Message-ID: Newsgroups: bit.listserv.politics Date: Mon, 11 Jan 1993 13:16:00 EST From: "Peter J. Schledorn" Subject: Apples, oranges and quotas One problem we've run into here is that nobody's said very clearly what civil rights and affirmative action laws REQUIRE and what they merely PERMIT. Now there are lots of civil rights laws, but most of what I say here should be roughly applicable to most situations. Civil rights laws prohibit a blanket refusal to hire, promote, enroll or otherwise deal with someone based on the characteristics listed in the applicable law. These characteristics almost always include race and sex, and often include national origin, religion, marital status, sexual orientation and other traits. Very often it is a violation of the law to inquire about any of these characteristics which are not obvious to the eye (marital status, for example). However, civil rights laws (notably the Civil Rights Act of 1964) do permit the use of some or all of these characteristics as PART of the decision-making process, especially when they are used as part of a deliberate program of desegregation. This provision was inserted into the 1964 act as a means of maximizing the decision-making power of businesses and other institutions covered by the act. On the whole, it's a good thing that this provision was included, because otherwise the Civil Rights Act would most likely have been interpreted to bar veterans preferences in civil service hiring, alumni preferences in college and university enrollment, and other such programs that most of us take for granted (because the preferences generally go to white males, he said wickedly :-). Affirmative action laws (actually, I think they're usually sets of administrative rules) require that institutions take deliberate actions to find and recruit qualified minority and female candidates. That means advertising in publications read in black communities, sending recruiters to majority-black colleges if you also send them to majority- white ones, putting announcements of professional jobs in publications of professional societies formed by/for women, and so on. The goal is to get the most diverse applicant pool possible. However, the operative word in all cases is "qualified." Affirmative action never required that a person be hired who is not qualified to do the job. There are also recordkeeping requirements and the like. Now, under an affirmative action program, race or sex MAY be considered appropriately IF it is used only to make judgements between otherwise well-qualified candidates. This is not really a feature of AA programs, but of the civil rights laws that authorize them. We've heard a lot of loose talk about preferences and quotas, but it should be clear that neither preferences nor quotas are required under civil rights laws or affirmative action programs. In fact, it is my understanding that numerical quotas are expressely barred under current Federal civil rights laws. The problem is, the definition of "quota" is a movable feast--some people will term any attempt to look at where an institution started and where it is now as a "quota," when this view of the word would clearly prevent the law from being enforced at all. When complaints are investigated the investigator usually looks at the history of an institution's hiring practices, checks to see that it is doing its best to get a diverse applicant pool, and compares the current minority/female staff ratios to the relevant labor pools, which may be local, regional or national depending on the type of job. While this type of approach works well at sniffing out institutional discrimination (a policy against hiring certain workers), it is ironically less well suited to identifying cases of discrimination against individuals. In those cases, the individuals with complaints often need to go to the courts for relief. Does all this work? To answer that (and to provide some of the disproof that Jamie referred to) I am inserting part of a post I wrote about a year ago, when we were hashing this out before. Long-term POLITICS junkies and charter members of my fan club may remember this. The remarks preceded by > are from Jamie. From: "Peter J. Schledorn" > We all know, though some of us sometimes like to pretend otherwise, what > the purpose of affirmative action programs are. They are supposed to > correct existing racial inequalities. This goal seems to me a perfectly > legitimate one. As Pogo would have said: "EGG-ZACKLE!" The courts generally rely on three factors when they evaluate AA programs. They should be remedial in nature (correcting a demonstrated inequity), limited in duration (though not necessarily with a specific cutoff date), and show consideration for the rights of those not in the groups covered by the plan (these rights vary among unionized and non-unionized employers, public and private sector employers, and state laws). (Newman, "Affirmative Action and the Courts" 1989) > I don't know whether, or to what extent, they work. No one has posted > any evidence about this at all, so I suppose no one else on the list > knows either. Well, let's see. There's Leonard's "The Impact of Affirmative Action on Employment" (Journal of Labor Economics, 1984), which looked at the employment of minorities and women in firms that did government contract work (and were subject to AA), and firms that did not. He concluded that "affirmative action has actually been successful in promoting the employment of minorities and females." Also, after some numbers about the size of the impact, "For a program lacking public consensus and vigorous enforcement, this is a surprisingly strong showing." Then there are case studies such as Norris and Reardon's "Employment Screening, Qualifications and Gender Discrimination: A Case Study of the New York City Firefighters" which pointed to "improved recruitment of female candidates for the position of firefighter," an improvement in "firefighter culture," such as the reduction in the hazing of new employees, and "some examination of alternative firefighting techniques which rely upon a collaborative approach emphasizing a team member's particular strengths." Finally, they pointed to substantial gains in "job relevance and test validity" in the establishment of requirements for firefighter positions. This after women were admitted to the FDNY in response to a lawsuit. Sadly, the plaintiff in the lawsuit was later fired, and a court found that she was the victim of deliberate discrimination even after she got a firefighter's job (she was rehired). And then there are Clayton and Tangri, in "The Justice of Affirmative Action." They say: "How effective is affirmative action as a policy? The answer is: very. Proponents and opponents alike now accept the effectiveness of affirmative action. Even so, estimates of effective- ness tend to be biased downwards because they do not measure the indirect effects of the legal requirements on organizational behavior. That is, the mere existence of the law and the risk of being found in noncompliance at some point in the future may be sufficient to induce a change in hiring or utilization patterns, even when no specific governmental action is involved. Anti-trust and many other laws work in much the same way." > If they work, then I'm for them. If they don't, try something else. > > The point is, there is nothing unconstitutional about affirmative action > programs. They don't violate anyone's rights, constitutional or > otherwise. They should be judged, like any pure policy issue, on the > basis of how well they achieve their goals, and how sensible those goals > are. And whether those same goals could be achieved in a different way, and Leonard's research suggests that they could not. Those who claim that a cultural evolution is "naturally" bringing about more opportunities for left-out groups need to explain why firms not subject to AA did a much poorer job in hiring and retaining minorities and women. Back to the present: I hope that this makes it apparent that much of what we're being told is "the way" that AA programs work is not only not required under the civil rights laws, but may even be illegal. If GM, for example, is really engaging in a program of selective firing of employees as Brett says they are, then they are in a great deal of danger, because their managers are misusing the civil rights laws. One thing about civil rights legislation is that it should (if it is used correctly) result in more thoughtful and careful selection of employees. One would expect that any rational manager would want to maximize the size of the talent pool he could draw on, and that anyone would gladly trade the risk of not finding enough qualified workers for the "problem" of choosing between two well-qualified candidates for the same position. But managers, like many other people, are fairly often lazy and not rational, and they are as ready to swallow fairy tales about quotas as most of us are. This is why I talk about "urban legends" with regard to anti-discrimination laws. Because much of what is spread around as gospel truth about these laws is so much bladerdash. For example: > >Where in the official literature (law, regulations, court decisons, > >memos from high officials even) is it written what percentage of minorities > >a given employer must hire/promote? 5%, 10%, what? > > The laws are vague, because of instances like Bakke. Because of that, > employers are caught in a catch-22 situation. How many is enough? If you hav > less than the regional distribution, you better hire/promote some minorities > just to be safe. > If you have a number you feel is sufficient, but don't want to hire an > more, you can do so, using that number as a shield. Wrong. That is blatantly illegal. Also, it is one of the more dangerous policies a company can follow, since it depends upon everyone in the hiring process being willing to perjure themselves in the event of a complaint or lawsuit. I'm not saying it never happens, but I am saying that it violates the law and that the fact that someone will violate a law does not demonstrate that the law in question is a bad one. > The basic problem seems to be that some people don't want to admit tha > the government, after enforcing the suppression for 180 years, didn't give the > a good weapon against discrimination in 1964 (and successive years). Actually, as I tried to show before, the weapon is surprisingly good, probably because the principles that underlie civil rights laws are principles that most fair-minded Americans share--even those who are willing to buy into the fairy tales about such laws. This accounts for the rhetoric of anti-discrimination laws being used to argue against effective anti-discrimination laws. > Face it, the government is not going to give you any real power, > especially if it can convince you the laws work in you favor (even when they > don't). And here we have it--the appeal to faith. Government can do nothing right, so the clear evidence that it can do some things right cannot be acknowledged. The secular version of the Magic Book. > Answer this question: > > If the various civil rights bills are sufficient for equality, why is > there still inequality? And here we have the sad outcome. Your answers: 1. Nobody said they were "sufficient," just better than what we had before. 2. We're still waiting for your improved substitute. Remember, we've seen that doing nothing (or "trusting the market") didn't work. So what will we do differently? Best, Peter > Brett' Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU Path: eff!sol.ctr.columbia.edu!howland.reston.ans.net!paladin.american.edu!auvm!UNC.OIT.UNC.EDU!UNCPJS X-Delivery-Notice: SMTP MAIL FROM does not correspond to sender. Message-ID: Newsgroups: bit.listserv.politics Date: Tue, 12 Jan 1993 13:12:00 EST Sender: Forum for the Discussion of Politics From: "Peter J. Schledorn" Subject: Re: Apples, oranges and quotas Comments: To: Forum for the Discussion of Politics Lines: 82 > Whew. The last word for Peter. Almost. > > >However, civil rights laws (notably the Civil Rights Act of 1964) do > >permit the use of some or all of these characteristics as PART of the > >decision-making process, especially when they are used as part of a > >deliberate program of desegregation. This provision was inserted into > >the 1964 act as a means of maximizing the decision-making power of > >businesses and other institutions covered by the act. On the whole, > >it's a good thing that this provision was included, because otherwise > >the Civil Rights Act would most likely have been interpreted to bar > >veterans preferences in civil service hiring, alumni preferences in > >college and university enrollment, and other such programs that most > >of us take for granted (because the preferences generally go to white > >males, he said wickedly :-). (Note from Peter: in fact, upon rereading the Act I was reminded that some of these programs were specifically defined as non-discriminatory under the terms of the law) > I don't think there is any explicit provision to that effect inserted > into the 1964 act. If I'm wrong, please tell me what provision it is. It's not so much an explicit permission as the conspicuous absence of a prohibition. Section 703(j) starts : "Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group . . .". In one of the early cases the Supreme Court ruled, citing the legislative history, that if the bill had been intended to outlaw all sorts of preferential treatment for minorities they would have written "permit" for "require." So AA programs that do involve preferential treatment of otherwise qualified minorities (most don't, in my experience) do not violate the law. > I do believe, though, that something close to what Peter says > can be inferred from the 1964 act. > > I understand the act this way: > > Using race (or any of the other named characteristics) as a criterion > is prohibited WHEN THE USE REFLECTS A PREJUDICE OR BIGOTRY. > > Which is to say, not when it serves some legitimate goal. (Whether > a goal is "legitimate" is really just a question of whether or not > it is a mere mask for racism or other bigotry; the courts will not > really decide whether a goal of a certain business or university > or what have you is "good" or "well planned.") Yes. The terminology that the Civil Rights Act uses is "bona fide qualification," keeping in mind that for many years (and probably still in some places) qualifications have been written so as to exclude blacks or women or other groups. They also take into account the "intent to discriminate," which may be used to argue that actions which seem to be legal at first glance may actually be violations. I think that it is accepted that employers have a fairly free hand in deciding who to pick from among those who meet the justifiable qualifications, as long as those choices do not in themselves constitute discrimination. There is no legal requirement to pick the "best" qualified candidate, just _a_ qualified candidate. But, if all the candidates you pick are white and male, you may have some explaining to do. And, there is no legal prohibition against including race or sex among the list of qualifications, as long as it is done to meet a well-defined and justifiable goal and meets the other requirements I mentioned in the original post. (examples omitted) > There are many, many other examples, of course. > Affirmative action is one of them. Its goal is coherent and > distinct from bigotry. Peter provides evidence that Affirmative > Action also does tend to promote its stated goals. But even if > it didn't, that would only mean it is a bad policy, not that it > is illegal under the Civil Rights Act of 1964. > > So I believe, at any rate. I agree. Best, Peter > Jamie