It has been nearly 30 years since the passage of the Civil Rights Act of 1964. By banning discrimination in employment and public accommodations the law was meant to minimize the role of race in the daily lives of Americans. Its result has been the opposite. The doctrine of “disparate impact” has had the astonishing effect of transforming laws that forbid racial discrimination into regulations that require it.
The shift from officially color-blind “equal opportunity” to a form of racial discrimination called “affirmative action” was not inevitable. What made this revolution in the laws possible was a combination of factors: ignorance about the nature of employment markets, unchallenged assumptions about the inveterate “racism” of whites, and—perhaps most important—the almost complete failure of whites to defend their own interests.
Today it is taken for granted that without civil rights laws there would be wholesale job discrimination against blacks. Is that really true? Was it ever true? In his 1992 book Forbidden Ground: The Case Against Discrimination Laws, Richard Epstein argues convincingly that anti-discrimination laws are not necessary and that the employment provisions of the Civil Rights Act of 1964 should be repealed. Professor Epstein’s thesis can be simply summarized: if some prejudiced employers refuse to hire qualified blacks, the wage at which blacks arc willing to work will fall. Unprejudiced employers will soon discover this wage difference and hire blacks at less than the prevailing rates. But if competent blacks can be hired for lower wages than whites, this will bid up the price of black labor to something equal or very close to the price of white labor.
In Professor Epstein’s view, it was not the irrational prejudices of whites that kept blacks out of certain jobs in the precivil rights South. Government interference kept them out. It was government that instituted inferior schooling for blacks and passed Jim Crow laws to ban them from professions. Indeed, the very existence of Jim Crow laws suggests they were necessary. Blacks were kept out of professions by law because that was the only way to keep them out. Even Southerners of 60 or 70 years ago could not be counted on to pass up a competent carpenter or bricklayer simply because he was black. These laws reflected prevailing prejudices, but prejudices often had to be forced upon employers. Even at the height of slavery, white tradesmen had to resort to legal means to keep free blacks from taking away their work. An 1857 petition by whites to the Atlanta city council says, “We refer to Negro mechanics [who] . . . can afford to underbid the regular resident mechanics. . . . We most respectfully request [that the council] afford such protection to the resident mechanics.” Even in the antebellum South, prejudice could not be counted on to keep professions white.
The 1896 case of Plessy v. Ferguson is infamous for having enshrined the doctrine of “separate but equal” facilities for whites and blacks. Long forgotten, however, is the fact that the Louisiana railroad that asked Homer Plessy to ride in the blacks-only car was forced against its will to do so by a state law requiring separate cars for whites and blacks. Left to itself, the railroad preferred the simplicity of carrying all passengers in the same cars. Plessy v. Ferguson therefore ratified the prejudices of Louisiana legislators, but it also legitimized the power of government to force racial discrimination upon businesses that did not want to discriminate.
Before the passage of civil rights laws, lax public order helped to force businessmen to discriminate. When employers and hotel-keepers tried to integrate their businesses—for purely economic reasons—neighborhood thugs might smash their windows or threaten violence. The police, who shared prevailing prejudices, looked the other way. People for whom prejudice had no economic cost (the neighborhood thugs) were permitted to force prejudice upon people for whom it did have a cost (business proprietors).
When the Civil Rights Act of 1964 banned discrimination it required many employers to do something they wanted to do anyway. It opened up important opportunities for blacks by doing away with Jim Crow laws, biased law enforcement, and a host of local regulations that prevented employment of blacks. All the new law should have done was sweep away this web of market distortions, but it did not leave well enough alone. Instead, it replaced one form of coercion with another. Jim Crow forbade certain business relations; anti-discrimination law requires them even when a participant is unwilling. The profit motive ordinarily keeps employers from indulging in irrational prejudices, but in genuinely free markets, they should be free to choose their employees for good reasons, bad reasons, or no reason at all. Some would argue that any racial discrimination that persisted even in a completely free market would still be so odious that government power should be used to stamp it out. However, that is not where the exercise of government power stops.
After passage of the Civil Rights Act of 1964, most cases of deliberate discrimination in employment disappeared. So quickly did intentional discrimination disappear that enforcement of anti-discrimination norms promptly turned to unintentional discrimination—acts that the layman would hardly recognize as discrimination at all. Within just seven years of the passage of the act, the doctrine of disparate impact—a doctrine never imagined by Congress—had already worked its wav through the judicial system and been ratified by the Supreme Court.
In its 1970 Griggs v. Duke Power decision, the Court set aside discriminatory intent entirely and ruled that an employer could be held liable for discriminatory effect whatever his motives might be. Disparate impact works like this: if an employer decides that he will hire only high school graduates, and it can be shown that blacks arc less likely than whites to have diplomas, then blacks have suffered a potentially illegal “disparate impact.” It makes no difference if high school graduates of all races arc treated with scrupulous impartiality. If the diploma requirement is more of an employment obstacle to blacks (or to Hispanics, or women, or American Indians, or any other protected group) than to whites, the employer must justify his requirement. If he cannot justify it—in court—he is guilty of illegal racial discrimination.
Until 1991, courts held that an employer had to prove that his job standard, even if applied in an entirely color-blind fashion, was a strict “business necessity.” (The Civil Rights Act of 1991, which first codified the Supreme Court’s disparate impact thinking into law, changes the rules slightly. An employment standard must now be “job related for the position in question and have a significant relationship to business necessity.” Litigation will determine what these phrases mean.) Clearly, the only strict business necessity is rock-bottom minimum qualifications for the job. If, by raising his standards above bare necessity, an employer made it less likely that blacks would be able to meet those standards, he was guilty of discrimination because of disparate impact.
Disparate impact doctrine has outlawed many traditional practices. Until recently, most police and fire departments would not hire anyone who had been dishonorably discharged from the military. Since proportionately more blacks than whites arc so discharged, questions about military records have a disparate impact and are therefore illegal. Likewise, employers may not investigate the credit histories of potential employees, even for jobs that require financial probity. Blacks have worse credit histories than whites, so a credit check has a disparate impact. In the name of nondiscrimination, employers are therefore shut off from useful information about potential employees.
Employers are also denied the results of standardized tests. Whites (and Asians) get better scores on all meaningful standardized tests than do blacks (or Hispanics). Tests therefore have a disparate impact, so an employer must show that a test measures only the abilities needed to do the job and nothing more. It is so expensive to devise specific tests for every job that most employers have abandoned employee testing. Although most Americans have never heard of it, the doctrine of disparate impact is a nightmare burden for American businesses. In our country today, it is against the law to hire the best possible work force regardless of race. The highest possible standards, no matter how equitably applied, produce a disproportionately white work force because whites are better qualified.
There are exceptions to this rule. Owners of professional basketball teams require that their employees meet the highest possible standards, with the result that nearly 80 percent of professional basketball players are black. These standards have a “disparate impact” on whites, but are permissible for two reasons: whites are not a protected class, and the standards meet the “business necessity” test. In other professions, the highest possible standards cannot be so easily tied to “business necessity,” so if they have a disparate impact on nonwhites they are probably illegal.
It is the doctrine of disparate impact that explains why the question of quotas always hovers over any discussion of current anti-discrimination law. Only by having a work force that mirrors the ethnic makeup of the surrounding community—that is to say, by establishing quotas—can an employer be absolutely safe from liability. An employer with a disproportionately white work force can always be called on the carpet and forced to demonstrate that the hiring standards that produced the disproportion are vital to doing business. The circumstantial evidence of the composition of his work force—mere statistics—is sufficient to make him guilty until proven innocent. In no other judicial proceedings is an American citizen presumed guilty. Ordinarily, in order to get a suit-proof, multiracial work force, a company must establish hiring quotas. This generally means discrimination against whites, but since whites are not a protected group such discrimination is permitted. Ironically, although quotas are the only route to security, the word is in disfavor even among supporters of affirmative action. The Civil Rights Act of 1991 therefore forbids quotas, and its supporters point to this as proof that the act cannot lead to quotas. Alas, things are not so simple. It is as if an electric utility were forbidden to run its wires above ground . . . but were also forbidden to dig holes. Something the act forbids (quotas) is the only sure way to avoid something else that it forbids much more vehemently (disparate impact).
An illuminating illustration of the impossible demands that anti-discrimination law places on an employer is found in the history of the one exception to the disappearance of standardized employment testing. The General Aptitude Test Battery (GATE), versions of which have been used since 1947, has been widely popular for evaluating employee potential. Since whites get higher average scores than blacks, and since it is a general test not designed around the narrow requirements of a single job, in 1971 its use suddenly became an example of illegal disparate impact.
There was much dismay at its demise, since it was a thoroughly validated and useful test. In 1981, the Department of Labor salvaged the GATE by inventing a new way to score it. The raw scores of all test-takers were compared only with those of test-takers of the same race. Thus, if an Asian, a white, a Hispanic, and a black each got a raw score of 300, the black would be ranked in the 87th percentile, the Hispanic in the 74th, with the white and the Asian together in the basement in the 47th. This “race-norming” was kept secret from millions of test-takers and hundreds of employers. Only the adjusted percentile scores were reported to employers, who hired many blacks and Hispanics who had actually scored lower than white and Asian candidates.
Eventually whites got wind of race-norming and made enough trouble for the GATE to be retired once again in 1990, nearly a decade after being revived. Race-norming now has such a malodorous reputation that the Civil Rights Act of 1991 bans it just as it bans quotas. But in doing so the act forbids a clever and reasonably fair way to avoid disparate impact. Standardized tests were devised to avoid capricious employment decisions. Employers value them because they are such good indicators of future performance on the job. For this reason, despite the terrible publicity that accompanied revelations about race-norming, business interests lobbied earnestly to keep it legal. After all, as many sophisticated employers realized, disparate impact doctrine was a way of smuggling racial quotas into the workplace, and a race-normed GATE was one of the best ways to do it. Even if it forced companies to hire blacks and Hispanics who were less qualified than whites and Asians—just as quotas do—it at least allowed them to hire the best blacks and Hispanics.
Since race-norming and hiring quotas are illegal but racial quotas are the only sure way to avoid prosecution, an employer’s hands appear to be tied. Fortunately, there is a loophole. Affirmative action “goals” are not merely legal, they are obligatory for government contractors and many state agencies. If “goals” are calculated in the same way as quotas and are always met, the circle can be neatly squared.
What happens to a company that is not shrewd enough to realize that in order to comply with today’s “anti-discrimination” laws it must jettison the merit principle and carefully juggle the racial makeup of its work force? It finds itself with too many white employees, is successfully sued by the Equal Employment Opportunity Commission (EEOC) at taxpayer expense, and is forced to implement rigorous programs to make up for past “discrimination.” A company that may never have discriminated against anyone can be ordered by a judge henceforth to discriminate systematically . . . against whites. All too often, this is what is behind news stories of lawsuits in which companies agree, “without admission of guilt,” to make large payments to nonwhite employees and promise that a certain percentage of all new hires will henceforth be nonwhite. Clearly, the EEOC cannot put every American company under the microscope, and a great deal of “disparate impact” still goes unpunished. Nevertheless, current thinking is clear from the way enforcement agencies act. In one famous case, a white entrepreneur was sued for racial discrimination when he fired an incompetent black. He pointed out to the Illinois Department of Human Rights that 63 of his 83 employees were black, Puerto Rican, or Mexican, and that the replacement for the black he had fired was also black. The bureaucrats then reportedly asked him to prove that he had not hired so many minorities just to make it look as though he did not discriminate!
We live in an era in which one of the worst possible crimes is to subscribe to “negative stereotypes.” However, there is one group about which the most reckless group calumny is not only permitted but encouraged. Reflect, for a moment, on what it means to punish disparate impact just as severely as blatant, back-of-the-bus discrimination. It means that in the eyes of the law there are thousands, no, tens of thousands of businessmen who, having had their bigotry forced underground, have never ceased to dream up ingenious ways to hold the black man down. They use job standards as a cover for racism. They use ostensibly race-neutral employment tests only to weed out blacks. They may even hire large numbers of nonwhites as a smoke screen to conceal their perfidy. Worst of all, they conceal their motives so cunningly that their ill will cannot even be detected. They can, however, be trapped by statistical analysis and then be held guilty until they prove their innocence. They must be constantly watched and hounded, since they will express their true Jim Grow nature at the first opportunity. As much as this may sound like caricature, it is nothing more than an explicit statement of the assumptions that underlie the doctrine of disparate impact. The massive investment in regulation, enforcement, vigilance, and self-righteousness that the race relations industry now represents can be justified only if whites are virulently and doggedly racist.
Of course, if whites were a tenth as “racist” as the current enforcement efforts assume they are, the white majority would never have passed the Civil Rights Act of 1964. Even if the act had been a freak concession to principles that most whites despised, there would have been a huge public fight against even the slightest shift from “equal employment opportunity” toward “affirmative action.” There has been no such fight. Whites have not merely been silent in the face of government-mandated discrimination; they have been among the first to clamor for ever more pervasive forms of race-based preferences for nonwhites.
It is now more than 20 years since the doctrine of “disparate impact” completely rewrote American anti-discrimination law, yet there is not a single mainstream organization or political party that recognizes whites as having legitimate interests as whites. Those rare whites who object to racial discrimination are now used to require discrimination. It explains why preferences for blacks—for which some sort of case might have been made because of slavery—have, without a murmur of opposition, been expanded to include Hispanics, Asians, Eskimos, American Indians, Puerto Ricans (and even women), whose historical circumstances and presumed victimization are vastly different from those of blacks. Finally, it explains what may be the most unjustifiable form of “antidiscrimination” of all: affirmative action nonwhite immigrants as soon as they set foot in America. If anyone doubted the complete disappearance among whites of organized efforts to protect their groups interests, affirmative action for immigrants is surely proof.
The way in which antidiscrimination is defined and enforced therefore presents a remarkable irony: whites not only submit quietly to official racial discrimination, but because they have so little racial consciousness they permit themselves to be hounded and punished for “crimes” that only people with a strong sense of race are likely to commit. The extension of affirmative action preferences to all nonwhites—and not just the presumed victims of slavery—shows the true nature of today’s “civil rights” movement. Righting injustices has little to do with it. It mainly an attempt to advance the group interests of nonwhites at the expense of whites. It is a broad attack on whites (as whites) and is one in which many whites themselves have joined.
This situation cannot last. Injustice cannot be fought with injustice any more than discrimination can be cured through discrimination. If nonwhites continue to promote explicitly racial interests at the expense of whites, whites, too, will pursue explicitly racial interests. If governments continue to require discrimination against whites in the name of “equal opportunity,” whites will increasingly resent not just nonwhites but their own government. Race has always been at the heart of our nation’s greatest domestic conflicts. Current interpretations of civil rights law virtually guarantee a worsening of race relations and the likelihood of ever more damaging conflicts.
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