

Because of the ongoing pressure, this body of law could change in the future, so it’s important to be aware of the ongoing discussions.

Privacy Policies

Privacy has become a major concern for many people, and as a result legislative bodies are moving quickly to enact privacy protections, in particular for children; see the Children’s Online Privacy Protection Act (COPPA).

Currently some of the most stringent requirements can be found at the state level, notably in California, Connecticut, and Delaware.  Privacy laws in the European Union are general much stronger than those in the US.

Common provisions include:

• Requirements for a posted privacy policy stating how you track user activity, what information you collect, and how you use and share that information.
• Limitations on collecting and storing certain information such as social security numbers and credit card numbers.
• Requirements for parental permission before minors can participate in online communities.
• Requirements to allow content posted by minors, and data collected from minors, to be deleted from the website.
• Limitations on good and services that can be marketed or advertised on sites targeting or directed at minors.

In addition to laws, your site may be subject to the policies of partners or services that your site uses.  For example, if your website displays ads from Google Adsense, Google requires that you include specific provisions in your privacy policy.  And requirements for handling and storing credit card information – the Payment Card Industry Data Security Standard (PCI DSS) – are actually dictated by the credit card companies.

There are a number of online services that will generate a privacy policy for your site, based on your inputs.  There are also downloadable templates for privacy policies.  However, because the laws are complex and changing rapidly, it’s worthwhile to consult with an Internet law specialist so that you actually understand how the laws affect your site.

Terms of Use

A website’s Terms of Use agreement may overlap the privacy policy, but often includes other provisions, such as rules of conduct for site members, or legal rights and obligations.

In order to be enforceable, the user must “assent” to the provisions.  Some sites simply present the terms of use and state that, by using the site, the user agrees to the terms (this is called a browsewrap agreement). Other sites require the user to take a positive action, such as clicking a button or checking a box, to indicate that he accepts the terms (a clickwrap agreement).

Although there are legal precedents upholding both browsewrap and clickwrap agreements, courts have been more willing to recognize clickwraps as valid contracts, while showing skepticism about browsewraps.

General Law

In addition to the various special laws affecting websites, Internet businesses are subject to the same general laws as traditional businesses.  Examples include truth in advertising laws, commercial codes, and tax laws.

In other words, when launching a web business, legal issues are as important as technology, marketing, and financial considerations.