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The EEOC’s War on Fairness

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Upon signing the Civil Rights Act of 1964, President Lyndon Johnson declared that the purpose of the act was “to promote a more abiding commitment to freedom, a more constant pursuit of justice, and a deeper respect for human dignity.” In the subsequent decades, the Equal Employment Opportunity Commission (EEOC) that was created by the Civil Rights Act has promulgated regulation after regulation governing the “fair” distribution of opportunity. The EEOC vigorously prosecutes any company that EEOC officials claim has failed to give enough opportunity to “protected” groups (which make up more than half the population). However, an examination of the agency’s records indicates that, for all practical purposes, “fairness” is whatever EEOC officials choose to make it.

The most positive impact of the 1964 Civil Rights Act was that the federal government prohibited lower levels of government from continuing to abuse and discriminate against blacks. Many southern state and local governments explicitly treated blacks as second-class citizens. This provision of the act was primarily a triumph of the federal government’s prohibiting state and local governments from violating the Constitution. (Unfortunately, state and local governments have no effective means to force the federal government to cease its constitutional violations.)

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.”

EEOC officials have proclaimed private companies guilty of violating or impeding “equal opportunity” because of their failure to race-norm test scores (covertly increasing the scores of “protected groups” to make them appear more qualified than other test takers); their failure to disregard employee theft; their failure to disregard an employee’s assaults on coworkers; their failure to hire, in higher percentages, members of favored groups that were not qualified at the time but were, in the EEOC’s judgment, “trainable”; the failure of an upscale women’s clothing chain to hire men for sales jobs that “included helping women try on clothes”; and the failure of a women’s-only health-club chain to hire male attendants who would work in locker rooms and shower areas (10,000 members of the health-club chain signed letters threatening to quit if males were hired). The EEOC capitalizes on the vagueness of the concept of equal opportunity to maximize its power to manipulate findings of guilt or innocence.

EEOC’s persecution of Sears

One of the most prominent prosecutions in EEOC history was its case against Sears. The EEOC spent 15 years threatening and harassing Sears, and the company is reported to have spent more than $10 million defending itself against charges of sex discrimination. At trial, the EEOC never produced a single witness who alleged that Sears had discriminated against her. Instead, EEOC experts simply waved one statistical analysis after another in the air. A federal appeals court ruled in 1988 that “the EEOC statistics were plagued by arbitrary and false assumptions” and found Sears innocent on all charges.

EEOC’s dictatorial powers over “fairness” are exemplified in the settlements that it imposes on corporations. The EEOC devastated O&G Spring and Wire Forms Specialty Co., a metal-forming shop started by Ted Gryezkiewicz, who had immigrated to the United States from Communist Poland. O&G hired mostly Polish immigrants who spoke no English, as well as many Hispanics, and had roughly 50 workers.

The EEOC investigated the company and found it guilty of discriminating against blacks between 1979 and 1985. The only evidence the EEOC offered was statistical: on the basis of the EEOC’s analysis of the Chicago labor market, 22 percent of O&G’s labor force should have been black.

At trial, the EEOC could not produce one black witness who had applied to fill a job vacancy at the company. Yet federal judge Harry Leinenweber found the company guilty. Leinenweber ordered the company to pay $8,000 for EEOC newspaper ads inviting blacks to file a claim for benefits regardless of whether they had ever applied for a job at O&G.

Four hundred and fifty people responded to the ad. The EEOC made no attempt to check any of the claims for fraud. Some of the people who claimed to have been victims of discrimination were apparently in prison at the time (and thus could not possibly have worked at the company), as federal appeals judge Daniel Manion noted in a dissent to an appeals court decision in October 1994.

Yet as long as they were black, that was enough for the EEOC to certify them as deserving victims of discrimination. The EEOC’s sanctioning of payoffs to lying ex-convicts epitomizes the agency’s habit of using government compulsion to change the racial distribution of income by fair means or foul.

The heavy hand of the EEOC

In 1997, Joe’s Stone Crab, a famous Miami restaurant, was found guilty of “unintentional discrimination” because the number of female servers on its staff was lower than 31.9 percent, which federal judge Daniel Hurley decreed was the percentage of females employed in comparable jobs in the local labor force. The EEOC spent several years investigating and prosecuting the restaurant, even though it had not received any complaints of discrimination from frustrated job applicants.

As the Washington Post noted, “In the wake of his ruling, the judge took control of the restaurant’s annual hiring process before the restaurant opened for the current season last fall…. The court supervised the placement and even the wording of help-wanted ads. After all that, the number of female applicants to the restaurant declined.”

In August 1998, Judge Hurley ordered the restaurant to pay $150,000 to four women who had not been hired by the restaurant — including the payment of “lost wages” for time before the women applied for a job. When waiters at the restaurant protested the government action by wearing buttons stating “government approved,” the EEOC threatened them with a contempt citation.

The EEOC continually stretches its concept of social justice to further restrict freedom of association. The EEOC spent five years investigating and threatening the Hooters restaurant chain. Hooters, which has been described as a “Playboy Club for rednecks,” sells titillation and flirtation along with its greasy burgers and fries. The restaurants hire only women as bartenders and waitresses.

Eagle-eyed EEOC investigators visited eight Hooters restaurants and surveilled the interaction between the staff and the customers. The EEOC issued its preliminary ruling on September 16, 1994: “The Commission finds [Hooters’s] long-standing policy of excluding men from the server, bartender, and host positions to be evidence of reckless indifference to federally protected rights.” The EEOC decreed that the business of Hooters was food, not Hooters girls, and that “no physical trait unique to women is required to serve food and drink to customers in a restaurant.”

The EEOC informed Hooters that it owed at least $22 million in back pay to guys who had never even worked at its restaurants. The EEOC also demanded that the restaurant chain revise the concept of Hooters and make it gender-neutral. The agency eventually backed down after the restaurant chain’s propaganda counteroffensive proved too embarrassing. But the fact that the EEOC avidly pursued Hooters symbolizes how civil-rights enforcement has moved from crusading to allow blacks to sit at lunch counters to crusading to allow government employees to dictate the cup size of the person who serves the lunch.

The perverse consequences of EEOC policy

Federal judge Stanley Sporkin complained in a 1997 decision that because of labor and civil rights laws, “we are becoming the personnel czars of virtually every one of this nation’s public and private institutions.” Affirmative action has generated a canon of law based on blind trust in the goodness and wisdom of government employees.

Yet the government agents in charge of enforcing the law have a vested interest in scorning fairness and procedural justice. The EEOC measures its own productivity by the amount of money it squeezes out of private companies. Any large settlement from a corporation, regardless of how meritless the charges or how undeserving the beneficiaries, makes the agency appear more successful. The agency’s September 1997 “Strategic Plan” bragged,

“Last year the agency resolved more charges than in any time in its thirty-two year history. The rate of finding reasonable cause [i.e., of finding the accused guilty] during Fiscal Year 1997 is well ahead of what it was in Fiscal Year 1996. We have also collected over 425 million dollars for victims of discrimination in the past two and one-half years…. In Fiscal Year 1996 we filed half the number of cases filed in Fiscal Year 1995, but collected twice the monetary benefits.”

Later in the same report, the agency stressed that one of the “useful measures … to determine the degree of success we have achieved in reaching our goal of promoting equal employment opportunity” is “the actual benefits we have obtained for individuals, in terms of dollar amounts and jobs, and other opportunities, such as education and training. Indeed, in the past 10 years, EEOC has obtained 1.6 billion dollars for victims of discrimination.” Thus, every additional dollar squeezed out of any private company is automatically a triumph for equal employment opportunity.

Affirmative action has had a devastating cost, both to the American economy and to the American political system. Peter Brimelow and Leslie Spencer of Forbes estimated that the various effects of federal civil-rights legislation may have imposed a cost equal to 4 percent of the gross national product — roughly $225 billion.

Affirmative action and racial preference policies have often been justified as a cure for racism in America. In essence, this assumes that a massive increase in government power is the best way to change some people’s bad attitude — that pervasive government coercion in favor of one specific race will reduce the overall level of racial animosity within society — that the way to cure racism is for the federal government to forcibly intervene in favor of specific races and against other races.

But affirmative action is almost certainly sparking more racial animosity than it is alleviating. According to Attorney General Janet Reno, a failure to vigorously protect civil rights is ultimately an intolerable breach of faith with the people who have entrusted tremendous power to their government. If we can keep that faith and bring justice to those seeking the opportunities in this country, then all Americans will benefit. It is not so much that people “have entrusted tremendous power to their government” — but that government policy-makers have seized far more power over private employers than most Americans realize.

“Opportunities” are not some public, government-owned commodity that politicians have a right to control and distribute. 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.

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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.