When affirmative action is nothing but discrimination

By Stuart Taylor

National Journal, September 23, 2002

Dennis Worth had been working happily and winning high performance evaluations for 16 years in the Department of Housing and Urban Development’s St. Louis office when things started going sour. In 1994, he was turned down for two promotions for which an independent merit-staffing panel had rated him “highly qualified.” By 1995, it “kind of hit me,” Worth recalls, “that minorities and women were being promoted and advanced, and white males were not.”

Worth checked this impression by doing a tally: Of the 43 people who since 1986 had been hired or promoted by his division, 42 were black or female; only one was a white male. Worth compared notes with colleagues elsewhere. “We started understanding that there was a very deliberate effort coming from somewhere to exclude white males from getting positions. It replicated itself over and over again to the point that [by 1995] it was blatant and flagrant.”

Since 1994, all but one of the dozen or so promotions and transfers that Worth has applied for have gone to black or female applicants whom he considered no better qualified than he, and in most cases less qualified, because they had far less relevant experience and seniority. Some of them had little or no college education. (Worth has a B.S. from Washington University.) He and similarly demoralized friends would ruefully remark that HUD “may as well put ‘white males need not apply’ on the job vacancy announcements.” This pattern, which Worth initially attributed to the Clinton administration’s passion for racial and gender preferences, continued into the Bush administration. Since 1997, only one of the 16 hires and promotions in Worth’s division has gone to a white male.

Now the 55-year-old Worth is the name plaintiff in a nationwide class action against HUD and the Equal Employment Opportunity Commission. The suit alleges unconstitutional discrimination against white males both at HUD and throughout the government. Filed in August by the Washington-based Center for Individual Rights, which boasts a string of groundbreaking legal victories, this potential bombshell claims that the EEOC has perverted its mandate and become the primary architect of a racial- and gender-based spoils system that has trumped the congressionally mandated merit selection process.

The lawsuit seeks no monetary damages, but rather a simple court order telling HUD and the EEOC to stop discriminating. It also puts the Bush administration on the spot: Although the administration has strained mightily to duck affirmative-action controversies, it may have a hard time finessing a lawsuit that plausibly accuses agencies that it now administers, and that it represents in court, of pervasive discrimination against a group that happens to be part of the president’s political base.

Some caveats are in order: Allegations in legal complaints tend to be one-sided; white males are no more immune than anyone else from the temptation to blame their disappointments on sometimes-imagined discrimination; statistics can be manipulated to mislead; “overrepresentation” (to borrow from the EEOC’s lexicon) of minorities may not extend to the highest-paying jobs and may be explained to some extent by the demographics of the Washington area, where HUD is based; and the government has not yet presented its defense. (HUD declined to comment.)

But the evidence cited by Worth’s attorneys consists mainly of HUD’s own thick, EEOC-approved “affirmative employment plan” for women and minorities, together with the government’s own statistics on the racial and gender breakdowns of its employees and of the relevant labor pools.

Among the lawsuit’s statistical claims: Racial minorities as a group have a larger percentage of jobs in every one of the 40 departments and agencies listed in a federal Office of Personnel Management report last year than their percentage of the qualified labor force. Minorities have roughly twice as many federal jobs as they would under a system of proportionate representation of qualified workers in all groups. With only 15 percent of the relevant labor pool, minorities make up 46 percent of HUD’s workforce and 61 percent of the EEOC’s workforce. And yet all of these agencies still enforce EEOC-mandated “affirmative employment plans” for minorities as well as for women.

The more-detailed HUD numbers show that in all four of its major job categories, the department employs disproportionately large numbers of women and most minority groups and disproportionately small numbers of white males. (The categories are “professional,” “administrative,” “technical,” and “clerical.”) The affirmative employment plan nonetheless requires racial and gender preferences for minorities and women in a wide range of employment decisions, in effect pushing to reduce even further the number of already-under-represented white males. This despite the fact that no pattern of discrimination against minorities or women has occurred at HUD since it was created in 1965.

A little law: The 1964 Civil Rights Act bans “any discrimination based on race, color, religion, sex, or national origin” in government personnel actions. The Supreme Court has held that governmental job preferences are unlawful except when necessary to redress past discrimination or (perhaps) to reduce a “manifest imbalance” in “traditionally segregated” job categories. HUD’s plan and the EEOC’s regulations purport to require preferential hiring or promotion “goals” only when the percentage of blacks, Hispanics, other preferred minorities, or women is so disproportionately small relative to their percentages of the workforce as to amount to a “manifest imbalance.”

So how can HUD justify continuing to give preferences to women and to minority groups that are already overrepresented in its workforce? It does so, the Center for Individual Rights asserts, by manipulating the numbers in at least four ways, producing an intricate formula for evading the law while aggravating the already dramatic under-representation of white males.

First, HUD subdivides its major job categories into so many narrowly defined sectors that women or specific minority groups are statistically under-represented in some of them even though they are overrepresented overall. For example, HUD’s plan claims that there is a “manifest imbalance” among its construction analysts because black females are statistically under-represented — even though black females have four times as many jobs in the “administrative” category (of which construction analysts are a subset) than they would have under a system of strict racial and gender proportionality.

Second, HUD classifies even the tiniest statistical under-representation either of women or of any of several preferred racial groups, in any job sector, whether or not “traditionally segregated,” as a “manifest imbalance” requiring use of preferential goals. For example, when HUD calculated in 2001 that the number of Asian males in its “professional” job category (3.4 percent) was lower by one-tenth of 1 percent than the number in the relevant labor force (3.5 percent), it set a preferential “goal” of hiring more Asian males. This seems likely to come at the expense of white males, who are already under-represented in the “professional” category.

Third, HUD’s plan explicitly provides that the under-representation of white males is of no concern and has no bearing on the requirement of preferences for women and minorities in each and every corner of the department in which they are under-represented. Thus HUD is happy to have white males, who make up 36 percent of the relevant labor force, compose only 5 percent of the 1,200 employees in the broad “technical” job category.

Fourth, in especially bold defiance of Supreme Court precedents, HUD continues to use preferences even after any under-representation of women or minorities in some sector of its workforce has been eliminated, if necessary to maintain proportionate or supraproportionate representation indefinitely.

Like other agencies monitored by the EEOC’s race-and-gender cops, HUD provides powerful pressures for its managers to meet their preferential racial- and gender-based goals. HUD documents state that managers are “held accountable for utilizing every hiring, promotion, reassignment, and employee development opportunity for meeting the Department’s goals.” Those who fail “to take the necessary actions” risk poor performance ratings and thus reassignment, demotion, or removal.

Legal issues aside, this lawsuit raises a fundamental question of policy for President Bush and his EEOC appointees, who could end official job preferences in the federal government with a few strokes of the pen: Why should the nation’s largest employer, which has been running a system of preferences for women and minorities for decades, perpetuate that system even though the white males against whom it discriminates are now under-represented in its workforce?