It’s Long Past Time To End All Discrimination Policies And Restore Equal Protection

It’s Long Past Time To End All Discrimination Policies And Restore Equal Protection

Ultimately, federal law places every employer and employee in the same no-win situation as Google: lawsuit if you don't have enough protected class employees, lawsuit if you try overtly to hire them.
Joy Pullmann
By

Hardly a day goes by without some new identity politics incident that pits members of one group against another group. These incidents are typically manipulated to inflame people’s tribalism, divided along Marxist lines by sex, race, class, and more, into yet another battle of collective wills. Underneath it all, we have a society ostensibly “dedicated to the proposition that all men are equal.” Although such rhetoric still stirs every American’s heart, it is no longer true. In America, both in private and government institutions, some are “more equal than others.”

The hottest such dispute this week is over a former Google engineer’s internal memo suggesting biological differences between the sexes contribute to their different professional choices. He was fired for “perpetuating gender stereotypes,” which may have been an attempt at legal defense for Google since they have been battling a federal lawsuit alleging sex discrimination against women.

Perceived Discrimination Versus Actual Discrimination

The former engineer’s discussion memo caught Google between a rock and a hard place, because the feds demand Google cough up data about how many women they employ and what they are paid and take the mere existence of a higher male population as evidence of sexism. James Damore suggested if anything Google discriminates against men in its hiring practices. It’s a battle between outcome discrimination and process discrimination, and Google can’t win. If its sex ratio is notably different than 50-5o, it’s under federal suspicion of sexism. If it attempts to address this ratio with affirmative action, it is giving special privileges to one group and therefore guilty of sexism. Lose-lose.

Damore’s memo gives several instances of Google discriminating in reality an attempt to reduce what it perceives as discrimination because of diverse outcomes:

to achieve a more equal gender and race representation, Google has created several discriminatory practices:
Programs, mentoring, and classes only for people with a certain gender or race
●A high priority queue and special treatment for ‘diversity’ candidates
●Hiring practices which caneffectively lower the barfor “diversity” candidates by decreasing the false negative rate
●Reconsidering any set of people if it’s not ‘diverse’ enough, but not showing that samescrutiny in the reverse direction (clear confirmation bias)
Setting org level OKRs for increased representation which can incentivize illegal discrimination

Since Google is a private company I have no problem with them making unequal hiring and promotion rules. I am all in favor of discrimination — the freedom to set one’s own criteria for making decisions — and free association, for any reason, as individuals’ constitutional and natural rights. If they wanted to be an all-man or all-woman or all-black or all-Asian company, or give preferences to whatever people they feel sorry for at the moment, that’s Google’s business. At the level they’re operating they could be an all-woman company and still have the world’s best engineers, as Harvard or Stanford could since many more qualified people apply than can be admitted.

The problem is when they promise “equality” then deliver discrimination. It’s this hypocrisy Damore had the temerity to point out, and for which he was fired. It’s the same hypocrisy inside the famous “Animal Farm” slogan for totalitarianism: “All are equal, but some are more equal than others.”

Outcome equality is simply incompatible with procedural equality. If we apply the same rules equally to all people, we will get some disparate group outcomes, because people are different. We must therefore choose whether we want equality before the law or unequal preferences in an attempt to engineer outcome equality. Google, and liberals at large, attempt to have both, but the two are fundamentally incompatible, as Google is painfully discovering.

Rigging The Game Increases the Resentment of Out-Groups

If we choose to award desired things based on the moment’s political correctness calculus, we are setting up society for increased bigotry. This is because awarding things based on immutable group identity rather than one’s individual accomplishments douses resentment with gasoline. Men cannot change the fact that they are men. Therefore there is no way for them to win a game that’s stacked against them. Setting up people to lose no matter how hard they work is a recipe for social manipulation, resentment, despair. And that is dangerous to civil society.

For evidence of this, look no further than affirmative action policies, which have persisted and grown particularly inside the nation’s most prestigious universities since the 1960s. A 2004 Stanford University study found “Being African American instead of white is worth an average of 230 additional SAT points on a 1600-point scale, but recruited athletes reap an advantage equivalent to 200 SAT points. Other things equal, Hispanic applicants gain the equivalent of 185 points, which is only slightly more than the legacy advantage, which is worth 160 points. Coming from an Asian background, however, is comparable to the loss of 50 SAT points.”

Both older and more recent scholarship finds similar disparities, which are so large that some campuses will not give researchers the relevant data, even anonymously, fearing public backlash at the size of the injustice. There is evidence affirmative action policies increase racial animosity and stereotyping, because they import students of a certain ethnicity who are less prepared than their average peers, thus associating low performance with race in fellow student’s minds. This creates rebound resentment among minorities, initiating a cycle no American committed to “justice for all” wants to see accelerated.

Our Refusal to Discuss the Plain Truth Is Hurting Everyone

Yet that is precisely what our public conversation about such rigged policies pushes us towards. The New York Times recently published an article noting a leaked job posting for a Justice Department lawyer for “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

“The Department of Justice will always review credible allegations of discrimination on the basis of any race,” White House press secretary Sarah Huckabee Sanders told reporters. This statement of support for equal treatment of all races spawned the usual hysterics insisting that anti-racism is in fact racism. A black mom of a high-achieving child wrote in the Washington Post that this job posting was “yet another illustration of the myth of affirmative action: that white applicants are rejected and their spots are given to less qualified women and people of color.”

Given that any college necessarily has a limit on how many students the school admits each year, it is not a myth to say that less-qualified African-Americans and Hispanic-Americans regularly fill spots that would otherwise have gone to more-qualified white and Asian students. It is the truth, backed up by decades of data.

It’s also endemic beyond Google and college admissions. The Department of Labor explains, for example, that “For federal contractors and subcontractors, affirmative action must be taken by covered employers to recruit and advance qualified minorities, women, persons with disabilities, and covered veterans. Affirmative actions include training programs, outreach efforts, and other positive steps. These procedures should be incorporated into the company’s written personnel policies. Employers with written affirmative action programs must implement them, keep them on file and update them annually.”

We’re All Google and James Damore Now

Disparate outcomes, rather than evidence of racially discriminatory actions, are currently grounds enough for a lawsuit. So companies that contract with the federal government, which include myriad U.S. companies, protect themselves against lawsuits by hiring people based on race. This spawns yet more lawsuits by the racial groups discriminated against, such as white firefighters and Asian college students. Evergreen State College professor Bret Weinstein, a liberal professor who, due to his opposition to racial segregation, was surrounded and ultimately driven off campus in fear for his safety, hit taxpayers with a $3.85 million racial discrimination lawsuit because his college did not restrain the students.

Despite these sporadic lawsuits, the underlying disparities persist. Federal discrimination rules spawn them. Ultimately, this places every employer and employee in the same no-win situation as Google: lawsuit if you don’t have enough protected class employees, lawsuit if you try overtly to hire them.

So far, however, the protected classes are winning. At the time of the publication of “The Bell Curve” in 1994 authors Richard Herrnstein and Charles Murray found that black Americans were disproportionately overrepresented in white-collar professions — precisely the ones federal affirmative action rules affect most. Murray says this trend persists 25 years later.

People do not need data and charts to see this. They see it, like Damore just did, in their everyday interactions with institutions that touch almost every American — schools and workplaces. Back in 1969, Macklin Fleming, a California appeals judge, opposed racial quotas at Yale Law school with a prescient description of the ill effects we’re now seeing:

No one can be expected to accept an inferior status willingly. The black students, unable to compete on even terms in the study of law, inevitably will seek other means to achieve recognition and self-expression. This is likely to take two forms. First, agitation to change the environment from one in which they are unable to compete to one in which they can.

…Second, it seems probable that this group will seek personal satisfaction and public recognition by aggressive conduct, which, although ostensibly directed at external injustices and problems, will in fact be primarily motivated by the psychological needs of the members of the group to overcome feelings of inferiority caused by lack of success in their studies. Since the common denominator of the group of students with lower qualifications is one of race this aggressive expression will undoubtedly take the form of racial demands…

It is no accident a record high number of Americans — 42 percent — report a “great deal” of worry about race relations this year. A total of 69 percent expressed either a “great deal” or “fair amount” of concern. The structural inequality Americans have borne for more than 50 years has generated resentment on both sides, leading to racial and other group-based online and real-life belligerence, most notably the race-inspired tumult on campuses in recent years.

Rather than emphasize equal protection, the Obama administration exacerbated this trend, among other things trying to add sexual orientation and disabilities to employer quota requirements. The “anti-discrimination” sexual orientation and gender identity laws cropping up at all levels of government now are just the same thing with a different frame. Through all of it, we’re submitting to a Marxist frame through which to view law and society. It judges people not as individuals but as collective classes of people. That’s not justice, it’s injustice.

Every single special preferences policy based on group identity needs to go. Every group targeted for preferential treatment by all these policies was accelerating equal representation before the policies arrived; all such laws and policies do is aggrieve those these policies arbitrarily choose as losers in the social lottery. That includes Title IX, all federal group identity quotas, affirmative action, SOGIs, everything. True equality is equal protection under the law. It is, as the Civil War led to achieving for African-Americans, extending the exact same American birthright extended to all Americans, equally, with no exceptions. If a law is good enough for one American, it should be good enough for all Americans, or it’s not a good law. This is what true equality means.

Joy Pullmann is managing editor of The Federalist and author of "The Education Invasion: How Common Core Fights Parents for Control of American Kids," out from Encounter Books this spring. Get it on Amazon.

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