Innocent until proven guilty, and hireable until proven unhireable

In a lot of ways, I think both a panel of peers in a jury and in an interview have much in common. In both cases, the panel is attempting to adjudicate some judgment beyond reasonable doubt: whether a defendant is innocent or not; whether a candidate is worth hiring or not. Being that the goal is fact finding, courts that operate under the presumption of innocence often have many requirements around how individuals conduct themselves in court, how evidence is acquired, and so on. Likewise, there are some standards that seem shared in hiring in the tech industry, though I believe there are yet ways that we can learn from Western judicial philosophy.

The reason I’m proposing this is because of something that I believe is a problem: seemingly Olympic levels of nitpicking in tech hiring. To be clear, I am not suggesting we be lackadaisical with hiring standards. But, while it’s one thing to be serious about quality, it’s another thing to create seductive narratives in our heads about people we just met three hours ago, look aggressively for nitpicks with which we can support our conclusions, then poison the well by disseminating these narratives in group debriefs, resulting in collective, erroneous beliefs that could be dispelled by simply asking the candidate one or two clarifying questions.

I have seen a great deal of this on the panels I’ve been on across many companies, and it’s been extremely hard to watch. People in my life have also confided in me about observing these tendencies, where they start to see colleagues get together and create “concerns” about candidates that seem completely disconnected from the evidence provided. I agree that this is worrisome. I humbly propose another way forward.

Presumption of hireability

In many Western courts, there is what’s called a presumption of innocence. On this, an entry from the Legal Information Institute at the Cornell Law School elaborates:

A presumption of innocence means that any defendant in a criminal trial is assumed to be innocent until they have been proven guilty. As such, a prosecutor is required to prove beyond a reasonable doubt that the person committed the crime if that person is to be convicted. To do so, proof must be shown for every single element of a crime. [A presumption of innocence] ... has been recognized as one of the most basic requirements of a fair trial.

Interestingly, presumption of innocence is, as mentioned, considered a “basic requirement of a fair trial,” with this right even described in the UN’s Universal Declaration of Human Rights, in Article 11.

But I don’t want to overplay my hand: when compared against not getting a job, not getting a fair trial results in far more horror and deleterious effects, which is why the presumption of innocence is so critical in any society that ever hopes to function halfway decently — an unfair justice system that railroads and locks away the innocent in ever-increasing numbers is a surefire way to devastate individuals, a country, and everyone’s future in it, so it seems clear why someone would suggest that the burden of proof should always remain on the prosecution, and compel this by law, no exceptions. I am also not at all suggesting companies should be compelled to take people on, as that would be a huge violation of civil rights — people running businesses should have the right to freely associate, too, and decide not to work with someone for any reason (with the reverse also being true).

This all said, I still believe a panel of peers to determine guilt, and a panel of peers to determine hireability have some important commonalities. A panel of your peers in interviews and a court case both have a responsibility to:

• Fact find about someone and/or something,
• Assess evidence about a case presented by a party,
• Determine a judgment about someone based on the above.

With all of this in mind, I believe that we should create a mentality that starts at “hireable until proven otherwise” on interview panels, which is to say that, in my view, when reviewing candidates, the burden of proof should be on the panel: if you are going to require feedback be provided internally about someone’s candidacy, employees should be able to prove beyond a reasonable doubt that the candidate is not a right fit, with some reasonable amount of proof shown for every single assertion about the candidate, lifted directly from the source material, and it should be self evident that this assertion connects to hireability, rather than simply personal preference.

Better would be what some companies do: record the conversations (in writing or in video) in full and provide those transcripts to “hiring committees,” a panel separated from the interviewing panel. Before providing feedback, the original panel of interviewers should be expressly forbidden from debriefing together, mitigating the phenomenon of collective obsessive rumination, over analysis, and nitpicking.

Interrogations

In general, in court, when someone has taken the stand, attorneys are expected to ask questions in specific ways. Judges can honor objections to an attorney’s questioning, or even dismiss the attorney from the court entirely. Similarly, there is significant legislation that exists in many Western countries about how police can interact with suspects, and how evidence is collected — evidence can be considered inadmissible in court if run afoul. Suspects cannot be held against their will (unless in specific circumstances, and for limited time), are always entitled to legal representation, and cannot be forced to speak against their will at the threat of escalation. Many discuss the risk of forced confessions when humans are placed under duress, and that this can return testimony that has very little truth.

Putting this in the context of interviews, I believe that there is something to glean from the situation described above: it’s probably not a good idea to attempt to “put the heat” on candidates. Try to collect information that is high quality — many people consider leading questions (or ones with an “agenda”) to induce feelings of pressure, which may lower candidate<>interviewer trust. Try not to:

• Talk about the candidate with your colleagues,
• Spin up Slack channels where you work as a team to theorize about the candidate’s gaps, and the questions to ask them to confirm these theories,
• Become invested in a narrative about a candidate,
• Become a victim of motivated reasoning,
• Ask questions with the intent to deceive, or “trip up” a candidate,
• Only accept one kind of response, when many are equally just as reasonable,
• Factor in their speech patterns,
• Factor in their appearance.

If you are noticing signs of motivated reasoning in yourself, this is a red flag: when people get invested in narratives, the goal shifts towards confirmation of one’s priors, rather than truth seeking. This is also a common folly in mishandled police investigations, as well as a common feature of kangaroo courts. Instead, try to:

• Have a checklist of things to evaluate for that is even across all candidates,
• Be sincerely interested in the candidate,
• Ask questions only to gain information,
• Seek to disconfirm your priors,
• Assume best intent,
• Not read into things (if you do this, asking clarification to disconfirm this read is recommended),
• Be open-minded about the different kinds of responses candidates can give.

Final thoughts

This does produce a lot of work, but I think that, even at small companies with teams that cannot have an anonymized pipeline of applicants and reviewers, it should be a given that, when feedback is given, that panelists have specific and clear reasoning, with direct citations from conversations, that support their assertions. They should also be encouraged to provide potentially disconfirming questions or evidence to their assertions. The burden of proof needs to be on the interviewers for the assertions that they make, in my view, and they should not be able to discuss among each other before providing feedback. It also may not be burdensome, even for small companies, to then pass all the collected feedback to a separate set of individuals for review, who will then make the decision based entirely on the feedback collected.

In my view, this can make for a more fair, thorough, and evidentiary process, where the burden of proof for assertions by panelists falls on the panelists, themselves.