Why would federal lawmakers want to encourage racial and ethnic discrimination? Unfortunately, Republican senators Tim Scott (S.C.), Deb Fischer (Neb.), Rob Portman (Ohio), Rand Paul (Ky.), and Marco Rubio (Fla.), as well as Senate Democrat Mark Pryor (Ark.), recently introduced a resolution that would do just that.
S. Res. 511 “encourages corporate, academic, and social entities, regardless of size or field of operation” to adopt some version of the National Football League’s “Rooney Rule.” That rule, named after Daniel Rooney, the owner of the Pittsburgh Steelers, was implemented in 2003. It requires every NFL team with a coach or general-manager opening to interview at least one minority candidate.
The senate resolution also endorses a proposal by Black Entertainment Television founder Robert L. Johnson to broaden this rule by encouraging companies to interview a minimum of two minority candidates for managerial openings at the director level and above, and to interview two qualified minority businesses before approving a vendor contract.
Now, let’s put aside for a moment the fact that reasonable people can differ on how effective the Rooney Rule has been, and that the U.S. Senate has no expertise or authority in “establishing best business practices” (as the resolution declares). We are also willing to give the senators the benefit of the doubt that in their own minds this is not “an employment quota” system and that it would increase “involvement of underrepresented workers.”
But they don’t seem to understand the real consequences of such a rule: It must inevitably lead to racial and ethnic discrimination.
As Roger wrote on NRO some years ago about the Rooney Rule:
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.
These problems will obviously be magnified if the ante is upped to two minority interviews, as the resolution recommends.
The resolution says that Title VII of the 1964 Civil Rights Act, which bans employment discrimination, is supposed to be followed, but that is impossible. Contrary to what the resolution says, this really is a stark quota system for job interviews. And it would violate Title VII, which makes it illegal for an employer to “classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color . . . or national origin.”
What’s more, it is presumptively unconstitutional for any part of the federal government to encourage racial and ethnic discrimination. The fact that the discrimination is only being “encouraged,” rather than flatly required, doesn’t change any of this.
Again, put the shoe on the other foot. How would this resolution be viewed if it was only encouraging the hiring of more white applicants? Or if all of the top contenders for a job were women and a rule was in place that required at least one man to be interviewed for the job, no matter how far down the list of qualified candidates he fell?
The whole approach of the resolution is profoundly disturbing. It suggests a quota mentality and a belief that companies are not already interested in finding the best qualified individuals and cannot be trusted to make non-discriminatory hiring decisions.
With all due respect to the sponsoring senators, we must ask: Have they thought through the pernicious implications and resulting effects of this resolution? Because it’s not too late to start.
— Roger Clegg is president and general counsel of the Center for Equal Opportunity. Hans von Spakovsky is a senior legal fellow at the Heritage Foundation. Along with John Fund, he is the coauthor of Obama’s Enforcer: Eric Holder’s Justice Department (HarperCollins/Broadside 2014).
Editor’s note: Senator Scott’s press secretary has responded to this item by sending NRO the following statement:
S. Res. 511 does not create a quota system. It is not a government dictate, and does not attempt to be one. To state otherwise is simply false; and to write that it encourages discrimination is reckless at best.
This non-binding resolution continues an important conversation, hopefully encouraging people and businesses to forge new relationships. These relationships help form hiring principles — namely hiring the most qualified candidates possible. I believe that when folks look at areas like increasing diversity in the workforce voluntarily, they are not only much more effective, but much happier with their decisions. We can help generate new and exciting opportunities for people without a mandate and without government intervention, which I am very excited about.
Mr. Clegg and Mr. von Spakovsky replied as follows:
We stand by every word in our post, and we think that the post anticipates and answers all of the points made by Senator Scott’s office. We urge readers to read the resolution and make up their own minds, and we again respectfully urge Senator Scott and the resolution’s cosponsors to reconsider their support for this unwise proposal. If the resolution is going to influence companies, it will have the discriminatory results and legal problems that we discuss. If it is not going to influence companies, then there is no need to pass it.