Center for Equal Opportunity

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Proof of Color, Please?

Our friend Jennifer Gratz—of Gratz v. Bollinger, the Supreme Court case that struck down racially preferential undergrad admissions at the University of Michigan in 2003—passed along to usthis interesting news story from Detroit.  It’s about one Jerome Morgan, who is being asked by the city to prove he is black and, therefore, truly eligible for a contract preference that allegedly the mayor would rather give to someone else for political reasons.

I’m not surprised:  If some people are given special treatment because of race, there is the possibility that some people will try to game the system. And so it is inevitable that some governments will claim that the honor system isn’t good enough, and will require documentation in some circumstances. (Indeed, that’s what the Bush administration did in 2001, as I noted on National Review Online at the time.)

Sure, this is creepy—but what do you expect once you start down this road? And perhaps Mr. Morgan is being politically targeted by the mayor’s office in Detroit, but of course he shouldn’t be given a preference on the basis of his skin color in the first place. I’m glad to see this nonsense getting plenty of publicity: Maybe it will help convince the political branches and the courts to put a stop to it.

Maybe the Elizabeth Warren matter will help, too:  She’s the candidate for the U.S. Senate in Massachusetts who is likewise accused of gaming the system, this time of race-based hiring preferences at Harvard, by claiming to be Native American when she was only 1/32 Cherokee, if that.  Here’s my short take:  It's wrong for people to rely on race for special treatment, wrong for one person to demand proof of another's race, wrong to have one-drop rules or any kind of ancestry rules, and—especially—wrong for employers to consider race in making hiring decisions. All this is true for politically correct discrimination as well as politically incorrect discrimination. Stop the bean-counting, stop the racial preferences.

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In case you missed it, the U.S. Equal Employment Opportunity Commission recentlyhanded down new “Enforcement Guidance” that greatly limits the extent to which employers can consider arrest and conviction records of job applicants, principally on the grounds that doing so can have a “disparate impact” on the basis of race and ethnicity (the practice goes back to the Nixon era, if not further, but the Obama administration has taken it to new depths). Martin Luther King’s dream has now been turned completely on its head: The government keeps a careful eye on race and forbids judgment about character.

There are certainly circumstances where employers might be willing to consider hiring someone with a criminal record, and circumstances where they might not. But where there is no consideration of race, why should the federal government be second-guessing those decisions, which the employer (and the applicant’s fellow employees) will have to live with?
Businesses are, understandably, not happy about all this: “Many in the business community have complained that the Guidance was rushed through with no public rulemaking or the associated process for public comment—a refrain recently echoed by the Senate Appropriations Subcommittee responsible for EEOC funding and Commissioner Constance Barker in her dissent.” I have been a frequent critic of the disparate-impact approach, but really—telling employers when they can and can’t consider criminal records?

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The Wall Street Journal, which ought to know better, has put together a “Women in the Economy” Executive Task Force, and recently held a “Women in the Economy” conference that was reported on in theJournal. As in the past, these folks seem not to have heard of Title VII of the 1964 Civil Rights Act, which makes it illegal for employers to engage in discrimination because of sex. Ignoring that little problem, the task force’s working groups included these recommendations:

  • “Hold senior managers accountable by tying promotion and compensation to meeting diversity goals and requiring regular reports to the board.” “[T]his group advised setting diversity targets and holding the senior executives’ feet to the fire . . .” “[E]xecutives whose ‘pay or promotions are at risk’ are more likely to change.”
  • “Post jobs regularly and ensure a diverse candidate slate. Hold regular succession-planning reviews and make managers accountable.”
  • “Require a diverse slate of candidates, and include women directors on the nominating committee.” “Make gender diversity nonnegotiable.”
  • “Find at least one female candidate for every technical job. Reward the C-suite for retaining and promoting women.”
  • “Government should be a role model for hiring, committing to 30% women at the top and reporting on progress.”

It cannot be argued with a straight face that these recommendations are anything but a call for companies (and the government) to set and enforce quotas on the basis of sex.