9/14/00 9:10 a.m.
Labor Pains-in-the-Neck
They're watching your race and gender bottom line.

By Roger Clegg, general counsel of the Center for Equal Opportunity

liminating discrimination is not enough to attract a diverse workplace," began Shirley Wilcher on September 11. "Affirmative action is needed, too."

Ms. Wilcher is the head of the Department of Labor's Office of Federal Contract Compliance Programs, an agency with an impenetrable name and a lot of power. Its job is to make sure that companies contracting with the federal government have an "affirmative action" plan, and that those plans have teeth.

The occasion of her opening declaration was a panel discussion titled, "Affirmative Action Works — Equal Pay Matters," held Monday at the Department of Labor. In addition to Ms. Wilcher, the panel included Women's Bureau Director Irasema Garza; two other Labor Department officials, Bernard E. Anderson and Espiridion Borrego; Equal Employment Opportunity Commission vice chairman Paul Igasaki; John Navarro of the Tribal Employment Rights Organization; and Howard University Law School professor Frank Wu.

Professor Wu moderated the discussion, but there was not much refereeing to be done. Everyone on the panel said the same things and thought the same way. There was no "dialogue," despite Professor Wu's promise, but a serial monologue.

Over and over again, for instance, the panelists lamented the "fact" that women earn only 75 cents for every dollar a man earns--unless she is black, in which case the figure falls to 64 cents, or Latina, in which case it falls still further to 55 cents. These figures were also featured in a slick little pamphlet, "About Equal Pay," printed by the Labor Department and distributed at the event.

It was only well into the discussion that Commissioner Igasaki acknowledged that these figures don't control for little things like profession, education, and experience. The gap shrinks to 88 cents on the dollar if you do that, he said — actually, it essentially vanishes — but then everyone went cheerfully back to the 75-cent factoid.

And even this figure was abused. Because of this gap, said a videotape played for the audience, it is as if a black woman does not get her first paycheck for the year until July, and a Latina until October. But since the midway point for the year is June 30, then this would mean they are being paid under 50 cents on the dollar, right?

But the really interesting discussion was of "affirmative action." As usual, its proponents were deliberately vague about what the term means. Frequently they asserted that it meant no more than "casting a wide net" — making sure that companies do their best to find the best applicants by recruiting far and wide, and not just drawing from a narrow old-boy network. It certainly did not mean quotas, they said.

From time to time, however, the mask would slip. Commissioner Igasaki urged managers to look at their companies' demographics and ask, "Where are we short?" The manager might conclude, for instance, "We don't have enough Latinas." And, if so, then the company "must look harder for them."

But doesn't that sound a lot like a quota?, I asked the commissioner during the question-and-answer session. No, no, I was reassured. He just meant that the manager must compare the available workforce with the actual workforce to determine if there are "barriers" he must "remove." Professor Wu added, jokingly, "And be sure to hire a good lawyer!"

Very funny. But let's see, if we apply Commissioner Igasaki's logic to the panel itself, what would we conclude? Gee, only 29 percent female, instead of 50 percent. On the other hand, every racial and ethnic minority was way overrepresented. And — oh my — no whites at all, male or female! A good lawyer is needed, for sure.

There was the predictable piety about how "diversity" is "good business," and so successful companies will seek out demographic balance. Certainly it is true that a company that refuses to consider hiring people because of race, ethnicity, or sex will end up with less-talented workers than a company that hires on the basis of talent alone. But the same is likewise true for a company that eschews hiring on the basis of talent alone in order to eliminate any "under-" or "overrepresentation" of particular groups, thereby appeasing the bean-counters at the Labor Department.

Ms. Wilcher's opening statement made clear that her goal is not "eliminating discrimination" but ensuring "diversity." And she ended with an ominous warning. Companies that hire over the Internet, she said, will not be allowed to evade OFCCP's demand that they have an affirmative-action plan. The fact that resumes there do not tell the employer the applicant's race, ethnicity, and sex is no excuse.

Now, once upon a time you might have thought that making it impossible for an employer to discriminate on the basis of race, ethnicity, and sex was a good thing — something that the federal government would have welcomed, even required. Not any more. If those characteristics are not on the resume, said Ms. Wilcher, employers better figure out a way to get them there — or else.

It's threats like this that give affirmative action a bad name. A survey released last month by the Business-Higher Education Forum's Diversity Initiative found that, while Americans overwhelmingly like racial and ethnic diversity, only a minority favors the use of affirmative-action policies.

The original meaning of the term "affirmative action," when President Kennedy first used it in the civil-rights context by signing Executive Order 10925 in 1961, was to take positive, proactive steps — in other words, affirmative action — to stop discrimination. It is long past time for the federal government to return to that original meaning. It should stop cajoling and bullying companies into hiring and promoting with an eye on the racial, ethnic, and gender bottom line.