There was a recent news story in Madison, Wisconsin, on its mayoral candidates forum, and the story mentioned a discussion there of “minority requirements for contractors,” and whether this is something that Madison should have. In my published response, I said the answer is no, regardless of the outcome of the “disparity study” that is under way (and also mentioned in the news story).
It’s good to make sure contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex. But that means no preferences because of skin color, etc. either — whether it’s labeled a “set-aside,” a “quota,” or a “goal,” since they all end up amounting to the same thing.
Such discrimination is unfair and divisive; it breeds corruption and otherwise costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder; and it’s almost always illegal — indeed, unconstitutional — to boot (see 42 U.S.C. section 1981 and this model brief), regardless of the findings of any “disparity study.”
Those who insist on engaging in such discrimination deserve to be sued, and they will lose. And, the law aside, politically correct discrimination is wrong, just as politically incorrect discrimination is wrong. The city should make clear that it is interested only in race-neutral ways of achieving equal opportunity in its contracting.
A disparity study, by the way, attempts to justify the use of racial preferences by documenting racial disparities; the problem, of course, is that disparity is not the same as discrimination, and even if there is discrimination it doesn’t follow that preferential treatment is a good way of combating it.
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Following up on a National Review Online post about Governor Bobby Jindal’s recent comments on assimilation, I republished my top-ten list of what we should expect from those who want to become Americans (and those who are already Americans, for that matter). The list was first published in an NRO column nearly 15 years ago, and it was fleshed out in this congressional testimony seven years later:
1. Don’t disparage anyone else’s race or ethnicity.
2. Respect women.
3. Learn to speak English.
4. Be polite.
5. Don’t break the law.
6. Don’t have children out of wedlock.
7. Don’t demand anything because of your race or ethnicity.
8. Don’t view working and studying hard as “acting white.”
9. Don’t hold historical grudges.
10. Be proud of being an American.
My list and Governor Jindal’s appear, unsurprisingly, to be similar — especially, per the National Review Online post, with regard to my last item.
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The Obama administration’s Department of Labor recently proposed new regulations that are supposed to update the longstanding rules against sex discrimination by federal contractors. Now, for decades the Left has supported the notion of “comparable worth” in this area — that is, requiring equal pay not only for men and women performing the same job but also for different jobs that some bureaucrat believes to have comparable worth even if the market does not agree. For example, kindergarten teachers should get paid the same as truck drivers, because the jobs have “comparable worth” and so it would be sex discrimination to pay the former (mostly women) less than the latter (mostly men).
So, bearing that in mind, is this particular proposed Labor Department regulation an attempt to get the nose of the comparable-worth camel into the tent? Some of the language has been used earlier by the Obama administration but not all of it, to my knowledge, and never in an actual regulation.
§ 60-20.4 Discriminatory compensation.
Compensation may not be based on sex. Contractors may not engage in any employment practice that denies equal wages, benefits, or any other forms of compensation, or equal access to earnings opportunities, on the basis of sex, on either an individual or systemic basis, including but not limited to the following:
(a) Contractors may not pay different compensation to similarly situated employees on the basis of sex. For purposes of evaluating compensation differences, the determination of similarly situated employees is case specific. Relevant factors in determining similarity may include tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, minimum qualifications, and other objective factors. In some cases, employees are similarly situated where they are comparable on some of these factors, even if they are not similar on others. . . .
(d) Contractors may not implement compensation practices, including performance review systems, that have an adverse impact on the basis of sex and are not shown to be job related and consistent with business necessity.
The Center for Equal Opportunity plans to challenge this regulation in a formal comment.
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This week I’ll be speaking on “Why I Hate the Disparate-Impact Approach to Civil-Rights Enforcement, and You Should, Too” at the Federalist Society chapters at the University of Alabama law school and in Birmingham. If you’re in the area, I’d love to see you there!
Related posts:
TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER FOR EQUAL OPPORTUNITY BEFORE THE U.S. COMMISSION ON CIVIL RIGHTS REGARDING THE PROPOSED EMPLOYMENT NON-DISCRIMINATION ACT
Keeping skin color and sex out of government contractingPoliticized external review panels as unguided “diversity” missiles: California university administrators remain ultra-slow learnersRoger Clegg testifies regarding H.R. 40