Is George Orwell Running the Justice Department?

A New Visions Commentary paper published March 1996 by The National Center for Public Policy Research, 501 Capitol Court, N.E., Washington, D.C. 20002, 202/543-4110, Fax (202) 543-5975, E-Mail [email protected]

George Orwell is not dead. He is running the Justice Department in the Clinton Administration.

For any doubters, ample proof was on display at the recent Congressional hearings on the Equal Opportunity Act of 1995 where a prominent Justice Department official was last seen arguing that prohibiting intentional racial discrimination by the government may be counterproductive. [The House Judiciary Committee is expected to vote on the Act in the next month. Floor votes are expected in the Spring.]

The Equal Opportunity Act, sponsored in the House by Representative Charles T. Canady (R-FL) and in the Senate by Senator Robert (Bob) Dole (R-KS) outlaws racial/ethnic/gender preferences by the federal government, its contractors and subcontractors. Quotas, set asides and numerical objectives are among the prohibited forms of preferential treatment. The bill leaves intact all existing anti-discrimination laws and is fully consistent with the protections contained in the Civil Rights Act of 1964. The act leaves undisturbed affirmative action as it was originally conceived.

For example, the practice of expanding recruitment efforts to contact those candidates who would otherwise be oblivious to certain job vacancies remains lawful under the Act. In that regard, government agencies may encourage their contractors to recruit at historically black colleges and to place job advertisements in publications or other media oriented toward minorities. The bill also allows the government to direct employers to set up recruitment offices or job fairs in neighborhoods with high concentrations of blacks, Hispanics, etc. What the bill prohibits is the government-mandated use of numerical standards in such recruitment efforts. In other words, the federal government may not force employers to count by race. And that is precisely what has the Clinton Administration sounding like refugees from Mr. Orwell's Ministry of Truth: equal treatment is racial discrimination, preferential treatment is equal opportunity.

The Administration insist that numerical objectives are necessary to determine whether members of minority groups are "underutilized" in a given company's workforce. The Administration contends that numerical standards are necessary to remedy underutilization. "Underutilization" is currently defined as "having fewer minorities or women in a particular job group than could reasonably be expected by their availability."

This is an astonishingly nebulous definition that does not even require that the underutilization be due to unlawful discrimination. Indeed, the definition applies to all minorities regardless of any proof that the underutilized groups have historically been discriminated against or whether the subject employer has engaged in discrimination against the underutilized group.

The concept of "underutilization of minorities" starts from the fundamentally flawed premise that underutilization equals unlawful discrimination, i.e., "but for" discrimination, minorities would be properly "utilized" or represented in the workforce.

But simply because minorities are available in the area does not perforce mean that a specific number of individuals from these groups will necessarily migrate to a particular company or job.

A number of analyses have shown that "underutilization" of a particular group in a job classification or at a given company may be due to a variety of factors independent of unlawful discrimination.

For example, members of a particular racial or ethnic group may gravitate toward certain jobs and occupations on the basis of references or recommendation from other members of the group. This phenomenon is found most frequently among unskilled workers who often follow family and friends to a particular employer (and away from others).

The manner in which a neighborhood evolved may also affect the racial or ethnic composition of a local employer's workforce. The company that began business in an area populated largely by say, Italians, may continue to employ a predominantly Italian workforce for quite some time after the neighborhood has become mostly Mexican.

Geography, educational requirements, culture and commuting costs are also factors that may cause the company to have "fewer minorities or women in a particular job group than could reasonably be expected by their availability." Granted, discrimination and the residual effects of past discrimination are also factors. But the establishment of numerical racial/ethnic hiring standards, regardless of the cause of the alleged underutilization, is itself an invidious form of discrimination.

This is especially the case given the inherently coercive effects of government scrutiny of such standards. The underutilization measure is nothing more than fanciful social engineering. It is unrelated to true unlawful discrimination. Indeed, its false premise actually encourages heightened racial and ethnic sensitivity.

Instead of playing racial engineer, the government should spend its energies on ensuring equal opportunity. But then that might be too logical for the denizens of the "Quota Farm."

-by Peter Kirsanow, a member of the National Advisory Council of Project 21, and also a labor lawyer for Leaseway Transportation in Cleveland, Ohio

Note: New Visions Commentaries reflect the opinions of their author and not necessarily those of Project 21.


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