Highlights From The Comments On "The Origin Of Woke"
Original post here.
Table Of Contents:
1: Response From The Author
2: Attempted Fact Checks
3: People With Personal Experience At Their Workplace
4: People With Personal Experience In Civil Rights
5: The Origins Of Modern Wokeness
6: Other Countries
7: EEOC Lawsuits
8: Other Good Comments
9: Conclusions And Updates
1: Response From The Author
Book author Richard Hanania kindly responded to my review on Twitter:
I enjoyed reading Scott Alexander’s review of my book, and he did a good job applying its lessons to some more recent events. Here’s my response to certain points and critiques:
1) Yes, civil rights law does not directly explain why things got so crazy in the 2010s. In the book, however, I take issue with the idea that this period of time was as much of a watershed as people think it was. The basic ideas – disparate impact, tests are racist, crime fighting is racist, etc. – were already woven into American life for decades. I argue that the 2010s was the culture catching up to law. This is why I called the book “The Origins of Woke,” as it was not meant to be an all-encompassing explanation for everything that happened as a result of civil rights law. Basically I think if you’re going to have a one sentence explanation of how society became woke, “It was civil rights law” would be the closest thing to the truth. It would of course be massively incomplete, inconsistent with some evidence, and not be an all-encompassing theory of everything. If someone was going to study a topic they’d ideally want to know more than one sentence about it, but to the extent to which we can put the blame on one thing in order to make the world legible, this is it.
2) I agree that the judges and bureaucrats took the law in the direction they did in the first place for reasons not having to do with civil rights law. I see guilt over the black issue as the cultural core of this, and civil rights law determined the path this instinct took, that is, what “caring about black people” meant in practice and which groups the same template got applied to.
3) I stick by the absurdity of the Di-az/Diaz story and using it as an example. In my universe there’s no way that any words used against an individual can justify the payout they got. Yet I could’ve provided a more balanced summary of the case, and I regret not doing so.
4) I left a comment about the alleged inaccuracies of the “walk-up” and “great view” controversy at the link, I don’t think that was misleading at all.
5) Yes I didn’t talk about the origins of inequality. That would have been a bad strategy. I prefer what Scott calls the “meta-honesty” approach, where you tell people exactly what you’re not going to talk about and why. This means that the pieces are all there for an intelligent reader to figure out what you think, while making things hard for the cancellers and political opponents. This is a political book, and I sometimes do politics, which I justify with the meta-honesty approach. Scott has a revulsion towards this, which I consider having the flaw of being too pure for this world. I, in contrast, have an appreciation for politics as an art, and this is maybe just an aesthetic thing. But I will never lie to or mislead you about what I think, and believe others should live up to the same standard, even if they sometimes practice selective silence.
I’d also refer people to my piece that responded to some earlier reviews of the book here.
2: Attempted Fact Checks
Sverlookwrites:
When I first read the book, I had a hard time tracing Hanania’s source for the “great view” and “walk-up” claims you quoted. As far as I can tell, it goes back to a 1995 memo by Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity (pages 33 to 36, https://www.justice.gov/sites/default/files/crt/legacy/2012/07/10/miamivalleybrief.pdf) that specifically gives these phrases as examples of information that “does not violate the Act”. Sine then, they have consistently been cited as examples of acceptable language in various sources. Hanania’s description might not be strictly false — maybe Achtenberg was referring to some earlier example where somebody cited those phrases as exclusionary — but it is definitely misleading.
EDIT: It looks like I goofed on this. There is a correct citation in the book. See Hanania’s response below.
Oliver Traldi’s review (https://quillette.com/2023/09/23/civil-rights-and-wrongs/) points some more misrepresented anecdotes . For example:
“But every now and then a claim goes by rather quickly that I wasn’t sure about. For instance, the book cites a statistic that Yale now has as many administrators as it does students; but this is because many employees at Yale’s hospital count as administrators for bookkeeping purposes.”
Hananiaresponds:
The citation is right there. It’s from David Bernstein, “You Can’t Say That.” I even cited the chapter, which is in the introduction. Here’s his quote:
“There are a number of other phrases that did not make the Oregon list, but that some realtors avoid nonetheless for fear of liability, including the following: master bedroom (either sexist or purportedly evocative of slavery and therefore insulting to African Americans), great view (allegedly expresses preference for the nonblind), and walk-up (supposedly discourages the disabled).”
I didn’t say that they violated the law. My exact quote was “even terms like ‘great view’ and ‘walk-up’ have been cited as potentially trying to exclude blind people and those in wheelchairs.” I didn’t say that these terms were ever found to violate the law. It’s in keeping with one of the main arguments from the book, which is that stuff that is technically legal might still be thought to be problematic, creating a chilling effect. So what realtors think you’re allowed to say or not say is relevant to the discussion. And the fact that government has to cite them as ok tells you far the restrictions on speech go. If these are your border cases, the civil rights regime is a massive infringement on liberty.
As for the Yale claim, Traldi doesn’t provide a link, so I don’t know how much the hospital staff affects things. But this article says that there’s a 45% increase in administrators in less than two decades, and it doesn’t appear to count hospital staff. It pegs number of administrators as about 80% of the number of students without counting the hospital.
So the statement ends up technically true, and also not very misleading unless you think that hospital administrators shouldn’t count (which is arguable) and you think there’s some massive difference between a huge increase in administrators that leads to them being 80% as large as the student body or 101%. Hospital staff are also doing a lot of DEI stuff too, so I don’t know why you should exclude them if they’re part of a larger story of bureaucratic bloat.
Sverlookresponds:
Thanks for clarifying: I think I had looked at the US News article in the same footnote, but you are correct. My apologies, I shouldn’t have commented without checking again.
For the Yale issue, it looks like the article you cite does count hospital staff: See the quote from President Salovey (“He reiterated that the growth in the Yale School of Medicine’s clinical practice has been a significant and worthwhile cause of the administration’s increased size”). Since there’s nowhere that they break it out by hospital vs. non-hospital, it’s hard to say.
DanL tries to learn more about the “company penalized for refusing to hire attempted murderer” example (to be clear, this was mine, not Hanania’s):
Looks like this might be an appealate brief, at least:
At a quick skim, seems to be a standard case of the EEOC suing for the use of criminal and credit checks as it does - this particular case is allegedly built around an individual who was rejected on credit grounds that failed to match Freeman’s explicit criteria.
Was this a game of telephone where the defendant’s attorney makes an inflammatory statement about the sought relief that gets included in poorly-sourced blurbs, which Scott repeated as the focus of the whole case? The chain of attribution is pretty shaky here
[…]
Okay, here’s the appellate decision:
https://www.ca4.uscourts.gov/opinions/published/132365.p.pdf
Story seems to be that as Step 1 in the suit is that the EEOC needs to establish a prima facie case of discrimination, and that it relied on an expert report to do so. Problem was, the expert report sucked really bad, was excluded by the trial court, and Freeman moved for a summary judgement that was ultimately granted. EEOC tried to submit an amended report but it sucked too. Case dies in the crib and any argument about the sympathetic Black applicant or the mis-aimed relief is irrelevant. EEOC appeals, appellate court narrowly holds that the trial court did not abuse its discretion when it excluded the report, and that’s whole ballgame.
(And Judge Agee concurrs specifically to say that the EEOC fucked up this case extra hard.)
The review talks about a lot of bad cases, many of the cases do eventually get dismissed, but “the process is the punishment” and I don’t know how much power even dismissed cases have to exert chilling effects.
I have some expertise in harassment cases in California. The idea that one joke creates liability is untrue. See: California Civil Jury Instruction (abbreviated CACI for reasons not immediately clear to the casual observer) 2521A. Further different workplaces can have different standards; (see the Friends case - Lyle v. Warner Brothers (38 Cal.4th 264)). “FEHA is not a civility code.”
For clarity, I am not talking about what the law should be. I am discussing what the law is. And isn’t.
I don’t think Hanania specifically claimed that one joke creates liability, but I appreciate the clarification. See also more skeptical notes from other commenters here, here, and here.
Max Morawskiwrites:
Spoke to an Spanish major about a paragraph I found interesting, this one:
» “Hanania’s strongest point here, more suggested at than asserted, is that maybe civil rights law prevented Hispanics from assimilating into “white” the same way Italians and Irish did before them. Hanania claims that Mexican-American activists originally demanded to be classified as white, then turned 180 degrees after affirmative action proponents promised them better jobs for being non-white. This seems like one of the bigger what-ifs of American racial history, although people say that maybe Hispanics are assimilating somewhat anyway - the much-remarked upon rise in Hispanic white supremacists seems like a weird yet promising sign here.”
I think in a book that’s being critical of civil right’s laws as an institution should point out that the history of this is a little more nuanced when you remember that we never have had a true neutral point in terms of civil rights. Her response:
» “In 1954, Hernández v Texas altered the classification of Mexican-Americans in order to give them protection against discrimination under the 14th amendment. As the population of Mexican-Americans grew, the United States classified them as white. However, when they brought forward their concerns regarding racist and discriminatory practices, the government ignored their claims since they were white and therefore not protected under the 14th amendment like black Americans. As a result, Mexican-Americans made the argument that they were a class apart from white Americans. Many Mexican-Americans feared that arguing for a change in classification would result in the mistreatment equal to what African-Americans were experiencing at the time. The “class apart” argument was formed to demonstrate that while they were classified as white they were still treated as “others” by white society. Stating that Mexican-American activists demanded to be classified as “white” ignores the complex history of racial classification in the United States and the subsequent challenges faced by Mexican-Americans in their fight against racial discrimination.”
I think the original paragraph definitely hides the fact that white / non-white was a pretty bad binary to be on one side of socially, but you needed to be on the other side of it for legal protections to apply.
3: People With Personal Experience At Their Workplace
REF (who later says he works in the semiconductor industry)writes:
The idea that companies don’t hire based on merit is ludicrous. Every person we hire spends 8 hours being interviewed and quizzed. This was true at my last five companies. Two of them had more than 20k employees and four were U.S. owned and based. Even before my post-college career, it was clear that hiring was based either on ability or potential. If you aren’t being hired based on ability then you are applying for a job that requires none.
I don’t think the claim was that merit plays no role in hiring, just that it can sometimes be over-ruled in favor of race. Vaniverwrites, continuing on semiconductors in particular:
I heard (at Samsung, from people fleeing Intel) that Samsung was still meritocratic in this way / the nepotism was all pro-Korean nationals in a way that totally ignored American racial categories, but that Intel had ‘gone woke’ in its hiring / promotion.
And Candide III (blog) writes about the wider tech industry:
There definitely used to be a tech industry exception - or rather the tech industry was flagrantly violating CR hiring rules and getting away with it because it was so new and shiny and prestigious. Google’s famous interview questions were thinly disguised IQ tests and other companies had similar practices. Of course the result was massive disparate impact. However, Griggs vs Duke Power Co does allow employers to use tests narrowly tailored for the job, and possibly EEOC bureaucrats could not figure out how to argue that coding-based tests like Google’s are not legitimate or that hiring good software engineers is not a compelling enough business interest to set aside disparate impact requirements.
Pat The Wolfon software:
Merit is important, but other factors are clearly taken into consideration. I used to interview candidates for software engineering roles. Usually I would do an interview with another colleague, and at the end we’d give our manager a thumbs up or thumbs down for a candidate.
I recall one case where we interviewed a guy from an underrepresented group, and both of us gave a thumbs down. The next week I was surprised to see him sitting at a desk because he’d been hired. I approached the manager just to make sure there wasn’t a miscommunication in our interview feedback, and he just sort of shrugged it off and said he thought the guy was a good fit. It wasn’t a meritless hire–he was qualified, just not as impressive as some other folks we’d interviewed.
I can’t really say I blame the manager. We were in a client-facing consultancy group, and some potential clients do like to see diversity on a team.
Golden_Featherwrites:
My admittedly anedotical 0.05$ as a generic office drone. Every white collar job I’ve heard of uses patently IQ test-like screening. I’m not talking about Google or Jane Street, I’m talking about big4 consultancies, mid-sized accounting firms etc. Places where productivity is not nearly high enough to justify resisting the acrimonious persecution Hanania posits, and that yet are happy to ask their applicants to submit Raven matrices or quirky plane geometry problems (the joke is even that the only thing those working there got out of grad school/MBA was prepping for the GMAT/GRE, since once hired they’ll end up filling excels anyway).
As for wokeness driving the soulness of workplace, I worked under a boomer boss who openly made (admittedly funny) “I hate my wife” and “women amiright” jokes in front of the HR lady, confident that suing for harassment was something you see in media much more than in real life. The place was as soulless (or, I’d rather say, soulful in the modest and self contained way you can expect an office to be) bc people just wanted to do their work and then go live their lives.
Philo Viverowrites:
I’m seeing extremely obvious and not-at-all-veiled hints that females, blacks, and latinos should be prioritised for hiring.
I may be n=1 person, but I’ve heard that similar things are happening at Apple, Disney, Dreamworks, several large game studios (you would have heard of them if you were in the space, but I won’t mention them, because that industry is small), Google, Facebook/Meta… I’ll just stop there, but suffice it to say, this isn’t everything.
Johnwrites:
I have read the same news stories as Hanania, but it is all so contrary to my professional experience that I have trouble wrapping my head around it. I’ve been working in business for 35 years have never, even once, seen an unqualified minority or female worker get hired or promoted. In my field (engineering consulting) you either produce, or you’re out. My current company talks a really woke game and we have to take sensitivity training but the real story is that you had better work hard on profitable projects, or else. Plus, most of my clients are government agencies, and so far as I can tell it’s the same with them. They have high standards, and people who don’t meet them don’t last long and certainly don’t get promoted; I’ve never worked with a minority or female project manager or contracting officer who wasn’t professional and hard-working. So far as I can tell, the wokeness in the air is just blaph and nobody pays it any real mind. Likewise, all of my employers have had bans on dating fellow employees, but I’ve witnessed three marriages among people who were both working for me.
After this, the discussion shifted to government. Occam’s Machetewrites:
I used to work for a major DoD agency where the recruiters bragged about how many minority candidates they were able to attract … way beyond what would be proportionate.
There were obvious pressure and incentives to do well at that, and merely having the proportionate minimum would make one less competitive for promotions and such. Gotta exceed the standard!
There’s a whole little industry of recruiting companies that specialize in helping minority candidates land great tech jobs by finding and coaching them (veterans are also a legal minority here.) The companies really want qualified minorities for legal reasons if nothing else.
There are both material incentives and ideological motivations in play here for both any given org’s leadership and HR types. But those aren’t entirely separate variables because they feed off each other.
I can vouch for that happening at a small federal contractor. We were told to track race of applicants and present that information upon demand. The implications were clear, even if not spelled out, and we followed through on hiring racial minorities as much as we were able.
LVwrites:
I work in civil service and the idea that hiring is not based on merit is laughable. In fact, I have never witnessed a racial preference occurring in action.
I’m in the federal civil service (US), and hiring is on merit. Ive never seen anyone hired who wasn’t deemed qualified at the point of hire. Not everyone works out, of course. Just like the private sector.
Martin Blankwrites:
I loved this review. My contributions would be that:
» “Hanania calls the current era “the racial spoils system”, where positions in the bureaucracy are based on the same kind of illegible morass as everything else (eg the FAA’s “biographical questionnaire”). He says every branch of government has become less effective as a result.”
This DEFINITELY happens with the parts of the federal bureaucracy that I am involved with. I have daily contact with federal bureaucrats, and the recent hires/promotions are wildly more “diverse” (out of all proportion with the population honestly), and of very poor quality. So you have a lot of 55-65 year old white male civil servants of very high ability and intelligence, being replaced by pretty low capacity 30-40 year old minority women of startlingly poor intelligence and ability. On paper they have similar credentials, but they are not similar caliber people. In general obviously, there are exceptions in both cases. The preference HR policies clearly have something to do with it.
In the off chance some skilled white or Asian man finds his way into the civil service, you often find them leaving to go make more money as a consultant because their career is going nowhere and they are getting passed over for promotion by their idiot admin with the right diversity characteristics (I am only half exaggerating). So now you have this ineffectual federal staff who does little work, and is surrounded by a cloud of not very diverse consultants who are needed to get things done (due to procurement rules/preferences typically the owners of the consulting firms are also fairly diverse, but the consultants/SMEs themselves less so…after all somebody needs to know what they are doing).
And on the “disparate enforcement” front I would have the following nonsense to report.
One rule that is very common with federal awards is a rule requiring that all hiring on construction projects must attempt to first hire low income and disadvantaged people. I won’t get too into the exact details, but we will leave it at that.
You need to have a plan and a policy and records for how you attempted to achieve this goal and reach out to these groups in your hiring, even if you were unsuccessful.
You might ask what about if I am hiring a lawyer or an engineer or an architect? Do I really want to hire a “low-income” engineer? YES! It includes all hiring. But wait I don’t want to mess up my RFQ for a contract lawyer with a bunch of nonsense attempting to target “low-income lawyers”? Too bad!
And as far as “low-income construction workers” aren’t we also supposed to pay prevailing wage rates (basically union rates), if we are paying that much anyway, we aren’t ever going to find the low-income workers the most qualified. Well you have to at least try! OK how hard do we have to try? Who knows?!?!?”
What is the response to this nonsense that is basically not implementable?
Well there is little to no enforcement from the bureaucrats and almost no one takes the rules seriously, until the bureaucrats are mad at someone and want to nail them and then suddenly they act like of course everyone is expected to follow this rule that 98% of people aren’t following.
Leah Libresco Sargeantwrites:
Meanwhile, on the civil service hiring side, here’s a good example of the non-meritocracy:
» “Many hiring managers have told me— I’m not making this up — that people cut and paste from the job description into the resume and don’t even reformat it. They don’t change a single word, and they go to the top of the hiring list, even if it’s completely obvious that it’s a cut and paste.
» Jack Cable won the Hack the Pentagon contest several years ago, genius programmer. By definition, he’s one of the most qualified people possible to work on the Pentagon’s cybersecurity. He then submitted a resume for a job at the Defense Digital Service, but instead of cutting and pasting from the generic job description, he included a list of the programming languages he knows.
» And he was rejected something like five times. They told him, “If you want to get a job here, you could go work at Best Buy selling computers for a year and then reapply, and then you’ll qualify.” So there’s this insane down-select: whose resume most closely matches the job description?
»The second down-select is a self assessment where they send those candidates a form to fill out that says, “Here are the characteristics we’re looking for. How would you rate yourself?” The way to get through that down-select is to rate yourself as “master” on every single one.
» So you’ve down-selected twice. Let’s say we now have 100 resumes. Then you can apply “veterans preference” to that candidate pool. And that’s your slate. Technically you have done everything right, but you have not given the hiring manager anybody competent in anything but cutting and pasting – and lying.”
Chase Hasbrouckwrites:
The discussion about federal civil service hiring (not clear from context whether this is Richard or Scott) is pretty accurate to my experience, though I would characterize it as a focus on minimizing risk vs maximizing the correct selection. The primary affirmative action is for veterans, which arguably has had a greater impact on shaping the composition of the federal workforce than anything else (7% of US pop are vets; federal workforce is 30% vet).
A brief sketch of the federal hiring process:
1. HR evaluates all candidates to see if they meet the minimum qualifications of the job. To minimize discrimination, this evaluation is generally limited to seeing if the candidate meets or exceeds the years of experience required.
2. If too many candidates remain after step 1, HR defines a “Best Qualified” pool. While many means of doing this are available, typically only years of experience and education are evaluated (sometimes occupational certificates/licenses). Veterans’ preference (veterans affirmative action) is applied here.
3. Best Qualified candidates resumes’ are forwarded to the HM. Resume reviews are required to follow a standardized rubric that must be approved by HR/Legal.
4. Interviews are done by a three-member panel. Interviews are done via a structured format; all candidates are asked the same questions, with no follow-up questions allowed. Interview questions must be approved by HR/Legal. Panel members rate the quality of each response on a numerical scale.
5. Top candidate is selected based on a combination of resume and interview scores. If a non-veteran is selected over a veteran in the BQ pool, HM must fill out additional paperwork justifying why.
Vaniverwrites:
I think it is more likely that AA cases cause the removal of qualification tests or the redefinition of ‘qualified’ or ‘merit’ or so on. (See all the people in the comments here insisting that federal hiring is on ‘merit’, which–sure, it’s merit_2024 and that’s different from merit_1954.) And then this loops back in to dishonesty and spiritual decay.
I think people are getting hung up on “is there any aspect of merit left?” Definitely there is! The complaint isn’t that there is no qualification process at all, it’s that more-qualified whites often get passed over for less-qualified minorities (although the minorities will still have some qualifications and be above the minimum bar for the job).
John Schillingwrites:
“People talk about Mad Men (I’ve never seen it) as reflecting some kind of corporate golden age where at least high-ranking men enjoyed their jobs. If so, did it change because of harassment law?”
I saw that change happen in real time at my last job. Out in the far reaches of the Mojave desert, in the Land that Woke Forgot, we had a workplace culture where pretty much everyone seemed to enjoy their jobs. With rather less sex than the TV version, because A: real life rather than Hollywood and B: nerds rather than Advertising Bros. But where there was mutual desire, it happened, and where there wasn’t, nobody really pushed.
Until one woman filed a sexual harassment complaint(*), which everyone recognized was utterly baseless, and revenge for a social slight. But management decided they had to pretend to take it seriously, money quote, “I’m sorry, [redacted], I have to take her side - she’s the girl”. In a matter of months. Policies were changed, management became much more intrusive, and the job ceased being fun for anyone not long after that.
I should have quit immediately; by the time I eventually left, my colleagues were only half joking when they suggested I could offer my next employer an entire spacecraft-propulsion R&D team, cheap.
- Really, a series of escalating complaints of increasing bogosity when she wasn’t satisfied with the social response to the earlier ones. By the end, management was officially 100% on her side, and she had no friends whatsoever of either gender.
I’d like to know more about this. Did the changes just influence how much people could flirt at work? Was flirting at work so much fun that stopping it ruined the job? If not, what were the other negative changes that the harassment complaint caused?
4: People With Personal Experience In Civil Rights
gjmwrites:
I’d like to correct a big misunderstanding (source: worked at the EEOC for a number of years):
Scott says: “(here “the applicant pool” is an abstraction, often but not always the same as the general population, which is poorly defined and which bureaucracies can interpret however they want. It’s definitely not the same thing as the actual set of qualified applicants to the business!)”
This is simply not true. Companies are required to track and maintain records of candidates. When the EEOC considers a hiring discrimination case, they obtain this data and can use it to see if there is a statistically significant difference in hiring rates between applicants who are in the protected class and applicants outside the protected class. Ideally, the expert the EEOC uses can account for job-related characteristics of applicants (previous experience) and the characteristics of the job applied to.
(This is part of why there should not be hard quotas, job-relevant characteristics are sometimes correlated with protected class-status.)
If the company does not have quality applicant records, the EEOC needs some benchmark to compare the share of protected class members to. Usually, this is the share of the protected class within the geographic vicinity of the firms locations who work in the firm’s specific industry. This is obviously imperfect, but here are a couple of relevant points:
(1) In almost all the cases I was involved with, we heard directly from former employees or often HR personal from the company about specific issues, and there was substantive anecdotal evidence that discrimination of some form was happening. Usually, this anecdotal evidence is pretty serious, and I think it’s reasonable that this shifts your priors. If there are very large differences between the share of workers in the census and at the firm in the protected class, it seems reasonable to say the company should be able to explain this.
(2) The company really should be keeping track of its applicants! If they aren’t, or they don’t give the data they have (illegal) the EEOC has to do something.
(3) The shortfalls I saw were almost always pretty large. We aren’t in a situation where, oh, the Census shows 30% of men are servers, but in your restaurant its only 27%! It was more like: the Census shows 30% of men are servers, you have 3 male servers across all of your 20 locations. The court uses the same cut-off for statistical significance on proportions tests as most research papers (.05 p-value) anyway.
Are there reasonable criticisms of these methods? Of course. But we had to try to reach the truth the best way we could, or at least to do a thorough job of analyzing the data and then let the judge/jury decide from there (Though most cases ended with mediation).
The issues with using disparate impact are mitigated by the fact that the disparate impact measure has to be job-related. It would be inappropriate to have a test for whether a person could lift 50 .lb boxes for a computer engineer role, but you probably should have a pre-employment test for that if the job is a construction worker. Yes there are issues with this measure, and yes it comes down to argument and precedent, but it’s probably better to use this imperfect method than allow firms who want to discriminate an easy get out of jail free card with spurious requirements.
There are always going to be tradeoffs in the way you set rules, (I personally don’t know how I feel about background checks, its seems reasonable for employers to screen on this, but then again, people deserve second chances), but I think this idea of the EEOC as incompetent/SJW crusaders just does not match my experience at all. It’s easy to make caricatures when you only focus on the extreme downsides of any tradeoff.
Thanks. Is there some protection in place if unqualified people apply? That is, if a job requires a PhD, and 100 blacks (all without PhD) and 100 whites (all with PhD) apply, is the applicant pool 50% black or 0% black?
Sam Bwrites:
As someone who actually works in civil rights law, this [review’s] description of disparate impact discrimination is just completely wrong and made up. As long as the employer can demonstrate a legitimate reason for the requirement it wins. Before that a company that, say employed ditch diggers, could insist that employees pass a math test. Given our longstanding inequities in education, particularly of low-income workers, this had the intended effect of excluding black workers. So hiring on “merit” is completely fine as long as “merit” has some connection to the job. Courts are generally hostile to disparate impact claims, to the point that civil rights lawyers are very reluctant to bring them.
I asked Sam:
Thanks for this. Some more questions, if you have time:
Is it true, as Hanania claims, that they have to prove a test is nondiscriminatory for each race and site individually?
How easy is it to prove legitimate reason? If I say “I want my schoolteachers to do well on an IQ test, because schoolteachers should be smart” does that pass?
Why can’t Sheetz say “We don’t want people with histories of violent crime because we think they might be violent or criminal while working for us”?
Why was Duke Power Co decided the way it was, since they asked people to take a mechanical aptitude test for a mechanical job?
Sam kindly answered:
1) He may be right about that (I don’t know actually) but even if he is right, so what? If a test is relevant to a job, that evidence will apply to each worksite. It’s not like there’s some affirmative requirement that employers prove the test works before they can implement it–they can do whatever they want and the only check is a lawsuit. A plaintiffs’ attorney is not going to bring that case if it doesn’t have some evidence the
2) Very easy. You just have to show there is a “manifest relationship to the employment in question” (a more lenient standard added by subsequent more conservative courts) then the burden shifts to the plaintiffs to prove its not legitimate or that the employer could achieve the same goal in a way that doesn’t have a disparate impact. In Griggs, there was direct evidence from the employer’s own experience that the test they were using was uncorrelated with job performance.
3) That is likely enough. But if, for example, their experience showed that people with a criminal history were no likelier to be violent and criminal than that argument would rightly fail. I think it is also unlikely the EEOC will win this case in the current legal environment.
4) As I said above, if you read the actual case, the facts were that the test did not predict success at the job. This turns out to be very common.
More discussion of Duke v. Griggs - this is all coming from one very long thread, which you might prefer to read directly, starting withMr. Doolittle:
I don’t think the EEOC is being disingenuous when they think a company is discriminating. Their perspective is coming from the side that sees actual discrimination, often hidden behind convenient stories. Read Duke Power sometime in detail - there’s no doubt that the company was flagrantly discriminating and lying about it.
That said, I don’t think the EEOC has an actual problem with merit tests like Google having someone write code for a coding job. They have a real problem with mission-creep tests (like requiring that coding test for lower level employees) or anything that might be a hidden way to discriminate.
I think they also have some true-believer “woke” types that really think that any disparate impact is hidden discrimination, but for legal reasons this is significantly less prevalent than in other “woke-adjacent” contexts.
Bob Frank (blog) writes:
» “Read Duke Power sometime in detail - there’s no doubt that the company was flagrantly discriminating and lying about it.”
…which was quite adequately remedied at the appeals court level. The plaintiffs got everything they could have reasonably wanted. But the EEOC didn’t want to fix the problem they were ostensibly suing over; they wanted to use it as a premise to push their social agenda, so they appealed to the Supreme Court, and we ended up with one of the most damaging rulings in history.
I wrote about this in some detail last year:
Forewarned Is ForearmedThe Most Significant Case You’ve Never Heard OfPeople often think of the 1960s as a tumultuous time in our nation’s history, but in many ways the real damage was done in the 1970s. The 70s was a time when a lot of the chaos of the 60s settled down, but unfortunately it didn’t happen by conditions getting back to normal so much as by surrender, assimilating the chaos into a “new normal” that was sig…Read morea year ago · 5 likes · Bob Frankgdanningwrites:
Your article refers to what you call “Duke Power’s use of industry-standard aptitude tests in employment decisions. “ But here are the actual facts:
» ”The Company added a further requirement for new employees on July 2, 1965, the date on which Title VII became effective. To qualify for placement in any but the Labor Department it became necessary to register satisfactory scores on two professionally prepared aptitude 428*428 tests, as well as to have a high school education. Completion of high school alone continued to render employees eligible for transfer to the four desirable departments from which Negroes had been excluded if the incumbent had been employed prior to the time of the new requirement. In September 1965 the Company began to permit incumbent employees who lacked a high school education to qualify for transfer from Labor or Coal Handling to an “inside” job by passing two tests— the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs […]
» On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company’s judgment that they generally would improve the overall quality of the work force.
» The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used.”
This leaves me with more questions than it answers. For example, if a company hasn’t explicitly measured how tests correlate with performance (which I assume is the case with most tests), are the tests okay or not? Also, could someone who’s annoyed at ballooning degree requirements (eg me) sue every company that requires a college degree, asking them to prove that it’s really necessary?
Steve Sailerdescribes his personal experience:
I worked for a marketing research startup firm from 1982-2000. In 1982, our hiring exam was the final exam given by one of our founders, a college professor, in his Quantitative Methods in Marketing Research course. It was a great test, and we hired a lot of good people in the 1980s.
Our biggest client gave a similar exam and hired a lot of good people.
When the EEOC went after our biggest, most prestigious client over their hiring exam, the firm then spent a lot of money on consulting firms to have it validated as related to work performance to the necessary legal standard. And they continued to hire good people.
In contrast, when the EEOC finally noticed us in the 1990s, we found out how much it would cost to validate our exam and decided to save money by throwing it out. That turned out to penny wise and pound foolish.
If this is true, it sounds like the burden of proof is on the test-giver, and it’s a pretty high burden. I don’t know how this meshes with what Sam B is saying, unless Steve’s experience was before the change in the law that Sam mentions.
» “As I said above, if you read the actual case, the facts were that the test did not predict success at the job. This turns out to be very common.”
This does not mean the test isn’t a good test in the sense that it doesn’t measure job performance. See how there is no correlation between a players height in the NBA and how well they perform. This is because if there was a correlation then selectors would be leaving money on the table and they could improve their selection for the coming year by increasing the weighting on height (compared to everything else), which would in turn reduce the amount of correlation. Rinse and repeat until there is no correlation left.
The test not predicting job performance could equivalently mean that Duke Power had a very well calibrated way to choose their employees where they were prefectly capturing the information from the apitutde test compared to all the other factors involved in hiring. Indeed the fact that this turns out to be very common suggests to me that this is going on here (and elsewhere).
Good point! I don’t know when the correlation between test score and job performance was measured, and whether it should be expected to have this problem.
5: The Origins Of Modern Wokeness
(again, you might want to read Hanania’s post answering objectors on this point)
Caratecawrites:
I hew more to the Tumblr theory of the origins of woke (Katherine Dee has written about this, although at infuriatingly short length.) All this was incubated on Tumblr by mentally ill teenagers in the mid-00s, expanded from there to various web forums/proto-social media of the era such as Something Awful and Livejournal where the mentally ill teenagers could gain cultural or moderation power, and then exploded onto Twitter where it cowed cultural leaders into compliance and suddenly people at your office were putting pronouns in their bios, doing land acknowledgments and sterilizing their kids. Civil rights law under this theory was a weapon for the woke to pick up, not the cause of the problem.
(Edit: and not even that relevant of a weapon, regardless of its merit otherwise; wokeness’s greatest damage is cultural, not legal.)
I agree with the Tumblr theory too, though I think some blogs (eg Shakesville, Pandagon) might have been closer to Patient Zero. I continue to be a little confused how and why stuff that deranged teenagers were discussing on microblogs made it to the halls of power, and I would appreciate a more focused Origins Of Woke book discussing this process.
Desertopawrites:
So, I don’t think I’m qualified to write that book, and if anything I’m less qualified now than I was twelve years or so ago, since it’s been a long while since I’ve brushed up on the source material. But I think I’m better versed in what went into it than most people, and I’m prepared to at least take a stab at a substack comment on the subject.
My impression, as of around 2009, before people identified “woke” as a thing, and before the social justice subculture that gave rise to the term had really solidified, but at a point when it was distinctly trending in that direction, is that the movement was essentially a result of academic ideas filtered through a specific, mostly online social context. While a lot of people, especially back then, would argue that the academic basis of the movement was sound, but often interpreted poorly by radical ideologues, my impression, as someone who read a lot more of the actual academic work than most, is that this was a mistaken interpretation, that the academic work actually was written largely by radical ideologues in the first place, and simply dressed up in language suited to an academic audience.
I still identify as much more left wing than right wing, and this was even more the case at the time, since the far left end hadn’t moved nearly as far away from me at that point. But, my impression is that at least as far back as the aftermath of the Civil Rights Movement, there was a balance between the left and right wings on issues of racial and gender justice etc. where both sides essentially held to the norms of trying to enact their desired changes via collective political action and measured civil disobedience, with the left wing making more or less continual progress against the right, until the left wing decided to defect first.
This began in academia, with writers who framed the issue of racial justice essentially in terms of existential warfare. Basically “we are opposed by a group of ideological enemies who are trying to destroy us and everything we represent. The mechanisms of gradual change collective political action and measured civil disobedience are fundamentally aligned against us in the favor of our ideological enemies, thus we have to break away from those and fight with tools which fundamentally favor our cause in order to be able to effectively defend ourselves.” Because the writers in question were academics with cushy university positions, their actual mechanism of political action was writing books arguing people ought to do these things, which were mostly only read by other academics and ignored by the general populace. But when social justice started becoming a major component of the online subculture which was incubating in the mid to late 2000s, although only a minority of people actually read the work of actual academics on the subject, people who did were extremely influential in the movement, and ideas which originated in academia propagated to fixation through it.
In the earlier days of the social justice movement, there were separate strains which cooperated on object-level goals, but disagreed over big-picture questions like “should we frame social agendas in terms of Us vs. Them conflict drawn around identity groups, or in terms of alignment with philosophical goals?” and “should we attempt to move towards progressively more colorblind ideals of egalitarianism, or ones which consciously privilege minority groups?” The identitarian strain eventually became more or less hegemonic over the movement, partly I think because it’s an easier sell based on ordinary patterns of human thought (we’ve been engaged in identitarian tribal conflict for the entirety of human history,) and partly because almost all the academic underpinning behind the movement actually argued in support of the identitarian strain.
I personally started to distance myself from the social justice movement around 2009, while remaining broadly aligned with its object-level goals, in large part because I started reading enough of the academic philosophy behind it to realize that the academics other people were treating as foundational figures (even if most of them didn’t actually read their work) were essentially arguing that we needed to abandon the societal institution of liberalism because it was fundamentally aligned against the goals of social justice, while failing to acknowledge that the mechanisms of liberalism had been producing consistent incremental gains for social justice for the last several decades.
This is also how I remember things. The part that seems mysterious to me is how the left defected from pre-existing norms so successfully - or rather, if defection gave such an obvious advantage, how the pre-existing norms had stayed in place before.
Neike Taika-Tessarowrites:
Interestingly, I was going to say Hanania’s missing element could just be graphs like these:
i.e. affirmative action laid the groundwork for this, then people connected, coordinated, and used it much more aggressively.
I feel like that’s basically what you’re saying, except that what I’m (ignorantly) ascribing to Hanania here and what you’re saying disagree on the cause. I guess in Hanania’s framing, wokeness was inevitable once affirmative action existed in the legal framework; whereas in Dee’s faming, wokeness was not inevitable once affirmative action existed, but is a separate phenomenon that then seized upon the tool. I’m probably doing both of them an injustice with that, mind.
(To be clear, I’m not in the US and avoid most social media, so I don’t particularly have opinions on this either way, I just immediately thought ‘the internet’ when Scott referred to the cultural turn between 2010 and 2015 and asked “Why would 1964 and 1991 laws turn wokeness into a huge deal in 2015?”.)
Yeah, something like this also has to be part of the picture, although I still don’t feel like I understand the mechanism well enough that I could have predicted this ahead of time.
More patient zero speculation, fromMarsDragon:
Historical nitpick: it’s less that Tumblr infected LiveJournal so much as LJ users were forced to move to Tumblr as LJ got increasingly difficult to use starting around 2009-2010. The migration had more or less completed by 2012. Tumblr being so much more of a “modern” social media platform where it was easy to repost content and you got a random jumble of posts instead of a carefully-curated set of friends made it much easier for social justice thinking to spread.
I think the whole shift to showing users a melange of content instead of a staid list of people the user chose to follow was a big driver of that sort of thinking. It allowed ideas to spread, upped controversy, and drives that sort of “we must purge this!” was of thinking.
The LiveJournal experts here say the key event to look at was Racefail, when, according to Carateca:
I had a front row seat and it was remarkable how the whole superstructure of a totalitarian state just congealed out of thin air in days and instantly took over a whole subculture. Sometimes I think that if Charlie Stross and the rest of them had just had some fucking balls and stood up to the bullies – or, hell, just pushed the block button a few times – none of this would ever have happened.
I support any theory that lets us blame everything on Charlie Stross.
naraburnswrites:
Anyway, I would argue that “woke” does not begin with civil rights law, but rather that both are the result of the same intellectual tradition. “Woke” attitudes are basically analogous to what was called “cultural Marxism” decades ago (see e.g. Weiner’s (1981) “Cultural Marxism and Political Sociology”), but since “Cultural Marxism” has been retconned as an anti-Semitic conspiracy theory, people needed a different name for it. The linguistic treadmill is merciless, especially when dealing with political movements attempting to escape accountability for their past failures (or successes).
I agree that there’s a crappy trick that goes:
-
Take a thing that you don’t want people to be allowed to talk about. For example, maybe Coca-Cola doesn’t want people to talk about how soda makes you fat.
-
Find some schizos saying a much stronger, extremely offensive thing. For example, “the Jews are adding obesity-promoting chemicals to Coca-Cola in order to destroy the white race”.
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Get a bunch of “disinformation researchers” to make a huge deal about the schizos and say things like “The MAGA phenomenon is largely fueled by white resentment over the Great Enfattening conspiracy theory”.
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Now nobody can talk about how Coca-Cola makes you fat, because people will say “That’s the discredited racist Great Enfattening conspiracy theory, shame on you for platforming that kind of stuff.”
…and that all the current debate around “Cultural Marxism” is downstream of people pulling off this trick very successfully, so it’s become pretty hard to understand the history.
Candide IIIwrites:
The previous incarnation of woke was called “political correctness” and it existed in late 80s-early 90s. That’s when Alan Bloom’s book came out. PC suffered a setback when Bill Clinton really wanted to win the election in 1992 and, needing the white vote, came down on Sister Souljah. A period of return to normalcy followed, until the recrudescence of PC as woke in late 00s.
It stands to reason that it took about a generation after the original civil rights law/judicial decisions for the first effects to be felt, as new rules and most importantly new hires worked themselves through the system, gaining seniority and influence as their careers progressed. That works out to the mid-80s. The difference between PC/woke movement based on incentives created by civil rights law/judicial decisions and the heady atmosphere that led to “woke judges” in the first place is that the former is largely composed of the beneficiaries of civil rights law/judicial decisions (see: bioleninism), whereas the latter was an extremely white elite phenomenon. Some of those judges doubtless believed sincerely in the inherent equality of all human subgroups on all socially desirable characteristics (an easy extension of Christian spiritual equality), some wanted to finish the Solid South, etc. I’d love to read a good book about that.
6: Other Countries
Many people were annoyed that I didn’t bring in enough evidence from other countries, which have different civil rights law than the US.
I did this on purpose: I didn’t consider these sufficiently independent cases. My impression is that wokeness originated in the United States, reached other countries piecemeal, and that the parts they got weren’t necessarily parts that applied to their own situation. For example, many countries held Black Lives Matter and Defund The Police protests even when they had approximately no black people. In a situation like this, I don’t know how to determine the relationship between any given country’s level of civil rights law and its level of wokeness.
Still, some people described the situation in their countries, for example Citizen Penrose (blog):
The section about workplace personal relationships becoming more formal doesn’t seem right to me, we’ve had the same trend in the UK without any civil rights law. Unless we do actually have the hidden de facto affirmative action mentioned at the beginning and I just don’t know about it.
AH from the UKwrites:
100%. Technically “positive discrimination” is illegal in hiring in the UK. But “positive action” is perfectly legal.
The typical example given is that you can’t hire a black person because they are black (if say, they were worse qualified than a white candidate). But you absolutely can use “positive action” to hire someone to address a perceived imbalance (level the playing field) if two candidates are equally qualified.
You can also legally have women only management hiring workshops if there is a perceived imbalance in senior leadership (i.e you’d like more women). But you can’t then roll that out as a blanket policy at every level of an organisation.
In reality, the line between these things are blurred- no two candidates are ever equally qualified, and there are always trade offs involved. The fiction that you can use race or gender as a tie breaker is useful for organisations to maintain. On the other hand, it definitely doesn’t seem to be as bad as in the US- University admissions is still relatively meritocratic, with UK universities aiming to up the numbers of underrepresented groups via extensive outreach, coaching, mentoring etc. rather than workarounds like non-academic credentials. If a minority candidate doesn’t get the grades/pass the entrance exam, they probably won’t get in. Although, I do note that there are black only (financial) scholarships- not sure how those
I think this is similar to the US. In school, I was always taught that affirmative action meant “you should never choose a less qualified minority, but if you happen to get exactly equal white and minority applicants, you should choose the minority”. I never thought too hard about how likely it was that a company would get two exactly-equally-qualified applicants, or how likely it was that the government could monitor whether a company was doing this. Of course, Hanania’s point is that this is the lies-to-children version of affirmative action, and the real version is that the government bullies businesses until their minority numbers are high enough, and the business uses underhanded techniques to get them high enough to satisfy the government. I don’t know if that’s how it works in the UK too.
Matheus from Brazilwrites:
What Hanania doesn’t seem to address is that 13% is still too low of a number for this stuff create substantial harm. I don’t know how much time General Motors’ Mary Barra spends thinking about this stuff. Maybe if you had 50% black population, this could be non-linearly more harmful.
Here in Brazil we do have 50% black population (not black in the same sense as Americans). We didn’t fight a civil war to end slavery and we didn’t have segregation after ending slavery. We are cordial men (see: https://translate.google.com/translate?sl=pt&tl=en&hl=pt-BR&u=https://pt.wikipedia.org/wiki/Homem_cordial&client=webapp ). We had our first black president in 1909, but neither he nor the people made much of it.
I am saying this because Brazil offers a nice comparison. We do have quotas. Quotas for public universities and quotas for public service. The federal law for public service quotas is 20% (much lower than the general population). There was some pushback when Congress approved these laws, but people mostly accepted it. Not even Bolsonaro pushes back on them. And I think quotas for university aren’t the worst idea (you’re educating people instead of putting them as traffic controllers) and the 20% number for public service isn’t doing the same harm that the African National Congress quotas did on their country. Corporate life isn’t harmed beyond that.
It seems that “just accept quotas” is the much better status quo.
The current status quo is how the Chinese communist state regulates corporate China. “Common prosperity” says the party leader and companies need to scramble to be seen as doing good. At least more than the next guy.
On the other hand, it doesn’t seem that these suits against companies are that widespread at 13%. I’d expect Richard to quote statistics like: last year there was 1040 suits like these or whatever. As said, it doesn’t seem to me that it is that impactful as Richard paints.
On yet another hand, just by following companies and their communication with investors, Europeans seem to worry about this thing way more than Americans. It’s super common even in 2024 to find companies that don’t report ESG policies and DEI goals. But every single European company does have this “common prosperity”. I’d like to understand better how this compares with the European experiment. (I guess there it’s even less than 13%, idk)
Argos from Germanywrites:
We have laws prohibiting outright discrimination during hiring, but the (fairly high) onus is on applicants to prove that they have been discriminated, and certainly there are no government agencies going after companies publicly because of insufficient women or minorities. Yet almost nobody uses IQ tests during hiring, and work places are very very much some form old mad men style old boys club. Germany would, however, be a data point in favor of Hanania’s theory since companies focus comparatively less on increasing representation of minorities and women during hiring (in case of women perhaps more in recent years, but I don’t think this is downstream of new laws). A caveat is that this is from public perception, I have only ever worked at small no-name companies with very irrelevant HR departments.
Oh, I just recalled: Our Eastern European branch office DID turn into a old boys club on Friday afternoons, to the degree that some of the women there just went home at 2pm because it became unbearable to work there.
I don’t understand why this would happen on Fridays in particular.
Andrew Marshall from Canada (blog) writes:
As someone who worked in HR for the Canadian gov’t for 10 years, this book touched me deeply . . . Although thinking about it more, we do have explicit quotas (called targets) and that didn’t save us from anything. Although so much of our culture is taken from America, maybe there was no escaping it
Related, from Tatu Ahponen (blog):
I wonder what the book says about what would seem to me to be a crucial “why” aspect: the international one.
To me, it seems like the reason for why civil rights legislation, including affirmative action, has been enacted and are maintained in the US have at least at much to do with external as with internal policy. The original context for the enactment of the CRA and all the legislation meant to make racial equality not just a theory but an actuality was America’s ideological content with the Soviet Union, a country that could lay a credible claim to an antiracist practice that made it very attractive to Third World masses and First World intellectuals; since it was also known that the equitable treatment of African-Americans was one of the main areas where United States had, to put it mildly, failed, it was also imperative for the US to show that it was working to fix it.
The status of the African-Americans was closely followed by numerous anti-colonialist and other progressive movements abroad, after all, and the civil rights movement was genuinely aspirational to numerous such movements. This was recognized by many prominent African-American figures, from DuBois to King to the Black Panthers, who all utilized this knowledge in their own ways.
Of course, the Soviet Union no longer exists, but America is still getting the dividends for this policy; however much anti-Americanism might exist abroad, there could still be vastly more, and, for instance, America (at least in 2015) was viewed very favorably particularly in Africa, doubtless aided by that implicit group of American cultural ambassadors - African-American celebrities showing that the American model can offer fabulous opportunities for wealth and influence for black people, too.
The one group of conservatives who seem to see this connection are the isolationists, but I’m not quite sure even they would be fully prepared for what would happen if America, implicitly or explicitly, just went “Okay, all that is over now, our policy is now based on the idea that blacks are morons and will never, as a group, reach the status of the whites (or Asians)”, and then seeing that message percolate out abroad.
It would have just effortlessly handled out a huge trump card both to China, always looking for opportunities to expand its influence, and whatever radical anti-American movements there are. Once those movements start taking over their countries with no effective American counter apart from war (which the isolationists would presumably also oppose), and once that starts effecting the global trade, the American economy will take in the lumps, too - and there might be even more direct effects of the terrorist kind that one might surely imagine.
Is it worth all that to just abolish affirmative action? Perhaps to some, surely not to many others.
7: EEOC Lawsuits
REFobjects:
This [claim that insufficiently diverse companies] “will get sued” is obviously not true. The EEOC filed exactly 143 discrimination lawsuits last year. Only 25 of them are systemic. Are you contending that there are only 25 (or 143) companies in the U.S. without population-equal racial distributions? I find it puzzling that your usual skepticism seems so diminished on some topics.
I think the claim continues to make sense.
The company we discussed in the article was Sheetz ($7 billion yearly revenue), suggesting EEOC is targeting big companies. There are about 700 companies in the US with yearly revenue > $1 billion. Suppose that 20 of the EEOC’s yearly lawsuits are in this category. That means a CEO of a $1B+ company who expects to serve ten years has a ~1/3 chance of the EEOC suing his company. Seems like a big deal!
But doesn’t this imply that the risk for smaller companies is pretty low? Moral Particle fills out the rest of the argument :
Your point about “getting sued by the EEOC” is very well taken and has important implications not recognized in many of these comments.
First, the vast, vast majority of federal anti-discrimination lawsuits are brought by individuals, not the EEOC. Typically, employment defense lawyers will handle a handful of EEOC-plaintiff cases in their careers but hundreds of single- and multi-plaintiff cases.
Second, almost all states have anti-discrimination laws modeled on Title VII, and most cover much smaller companies. In some states (California, for example), the state laws and state court system are so much more favorable to plaintiffs that plaintiff-side employment lawyers will actively *avoid” pleading claims under Title VII (or other federal laws) and do what they can to avoid litigating in federal court.
Between the two categories - federal lawsuits brought by individuals (not the EEOC) and state lawsuits not involving the EEOC at all - we’re talking thousands upon thousands of lawsuits. That is where the “systemic” effects of these laws are, not in the minuscule fraction of cases actually brought by the EEOC.
**And TGGPpoints out **that a small number of lawsuits can have a big effect:
Rather than “largely random”, the idea seems to be it’s against the least woke big target. Something like truncation selection https://westhunt.wordpress.com/2013/11/16/truncation-selection/
8: Other Good Comments
Leah Libresco Sargeant (blog) writes:
Helen Andrews is also pretty strongly against civil rights law, and has an interesting piece about union-flavored workplaces vs HR-flavored ones: https://thelampmagazine.com/issues/issue-21/against-human-resources
» “There is a masculine alternative to H.R. It is called a union. In any given workplace, H.R. ladies and union reps perform many of the same functions. If you have a conflict that needs adjudicating, you want to make sure the company gives you all the vacation days you’re entitled to, or you have a complaint about workplace conditions, you go to them. Underneath this functional similarity, however, the two models of workplace relations rest on very different assumptions.
» The idea behind unions is that workers and bosses are fundamentally in conflict. They don’t have to hate each other, by any means, but their interests diverge, and the best way for them to reach agreement is to have a fair fight by clearly defined rules. This is the opposite of H.R.’s ethos, which is all about denying that conflict exists and finding win–win solutions—or at least solutions that everyone will pretend are win–win after they have been badgered into accepting the consensus.”
I am more in favor than she is of pursuing some of the goods of civil rights law, but I agree strongly with her about the benefits of openly acknowledging that workers and bosses have conflicting interests and need to negotiate the middle ground. I really really dislike the “only fight obliquely”/doublethinky mode that she and Hannania identify. I think it does create a culture against truthspeaking.
Thanks, I had never thought about HR as an “alternative” to unions before, so this was an interesting comparison.
Also, I find it interesting that everyone, even in this politically correct age, agrees to call human resources staffers “HR ladies”. I haven’t worked at enough corporations to have much personal experience of this - why should it be such a universal phenomenon?
Rob L (blog) writes:
If those laws go away, would it really change anything? Given the existence of social media, pervasive canceling of companies and people, and broad social sympathies for perceived victimized groups, I would imagine “that company doesn’t hire minorities” to be much more damaging from a customer and relationship perspective in 2024 than the 60s and 70s when those laws were passed. If that’s true (which I’m unsure of), in a sense the civil rights advocates have already won.
I unfairly forgot to mention one of Hanania’s strongest arguments, which was how naturally we avoid thinking about some categories of inequality when we’re not forced to think about them by the government. Nobody cares about religious discrimination (do Baptists get better jobs than Catholics?), intra-race discrimination (do Germans get better jobs than Irish? Japanese compared to Korean?) etc. Hanania thinks the reason racial discrimination has become so much more talked about than these other superficially-equally-interesting questions is that the government makes all companies keep racial statistics and talk about things in those terms. If there were no AA, companies wouldn’t keep the statistics and people might forget about it, the same way they’ve forgotten about everything else.
Hanania has an article about France, which forbids the collection of any government statistics on any of this. I found this interesting, because I’d always heard claims this was a left-wing plot to avoid having statistics on the racial balance of (eg) crime. But actually France just takes a principled stance against any race statistics! Wild!
Richard Gadsdenwrites:
The thing about Title IX in sports is that the basic problem is football.
The general requirement of Title IX is that sports should be separate but equal (obviously, I’m quoting Plessy v Ferguson maliciously here). That generally means that the number of scholarships given to male student-athletes and the number given to female student-athletes should be the same.
If it weren’t for football, this would be easy - for instance, each (top-level) college can have 13 basketball scholarships per team, so that’s 13 men and 13 women. Compliance with Title IX is absolutely trivial. Even with baseball, they just have 12 men playing baseball and 12 women playing softball.
But football is 85 scholarships and they are all men. This creates a problem where a college has to have 85 additional scholarships that are all women. But all (or virtually all) the other sports are played by both sexes. So they end up with every other sport having more scholarships for women than for men, and men’s sports getting dropped, so that the women’s version of that sport can be used to balance out the many men’s scholarships in football. So many colleges now have women-only track and field, for instance.
It really would have been a far simpler solution to just require any college that has a men’s football team to create a women’s football team with equal numbers of scholarships. Most of the other distortions would drop out of the system if the requirement was equal numbers on a sport-by-sport basis, rather than a college-by-college basis with the single largest sport being the only major single-sex sport.
I asked why colleges can’t have women’s football teams; the two main answers were “women aren’t that interested” and “high schools, not bound by Title IX, don’t have women’s football teams, and it’s hard to take totally untrained women and form a football team from them at the college level”. I bet the latter would be self-resolving: a year after colleges say they need woman footballers, all the women currently plodding through years of crew or fencing to get a leg up in college admissions will plod through years of football instead.
Deadpan Troglodyteswrites:
This review offers a good account of the common answers people give to the question “why do racial disparities exist?”:
1. Contemporary racism.
2. The historical legacy of racism.
3. Bad culture.
4. Not smart enough.But that list is missing a very important reason that doesn’t get enough attention (because it isn’t toxoplasmic enough?): preferential clustering. Demographic minorities often cluster in specific industries and institutions, for mostly obvious reasons:
- To exploit social networks.
- As an outgrowth of cultural norms.
- Due to accidents of geography related to initial immigration patterns.Therefore it should not be surprising that Emory, Georgia Tech, and Georgia State University all have lower percentages of black students than Atlanta (~47%), Georgia (~31%), or the USA (~14%), given that Georgia (and Atlanta specifically) has eight popular historically black colleges and universities (more, depending on how you count them).
Clearly these preferences can be a consequence of past discrimination, but they also have a life of their own and deserve separate consideration. Absent discrimination, we’d still see significant demographic clustering, though it would likely be less negatively biased.
I agree there’s something to this - I’ve seen it used, for example, to explain why certain Indian castes are overrepresented in certain industries (eg the Patel Motel Cartel), Jews in other industries, etc.
But all the immigrant groups who have managed to do this kind of thing after just a few decades in the country make me skeptical that it can explain a pattern for black people lasting 100+ years.
Rothwedwrites:
Behold, USDA Form CCC-860:
This a form to file for emergency relief funds from the USDA. Applicants must certify that they are part of a socially disadvantaged group to qualify (there are other qualifying groups but this one is relevant to civil rights law.)
“A socially disadvantaged farmer or rancher is a farmer or rancher who is a member of a group whose members have been subject to racial, ethnic, or gender prejudice because of their identity as members of a group without regard to their individual qualities. Groups include: American Indians or Alaskan Natives, Asians or Asian Americans, Blacks or African Americans, Native Hawaiians or other Pacific Islanders, Hispanics, and women (for those selecting a group that includes gender). Note that if applicant only checks “women” without also selecting the other category the selection does not make applicant socially disadvantaged for conservation programs.”
Note being a woman doesn’t count unless the applicant also specifies that they aren’t white. So here we have a program for giving aid money to farmers with a big No Whites Allowed sign. You might come to the conclusion that this is race based discrimination. Don’t worry though, the USDA isn’t allowed to do that kind of thing and even tells you so on the form:
“In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status. income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.”
Get it? Just specify that you are part of a certain race/color/national origin and/or sex to qualify for this program, but also the USDA is legally forbidden from discriminating on the basis of those very things in its programs.
Peterwrites:
A friend of mine in construction attended a “women owned business” social meetup. Not a single woman attended. All the businesses were 51% owned by the wife.
(followed by Martin Blank commenting that “My wife owns 51% of my business. It is frankly stupid not to, you lose so much work over it without that step.”)
AndThe Veil:
Allow me to address the least important point: Di-az. In English it’s almost always written as Diaz, but in Spanish it’s almost always written with a diacritic over the i: Díaz. So imagine that the immigrant dad, trying to fit in, spells his name the American way, Diaz. Now the son, realizing that you can fit in just fine in America with an unusual name, spells his name Díaz. All good, except that some newspaper somewhere along the line doesn’t properly capture the diacritic symbol, and instead of í, that paper writes i-. Boom: Di-az.
Finally, someone thinking about the important stuff!
9: Conclusions And Updates
This one was fascinating.
Lots of people wrote in to say that there was definitely unfair affirmative-action-style discrimination going on at their workplaces, and lots of other people wrote in to say there definitely wasn’t and they’d never seen anything like that in their whole career. Sometimes these people worked in the same industry, or even the same employer (eg the US civil service)!
A civil rights attorney said Griggs didn’t ban tests unless they were obviously discriminatory, and then some people wrote in saying they’d been sued or scared out of using good, non-discriminatory tests. I think the most likely way to reconcile all the differing perspectives is that you can probably get away with using most tests if you argue in court that they’re justified, but people don’t want to be sued so they don’t try it. I still don’t feel like I know important facts like how often test-users get sued, or who the burden of proof is on, or how strong it is, or what happens if there’s not enough data to be sure, or whether the courts are aware of / rule out collider bias. But I’m still not sure of any of this.
I will update towards the “applicant pool” process being fairer than I thought based on gjm, although I’ve heard the opposite from tech recruiters desperate to hire lots of women even though there aren’t that many in the “applicant pool”. Maybe this was for other reasons, like PR, or to satisfy other laws (like state laws).
I appreciated John’s story of his workplace culture becoming much worse after harassment complaints, but I still want to know more about how it happened.