Facebook Breaks the Law | Center for Equal Opportunity

The Wall Street Journal had an article last week about how Facebook, in an attempt to increase its workforce “diversity,” gave its in-house recruiters a paid incentive to encourage applications from people who weren’t white or Asian males. That is: “Previously, recruiters were awarded one point for every new hire. Under the new system, they could earn 1.5 points for a so-called ‘diversity hire’ — a black, Hispanic or female engineer — according to people familiar with the matter. More points can lead to a stronger performance review for recruiters and, potentially, a larger bonus, the people said.”

As I immediately pointed out (on National Review Online and in a Wall Street Journal comment), Facebook’s approach is illegal. Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-2(a), says, “It shall be an unlawful employment practice for an employer — . . . to . . . classify his . . . applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.”

I’ll be expecting an investigation by the Obama administration’s Equal Employment Opportunity Commission right away.

Mismatch at Smith – Inside Higher Ed reports that two professors have complained about a “mismatch” problem at Smith College. And, predictably, the fact that they would make such a complaint has resulted in them being labeled as racist.

“Extreme Vetting” – Donald Trump recently called for the “extreme vetting” of potential immigrants. Well, whatever you call it, here’s 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 a pre-9/11 National Review Online column, and it is fleshed out in Congressional testimony:

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.

Are “Microaggressions” Migrating to the Workplace? – The answer to that question, alas, may be yes. George Leef’s recent Forbes column discusses a recent complaint filed with the U.S. Equal Employment Opportunity Commission by an employee who thought a “Don’t Tread on Me” cap worn by another employee was racist. The EEOC seems to be taking this pretty seriously, and Mr. Leef is not amused. As with similar complaints in the campus context, there are First Amendment concerns here, and the column discusses them, too.

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Finally, you might be interested in this memorandum that the Center for Equal Opportunity and the Pacific Legal Foundation recently sent to the city council and mayor of Austin, Texas (CEO sends many of these every year to various state and local governments that are contemplating the use of preferential treatment in their contracting):

To: City Council & Mayor
Austin, Texas

From: Roger Clegg, Center for Equal Opportunity
Meriem L. Hubbard, Pacific Legal Foundation

Re: Discrimination in city contracting

Our understanding, based on various news stories, is that the City is considering the role that race, ethnicity, and sex should play in the award of municipal contracts, in light of a disparity study that was completed earlier this year.

We are writing to urge the City to be race-, ethnicity-, and gender-neutral in all its contracting programs.

We know that frequently disparity studies are used to try to justify legally something that in our opinion the City should not want to do — that is, engage in discrimination — but such studies no longer offer that legal justification. What’s more, disparity studies are frequently revealed to be defective, and even fraudulent. This has happened quite recently, by the way. See, e.g., http://www.cleveland.com/cityhall/index.ssf/2013/02/cleveland_minority_contractor_groups_bla.html . It is also worth noting that frequently these programs end up discriminating not only against nonminorities but also against members of some racial and ethnic minority groups. See, e.g., http://www.nationalreview.com/corner/353489/good-guys-win-one-milwaukee-roger-clegg

To elaborate: The City can undertake race-, ethnicity-, and gender-neutral measures to ensure that the bidding process is fair and open, with or without a disparity study. It can, that is, 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.

A disparity study is needed, supposedly, if the City wants to have a legal justification for non-neutral measures, like “targets” and “goals” and so forth. But the City should not want to engage in such preferential treatment on the basis of race, ethnicity, and sex, even if it had a legal justification for it, since such discrimination is unfair and divisive; it breeds corruption; and it costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder. What’s more, it is very doubtful that, in 2016, a disparity study would justify preferential policies, since there will always be nonpreferential ways to remedy any disparities in treatment that are found.

… See also this model brief our two organizations have prepared and posted for those wishing to challenge preferential contracting programs: http://www.pacificlegal.org/page.aspx?pid=1342

Thank you very much for your attention to our concerns.

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