meritocracy

Death by HR: The End of Merit in Civil Service

Civil Service Exams prep book

People are taught that the Civil Service is a corps of competent public servants, screened by examinations and insulated from political interference to act in the best interest of the people. There never was too much truth in that children’s story, but over the past few decades, that public-spirited image has become dangerously misleading.

The Chinese Imperial examination system screened for literacy, but not directly for competence in a particular position. The best person for a job may not be the one who tests highest for general measures of intelligence or subject knowledge; many job skills aren’t easy to test for, and so it would be a mistake to rely entirely on written exams to fill positions. And since there are thousands of different jobs requiring different skill sets, it would be impractical to come up with exams tailored to every job.

The wave of affirmative action programs starting in the 1970s weakened civil service exam requirements. Courts found many exams discriminated against minorities, especially when it was clear the exams covered material largely unrelated to job skills. Some affirmative action programs race-normed the passing grades, which allowed more minorities to qualify with scores that would otherwise have failed. Many positions were entirely removed from examination requirements. Where the qualifying standard had been “top 3” or “best,” it became “good enough” or “adequate.”

The needs of a bureaucracy may not always favor hiring the most intelligent or skilled candidate. As in private industry, some managers would prefer to hire people who are bright enough and skilled enough, but not too much more than that, lest they be unhappy in the job or liable to be hired away by others — the brilliant scientist who wants to work as a police officer while writing papers on theoretical physics in her spare time is out of luck. In Connecticut, a Federal judge ruled the state was not discriminating unlawfully when it denied an applicant the opportunity to interview for the police force because his intelligence test score was too high.[1] Not rocking the boat is valued over ability in many hierarchies.

But these are just entry-level positions. What happens when promotion from within is favored, while entry-level employees are screened to ensure the very bright or overqualified are kept out? Entry-level positions in organizations are often open to all in theory, while in practice networks and connections of family, ethnicity, neighborhood, and religion can assist in placing people at the bottom rungs. If higher-level positions are filled from within this can result in entire organizations dominated by a single affiliate group, for example the Irish police forces of early 19th century cities and on a smaller scale, the Filipino-dominated air passenger screening agents at San Francisco International Airport in 2002 who were in danger of losing their jobs when the TSA was formed and citizenship was to have been required.[2]

Veterans were recently outraged to discover that the preference for veterans in VA hiring supposedly enshrined in the Veteran’s Preference Act of 1944 is largely ignored, with all but the most menial jobs at the VA filled by nonveteran union members.[3] Very few veterans are actually employed by the VA, because the true rulers of the agency are unions and upper-level bureaucrats who aren’t that interested in what Congress or veterans want or require — and why should they be, when Congress does nothing to change the underlying civil service and union control over VA staffing?

Current Federal civil service rules require only the minimum qualifications suggesting an applicant will be capable of competence in a particular job, which is a long way from aiming for the best candidate. Merit has been replaced by “good enough,” with even that low bar lowered further to allow affirmative action targets to be met. Since almost no one is fired for incompetence, affirmative action candidates are almost guaranteed to be hired and promoted to above their level of actual competence. Which means a large percentage of Federal civil service employees are now unable to efficiently and competently perform their duties; all they need to do to succeed is show up, write some reports, and collect their paychecks. And there are many cases where even failing at those minimal efforts did not result in termination, as in this egregious EPA case:

A former high-level official at the Environmental Protection Agency admitted Friday that he stole nearly $900,000 from the government by pretending to work for the CIA in a plea agreement that raised questions about how top agency managers failed to detect the scheme since it began in 1994. John C. Beale duped a series of supervisors, including top officials of the EPA’s Office of Air and Radiation, disappearing from the office and explaining his absences by telling his bosses that he was doing top-secret work for the CIA and its “directorate of operations.”

He lied about contracting malaria (he didn’t) while he served in Vietnam (all his military service was in the United States) to obtain a parking space reserved for the disabled that cost the EPA $8,000 over three years. He took personal trips to Los Angeles for which he charged the government more than $57,000, according to new court filings.

In all, Beale was paid for 2.5 years of work he did not perform since early 2000 and received about $500,000 in “retention bonuses” he did not deserve for nearly two decades, according to court papers and interviews.

“To our knowledge, prior to [current EPA Administrator] Gina McCarthy expressing her concerns, no one at EPA ever checked to see if Mr. Beale worked for the CIA,” said Assistant Inspector General Patrick Sullivan, who led the investigation that included interviews of 40 people. Only one, an executive assistant, suspected Beale’s story of working for the clandestine service. Nor did EPA personnel compare Beale’s travel vouchers, which said he was in places such as Boston and Seattle, with hotel receipts for the same dates that showed him in Bakersfield, Calif., where he has family. Even during the probe, which began in March, Beale continued to insist that he could not be interviewed because of his work for the CIA, Sullivan said. Only when investigators offered to question him in a secure room at the agency’s Langley headquarters did he admit he had no connection to the CIA, Sullivan said.[4]

Many local government special services like police and firefighting now have certification requirements, with courses and testing designed to assure that candidates have the abilities to succeed in their jobs. Women and minorities continued to struggle with these, and the pioneers were often harassed and held back by those running the certification courses; many lawsuits later, in some locales even those standards — which allow special coaching and assistance for those having trouble meeting them — have been waived.[5]

But most positions in the bureaucracy involve administering the regulations of the administrative state, essentially office jobs involving reading, writing, and paralegal work. Specialized technical knowledge is required in some parts of some federal agencies, like the EPA, while in others like the Social Security Administration only simple accounting and managerial skills are needed.

College degrees and certifications are no guarantee of skill or common sense in regulation. The EPA, for example, is notoriously unscientific in its estimation of risks, setting low standards in some areas and unreasonably high standards in others, with stacked cost-benefit calculations that ignore outside expertise and economist’s studies to reach politically-desirable goals, like the umpteenth announcement of tightening in pollution standards, or the finding that carbon dioxide qualifies as a pollutant which the EPA claims the legal authority to control.[6]

Wilson’s ideal of a dedicated corps of technically competent staff, in contact with the needs and wishes of the citizenry and able to wisely decide regulatory issues, has been betrayed by the decline of competence as the highest value in these agencies. Staff who refuse to compromise science and economic sense to give their masters what they want are harassed and isolated, and the remainders share a progressive mindset that tends to undervalue the vitality of the business and industry that citizens depend on for their livelihoods. Seeing a host of theoretical dangers, but protected from the consequences of their edicts to those trapped in the wasteland of flyover country, a bureaucrat goes along to get along and finds what justification is needed to provide another press release for the politicians running the agency.

Civil service exams aimed at finding the best candidates were outlawed some time ago when courts determined the exams were excluding minority candidates disproportionately. For example, the PACE exam for mid-level (GS-5 and GS-7) positions was abandoned by court decree in 1981, during the Reagan administration:

On November 19, 1981, the United States District Court for the District of Columbia resolved a class-action suit that was filed in 1979 (http://archive.opm.gov/luevano_archive/luevano-archive.asp). The suit alleged that the Professional and Administrative Career Exam (PACE), which the Government used to fill approximately 110 occupations at the GS-5 and GS-7 grade levels, had an adverse impact on the selection of African Americans and Hispanics.

The resolution of the suit (known as the “Luevano consent decree”) ended the PACE examination and required the use of alternative assessments for those occupations at the GS-5 and GS-7 grade levels that were once subject to the PACE exam.[7]

Today, Federal Civil Service regulations are a complex maze of assessments, requirements, pay grades, and rules governing everything about employment, more convoluted than even the largest corporation’s system. Internal management efforts to recruit the most effective employees are often blocked, and the level of effort required to remove an incompetent employee of any class, but especially of an EEOC-protected class, is enormous. More commonly, deadwood is transferred away or allowed to accumulate in forgotten departments not critical to the agency’s mission. We call upper-level federal bureaucrats “mandarins,” but the original Mandarins of Chinese Imperial service would not recognize some of the uncultured and incompetent people now elevated to high management positions by a system that rewards conformity, mediocrity, and racial and sexual minority status.

Here are the current OPM guidelines on use of testing:

D. Written and performance tests — Occupational series/positions with written and/or performance test requirements are identified in the section entitled test requirements. Written and performance tests are to be used as follows:

Initial appointments — Tests are required for some occupational series, either for all applicants or for those applicants who do not meet specific requirements indicated in the standard. If a test is required, applicants who are subject to that test must pass or have previously passed it to be eligible for initial appointment. This includes competitive appointments, and appointments under most noncompetitive appointing authorities.

Inservice placement —

(1) Tests required by OPM. There are a few occupational series for which a test is required by OPM for inservice placement. For such series, agencies must use and applicants must pass the appropriate OPM test. Occupational series with such requirements are also identified in the Test Requirements section.

(2) Tests required by agencies. For positions for which OPM does not require a test, agencies may develop and use tests without OPM approval, as long as the test is part of a comprehensive set of assessment procedures used in ranking employees. The use and appropriateness of such tests are the responsibility of the agency. Agencies cannot, however, use existing OPM tests for such positions, unless specific approval has been received from OPM.

(3) How inservice applicants can be examined. In occupations other than those where OPM requires a test for inservice placement, if an agency prefers to use alternatives to testing (e.g., evaluation of training and experience, interview, performance appraisal) to measure qualifications, it can do so, or it may use a test as one of several tools in evaluating applicants. Tests can be used to determine basic eligibility (i.e., on a pass-fail basis) or as the sole basis for ranking inservice placement applicants, only when specific approval has been received from OPM.

(4) Performance tests. As a general guide, performance tests (e.g., typing proficiency tests) can be used to evaluate inservice placement applicants when, within the past 3 years, they have not performed successfully in a position that required proficiency in the skills needed for the position to be filled.[8]

Penetrating the bureaucratese, testing, while it is still used in qualifying some hires, is minimally important in advancement past entry level. Management promotions depend on politicized and subjective evaluations of communications skills and management ability, and office politics are as important as competence. In a private company, upper management will strive for efficiency and try to employ the most productive workers, and if management does a poor job, the company will suffer and eventually fold, releasing the resources it uses to other firms which may use them better. In government, agencies tend toward the eternal, with the occasional scandal resulting in minimal change in management and almost no change in the rest of the staff. Monopoly government agencies cannot die or be superseded by other firms, and when there is a threat from private business, the agency will fight back — as when the Postal Service tried to enforce its monopoly on the mail, set up by the Private Express Statutes[9] in 1792:

Over the last three years the United States Postal Service has collected more than $500,000 in fines from companies that sent “nonurgent” mail by private couriers like Federal Express or DHL… The Postal Service has fined 21 companies for violating the 1872 law that established the Postal Service monopoly on mail delivery. A 1979 amendment to the law broke the monopoly on urgent mail, establishing as the definition of urgent, mail that must arrive by noon the next day or lose its value. The Postal Service has the right to decide what is urgent and what is not.[10]

US states have their own civil service systems modelled on the federal system, but some retain more of the original merit selection and testing features; for example, California has over a hundred different exams for various special skills and technical jobs.[11] But in general, states and cities have similarly politicized employment systems and affirmative action programs, and suffer similarly by having more than a few incompetent employees and the public employee unions that prevent their removal. And since there is limited reward for competence and little downside for incompetence, morale of high-achieving employees suffers and many of the best leave for private industry.

[1] “METRO NEWS BRIEFS: CONNECTICUT; Judge Rules That Police Can Bar High I.Q. Scores,” New York Times, Sept. 9, 1999

[2] “Airport job insecurity / When feds take over, many Filipino screeners will be unemployed,” Annie Nakao, San Francisco Chronicle, 3-18-2002
http://www.sfgate.com/news/article/Airport-job-insecurity-When-feds-take-over-2863780.php
[3] “VA Manager Says ‘Thank God’ They Don’t Have To Hire Veterans,” Daily Caller, Luke Rosiak, 04/13/2016

VA Manager Says ‘Thank God’ They Don’t Have To Hire Veterans

[4] “Ex-EPA official pleads guilty to theft, pretended to work for the CIA.” By Ann E. Marimow and Lenny Bernstein, Washington Post, September 27, 2013 https://www.washingtonpost.com/local/crime/ex-epa-official-expected-to-plead-guilty-of-theft/2013/09/26/2c95166e-2708-11e3-ad0d-b7c8d2a594b9_story.html
[5] “Woman to become NY firefighter despite failing crucial fitness test.” New York Post. Susan Edelman. May 3, 2015
http://nypost.com/2015/05/03/woman-to-become-ny-firefighter-despite-failing-crucial-fitness-test/
[6] “How Carbon Dioxide Became a ‘Pollutant’.”
By Keith Johnson, Wall Street Journal, April 18, 2009
http://www.wsj.com/articles/SB124001537515830975
[7] OPM “FAQ: Assessment Policy”
https://www.opm.gov/FAQs/QA.aspx?fid=a6da6c2e-e1cb-4841-b72d-53eb4adf1ab1&pid=796dd1e8-3069-4aaf-860e-2710cbb32360
[8] OPM: “Classification and Qualifications: general Schedule Qualification Policies.” Viewed 4-15-2016. https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualification-policies/
[9] https://en.wikipedia.org/wiki/Private_Express_Statutes
[10] “Private Couriers and Postal Service Slug It Out,”
New York Times, February 14, 1994. http://www.nytimes.com/1994/02/14/business/private-couriers-and-postal-service-slug-it-out.html
[11] California Dept. of Human Resources: “Take or Schedule an Exam,” accessed 3-15-2016. https://exams.spb.ca.gov/exams/exam_start_submit.cfm
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Death 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 SubstrateWars.com (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

Civil Service: Woodrow Wilson’s Progressive Dream

President Woodrow Wilson – Campaign Button

Until the victory of Andrew Jackson and his hoard of uncouth Democrats in the presidential election of 1828, the relatively tiny Federal government and its agencies were staffed largely by genteel men connected with the Eastern establishment. The Jacksonians came out of the expanding Western and Southern states, which resented the high tariffs imposed by the Eastern establishment to benefit manufacturers, and the new Democratic Party practiced the spoils system of patronage appointments — government jobs were filled by political supporters, and the promise of a government job was often the motivation for campaign workers. While today many see election contributions as corrupting, it was far more wasteful and corrupt to have government jobs turned over to barely competent campaign workers. This turnover on the election of a new administration did remove staff who might not implement the new administration’s policies, but it also broke continuity and allowed for more corruption. This was not terribly harmful to the newish country since federal agencies had limited scope and power over commerce — after Jackson’s inauguration, 10% of government officers were replaced by new appointees, but that was 919 replaced out of less than ten thousand employees total.[1] For comparison, if postal workers are included, there are now around 2.8 million Federal employees.[2]

Corruption scandals were frequent, and the reform movement to bring in a professionalized meritocratic civil service at the Federal level succeeded with the passage of the Pendleton Act in 1883, which created a bipartisan Civil Service Commission to fill positions by merit and protect current employees from political interference. The number of jobs so protected expanded with each administration as they moved to shield their own political appointees from removal at the end of their terms, until all but the most senior policymaking positions were covered. Today, political appointees have to deal with a permanent bureaucracy under them, which can successfully resist needed reforms as well as corruption.

The idea of a civil service originally came from China, where for a thousand years positions in Imperial service were filled through difficult examinations covering Confucian doctrines, poetry, and calligraphy, which while not directly relevant to most bureaucratic work, at least selected for competence in writing and thought. While in theory such exam systems would allow anyone of any class to demonstrate merit and move into a powerful position, in practice only the children of the landed gentry had the time and resources to study for the exams, but at least their system kept out those whose only qualification was a powerful patron.

As an interesting side-note, the Chinese idea of meritocracy goes back at least 2300 years. The recent discoveries of writings on bamboo from that era revealed considerable philosophical ferment, with the idea of rulers abdicating their power to successors selected by merit as the proper action of a wise ruler:

The manuscripts’ importance stems from their particular antiquity. Carbon dating places their burial at about 300 BCE. This was the height of the Warring States Period, an era of turmoil that ran from the fifth to the third centuries BCE. During this time, the Hundred Schools of Thought arose, including Confucianism, which concerns hierarchical relationships and obligations in society; Daoism (or Taoism), and its search to unify with the primordial force called Dao (or Tao); Legalism, which advocated strict adherence to laws; and Mohism, and its egalitarian ideas of impartiality. These ideas underpinned Chinese society and politics for two thousand years, and even now are touted by the government of Xi Jinping as pillars of the one-party state.

The newly discovered texts challenge long-held certainties about this era. Chinese political thought as exemplified by Confucius allowed for meritocracy among officials, eventually leading to the famous examination system on which China’s imperial bureaucracy was founded. But the texts show that some philosophers believed that rulers should also be chosen on merit, not birth—radically different from the hereditary dynasties that came to dominate Chinese history.[4]

The Chinese Imperial civil service was widely admired by Europeans and was the inspiration for civil service reforms in the British Empire, where posts had previously been handed out by patronage or directly sold. The British East India Company College was founded in 1806 to train bureaucrats for their Indian civil service, and the idea of merit and examinations to select the best employees for government service spread through Europe and to the US.

Before he was elected president, the Progressive academic Woodrow Wilson wrote “The Study of Administration,” an essay setting forth his ideas on how public agencies should be organized. In 1886, his ideals of eternal, professional bureaucracies expanding enlightened government control over every service may have sounded achievable:

There is scarcely a single duty of government which was once simple which is not now complex; government once had but a few masters; it now has scores of masters. Majorities formerly only underwent government; they now conduct government. Where government once might follow the whims of a court, it must now follow the views of a nation.

And those views are steadily widening to new conceptions of state duty; so that, at the same time that the functions of government are every day becoming more complex and difficult, they are also vastly multiplying in number. Administration is everywhere putting its hands to new undertakings. The utility, cheapness, and success of the government’s postal service, for instance, point towards the early establishment of governmental control of the telegraph system. Or, even if our government is not to follow the lead of the governments of Europe in buying or building both telegraph and railroad lines, no one can doubt that in some way it must make itself master of masterful corporations. The creation of national commissioners of railroads, in addition to the older state commissions, involves a very important and delicate extension of administrative functions. Whatever hold of authority state or federal governments are to take upon corporations, there must follow cares and responsibilities which will require not a little wisdom, knowledge, and experience. Such things must be studied in order to be well done. And these, as I have said, are only a few of the doors which are being opened to offices of government. The idea of the state and the consequent ideal of its duty are undergoing noteworthy change; and “the idea of the state is the conscience of administration.” Seeing every day new things which the state ought to do, the next thing is to see clearly how it ought to do them.

This is why there should be a science of administration which shall seek to straighten the paths of government, to make its business less unbusinesslike, to strengthen and purify its organization, and to crown its duties with dutifulness. This is one reason why there is such a science.

Wilson looked to European models (as Progressives still do):

But where has this science grown up? Surely not on this side [of] the sea. Not much impartial scientific method is to be discerned in our administrative practices. The poisonous atmosphere of city government, the crooked secrets of state administration, the confusion, sinecurism, and corruption ever and again discovered in the bureaux at Washington forbid us to believe that any clear conceptions of what constitutes good administration are as yet very widely current in the United States. No; American writers have hitherto taken no very important part in the advancement of this science. It has found its doctors in Europe. It is not of our making; it is a foreign science, speaking very little of the language of English or American principle. It employs only foreign tongues; it utters none but what are to our minds alien ideas. Its aims, its examples, its conditions, are almost exclusively grounded in the histories of foreign races, in the precedents of foreign systems, in the lessons of foreign revolutions. It has been developed by French and German professors, and is consequently in all parts adapted to the needs of a compact state, and made to fit highly centralized forms of government; whereas, to answer our purposes, it must be adapted, not to a simple and compact, but to a complex and multiform state, and made to fit highly decentralized forms of government. If we would employ it, we must Americanize it, and that not formally, in language merely, but radically, in thought, principle, and aim as well. It must learn our constitutions by heart; must get the bureaucratic fever out of its veins; must inhale much free American air…

…in spite of our vast advantages in point of political liberty, and above all in point of practical political skill and sagacity, so many nations are ahead of us in administrative organization and administrative skill. Why, for instance, have we but just begun purifying a civil service which was rotten full fifty years ago? To say that slavery diverted us is but to repeat what I have said — that flaws in our constitution delayed us.

Of course all reasonable preference would declare for this English and American course of politics rather than for that of any European country. We should not like to have had Prussia’s history for the sake of having Prussia’s administrative skill; and Prussia’s particular system of administration would quite suffocate us. It is better to be untrained and free than to be servile and systematic. Still there is no denying that it would be better yet to be both free in spirit and proficient in practice. It is this even more reasonable preference which impels us to discover what there may be to hinder or delay us in naturalizing this much-to-be-desired science of administration.

We may find his technocratic idealism tragic and misguided, since we know his efforts did not result in that decentralized, responsive American-style civil service he had envisioned. Wilson admired the Prussian social welfare state, and the implementation of many of its features — government healthcare, government pension schemes, and centralized public schools to train good workers amenable to state guidance — became the Progressive program for the succeeding decades, with today’s Progressives continuing to promote universal pre-K and government-run healthcare as central goals over a hundred years later. Wilson blamed that stodgy old Constitution for holding back progress, which he thought could be achieved through “scientific administration” of government which would leave citizens “free in spirit and proficient in practice.” Where, in practice, implementation of his ideas created an underclass of citizens so unproficient as to lose their freedom to dependency and addiction.

Wilson responded to critics who argued civil servants would be unaccountable:

And let me say that large powers and unhampered discretion seem to me the indispensable conditions of responsibility. Public attention must be easily directed, in each case of good or bad administration, to just the man deserving of praise or blame. There is no danger in power, if only it be not irresponsible. If it be divided, dealt out in shares to many, it is obscured; and if it be obscured, it is made irresponsible. But if it be centred in heads of the service and in heads of branches of the service, it is easily watched and brought to book.

I know that a corps of civil servants prepared by a special schooling and drilled, after appointment, into a perfected organization, with appropriate hierarchy and characteristic discipline, seems to a great many very thoughtful persons to contain elements which might combine to make an offensive official class, — a distinct, semi-corporate body with sympathies divorced from those of a progressive, free-spirited people, and with hearts narrowed to the meanness of a bigoted officialism. Certainly such a class would be altogether hateful and harmful in the United States. Any measure calculated to produce it would for us be measures of reaction and of folly….

But to fear the creation of a domineering, illiberal officialism as a result of the studies I am here proposing is to miss altogether the principle upon which I wish most to insist. That principle is, that administration in the United States must be at all points sensitive to public opinion. A body of thoroughly trained officials serving during good behavior we must have in any case: that is a plain business necessity. But the apprehension that such a body will be anything un-American clears away the moment it is asked, What is to constitute good behavior? For that question obviously carries its own answer on its face. Steady, hearty allegiance to the policy of the government they serve will constitute good behavior. That policy will have no taint of officialism about it. It will not be the creation of permanent officials, but of statesmen whose responsibility to public opinion will be direct and inevitable.

Bureaucracy can exist only where the whole service of the state is removed from the common political life of the people, its chiefs as well as its rank and file. Its motives, its objects, its policy, its standards, must be bureaucratic. It would be difficult to point out any examples of impudent exclusiveness and arbitrariness on the part of officials doing service under a chief of department who really served the people, as all our chiefs of departments must be made to do. It would be easy, on the other hand, to adduce other instances like that of the influence of Stein in Prussia, where the leadership of one statesman imbued with true public spirit transformed arrogant and perfunctory bureaux into public-spirited instruments of just government….

The ideal for us is a civil service cultured and self-sufficient enough to act with sense and vigor, and yet so intimately connected with the popular thought, by means of elections and constant public counsel, as to find arbitrariness of class spirit quite out of the question.

In hindsight, we know that accountability has been almost completely lost, with the recent failures at Federal agencies resulting in nothing more punishing than transfers or brief suspensions. We’ll go over how this came to be in the later chapter on public employee unions, which have made punishment of negligent or criminal employees, merely difficult under civil service rules, near-impossible. And as a result, there is close to zero response to efforts from above to make bureaucracies function efficiently and responsively. Public anger over scandals at the VA and the IRS have resulted in little or no reform and bureaucracies have grown larger and less responsive as their functions have multiplied until no one — not even Congress — can control them. Similarly, already heavily-regulated banks and mortgage agencies were nationalized (in the case of Fannie Mae and Freddie Mac) or heavily fined after the financial crisis of 2008, but only one banker spent time in jail. Bankers as a class had become as immune from prosecution as civil servants.

And our politics are now dominated by a government Leviathan supported and supporting “a distinct, semi-corporate body with sympathies divorced from those of a progressive, free-spirited people, and with hearts narrowed to the meanness of a bigoted officialism” — unaccountable regulators, civil servants, unionized public employees, and regulated big businesses protected from upstart competition.

Progressives had good intentions — directed by Science and molding flawed human beings into more virtuous citizens by edict and government training, the enlightened Administration would shepherd the flock to a brighter, healthier future. The Progressive causes — Prohibition, eugenics, antitrust, the Federal Reserve system, centralized public schooling, Social Security and Medicare — have all been implemented, and while the most flawed (Prohibition, eugenics) were quickly abandoned and renounced, many remain with us, rooted so deeply in our society that major change seems impossible. Too many vested interests and public employees depend on them, and voters are more and more likely to be dependent as well, and so unwilling to risk voting for any reforms. But as Herb Stein said, “If something cannot go on forever, it will stop,” and the current worldwide debt crisis will forcibly dismantle these systems as the money to support them in their current form evaporates. This seems to be the inevitable result of universal laws of bureaucratic growth in democratic systems, the kind of systemic corruption the Founding Fathers warned against when they set up what they hoped would remain a limited republican government.

[1] https://en.wikipedia.org/wiki/Spoils_system
[2] https://en.wikipedia.org/wiki/United_States_federal_civil_service
[4] “A Revolutionary Discovery in China,”
Ian Johnson, April 21, 2016. The New York Review of Books.

A Revolutionary Discovery in China

Death 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:

On Affirmative Action and Social Policy:

The greatest hits from SubstrateWars.com (Science Fiction topics):

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

Affirmative Action: Chinese, Indian-Origin Citizens in Malaysia Oppressed

Ethnic Malay demonstration – AFP PHOTO / MANAN VATSYAYANA

Malaysia is another country where attempts to reserve places in education and jobs for certain ethnicities have led to strife and ongoing political problems. The Malays arrived on their peninsula thousands of years ago via Indonesia, and while originating in the same broad migration to Asia as the Chinese, are noticeably different in appearance and culture. British rule beginning in the 1870s brought new mines and rubber plantations which imported Chinese and Indian laborers, as well as a Chinese cosmopolitan business and commercial population in the cities. The Chinese population of today is still split between a wealthier city population and the poor, largely rural descendants of miners.

About half of today’s Malaysian population are ethnic Malays, while 30% are of Chinese descent and 8% are of Indian origin. Japanese occupation in WW2 was welcomed by some Malays, and with negotiated independence from Britain in 1957, the new Malaysian constitution reserved special status for Malays. Race riots between Chinese and Malays occurred frequently through the 1950s and 60s, and Singapore was expelled to become a separate country in 1965 since its largely Chinese population resented rule by the Malay-dominated Malaysia. Thus Malaysia eliminated from its polity the population of Chinese who dominated Singapore and were the source of much of the opposition to those Malay-preference policies.

A deeper dive into the history of the Chinese in Malaysia:

The situation of the 7 million ethnic Chinese in Malaysia is tentative at best, mainly due to the dichotomous and contradictory social roles played by two divergent elements within the Chinese community: the rural-poor and the urban-commercial sector. The urban-commercial sector of the ethnic-Chinese community, in conjunction with foreign (mainly British) interests, completely controlled the country’s economy. The ethnic-Malays countered Chinese economic clout by institutionalizing Malay dominance in the newly independent (1957) Malayan state.

Communal tensions had become pronounced following the Japanese occupation during World War II. The Malays at first sided with the Japanese against the British colonial administration but became increasingly disillusioned with Japanese dominance. The Chinese, on the other hand, were badly mistreated by the Japanese authorities (and their Malay collaborators) and many joined an armed resistance group, the Malayan People’s Anti-Japanese Army (MPAJA). After the Japanese defeat, the MPAJA attempted to establish political control in the Malayan peninsula and engaged in a violent retaliation against suspected Malay collaborators. Ethnic violence flared throughout the peninsula….

Malay distrust of the Chinese (and Indian, see separate entry) “foreign element”, stimulated by the MCP insurgency and exacerbated by the ethnic tensions displayed during the aborted incorporation of the Chinese-dominated island of Singapore (1963-1965), erupted into serious communal rioting in the summer of 1969 following a successful Chinese and Indian electoral challenge to the Malays’ political hegemony. The legal imposition in 1970 of the New Economic Policy (NEP), designed to redress “bumiputra” (all groups indigenous to Malaysian territory) economic disadvantages, was the important result of the 1969 disturbances. The NEP, however, tended to assign remedial advantages only to ethnic-Malays. It thereby buttressed Malay political and military dominance with economic power, mainly to the disadvantage of the aboriginal peoples and Indian groups.[1] 

Malay, Chinese, and Indian communities tended to remain separated by language and culture, educated in separate schools and socially isolated. Resentment between the groups has built up over generations, and the continuing preferences for bumiputra breed more resentment, while Malay politicians continue to scapegoat the Chinese. An anecdote from a review of Thomas Sowell’s book Affirmative Action Around the World:

In 2004 while on cruise (I was active duty in the Navy at the time), our ship arrived in Port Kelang, Malaysia, not too far from the capital of Kuala Lumpur. A bus took us sailors into the city and cabs were lined up calling for Americans to get into their taxis despite a group of al-Qaeda sympathizers threatening to attack Americans…. Me and few friends hop into the cab and the guy seemed so nice but suddenly he went into a racist rant about Chinese people. He also hinted that some cabs refused service to the Chinese. I was shocked. If people of Chinese heritage were born in Malaysia, was it lawful for this man or any other ethnic Malay to refuse service? … I realize that affirmative action in that country may have played a part in it. I don’t want this for our country.

From “A Never-Ending Policy,” a story in The Economist of 4-27-2013:

The policies which favour ethnic Malays and other indigenes at the expense of Malaysia’s ethnic Chinese and Indian citizens are an oddity in the realm of state discrimination. It is not unusual that they favour a majority, the two-thirds of the population known as the bumiputra, or sons of the soil. But it is peculiar that their Chinese and Indian targets have never ruled Malaysia.

Their presence in the country, though, was encouraged under British colonial rule without the consent of native Malays. After independence this became a source of grievance, one exacerbated by the minorities’ wealth. In 1969 mobs burned Chinese shops, killing hundreds. The government responded with a “New Economic Policy” (NEP) aimed at improving the lot of the bumiputra with preferences in university admissions and for civil-service jobs. Billed in 1971 as a temporary measure, the NEP has become central to a system of corrupt patronage….

Provisions that require a certain proportion of the shares of any publicly quoted company to be in bumiputra hands, and that favour bumiputra-owned firms for various government contracts, undoubtedly enrich a few well-connected Malays. And the policies seem good for bumiputra civil servants: the civil service is now 85% Malay, if one excludes teachers. But they do little for the rest. “There has been little or no trickle-down effect, and I think more bumiputra know this today,” says Wong Chen of Pakatan Rakyat, the main opposition party. The increasing wealth of ethnic Malays in past decades echoes rising fortunes across South-East Asia, casting doubt on the idea that affirmative action has been a particular help.

Malaysia’s Chinese and Indian citizens chafe at being second-class citizens. Quotas in university admissions are particularly resented. Most universities in Malaysia reserve 70% or more of their places for bumiputras. Chinese and Indian students flock instead to private and foreign ones. Those who leave often stay away. A World Bank study in 2011 found that about 1m Malaysians had by that stage left the country, which has a total population of 29m. Most were ethnic Chinese, and many were highly educated. Some 60% of skilled emigrants cited “social injustice” as an important reason for leaving Malaysia. This exodus makes it a less attractive place to invest in.

Supporters of the NEP argue that, without such assistance, Malays will not catch up economically or academically. Critics worry that it dulls their incentives to excel. There is evidence of a skills gap. Nearly half the managers at Malaysian manufacturing firms surveyed by the World Bank said that the ability of local skilled workers to handle information technology was either “poor” or “very poor”. Mahathir Mohamad, a former prime minister who in his time extended the reach of the NEP, lamented in 2002 that bumiputras too often treat university places as “a matter of right”, neglecting their studies.

A survey in 2008 found that 71% of Malaysians agreed that “race-based affirmative action” was “obsolete” and should be replaced with a “merit-based policy”. The ruling coalition pays lip service to such ideas and has tinkered with the racial preferences—lowering, for example, the fraction of a company’s shares that has to be in bumiputra hands when a service company goes public. The opposition argues for “colour-blind” affirmative action—that is, policies that favour the poor in general, rather than the bumiputra specifically. But are enough of the sons of the soil ready to make the change?[2]

So the ethnic preferences are pushing highly-educated citizens to leave the country and are seen by most thoughtful observers to badly need reforming, yet nothing is changed.

Another feature of the Malaysian preferences also seen elsewhere is their continuation and expansion long after imbalances have been corrected. The Malay population has become an even larger majority in the years since the policies were implemented, and Malays now dominate the country’s government and most of the wealth and jobs. Asia-Pacific regional magazine The Diplomat goes into more depth in its story of 11-20-2015 by Han Bochen, “Malaysia’s Chinese Diaspora: The Other Side of the Story: Conventional narratives overlook the marginalization of ethnic Chinese in Malaysia — especially the Chinese poor.”:

While the Chinese do hold political power as part of the ruling coalition, it is their success in the economic realm that has been the main source of dissatisfaction for ethnic Malays. Right-wing groups often complain about a Chinese take-over of the country’s economy, and encourage ethnic Malays to unite under the idea of “ketuanan Melayu”, or Malay pre-eminence, against the Chinese domination of the economy. Ordinary Malays have adopted the rhetoric as their own, using social media as a tool to speak out against any indication that the Chinese are second-class or disadvantaged.

Looking purely at numbers, it does seem that the Chinese have it much better. Census data from 2014 show that the average monthly gross income for the Chinese is much higher than that of any other ethnic group in the country. Adding to this narrative are lists like the Forbes’ 50 Richest, which consistently reveal that the majority of Malaysia’s richest are of Chinese descent (in 2015, eight of the top 10 Malaysian nationals on the Forbes’ list were Chinese).

Under this banner, two intertwined narratives have been consistently marginalized: that of the mirage of Chinese dominance in Malaysian society, and that of the Chinese poor.

First of all, despite the lack of indication in the Malaysian constitution, there’s no debate over the fact that the prime minister must be of Malay origin, meaning that Chinese political power will always hit a brick wall. Furthermore, there is little support from the Chinese community for the Malaysian Chinese Association (MCA), the voice for the ethnic-Chinese population in government. Political observers agree that, that while they are vocal in the opposition, the Chinese have a largely insignificant voice in Malaysian parliament.

Secondly, it is the Malays, not the Chinese, that actually control most of the economy. Since the enactment of the New Economic Policy (NEP) in the 1970s — a set of affirmative action policies for ethnic Malays aimed to reduce inequality between them and their ethnic-Chinese counterparts — the Malays have monumentally improved their situation. They control most of the major banks, including the central bank, the government-linked companies (GLCs), as well as constitute the majority of the top professional and highest-paying occupations in the private sector.

What the impressive statistics touting Chinese success obscure is that while there is a sizable ethnic Chinese middle class, income inequality is also most rampant within the Chinese population. All the wealth is concentrated within a few, and there is a large number of Chinese who are either below the urban poverty line or slightly above the poverty line. Furthermore, while many of the NEP measures are still in force protecting the ethnic-Malays, there is relatively little government support for non-Malays in poverty. Correspondingly, there is a dire lack of academic study and census focus on the Chinese poor.

Meanwhile the government certainly isn’t helping matters with its rhetoric. The “Bangsa Malaysia” policy introduced in the 1990s, aimed to create an inclusive national identity for all Malaysian residents, has evolved into a nebulous concept. Over the years the government hasn’t ceased to refer to the ethnic Chinese as “pendatang,” which means “immigrant” in Malay. Such language confirms, and often exacerbates, the distinctions that exist between Malaysian nationals. In early February Rural and Regional Development Minister Datuk Seri Ismail Sabri Yaakob used racial language to encourage Malay consumers to boycott Chinese-owned businesses that have been raising their prices.[3]

For a look at the Indian-origin Malaysians who are also chafing under ethnic set-asides, The New York Times story of 2-10-2008 by Thomas Fuller, “Indian Discontent Fuels Malaysia’s Rising Tensions,” has some revealing anecdotes:

KUALA LUMPUR, Malaysia — Malaysian Indian Casket, a shop on the outskirts of this modern and cosmopolitan city, sells coffins in all sizes: standard coffins clutter the entrance, child-size boxes are stacked high on the shelves and extra-large models, those for the tallest of the deceased, are stored in the back.

But there is no variety in the ethnic background of the clientele.

“All the customers are Indian,” said Aru Maniam, a shop salesman.

In death as in life, Malaysians are divided by ethnicity. The country’s main ethnic groups — Malays, Chinese and Indians — have their own political parties, schools, newspapers and, in the case of Malays, a separate Islamic legal system.

For years this segregation was promoted as the best formula for social harmony in a country that advertises itself as “Truly Asia” because of its diversity, but where the memory of ethnic riots in 1969 is invoked as proof of the fragility of cross-cultural relations. Nearly 200 people died in that spasm of violence.

Now, ethnic tensions are again rising, driven in large part by dissatisfaction among the country’s Indians, who have mainly lost out in the long battle of all three ethnic groups over power, privilege and religion….

Some Indians in Malaysia are very rich, but a majority have not been able to move up from the lowest rungs of society. The children and grandchildren of rubber tappers, they remain poor, poorly educated and overrepresented in menial jobs….

Chinese Malaysians, who form the core of the merchant class, are angry about quotas that keep many of them out of local universities and about the government’s preference for hiring Malay companies, among other issues.

Malaysia’s ethnic tensions were born during the 19th and early 20th centuries, when Chinese and Indian workers came to what was then called Malaya and helped drive the colonial economy of tin and rubber. But this influx created resentment among Malays, who lost control of the economy to British plantation owners and Chinese businesses. The Malay sultans later struck a deal with the British: Malays would retain political supremacy in Malaysia after independence in exchange for citizenship for the Chinese and Indians.

Underpinning the anger of the latest generation of Chinese and Indians is an affirmative action program in place for 37 years that favors Malays and other indigenous ethnic groups, collectively known as bumiputra, literally “sons of the soil.” The program was devised to increase the share of bumiputra ownership of the economy, which in the 1970s was in the single digits.

Today, bumiputra make up 60 percent of the population but have 87 percent of government jobs. They receive discounts of 5 to 10 percent on new homes and are allotted 30 percent of stock shares in initial public offerings. Newspapers are filled with notices of government construction contracts exclusively reserved for companies controlled by bumiputra.

“It’s completely unacceptable that you cannot get awarded a contract just because of the color of your skin,” said Lim Guan Eng, an ethnic Chinese Malaysian who is secretary general of the Democratic Action Party, the leading opposition party in Parliament. “That grates tremendously. We are treated as though we are third- or fourth-class citizens.”[4]

In the United States, the preference system got started as a remedy for the evils of slavery and Jim Crow segregation and has never been as extreme as the Malaysian preference scheme, which was motivated by a colonial history. But similar resentment is building among those who are pushed out by the preferences for politically-favored groups. The US is fortunate in having less extreme ethnic and religious differences to deal with, as well as an ideal of equal treatment under the law, but the political rewards of setting groups against each other and stoking resentment are similar.

[1] “Chinese in Malaysia,” originally an article from U. Maryland’s College of Behavioral and Social Sciences, copied to: http://www.eng.fju.edu.tw/worldlit/link/malaysia_chinese.htm
[2] “A Never-Ending Policy,” The Economist, 4-27-2013 (author unnamed) http://www.economist.com/news/briefing/21576654-elections-may-could-mark-turning-point-never-ending-policy
[3] The Diplomat, Han Bochen, 11-10-2015. “Malaysia’s Chinese Diaspora: The Other Side of the Story: Conventional narratives overlook the marginalization of ethnic Chinese in Malaysia — especially the Chinese poor.”
[4] The New York Times, 2-10-2008, Thomas Fuller, “Indian Discontent Fuels Malaysia’s Rising Tensions”: http://www.nytimes.com/2008/02/10/world/asia/10malaysia.html
—

Death 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:

On Affirmative Action and Social Policy:

The greatest hits from SubstrateWars.com (Science Fiction topics):

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

If you have a good story or anecdote from your organization, please email it to jebkinnison@gmail.com. I can use a few good tales (anonymized, of course) to illustrate the problems.

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

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 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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