Posted on June 16, 2005

Whistling Fairness

Roger Clegg, National Review Online, June 16

Preferences on the basis of race, ethnicity, and sex—a.k.a. “affirmative action”—are found principally in three areas: education (notably university admissions), contracting (like minority set-asides), and employment (both public and private). For a variety of reasons, employment preferences—particularly in the private sector—have proved harder to uncover than the others.

This is too bad, because sunlight is the best disinfectant: If preferences are exposed, they will often be abandoned, because corporate general counsels know that they can get the company into legal hot-water, no matter how much the politically correct human-resources types push them.

It is true that the courts have let us all down by failing to interpret the civil rights laws so that they protect all Americans, of all skin colors, equally. While categorically forbidding discrimination against some (for instance, African Americans), the courts have allowed a degree of discrimination against other Americans (for instance, whites). But most discrimination, even of the politically correct variety, is still illegal.

Yet it goes on, partly because many who perpetrate it think they can get away with it, and partly because those being discriminated against are not sure what, if anything, they can do about it.

What is needed is a way for people to blow a whistle on this nonsense. To facilitate the whistleblowing, the Center for Equal Opportunity has added a new section to its website: It is designed to help confront employers about illegal preferences.

It divides the kind of abuses we typically see into three categories. The first—the lowest hanging fruit—are what are labeled “type A programs,” those that are openly advertised or described as being open only to members of certain racial or ethnic groups, or as preferring members of particular groups. Examples are minority job fairs; racially exclusive scholarships, summer programs, or internships; private or government contract set-asides; and racially exclusive training or mentoring programs. Programs in the second category, “type B,” advertise predetermined racial or ethnic quotas or goals. And those in the third, “type C programs,” involve preferences that are not openly advertised but still used. (Note that we are interested not only in employment discrimination, but also education and contracting discrimination.)

We are confident of the salutary effects of some whistleblowing—by us or by the employee with our advice, whichever is preferred by the worker (who may, understandably, want to remain anonymous). Here’s a recent example: One employee of a large, Fortune 500 company contacted us when the company announced, internally only of course, that when managers were hiring interns, if they hired three, one had to be female, one a minority, and one a “top performer.” (Note the soft bigotry of low expectations here.) We told the employee that this was an illegal quota and urged her to contact the corporate general counsel.

She did so, and a week or two later we received this e-mail from her: “Corporate has been very responsive. I got a call this week from the person who is investigating the issue on behalf of the general counsel’s office. She said that the minutes outlining the ‘policy’ have been taken down. They haven’t formally admitted that they are wrong, but she said that there was a ‘misstatement’ and that they are revising the minutes to state the correct policy. She also said that she would contact me when they have finished their investigation and let me know what they decide. However, this looks like one win for the good guys.”

As noted, we (CEO) are also happy to contact the companies itself (it’s up to the employee). We’ve already had many successes in persuading employers—universities, unsurprisingly, tend to be the worst offenders—and employment agencies to end what are often patently illegal discrimination in recruiting, hiring, and promotion policies. But we need to hear from more employees and job applicants.

The Center for Equal Opportunity has also written to the top brass of the country’s fifty largest companies, asking them to sign this pledge: “In its hiring and promotion decisions, the XYZ Corporation will always seek and choose the individuals most qualified to do the job, and specifically without regard to race, ethnicity, sex, or any other characteristic covered by the civil rights laws. Our commitment to diversity does not mean that we use or allow preferences, quotas, or any other form of discrimination on the basis of these characteristics.”

Predictably, none has actually made this pledge, although some have responded with statements of company policy that come hearteningly close. We will continue to press the companies; perhaps our contact with corporate America will at least put it on notice that there are organizations that are unhappy when the celebration of diversity results—as it so often does—in discrimination.

It is odd that so many companies use preferences, which—it is increasingly clear—are not only illegal but lack any credible justification in logic, economics, or morality as well. In any event, the time has come for them to stop.

Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.