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UNDISCRIMINATING DISCRIMINATION

11:00 PM, Dec 1, 1996 • By DAVID FRUM
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Is the fight against discrimination being lost? Defenders of America's vast anti-discrimination apparatus would like you to think so. The celebrities, activists, lawyers, diversity consultants, university administrators, and corporate bureaucrats who campaigned against the California Civil Rights Initiative profess to regard their defeat as a step backward toward resegregation, if not white supremacy.


But to judge by the gibbering terror on the faces of Texaco's top management after a few executives were caught on tape saying ambiguously negative things about blacks in the workplace, corporate America does not feel quite as liberated as CCRI's opponents fear.


And those managers are right to be terrified. Federal anti-discrimination law has never been more zealously enforced than it is today. Never have the business practices of Americans been more intensely regulated. Never have the incentives for private litigation glittered more alluringly. Never has the government threatened malefactors with such heavy punishments. If what American society has done so far in the name of fairness is not enough, one is entitled to wonder: What on earth would be enough?


In the past eight years, Congress has enacted three major anti- discrimination statutes: the Civil Rights Restoration Act of 1988, the Americans with Disabilities Act of 1990, and the Civil Rights Act of 1991. The 1991 law was the first time Congress offered a solid legal justification for racial preferences in employment; it also opened up lucrative opportunities for anti-discrimination lawsuits.


Many in Congress want to go farther still. At the end of the last session, 49 senators voted in favor of a law that would have extended federal anti- discrimination protection to homosexuals. An influential group led by Sen. Dianne Feinstein of California wants to prohibit what it terms "genetic discrimination": the possibility that insurance companies might someday charge higher premiums to individuals with a genetic predisposition to certain illnesses.


The federal bureaucracy has worked even more busily than Congress in pursuit of its ideals of fairness. Through the Reagan 1980s, the Equal Employment Opportunity Commission investigated a relatively steady number of complaints, between 110,000 and 120,000 a year. Since 1989, the EEOC has really gone to work: It looked into 130,000 cases in 1990, 150,000 in 1993, and 165,000 in 1995.


Nor have the courts been dormant, despite their increasing suspicion of quota schemes in the job market and higher education. Justice Ruth Bader Ginsburg has pushed the judiciary into a bold new stance on sex discrimination: Her opinion in the Virginia Military Institute case unapologetically resurrected the defeated Equal Rights Amendment of the 1970s and inscribed it into the Fourteenth Amendment. In his murky but portentous decision on a Colorado referendum banning special treatment for homosexuals, Justice Anthony Kennedy announced to the world the birth of a new category for anti-discrimination purposes: sexual orientation. The supreme court of Hawaii seems inclined to take Kennedy's hint and condemn the institution of marriage as a form of sex discrimination.


Private lawsuits have proliferated since 1991. Texaco's $ 176 million settlement with six black plaintiffs set an astonishing new record. Unsurprisingly, in the hope of defending themselves against lawsuits, American employers have resorted to race and sex quotas. They have felt obliged to do so because, under the present legal rules, once a prima facie case of discrimination has been made, the onus of proof shifts to the defendant, and it's hard to prove the absence of an improper motive. When Employer Smith said that all job applicants for his stockroom needed to be able to lift a 200-pound weight, did he really care about the weight -- or was he secretly trying to screen out women and the disabled? And when he hired Jack over Jill, he may have said it was because Jack arrived early to the interview and Jill was late. But who knows why he really picked one over the other.


Though we can never know the true reason for any economic decision, there is something we can do: We can count the number of men, women, Hispanics, and blacks in Smith's work force and among his contractors. If someone at Smith University feels he has unfairly been denied admission to business school, we can check the sex and race of the graduate students. The logic of quotas is so strong that the EEOC imposed them in the very first case it ever brought, against American Container Corp. in 1972.