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The EEOC’s Forgotten Racial Racketeering

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Few federal agencies have a more brazen history of trampling due process and basic fairness than the Equal Employment Opportunity Commission. From the time the EEOC was created in 1965, it has continually stretched its power and sought to win by legal intimidation. Its latest shenanigans need to be judged in light of its early bureaucratic racketeering.

The 1964 Civil Rights Act explicitly banned racial quotas and specifically required that an employer have shown an intent to discriminate in order to be found guilty. However, by the late 1960s, the EEOC had intentionally subverted the law by establishing a definition of discrimination that was the opposite of the one that Congress had specified. EEOC chairman Clifford Alexander announced in 1968, “We … here at EEOC believe in numbers…. Our most valid standard is in numbers…. The only accomplishment is when we look at all those numbers and see a vast improvement in the picture.”

The government created numerous administrative tests to give it power to cajole, intimidate, leverage, and pressure private companies to do what government officials wanted. In 1970 the EEOC issued regulations to severely restrict the use of testing for hiring and promotion. The agency had no authority to issue such restrictive regulations, which clearly contradicted the actual wording of the 1964 Civil Rights Act. Herman Belz, author of Equality Transformed, noted, “Achievement of identical rejection rates for minority and nonminority job applicants was expressly stated as a policy objective…. Yet the guidelines did not stipulate a concern with qualified minority applicants.”

The EEOC strove to enforce a “know-nothing egalitarianism” on company hiring policies. It routinely presumed that businessmen who seek to hire workers with more than minimal qualifications were acting unfairly towards less-qualified workers. Much of its routine work consisted of punishing corporations because their standards were too high. The Civil Rights Act of 1964 specified that a company could discriminate among job applications on the basis of “business necessity” or Bona Fide Occupational Qualifications (BFOQ). But, with its interpretation of BFOQ, EEOC officials effectively appointed themselves czars over how competent American workers needed to be. The EEOC almost always intervened against competence — in support of the notion that workers do not need to be as intelligent, as literate, or as capable as an employer demands.

Race norming and adverse impact

In 1973, the EEOC compelled AT&T to sign a consent decree to increase its hiring of minorities and women. As Belz noted, “There was a pioneering wrinkle in the decree: the ‘affirmative action override.’ To meet its goals, the company could promote a ‘basically qualified’ person rather than the ‘best qualified’ or ‘most senior.’” That was a radical change in the meaning of the law. Equal opportunity went from requiring that the best man or the best woman be given the job to a demand that jobs be distributed to minimally qualified applicants, or even to applicants who could be made qualified at sufficient expense to the company. The CEO of AT&T publicly accused the EEOC of trying to force the company to lower its hiring standards and denounced the agency’s policy as “a misguided form of paternalism.”

The EEOC routinely effectively punished employers if minority job applicants gave the wrong answers to test questions. William Gorman, a Civil Service Commission staff psychologist, noted, “Based upon an untested hypothesis, tests were presumed guilty of being anti–equal employment opportunity until proven innocent.” The EEOC assumed that a fair test would automatically provide equal scores among all racial groups of test-takers, although it had no evidence for that assumption — only a surfeit of moral self-righteousness and legal authority.

Race norming was a result of the EEOC’s attack on private tests. Race norming is the covert manipulation of people’s test scores to produce an equal number of winners in each race. With race norming, each citizen has an equal opportunity to have his job test scores secretly raised or lowered in response to government manipulation or intimidation.

The EEOC continually sought to further slant employment law in favor of plaintiffs by creating new definitions of discrimination. In 1978 it revealed that a private company could be presumed guilty of discrimination if its employees represented less than 80 percent of the racial groups in its surrounding area. In its Uniform Guidelines on Employee Selection Procedures, the EEOC officially defined “adverse impact” as “a substantially different rate of selection in hiring, promotion, or other employment decisions which works to the disadvantage of members of a race, sex, or ethnic group.” The EEOC then defined “unfairness of selection procedure” as “a condition in which members of one race, sex, or ethnic group characteristically obtain lower scores on a selection procedure than members of another group, and the differences are not reflected in differences in measures of job performance.”

The EEOC revealed, “Disparate treatment occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants.” Thus, almost any instance where EEOC officials felt that an employer should have more blacks, women, or Hispanics on the payroll could allow a lawsuit on disparate treatment. The EEOC declared regarding affirmative action plans, “Goals and timetables should be reasonably related to … the availability of basically qualified or qualifiable applicants.”

The history of the EEOC exemplifies how government agencies can achieve near-absolute power simply by issuing incomprehensible regulations. When the EEOC issued the Uniform Guidelines, the regulations were widely denounced for their vagueness and complexity. The General Accounting Office noted that one study of the regulations concluded that “their reading difficulty level is at about grade 23 — that is, beyond the Doctor of Philosophy education level.” The GAO noted, “An EEOC official told us that the Guidelines were not meant for use by laymen but, rather, by lawyers and psychologists. However … the reading difficulty of the Guidelines … was probably beyond that of most personnel managers, lawyers and psychologists.”

The EEOC official’s comment captures the arrogance of the equalizers: the rules for pursuing or imposing equality are so complex that commoners need not understand them. The EEOC’s official statement vivifies the EEOC’s disdain for the organizations that it regulates: the regulated businesses do not need to understand the law, as long as they comply with the EEOC’s wishes.

The purpose of the guidelines was not to enable employers to make a good-faith effort to comply with federal regulations but rather to provide a slew of pretexts for individuals to sue or threaten to sue companies. The vagueness of EEOC regulations provided a huge advantage to plaintiffs in court cases, since it was unclear what was legal or illegal. The only sure way employers could comply was by imposing affirmative-action programs.

Felons and minorities

The EEOC has long been one of felons’ best friends. In the 1970s the EEOC began suing companies that refused to hire people with criminal records. It argued that “discrimination” against ex-convicts is simply an illegal pretext for discriminating against minorities.

In 1989, the EEOC sued Carolina Freight Carrier of Hollywood, Florida, for refusing to hire as truck drivers people who had been convicted of felonies (especially larceny) and who had served prison time. Carolina Freight truckers carried “high risk” freight, such as computers, munitions, and drugs. The company’s average loss from a theft exceeded $100,000 and the company attributed 85 percent of the thefts to employee misconduct. Since drivers were largely unsupervised, the company believed them to be the primary sources of theft losses.

The EEOC sued on behalf of a Hispanic man who had twice been arrested and who had served 18 months in prison for larceny. It asserted that since Hispanics have a higher rate of felony convictions than do whites, the company’s policy violated Title VII because of its disparate impact on Hispanics. It argued that the only legitimate qualification for the job was the ability to operate a tractor-trailer.

The EEOC had bad luck in the federal judge who was selected for the case. The judge — Jose Gonzalez Jr. — was outraged at the EEOC’s condescending attitude towards Hispanics: “EEOC’s position that minorities should be held to lower standards is an insult to millions of honest Hispanics. Obviously a rule refusing honest employment to convicted applicants is going to have a disparate impact upon thieves.” The judge fumed that “to say that an applicant’s honest character is irrelevant to an employer’s hiring decision is ludicrous…. To hold otherwise is to stigmatize minorities by saying, in effect, your group is not as honest as other groups.”

The EEOC declared that it would not follow Judge Gonzalez’s decision outside of his judicial district in southern Florida. In 1992, it sued Continental Air Transport, claiming that its policy of not hiring people with arrest records violated federal civil-rights law. EEOC attorney Elaine Chaney explained that the law was discriminatory because “blacks and Hispanics are far more likely than whites to have arrest records.”

It is ironic that the government penalized a private company for relying on a person’s criminal record, since both the federal and state governments suspend many of a person’s civil and constitutional rights once he is convicted of a felony. Convicted felons are prohibited, for example, from owning guns or voting in most states. The government declares that a convicted felon cannot be trusted to pull a lever in a voting booth, yet it sought to penalize private companies who felt that he also cannot be trusted with $100,000 in private property.

The government launched a noble-sounding crusade to equalize opportunities between blacks and whites and soon began suing private companies to force them to provide equal opportunities to ex-convicts and law-abiding citizens, to more-literate and less-literate people, and to highly qualified and minimally qualifiable applicants. Equal-opportunity policy degenerated to pursuing almost everything except equality.

Federal civil-rights policy presumes that politicians should be the ultimate judges of which opportunities each group of citizens should receive — that politicians and bureaucrats should have practically unlimited power to tilt the economic playing field in the direction of preferred players. Rather than creating equal opportunity, this process simply led to a general political confiscation and redistribution of opportunity. As federal judge Alex Kozinski observed, “No one has yet proposed a satisfactory rule that distinguishes proper racial classifications — permissible exercises of the government’s power to classify people for the common good — from those based on hatred, prejudice or a desire to help one’s own at the expense of others.” We are long overdue for a separate of Race and State.

This article originally appeared in the November 2011 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.

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    James Bovard serves as policy adviser to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.