Death by HR: History and Practice of Affirmative Action and the EEOC

Death by HR

Death by HR

Affirmative action (AA) was an outgrowth of the Civil Rights movement in the United States (1954-68), which culminated in the passage of the Civil Rights Act of 1968. The term was first used in US law in President John F. Kennedy’s Executive Order 10925 signed in 1961,

…which included a provision that government contractors “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.” In 1967, gender was added to the anti-discrimination list. In 1989, the International Convention on the Elimination of All Forms of Racial Discrimination stipulated (in Article 2.2) that affirmative action programs may be required of countries that ratified the convention, in order to rectify systematic discrimination. It also states that such programs “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.”

As originally envisioned, affirmative action was intended to reform the previous institutional discrimination against blacks and other disfavored minorities by making special efforts to recruit them and increasing their representation in higher education, company workforces, and government employment. The ultimate goal was colorblind treatment — to establish equality of opportunity for all the formerly-disfavored with the formerly-favored. At the time, the end of such “temporary” policies was foreseen as a generation or two away, when the need for such special treatment would have faded away as systemic racism and sexism would have been overcome and equal opportunity restored.

In the United States, affirmative action was first applied to racial discrimination in part to redress the wrong of slavery and Jim Crow laws in the South, but then extended to other minorities and women. India attempted to reduce the unfairness of the caste system there by implementing quotas and set-asides. Malaysian policy reserves special benefits for ethnic Malays,[2] in an effort to reduce the dominance of ethnic Chinese and Indians in the economy.

In each of these cases, affirmative action had damaging side-effects. Beneficiary groups were often poorly-defined, with racial preferences in the US often assisting relatively privileged black people whose families in many cases had recently immigrated and who had never suffered from the cultural and economic oppression of slavery. Cynics started to assume all new hires who might have benefitted from AA were less qualified (as indeed, on average, they were), a stigma which prevented even the beneficiaries from feeling totally responsible for their own successes. As AA programs aged and became institutional sacred cows, some minorities (like Asians) were dropped from the classes being favored, AA became more controversial, and a backlash began.

In 1978, the Supreme Court ruled in University of California v. Bakke that racial quotas were impermissible as a violation of the Equal Protection Clause of the Fourteenth Amendment, but that a candidate’s race could be considered as one factor in achieving a more diverse student body. In 2003, the Supreme Court ruled again that race could be considered as a factor, though narrowing its use further. Race preferences in admission became a political football, with public institutions trying to hide the extent to which they discriminated against Asian and white candidates in favor of blacks and Latinos because they knew the programs were political poison. In the meantime, sex discrimination had more than disappeared in college admissions, with the majority of admitted and graduating students at most universities now female; some have called for affirmative action programs to benefit males since they now are well below 50% of enrollments.

In the US, the Equal Employment Opportunities Commission (EEOC) is the executive agency which enforces the employment antidiscrimination laws:

The EEOC was established on July 2, 1965; its mandate is specified under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA) of 1990, and the ADA Amendments Act of 2008. The EEOC’s first complainants were female flight attendants. However, the EEOC at first ignored sex discrimination complaints, and the prohibition against sex discrimination in employment went unenforced for the next few years.

Any individual who feels they have been discriminated against can file a complaint with the EEOC. If the case when investigated appears to be a violation of the law, the EEOC will try to negotiate a settlement with the employer, and if that fails, may file suit to enforce the law. If there appears to have been no outright violation of law, the EEOC will issue a Notice of Right to Sue, which allows the complainant to file suit privately — this appears to put the EEOC in a position to forestall a rush of groundless lawsuits in the courts, since they may also find the complaint so worthless that it doesn’t require investigation and they won’t give the complainant their imprimatur for a private lawsuit.

The EEOC requires employers to report the racial and ethnic categories of their employees. These categories are defined by the Office of Management and Budget periodically; currently they are the same classifications used by the US Census. The overlapping category “Hispanic or Latino” covers an immensely varied population of multiple races, ethnicities, and languages; the Asian category includes an even more varied collection of peoples. The absurd complexities are laid out in an official EEOC document. Employers are expected to “encourage” employees to declare themselves in the appropriate category, and there is no standard other than self-declaration.

These reports can be used to allege discrimination without any other evidence when the composition of a workforce diverges from the local population under the “disparate impact” theory — the variation is assumed to be evidence that some discrimination must have occurred. The EEOC only acts on this when there is political hay to be made; the disparate makeup of elementary school teachers (primarily female), garbagemen (primarily male), and other obvious examples of disparities resulting from group preferences are never acknowledged.

An example of politicized abuse of the disparate impact theory occurred under President Carter in 1980:

The EEOC has been criticized for alleged heavy-handed tactics in their 1980 lawsuit against retailer Sears, Roebuck & Co. Based on a statistical analysis of personnel and promotions, EEOC argued that Sears was systematically excluding women from high-earning positions in commission sales, and was paying female management lower wages than male management. Sears counter-argued that the company had in fact encouraged female applicants for sales and management, but that women preferred lower-paying positions with more stable daytime working hours, as compared to commission sales which demanded evening and weekend shifts and featured drastically varying pay. In 1986, the court ruled in favor of Sears on all counts, noting that the EEOC had not produced a single witness who alleged discrimination, nor had the EEOC identified any Sears policy that discriminated against women.

The Equal Employment Opportunity Commission (EEOC) can be viewed as an agency to take the side of the weaker party in allegations of discrimination against individuals by large organizations (mostly private businesses, but sometimes government agencies and nonprofits), where the employer has access to more information and can bring to bear on any dispute far greater resources. While seen as fighting for individuals who have been discriminated against, it also intercepts complaints and investigates them at low cost compared to class-action lawsuits, union strikes, and other mechanisms that might be employed by those seeking relief. The EEOC often negotiates settlements by informally adjudicating disputes and making it clear to the parties involved how an actual lawsuit might fare. After a complaint is filed, the EEOC investigates and either certifies it as justified — in which case either the aggrieved party or the EEOC may sue if a settlement is not reached. Other complaints may be found unwarranted, which makes a civil suit unlikely since attorneys working on a contingency fee basis will see the case as likely to fail, and thus not pay them well for their time.

Such agencies are rarely created solely to protect their supposed clients. Generally the business community prefers arbitration over the courts to save time and money, and jury awards are notoriously unpredictable, with some juries punishing what they view as bullying by awarding damages far beyond what the individuals involved could reasonably be said to have suffered. Thus this kind of agency is supported by both voters (who believe it protects individuals from unfairness) and businesses (who see its operations as more predictable and cheaper than the cost of court cases which might otherwise be filed against them.)

The downside of this, from the point of view of businesses, is that there is a very low barrier to filing a complaint — anyone can do so easily and cheaply, and complaints are often vague or on their face unsupported, but still must be investigated and dealt with by both the EEOC and the business. Complainants typically don’t understand the law and require assistance to either amend their original complaint to capture actionable offenses or limit their allegation to the pattern of behavior they can document. Many complainants give up during this process as their ability to respond and satisfy the agency is tested.

The EEOC takes into account known abusers of its process and can deny complaints based on a record of such abuse:

Abuse of Process-§ 1614.107(a)(9)Section 1614.l07(a)(9) is the appropriate provision under which an agency may dismiss a complaint on the extraordinary grounds of abuse of process.

(a) Abuse of process is defined as a clear pattern of misuse of the process for ends other than that which it was designed to accomplish. …

For example, in reviewing a complainant’s prior complaints, the Commission has found abuse of process where the complainant presented similar or identical allegations, evidencing a pattern of initiating the complaint process whenever the agency did anything that dissatisfied the complainant. … The Commission has stressed in such cases that a party cannot be permitted to utilize the EEO process to circumvent other administrative processes; nor can individuals be permitted to overburden the EEO system, which is designed to protect individuals from discriminatory practices.

Example: The complainant originally filed a complaint of discrimination in non-selection for promotion. Subsequently, he repeatedly files complaints of reprisal, alleging that the agency was denying him official time to prepare EEO complaints, denying him the use of facilities and storage space for his EEO materials, providing improper EEO counseling, and unfairly keeping tabs on the amount of official time he is spending on his EEO complaints. Many of the allegations in these complaints are vague, and raise allegations previously raised in earlier complaints. In fact, he had on several occasions copied a previous complaint on which he would write a new date in order to file new complaint. Over the course of several months, he filed a total of 25 complaints in this manner. The agency could consolidate the subsequent complaints and dismiss them under § 1614.107(a) for abuse of process. The complainant had demonstrated a pattern of abuse of the process, involving multiple complaints containing identical or similar allegations. (See, e.g., Kessinger v. U.S. Postal Service, EEOC Appeal No. 0197639 (June 8, 1999); Story v. U.S. Postal Service, EEOC Request No. 05970083 (May 22, 1998)).

If the complaint is found by the EEOC to be reasonable and settlement isn’t reached, the resulting court case can cost an employer far more than a year’s wages for several employees. Business disruption costs and expenses for attorneys, discovery, and court time can easily reach hundreds of thousands of dollars, which is why small cases involving one or a few employees will typically be settled. When the case is unfounded and alleges mistreatment of a larger number of people or far-reaching changes in an employer’s practices would be required to settle it, going to court can be the lower-cost solution.

Cases reaching court have declined in recent years, from 465 in 1999 to 174 in 2015. The vast majority of the 90,000 cases filed annually are resolved before reaching court. As with criminal plea bargains, settlements often occur regardless of guilt, since the cost of a business going through a court process to reach dismissal or a finding in their favor is so high. Justice is rough at best, and it’s fair to say that many people who have been discriminated against are never aware of it or able to prove it, much less go through a complicated and damaging process for relief. It is almost always wiser to move on to a new employer or transfer within a company to avoid the downside of becoming a complainant. Defenders of the EEOC and the law would say that despite the uneven and inequitable enforcement, it has achieved greater sensitivity to the issue in businesses that might otherwise not have reformed their processes or taken note of low-level management prejudices. It is an unanswerable question whether the costs outweigh the benefits, or whether competition for good employees would have tended to lead to the same reforms without the overhead.

There is a complicated interplay between agencies like the EEOC and the NLRB and labor advocates and plaintiff attorneys. In recent decades, Democratic administrations have tended to support labor union and plaintiff attorney interests, while in Republican administrations, business concerns tend to be heard more clearly by the appointed administrators. Some decisions by the agencies under the Obama administration appear to have been aimed at increasing revenues for the plaintiff attorneys and giving unions more power to organize and negotiate with employers. Since both unions and plaintiff attorneys are major Democratic donors, this has the appearance of payoffs to donor classes.

From the LinkedIn Pulse article dated 2-24-2106, “Employers Deserve ANSWERS about EEOC’s Position Statement Policy”:

Last week, EEOC Commissioner Chai Feldblum reissued the EEOC’s press release, “EEOC Implements Nationwide Procedure for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties,” claiming that this new procedure “will help make for better investigations.” As a former EEOC Trial Attorney, this statement so perplexed me that I could not help but attribute it to absolute ignorance about Field operations or outright mendacity.

Under the EEOC’s longstanding Priority Charge Handling Procedures (PCHP, adopted in 1995), the EEOC’s “investigations” are so perfunctory for the majority of charges (i.e., “B” charges) that they hardly resemble “investigations” at all: “B” charges are “handled,” not “investigated,” and according to the EEOC’s own data, nearly two-thirds of them are dismissed with No Reasonable Cause determinations. Notably, the EEOC’s budget has not grown commensurately with its more recent administrative power expansions, which means that the overwhelming majority of its investigations will remain as superficial and cursory as ever, while the EEOC devotes its limited resources to the 3.5% of charges (i.e., “A” charges) that may have merit.

So, who profits from this EEOC policy? For Plaintiff-side attorneys like EEOC Chair Jenny Yang and her ilk in the National Employment Lawyers Association (NELA) and the National Trial Lawyers Association (NTLA), this policy is a gift. Employers lose, as usual, in the EEOC’s and Plaintiff bar’s irrational “Victim/Villain” view of employment disputes.

[A]n EEOC Charge (Form 5) need only be “minimally sufficient,” simply consisting of “a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” 29 C.F.R. 1601.12(d). As both an EEOC Trial Attorney and longtime EEO defense attorney, I have seen many, many “minimally sufficient” charges like the example below:

“I am a disabled woman over 40 years old, and believe I was discriminated against because of my disability, gender, and age in that:
I performed my position reasonably well; The employer terminated my employment despite my adequate performance; Other employees not belonging to protected groups with similar infractions or performance deficiencies were not terminated.”

According to the EEOC, Respondents are entitled to no additional information to conduct their investigations, evaluate the merits of the allegations, or assess their litigation risk, leaving them to wonder: What disability? Who does she consider “comparators”? What is she talking about? We fired her for poor performance!

Instead, from these scraps of information, Respondents must literally guess about the precise nature of the allegations and then effectively disprove them in a carefully drafted Position Statement supported by documents. Under the EEOC’s nationwide policy, an EEOC investigator will then provide this Position Statement and documents to the Charging Party and her attorney for rebuttal–i.e., the Charging Party’s first written statement and supporting documents that discrimination actually occurred. The EEOC will NOT provide this rebuttal information to Respondents and their defense counsel, even though the EEOC regularly issues determinations and makes conciliation demands based only on that limited information. Likewise, the EEOC routinely refuses to disclose investigative information to Respondents in the conciliation process, thereby allowing EEOC personnel to bluff about the quantum and quality of evidence in settlement negotiations.

From a strategic perspective, therefore, the EEOC has provided an informational windfall (i.e., “free discovery”) for trial lawyers: trial lawyers get full access to information to bolster their lawsuits against employers, while employers remain clueless about the precise nature of the allegations.

Death by HR: How Affirmative Action Cripples OrganizationsDeath by HR: How Affirmative Action Cripples Organizations

[From Death by HR: How Affirmative Action Cripples Organizations,  available now in Kindle and trade paperback.]

The first review is in: by Elmer T. Jones, author of The Employment Game. Here’s the condensed version; view the entire review here.

Corporate HR Scrambles to Halt Publication of “Death by HR”

Nobody gets a job through HR. The purpose of HR is to protect their parent organization against lawsuits for running afoul of the government’s diversity extortion bureaus. HR kills companies by blanketing industry with onerous gender and race labor compliance rules and forcing companies to hire useless HR staff to process the associated paperwork… a tour de force… carefully explains to CEOs how HR poisons their companies and what steps they may take to marginalize this threat… It is time to turn the tide against this madness, and Death by HR is an important research tool… All CEOs should read this book. If you are a mere worker drone but care about your company, you should forward an anonymous copy to him.


More reading on other topics:

Jane Jacobs’ Monstrous Hybrids: Guardians vs Commerce
The Great Progressive Stagnation vs. Dynamism
Death by HR: How Affirmative Action is Crippling America
Death by HR: The End of Merit in Civil Service
Corrupt Feedback Loops: Public Employee Unions
Death by HR: History and Practice of Affirmative Action and the EEOC
Civil Service: Woodrow Wilson’s Progressive Dream
Bootleggers and Baptists
Corrupt Feedback Loops: Justice Dept. Extortion
Corrupt Feedback Loops, Goldman Sachs: More Justice Dept. Extortion
Death by HR: The Birth and Evolution of the HR Department
Death by HR: The Simple Model of Project Labor
Levellers and Redistributionists: The Feudal Underpinnings of Socialism
Sons of Liberty vs. National Front
Trump World: Looking Backward
Minimum Wage: The Parable of the Ladder
Selective Outrage
Culture Wars: Co-Existence Through Limited Government
Social Justice Warriors, Jihadists, and Neo-Nazis: Constructed Identities
Tuitions Inflated, Product Degraded, Student Debts Unsustainable
The Morality of Glamour

On Affirmative Action and Social Policy:

Affirmative Action: Chinese, Indian-Origin Citizens in Malaysia Oppressed
Affirmative Action: Caste Reservation in India
Diversity Hires: Pressure on High Tech<a
Title IX Totalitarianism is Gender-Neutral
Public Schools in Poor Districts: For Control Not Education
Real-Life “Hunger Games”: Soft Oppression Destroys the Poor
The Social Decay of Black Neighborhoods (And Yours!)
Child Welfare Ideas: Every Child Gets a Government Guardian!
“Income Inequality” Propaganda is Just Disguised Materialism

The greatest hits from (Science Fiction topics):

Fear is the Mindkiller
Mirror Neurons and Irene Gallo
YA Dystopias vs Heinlein et al: Social Justice Warriors Strike Again
Selective Outrage
Sons of Liberty vs. National Front
“Tomorrowland”: Tragic Misfire
The Death of “Wired”: Hugo Awards Edition
Hugos, Sad Puppies 3, and Direct Knowledge
Selective Outrage and Angry Tribes
Men of Honor vs Victim Culture
SFF, Hugos, Curating the Best
“Why Aren’t There More Women Futurists?”
Science Fiction Fandom and SJW warfare

More reading on the military:

US Military: From No Standing Armies to Permanent Global Power
US Military: The Desegration Experience
The VA Scandals: Death by Bureaucracy

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