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Date:         Mon, 11 Jan 1993 13:16:00 EST
From:         "Peter J. Schledorn" <UNCPJS@UNC.OIT.UNC.EDU>
Subject:      Apples, oranges and quotas
Comments: To: Forum for the Discussion of Politics <POLITICS@UCF1VM.CC.UCF.EDU>

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"                        <UNCPJS>

> 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'
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