In Memory of Allen Wells
This set of web pages for Allen Wells has been recreated
from web pages archived at
Key Page for Allen Wells
Civil Rights Bill - AA or Quota?
From: allenwe@microsoft.UUCP (Allen WELLS)
Subject: Civil Rights Bill - AA or Quota?
Date: 7 Feb 91 17:26:52 GMT
Reply-To: allenwe@microsoft.UUCP (Allen WELLS)
Organization: Microsoft Corp., Redmond WA
I've been following the recent debate on AA. The following
editorial does a reasonable job explaining the relationship between
the new Civil Rights Bill and quotas. It concentrates on the
religious aspects - but the gender aspects are similar. My comments
at the end.
From the Wednesday 06 February Wall Street Journal (Editorial Page)
Civil Rights Bill: The Way to Religious Quotas
- By Edward Koch (former Mayor of NYC)
Why is the newly introducd Civil Rights Bill still a quota
Because, like the 1990 version known as Kennedy-Hawkins, the
legislation finds that an unlawful employment practice is
established when "a complaining party demonstrates that an
employment practice (or group of practices) results in a disparate
impact on the basis of race, color, religion, sex or national
origin, and the respondent fails to demonstrate that such practice
is required by business necessity."
The employer would have the burden of proving that the hiring
practice or group of practices bear a "significant relationship to
successful performance on the job." Contrary to the claims of the
legislation's supporters, this standard is more stringent than the
standard consistently applied in this area by the Supreme Court. The
court says that employers may justify hiring practices if they bear
a "manifest relationship to the employment in question."
Under the Supreme Court test, employers can justify many
hiring practices as bearing a "manifest relationship" to the
employment. Under the bill's proposed test, it is unlikely that
employers would be able to prove that a challenged job requirement
bears a "significant relationship" to "successful" job performance.
To avoid potential liability under such a murky standard, employers
would, of necessity, resort to quota hiring.
Cases under the disparate-impact standard have focused on
racial and gender discrimination. But under the bill, disparate
impact will be so easy to prove that it will be applied to alleged
religious discrimination, and employers will react defesively to the
threat of such lawsuits.
Proponents of the bill note that some Jewish organizations,
traditionally opposed to quotas, endorse the legislation. I suggest
that Jewih organizations haven't alerted their memberships to the
fact that under such a law employers probably will have to justify
why there are more Jews on a percentage-basis in a particular job
than in the applicant pool.
To defend themselves from suits, employers would have to
justify the disparate impact. Surely that would mean keeping
statistics on the number of Jews, Catholics, Protestants, Muslims,
etc. It might even mean keeping track of the subdivisions - such as
Jehovah's Witnesses and Seventh Day Adventists; Sunni and Shiite
Muslims; Orthodox, Conservative and Reform Jews - as well.
The proposed law would particularily create a misplaced
incentive for governments and universitites to hire on the basis of
race, color, religion, gender or national origin. They would feel
intense pressure to select the lesser-qualified individual of an
group not adequately represented from a statistical standpoint -
both to avoid the "disparate impact" and exposure to costly lawsuits
they would be likely to lose, as well as to avoid student unrest,
picket lines and adverse publicity. They will hire the
statistically correct. (In New York City, those who would suffer
disproportionately would be white Jewish males.)
Few employers, would be likely to want to run the risk of
costly lawsuits, ttorneys' fees and massive back-pay awards. The
nere filing of a lawsuit could hurt sales and public acceptance of
the company's product.
Nationwide, the percentage of blacks is 12%; Hispanics about
8%; Asians about 2%. Among whites, those who are Jewish would still
suffer the most because they are only 2% of the population.
Many who support this bill deny they support quotas, but
acknowledge supporting affirmative-action programs requiring goals,
timetables and sanctions; they claim that these programs do not
entail preferences and reverse discrimination. But goals and
timetables quickly *become* de facto quotas when employers face
sanctions if they don't achieve them, and when the burden of proof
falls upon the employer to justify hiring practices.
It is not "immoral" to be for quotas, nor it is "immoral" to
oppose them. New York Mayor David Dinkins publicly supports quotas,
as do many other New York City leaders; they think the benefits
outweigh the costs. But there is much more to be said in support of
the position that this bill would create reverse discrimination and
would be bad for America as a whole.
During November's election campaign, many editorials around
the country denounced Sen. Jesse Helm's ad depicting a white worker
losing his job as a result of quota preferences. What if his
opponent, Harvey Gantt, had run an ad that showed two black hands
and commentary saying "Is it unfair for us to be given preferential
treatment to catch up from the burden of slavery?" Would that ad
have been denounced? I doubt it.
Will the supporters of this bill attack those of us who
oppose it as racists because we honestly believe that it will foster
quotas? Unfairly, they will probably do so again this year, as they
did last year. False charges of racism are the refuge of those who
cannot argue on the merits.
Civil-rights groups have been seeking a fig-leaf compromise
with some opponents of the bill to facilitate an override of any
presidential veto. Their latest ploy has been to approach some big
businesses with a new offer. These civil-rights groups are hoping
that if the damages available under the bill for intentional
discrimination are reduced, the businesses will agree to language
that, while ostensibly "solving" the quota problem, does not do so.
But so long as this bill encourages quotas, and it does, it should
not be acceptable no matter what compromise is offered.
<end of article>
This bill (which is - in all likelihood - going to pass, if not this
year than with the next few years) was drafted in response to recent
Supreme Court rulings. These rulings reversed previous lower court
rulings. The Supreme Court position is that it has to be proved that
some practice or set of practices a company engages in lead to
discrimination, and it had to be proved that these practices are not
essential to hiring good employees. Thus, the burden of proof has
been moved to the plaintiff - which effectivly currently allows
non-quota AA to be legal.
The effect of this bill (if enacted) would be to return the burden
of proof to the company - and this bar is basically impossible to
rise over. Similar language is used in some legislation covering
federal contractors. A federal agency (I believe the FEOC),
recently sued a number of these companies for their use of entrance
qualification tests (scored by an indepenent company). These tests
measured things like basic literacy. The FEOC claimed that these
companies failed the 'burden of proof' that these tests were
required, because simply scaling these tests independently by race
would eliminate the racial variations in the workforce while still
allowing the companies to use tests as an employment requirement.
Thus, a 50th percentile score would mean you did better than 50% of
the people of your race, not better than 50% of everyone taking the
The result of this FEOC requirement is that a Black who was scoring
at the 10th percentile would be moved up to the 50th percentile. A
Black scoring at the 50th percentil would be moved up to the 85th
percentile. Of course, I guess it could be claimed that this
'isn't quotas' ... but that argument seems rather facile.
---------- "Never seal dead flies in a closed container. Doing so
Alien | may result in hazardous explosion."
---------- - documentation for the 'Fly Sniper'
Next article by Allen Wells:
Re: 70% don't pay child support?
Posted 2006 09 04