Trump Civil Rights Agency Strikes a Blow Against Racial Bean-Counting

T his past Monday, with little fanfare outside of industry-scuttlebutt sheets, the agency tasked with enforcing anti-discrimination law in the workplace closed comment on a proposal to stop treating the vast majority of American employers as racist until proven innocent.

Nearly 2 million employers currently owe the federal government annual spreadsheets bean-counting the race, sex, and national origin of their employees, even in the (very common) case where no allegations of impropriety or discrimination have been made.

In theory, these reporting requirements help enforce the Civil Rights Act’s Title VII guarantees of equal opportunity. In reality, they encourage offensive and inaccurate box-checking, waste millions of taxpayer and private-company dollars on compliance, and, worst of all, actively incentivize exactly the kind of unjust discrimination in the workplace that the CRA is supposed to prevent.

Mike Gonzalez of the Heritage Foundation has argued persuasively that the proliferating but rigid federal racial categories have actively shaped not only loathsome identity politics, but the very perception of ethnography in the United States, and demographic data collection requirements have had a large hand in that outcome. If, as this author has done since elementary school, employees refuse to voluntarily self-identify, employers are not only permitted but required by the federal government to use “sight identification” to select the appropriate categories.

Suddenly, the side of “you can’t tell a person’s gender just by looking at them” expects employers to be able to tell apart Pakistanis from Indians by looking at them. There is no “unknown” category; the EEO-1 form requires everyone to be ethnically wrapped and packaged appropriately.

That all of this might be offensive to many employees is treated as irrelevant, and maybe if this kind of mass-level, preemptive data collection were actually preventing serious illegal discrimination, it might be considered a worthwhile use of the $4 million in taxpayer and $275 million in private dollars spent every year. But instead, it does the exact opposite.

The real purpose of forcing the collection of demographic data across companies and industries is to create the fuel for lawsuits based on aggregate statistical differences alone, for so-called “disparate-impact liability” claims. While, as Thomas Sowell famously observed in his 2018 book Discrimination and Disparities, mass-level group differences in outcomes are a basic fact of the universe and occur in every society on earth for a practically limitless set of reasons, until the Trump administration came into power for a second term, their mere existence was treated as a matter of suspicion by our government.

For example, the Equal Employment Opportunity Commission (EEOC) under President Biden sued the convenience chain company Sheetz. The government did not claim that Sheetz had discriminated against a single job applicant on the basis of his or her race or sex, the act most Americans would think our civil rights laws were passed to prevent. No, the violation alleged was that Sheetz had screened out applicants with certain kinds of felony convictions, and because black and Native American applicants had “disproportionately” committed these sorts of offenses, using a common-sense criterion for hiring was determined to actually be against the law.

The case against Sheetz was thankfully dropped by the incoming administration, and the underlying legal theory was declared not just out of favor but unconstitutional. But if you combine the reality of disparities with demographic data enforcement, it’s easy to see why so many employers have bent over backward to implement DEI schemes and have concerned themselves greatly with the ethnic rainbow ratios of their C-suites. The only way they could cook the books to make them “equitable” on the mass-reported data level was to engage in de facto discrimination against the “overrepresented” — whites, males, Asians, and other unfortunate casualties of our racial reckoning.

The proposed changes to data collection do not prevent the EEOC or a plaintiff’s lawyers from requesting company demographic data if it turns out to be needed in the course of investigating or prosecuting a specific act of alleged discrimination. All the agency has proposed to discontinue is automatically treating every medium-to-large American corporation as “systemically” racist, while declining to provide both the government and activist groups with a fertile trough of data with which to go disparate-impact digging. In doing so, it will be removing a huge malincentive for them to actually discriminate against American workers for nothing but the color of their skin and how they appear in a government spreadsheet.