The U.S. Equal Employment Opportunity Commission

Meeting of February 28, 2007, Washington D.C. to Launch E-Race Initiative

Statement of Roger Clegg,
President and General Counsel,
Center for Equal Opportunity

Thank you, Commissioners, for the invitation--again--to testify before the EEOC.

My name is Roger Clegg, and I am president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Sterling, Virginia. Our chairman is Linda Chavez, and our focus is on public policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation.

I should also note that I was a deputy in the U.S. Department of Justice’s Civil Rights Division for four years, from 1987 to 1991, and that from 1993-1997 I was vice president and general counsel of the National Legal Center for the Public Interest, which is a corporate-oriented legal organization.

The Center for Equal Opportunity is committed to the equal protection of the laws and to nondiscrimination on the basis of race, ethnicity, and sex in employment, and that includes the vigorous enforcement of Title VII of the 1964 Civil Rights Act.

And the point of my testimony today is that, too often, the corporate “celebration of diversity” becomes the opposite of true “equal employment opportunity.” It becomes, instead, a form of “affirmative action” that is really, to use Nathan Glazer’s phrase, nothing more than “affirmative discrimination.”

Before I go any further, however, it is important to define the kinds of diversity policies that are and are not at issue today.

To begin with, no one is suggesting that there is anything wrong with having a diverse workforce.

No one is suggesting that companies ought to discriminate against women or minorities, or that they should be anything less than vigilant, aggressive, and proactive in eliminating and preventing such discrimination. This, by the way, was the original meaning of “affirmative action.” Companies must be vigilant against both conscious and unconscious disparate treatment on the basis of race, ethnicity, or sex.

No one is suggesting that companies shouldn’t “cast a wide net” in their recruiting, making it clear to one and all--near and far, through a wide variety of media and recruiting techniques--that they are welcome and encouraged to apply for employment.

And, finally, no one is suggesting that a company shouldn’t make sure that it does not have policies that, for one reason or another, block or discourage the hiring or advancement of some people when those policies have no justification and penalize, rather than reward, productivity.

The issue, rather, is the narrow but crucial one of whether companies ought to be hiring and promoting with an eye on applicants’ and employees’ race, ethnicity, and sex in order to achieve a predetermined and enforced diversity. The issue is whether some applicants or employees are more sought after or get more favorable treatment than others because of skin color, or what country their ancestors came from, or their gender.

It is clear that many companies weigh these factors, unfortunately, and it is clear that they should not. In a 1997 survey, for instance, eight out of ten business executives said that affirmative-action programs had resulted in them giving jobs and promotions to applicants who were less qualified than others.

I find that it is always useful, when considering the legality of a practice, to put the shoe on the other foot—that is, to ask what the reaction would be if a measure being proposed to advance “diversity” were, instead, being used in a way to tilt the scales in favor of whites and men. I’m not asserting that the two will always be morally equivalent--although I think they usually will be--but it is a helpful way to determine whether or not what’s going on is discrimination. That, after all, is the issue for civil rights law-enforcers, because discrimination is almost always illegal.

Thus, for example, we can dismiss the common suggestion that, so long as the beneficiary of a preference is “qualified,” then there is no problem. The question is whether the person hired or promoted is the best qualified. No one would allow a company to defend a pro-white or a pro-male preference by saying that it was afforded only to “qualified” white men.

Nor does it matter that race, ethnicity, or sex is “just one factor” that a company considers. Would it be all right if being a white man were “just one factor” that weighed in an applicant’s favor? Of course not.

Nor is it sufficient to assert that “no quotas are used.” Would a “goal” to hire more white guys be acceptable? Again, of course not.

In my written statement, I collect many examples of the kinds of discrimination that are going on--and then I explain why they lack logical, empirical, moral, and, especially, legal justification. Here are some examples.

If the president of a company tells his middle managers that, if they fail to meet their “goal” of hiring or promoting a certain percentage of this or that group, they won’t be getting a year-end bonus, then that is discrimination.

If a company tells its outside legal counsel that it will be fired unless it fields a suitably “diverse” legal team, then that is discrimination.

If the company announces that referrals of women are more welcome than referrals of men, or that applications from “underrepresented minorities” are more welcome than those from other minority and nonminority groups, then that is discrimination.

If an internship or a mentoring opportunity is set aside for certain racial groups, then that is discrimination.

Again, I give examples of all these abuses in my written statement.

America is becoming an increasingly multiracial and multiethnic society. That can be a source of great strength, but it can also be a source of division if people know that they aren’t all being held to the same standards. The only way to enforce the antidiscrimination laws in our multiracial, multiethnic society is by playing no favorites.

We cannot say that Latinos are more protected than whites, but less than blacks, and the same as Asians, unless the Latino is Mexican (but not if he is Cuban) and the Asian is Saudi (but not if she is Filipino). The way that Title VII is written plays no favorites, and that is the way it should be enforced.

It is sad but true that we have never had a time in America when the accepted practice was that companies would all hire and promote simply on the basis of individual merit, without any regard to race, ethnicity, or color. First many minorities and women were discriminated against, but then we went almost immediately into the widespread use of preferences for these same groups.

Does that mean that minorities and women no longer suffer any discrimination? Of course not. There is certainly much less of such discrimination now than there was a generation or two ago, but it is not extinct--and it never will be completely unheard of.

But the solution is not to overlay a system of preferences on top of it. The solution, if the personnel manager in the accounting department at company X is a bigot, is not for the shipping department there to give preferences, let alone for company Y to do so.

The solution is to enforce the law against such discrimination--and to do so with respect to discrimination against any racial or ethnic group, and against men or women.

I hope the Commission will agree with me--and enforce the law. We at the Center for Equal Opportunity certainly plan to continue confronting companies with discriminatory policies, urging individuals file complaints against them if the policies aren’t changed, and bringing these companies to the Commission’s attention, too. When we do, we hope the Commission will act.

I will be candid: The Commission has been quite passive to date with respect to the company “diversity” policies I have described today, and it is hard for me to believe that it would have been this passive if the shoe had been on the other foot. You need to file some lawsuits that challenge some of the abuses I have described.

Thank you very much, and I look forward to answering any questions you may have.

This page was last modified on April 10, 2007.

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