Fair Fight: Taking on Preferences



The Equal Employment Opportunity Commission (EEOC) is charged with protecting the American public from employment discrimination on the basis of race, color, religion, sex, or national origin. To say that the EEOC had failed in this task would be an understatement. The plain truth is that, by encouraging hiring preferences for minorities and women throughout the federal government, the EEOC itself has helped to raise employment discrimination to a high art. The good news is that someone is finally taking steps to put an end to the travesty of American ideals that government-run programs of reverse discrimination represent. In an audacious and ingenious move, the Center for Individual Rights is suing the agency in charge of enforcing the government’s anti-discrimination policies for its own longtime sponsorship of discriminatory hiring.

On Thursday, August 8, the Center for Individual Rights filed suit against the Secretary of Housing and Urban Development, Mel Martinez, and EEOC Chair, Cari Dominguez, charging both agencies with practicing intentional race and sex discrimination, in violation of the Equal Protection Clause of the Constitution of the United States. How extraordinary to have the EEOC itself charged with employment discrimination in federal court. Yet the evidence is overwhelming. In fact, the evidence has been collected in mind-numbing detail by the EEOC itself.

Whereas private companies generally keep their employment records confidential, agencies of the federal government are required by law to make their hiring and promotion information public. The EEOC requires all federal agencies to prepare reports detailing by race and by sex the number of workers employed. Those same reports are required to put forward detailed proposals to increase the hiring of minorities and women, wherever these groups are employed in numbers below their proportion in the civilian labor force.

The original purpose of these reports was to reveal any “conspicuous absence” or “manifest imbalance” in racial or sexual representation, such as might reasonably be taken to indicate the possible existence of discriminatory hiring practices. Instead, these reports have been handed over to bean counters who mark even the most infinitesimal discrepancies as proof of discrimination. And that’s is the least of it. The most remarkable revelation of the federal government’s own detailed employment reports is not that women and minority groups are marginally underrepresented, but that they are actually markedly overrepresented in the federal government.

The results of EEOC’s passion for remedying “underrepresentation” have been nothing short of bizarre. Consider the following example, The proportion of Asian males in professional jobs at HUD is 3.4 percent. Since Asian males represent 3.5 percent of the professional labor force, HUD deems this one-tenth-of-one-percent discrepancy evidence of a “manifest imbalance” that justifies the institution of hiring preferences for Asian males. Yet white males make up only 5 percent of the technical employees at HUD, even though the proportion of white males in the technical labor force is 36 percent. And only 30 percent of HUD administrators are white males, while the proportion of white males in the administrative labor force is 42 percent. So in the case of Asian males, a mere one-tenth-of-one-percent discrepancy is rated a “manifest imbalance,” but when it comes to white males, a 12 percent, and even a 31 percent discrepancy goes completely unremarked.

This is not only unfair, it is a clear case of illegal and intentional employment discrimination on the part of the federal government. For one thing, as CIR points out, the law only allows preference programs to be instituted to remedy “manifest imbalances,” not minor statistical discrepancies. On top of that, the Constitution’s guarantee of equal protection applies with equal force to all groups. By correcting any and all statistical underrepresentation of minorities and women, while ignoring underrepresentation of men, HUD and EEOC have created a situation in which white men are now under-represented in every major job category at HUD. Yet, as the CIR suit points out, the law only allows “narrowly tailored” remedial hiring programs – that is, programs that do not unduly burden the rights of non-favored groups. Clearly, white males have been unduly burdened by the federal government’s preferential hiring practices.

Government bean counters have some remarkably insidious tricks for implementing discriminatory hiring preferences, even in the face of clear evidence that it is white males, and not minorities and women, who are actually underrepresented in federal jobs. Let’s say that Hispanic females are proportionally represented – even over-represented – in a broad job category like “administrators.” In that case, EEOC will search out a sub-category of administrators like, “criminal investigator,” in which Hispanic females are under-represented, and institute hiring preferences there. Meanwhile, the overrepresentation of Hispanic females among other administrators will go unremarked. By consistently following a policy in which minorities and women are proportionally, or more than proportionally, represented in every minor subcategory, white males are bound to be vastly underrepresented overall. And that is exactly what has happened.

But why is the EEOC doing this? Why is the EEOC encouraging affirmative action, even when minorities are actually overrepresented in the federal government? The answer is more interesting than you might think. No doubt, the folks at EEOC are partisans of interest group politics who really don’t care that white men are underrepresented in government jobs. Afficionados of affirmative action aren’t interested in individual fairness; they want to reengineer society. If women don’t actually want to enter certain job categories at the same rate as men, for example, affirmative action’s true believers are determined to re-engineer women’s desires, using hiring preferences as a tool. These folks actually believe that if they shoehorn as many women as possible into high level jobs, they can brainwash women in the country at large into preferring career advancement to motherhood.

But there’s something much more desperate and specific going on here as well. It turns out that the Supreme Court only authorizes the use of hiring preferences to attain race and gender parity. According to the Court, once the vestiges of past discrimination have been eliminated, hiring preferences cannot be used to maintain proportionality. That puts the acolytes of affirmative action down at the EEOC in a very sticky position.

The federal government’s own meticulously detailed statistics actually show that racial and gender discrimination in federal hiring, if it exists at all, is certainly not systematic or widespread, and therefore no longer requires the sort of heavy-handed bureaucratic remedies favored by HUD and EEOC. The government itself has established, with its own evidence, that women and minorities are now actually over-represented in the federal government. And since preferential hiring cannot legally be used to maintain racial and gender balance, hiring preferences in federal employment must now come to a permanent end. So you can see why federal bureaucrats are desperately trying to turn any minuscule discrepancy in any employment subcategory into evidence of discrimination. Without such trumped up evidence, EEOC would be forced to call a permanent halt to affirmative action in the federal government itself (with 2.5 million civilian workers, by far the largest employer in the United States). You can bet that affirmative action’s acolytes will go down fighting before they ever let that happen.

Yet even this is giving too much credit to the legitimacy of HUD’s preferential hiring policies. Supreme Court precedent allows a government employer to use preferences as a remedy only where underrepresentation results from an employer’s past discrimination. But HUD was created in 1965 and has always had a diverse workforce. There is no evidence of past discrimination at HUD, and therefore there has never been any legal justification at all for its draconian and discriminatory hiring preferences.

And the preferences are draconian. Not only do they build on laughably minuscule disproportions and result in huge disadvantages for white males, the federal government enforces these discriminatory preferences with almost frightening efficiency. Although the government calls its minority hiring targets “goals,” these targets function as de facto quotas. Managers at HUD (and throughout the federal government) understand that failure to meet preferential hiring “goals” can mean reassignment, demotion, or dismissal. In their important book, “The Feminist Dilemma,” Diana Furchtgott-Roth and Christine Stolba have a wonderful chapter on the lunacy of federal affirmative-action programs. There they show that, in several Cabinet departments, even executive bonuses are keyed to minority hiring. With every important carrot and stick faced by government managers designed to enforce preferential hiring “goals,” the result is nothing less than the destruction of the merit-based hiring actually mandated by our federal civil-service laws.

Consider the case of Dennis Worth, the plaintiff on behalf of whom the Center for Individual Rights is filing this case (Worth v. Martinez). Worth has been an employee in HUD’s St. Louis office since 1978, and through all of those more than 20 years his job performance has consistently received ratings of “outstanding” and “highly successful.” Yet Worth had the misfortune to apply for a promotion during the Clinton years, when pressure for affirmative action within HUD was at its height. Although he always made the “best qualified” finalist list, nearly every position he applied for went to a woman or minority. Worth has even been excluded from special programs designed to groom minority employees for promotion. Today, Worth is one of only three white males remaining among the 20 employees in his HUD division.

Affirmative action thrives on secrecy. Politically, morally, and legally, its injustices and irrationalities cannot survive the light of day. The American people believe too deeply in individual rights and basic fairness to tolerate the reality of discrimination that travels under the deceptively innocuous label of “affirmative action.” That is why legally mandated reporting requirements of government programs have so often been affirmative action’s undoing. Even now, the Center for Individual Rights, through its immensely important cases against the University of Michigan, has a very real chance of bringing affirmative action in America’s colleges and universities to an end. Yet without the public’s right to know the reality of this state university’s practices, that chance would have been lost. Now, once again, with the case of Worth v. Martinez, the Center for Individual Rights has succeeded in using the government’s own reporting requirements to expose the shameful truth of so-called affirmative action.

From the first moment of affirmative action’s existence, the “right-thinking” liberals who created it were uncomfortable with the reverse discrimination at its heart. They consoled themselves with the belief that someday, when the wrong of discrimination had been righted, hiring preferences could be revoked. Now we have proof from the government of the United States itself that federal employment discrimination (except in the case of while males), if it exists at all, is no longer remotely pervasive. Indeed, women and minorities have not simply achieved proportionality in federal employment, they have been given substantial advantages over their white male counterparts, who are now dramatically underrepresented. It is time to test the claims of the advocates of affirmative action about the temporary nature of hiring preferences. It is time to follow the law and abandon all hiring preferences within the federal employment. If preferences cannot be dropped when minorities are actually dramatically overrepresented, then they will never be dropped.

Credit for this ingenious, bold, and carefully crafted challenge to affirmative action must go to the Center for Individual Rights. Under the energetic and creative leadership of Terry Pell, CIR is now on the verge of landing a couple of blows to affirmative action from which this unjust and ill-conceived remedy may never recover. With the University of Michigan cases, Gratz v. Bollinger and Grutter v. Bollinger, and now Worth v. Martinez, on track for eventual showdowns in the Supreme Court, real change may at last be on the way. Pell and CIR have proven that a small but determined organization can use the law – and the truth – to right a pervasive wrong. You may be certain, however, that the entire civil-rights establishment is mobilized to fight CIR on both academic affirmative action, and on preferential hiring by the federal government. In terms of sheer size and resources, CIR is badly outgunned. This battle can be won, but not without the help of those who still understand the principles of individual rights upon which this country was founded, and upon which it continues to depend.