Death by HR: EEOC Incompetence and the Coming Idiocracy

EEOC and Ford Agree to Mediation - photo: EEOC

EEOC and Ford Agree to Mediation – photo: EEOC

After the EEOC lost a number of high-profile cases like the Sears case of 1980, where EEOC allegations of “disparate impact” of Sears practices on women in sales employment were unaccompanied by evidence or complaints, settlements have predominated. The staff at the EEOC has evolved over the decades since; new recruits tend to have been beneficiaries of AA themselves, and the Obama administration has encouraged agency activism throughout government, but especially in the Office of Civil Rights and the EEOC. But courts remain unpersuaded by their cases, slapping them down for lack of evidence and overreach. Walter Olson commented:

…it’s not easy to think of an agency to whose views federal courts nowadays give less deference than the EEOC. As I’ve noted in a series of posts, judges appointed by Presidents of both political parties have lately made a habit of smacking down the commission’s positions, often in cases where it has tried to get away with a stretchy interpretation of existing law. See, for example, the Fourth Circuit’s rebuke of “pervasive errors and utterly unreliable analysis“ in EEOC expert testimony, Justice Stephen Breyer’s scathing majority opinion in Young v. U.P.S. on the shortcomings of the EEOC’s legal stance (in a case the plaintiff won), or these stinging defeats dealt out to the commission in three other cases. [8]

The EEOC is a prime example of the loss of organizational competence that occurs when AA hiring is the highest priority. Unlike many government agencies and private companies, mediocre or worse AA hires are not just scattered through the organization where they can be routed around, but make up most of the staff and management. The result is a look at the Idiocracy of the future, where lawyers can’t law, analysts can’t analyze, and investigators make s**t up for their reports. Where political affiliation is more important than competence, the result is an ethnic and political spoils system no more productive than Andrew Jackson’s patronage-packed government.

In the most recent high-profile case, the EEOC’s settlement demands were so unjust the accused company spent a lot of money to take their case all the way to the Supreme Court, resulting in another embarrassing slapdown and award of as much as $4 million in attorney’s fees to the company. Walter Olson at Cato at Liberty wrote:

…In last week’s Supreme Court decision in CRST Van Expedited, Inc. v. EEOC, it was back to the dunking booth for the much-disrespected commission. The ruling, written by Justice Anthony Kennedy, was unanimous. It laid out in detail a long tale of shoddy EEOC litigation waged against the Iowa-based trucking company CRST, in which the commission took a female driver’s complaint of sexual harassment during training and attempted to expand it into a giant “pattern and practice” lawsuit that might have been settled for millions. Rather than settling, the trucking company decided to fight. The ensuing litigation did not, to understate things, show the EEOC at its best.

It eventually became clear that the federal anti-bias agency had failed to investigate or otherwise adequately advance more than 150 of the claims it had tried to add, which were accordingly dismissed, leaving only two intact. A federal judge granted CRST attorneys’ fees on the prevailing Supreme Court standard of Christiansburg Garment, which permits defendants to recover fees when an employment discrimination claim is “frivolous, unreasonable, or groundless.” The EEOC, however, resisted the fee order on the grounds that, under a quirky Eighth Circuit interpretation, even a frivolous claim does not generate a fee entitlement unless decided “on the merits.” And the 150 claims it had bungled had not been dismissed “on the merits” – they hadn’t gotten even that far.[9]

While there’s no way to tell exactly which EEOC staff would qualify as “diversity hires” (people who would not have been the best candidates for the job if their race, sex, or ethnicity had not been given special preference), we can guess from the extreme overrepresentation of those classes. Here are the diversity numbers from OPM for EEOC’s 2010-2014 staff:

[EEOC Staff: Diversity and Inclusion: Overview[10]]

Diversity Categories

2010

2011

2012

2013

2014

Native Hawaiian / Pacific Islander

0.1 %

0.1 %

0.1 %

0.1 %

0.1 %

American Indian / Alaskan Native

0.7 %

0.6 %

0.6 %

0.5 %

0.7 %

Asian

3.8 %

3.6 %

3.7 %

3.8 %

4.2 %

White

38.8 %

39.6 %

39.1 %

38.7 %

38.9 %

Hispanic

13.8 %

13.5 %

13.7 %

14.0 %

14.5 %

Black

41.7 %

41.1 %

41.4 %

41.3 %

40.2 %

More Than One Race

1.1 %

1.4 %

1.4 %

1.5 %

1.4 %

Female

64.4 %

63.6 %

63.9 %

63.9 %

62.5 %

Male

35.6 %

36.4 %

36.1 %

36.1 %

37.5 %

 

The most obvious overrepresentation; Black staffers make up 40% of the EEOC staff, while only 12% of the US population, a factor of more than three. Female staff are at 62.5% vs. 50%, and self-designated Hispanics at 14.5% vs 17% in the general population. White staffers, at 39%, are two-thirds as numerous as would be expected from their 62.2% of the general population. Another part of the report has Disabled staff at 18%, much more than the 11.7% of the total population considered disabled.[11]

What do we make of this? It is certainly reasonable for those most interested in the issues addressed by an agency to preferentially apply for jobs there; it is natural to want to work on issues you believe are meaningful and important. But the irony is that the EEOC does not accept such reasoning when a private company explains its imbalances as due to employee preferences. We can imagine the EEOC leaning on itself to hire more whites, males, and able workers to make up for the imbalance, and filing a court case alleging “disproportionate impact” of the EEOC’s hiring process — since their numbers are skewed, the EEOC must ipso facto be discriminating in employment!

—
[8] “EEOC: Let Us Imagineer ENDA For You,” Walter Olson, Cato At Liberty, July 17, 2015
http://www.cato.org/blog/eeoc-let-us-imagineer-enda-you
[9] “CRST Van Expedited: Back To the Dunking Booth for the EEOC,” Walter Olson, Cato at Liberty, May 24, 2016 http://www.cato.org/blog/crst-van-expedited-back-dunking-booth-eeoc
[10] “Diversity & Inclusion,Federal Workforce At-a-Glance,” accessed May 25, 2016
https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/federal-workforce-at-a-glance/
[11] Numbers of disabled are hard to determine because of the definitional issues, and the lack of labor force participation of many. But the BLS tries, showing 29.2 million disabled potential workers out of a population of 247.9 million able workers. See: “Economic news release,” BLS, 2014 Annual. http://www.bls.gov/news.release/disabl.t01.htm


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.

 


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3 comments

  1. So according to their own definitions the EEOC is a Racist and Sexist in their hiring practices. When will the EEOC address this situation? It would be really funny if a White Man turned down by EEOC filed a complaint with EEOC then through FOIA tracked the internal paperwork.

    Like

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