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Fri11242017

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Uber Takes Eric Holder’s Bad Advice

Uber hired former attorney general Eric Holder to give it some advice about its scandal-ridden workplace. Predictably, much of that advice turned out to be more politically correct than legally sound, much like the Justice Department when he was running it. Alas, the Uber board has already announced that it will adopt Mr. Holder’s recommendations.

In particular, Mr. Holder wants Uber to get its numbers right, by hiring more “underrepresented” minorities and women. And so: “The Head of Diversity (or Chief Diversity and Inclusion Officer) should set goals with respect to annual improvements in diversity and regularly publish data on Uber’s diversity and inclusion numbers to judge how the company is meeting its goals.”

Mr. Holder recommends that Uber adopt some version of the Rooney Rule, which is illegal, since it requires the sorting of job applicants by race, ethnicity, and sex. Perversely, he also recommends that Uber have “blind resume review” — that is, resumes that have had all indicators of race, ethnicity, and sex removed from them — which is a fine idea but flatly inconsistent not only with the Rooney Rule but with the rest of his recommendations. Those recommendations, for example, urge setting and meeting diversity goals and then rewarding and punishing (“recognizing” and “holding accountable,” meaning getting bonuses and getting fired, see recommendation II.D) managers based on “metrics that are tied to improving diversity.” In a word, quotas.

“Candidates who are themselves diverse” is one quality the board should look for in the new chief operating officer. And there’s plenty in the recommendations on “unconscious bias” but nothing on the quite conscious bias that would be required by them. Tellingly, Mr. Holder criticizes the company’s embrace of “Meritocracy and Toe-Stepping” as a corporate value.

There is a simple choice to be made here, folks, whether we’re talking about jobs or university admissions or government contracts or whatever. We can strive for nondiscrimination, which is what fairness and the law require, or we can mandate “diversity,” which inevitably means politically correct discrimination, which is in turn neither fair nor legal. We can’t have both. Nondiscrimination will lead to more diversity if the status quo was politically incorrect discrimination, but it is nondiscrimination that must be the aim, not a predetermined bean-count.

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In my discussion above, I noted that the so-called “Rooney Rule” is illegal.  Here’s what I wrote earlier (2009) on that topic:

The Rooney Rule Is Illegal (And So Is Expanding It) – The National Football League is considering the expansion of the “Rooney Rule” to the hiring of general managers. The rule, now limited to head coaches, requires at least one minority to be interviewed by a team filling a vacancy.

But this is clearly illegal. Title VII of the 1964 Civil Rights Act prohibits racial discrimination in private employment, and that’s what this is. The statute covers hiring, of course, and also makes it illegal for an employer to “classify his . . . applicants for employment” in a way that denies equal treatment on the basis of race.

It might be objected that there’s no harm here, since it’s only requiring an additional interview. But suppose the shoe were on the other foot, and the requirement was that at least one white candidate always be interviewed. Would that fly?

And there will be harm. Suppose that a team normally narrows the field to four candidates and then interviews them. If it keeps this rule, then if you’re white candidate number four, you’re out of luck, because now you have to make way for the minority interviewee. Suppose the team decides to interview a fifth candidate instead. Well, the minority coach who was the tenth choice now leapfrogs over white candidates six, seven, eight, and nine — all out of luck because they are the wrong color. And, of course, if the minority candidate is hired, then one of the white finalists — the one who would have gotten the job otherwise — is out of luck, too.

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And as long as I’m quoting myself:  Sometimes I get criticism on the right when I take private companies to task for violating antidiscrimination laws.  I’m told that private companies should be allowed to engage in such discrimination if they like.  Of course, one answer is that just because something is, or ought to be, legal doesn’t make it right.  But on the legal policy point, here’s something I wrote years ago: 

Richard Epstein[a libertarian law professor]  concludes his review of The Shape of the River, a long defense of racial preferences in college admissions by William Bowen and Derek Bok, by advocating "decentralized decision making" …. That way, each school could decide on its own whether to discriminate on the basis of race and ethnicity in selecting its students.

Professor Epstein cheerfully acknowledges that this approach runs afoul of current law, and he calls for that law’s repeal. But while we are waiting for Congress to revoke the Civil Rights Act of 1964 — and I hope Professor Epstein isn’t holding his breath, as I would hate to lose him — the issue we face in the real world is this: Should colleges and universities be barred from discriminating against whites and Asians, just as they are now barred from discriminating against blacks and Hispanics?

One can defend the decentralized scheme that Professor Epstein advocates. One can also defend the law that was actually written and passed in 1964, prohibiting colleges that receive federal money from discriminating against anyone because of race or ethnicity. What is indefensible, however, is the law as it is currently interpreted by the federal bureaucracy and defended by Messrs. Bowen and Bok: a ban on discrimination against some people (blacks and Hispanics) but not others (whites and Asians).

Professor Epstein was discussing Title VI of the 1964 Civil Rights Act, which prohibits discrimination by recipients of federal funding, and Uber is covered by Title VII of the same Act, which prohibits discrimination by private employers.  But my point is the same:  As long as the law protects members of some racial groups from racial discrimination, there really is no justification for saying that it shouldn’t protect all racial groups from racial discrimination.