Sunday, August 11, 2019

Discrimination and the Court (Part II)

If the government could not force affirmative action on otherwise innocent companies, it used coercive measures to make companies comply. One method was to force any government contractor to meet affirmative action policies. Another method allowed the government to set-aside funding (up to 10%) that was used to contract with minority dominated companies. SCOTUS found the latter method constitutional in Fullilove v. Klutznick. Of course, nothing in the Fullilove decision worried about how the program would affect the cost and quality of the work since there was less competition and the fact these types of government programs were generally open to more lobbying, corruption, waste, and fraud to win contracts.

To complicate matters, SCOTUS held in Johnson v. Santa Clara County, that reverse-discrimination affirmative action policies were acceptable to make up for past injustices. Santa Clara County was guilty of discrimination and therefore were allowed to promote less qualified females over more qualified males to make up for past indiscretions. The bottom line is that individuals, companies, organization, and federal agencies should be able to contract with anyone they feel will help them best achieve their goals so long as they do violate the contract and work rights of more qualified persons.

Discrimination laws have extended beyond Title VII. For instance, Congress passed the Age Discrimination Employment Act (ADEA) which protects workers between the ages of 40 to 70. But doesn’t ADEA discriminate against younger persons who may be more qualified to do the job? This may explain why the unemployment rate among younger persons is almost always higher than older persons. Age discrimination is treated by the courts and the government very similarly as race and gender discrimination. For instance, ADEA has a BFOQ exception which generally deals with safety concerns. For example, in many airline cases the Court has upheld a mandatory retirement age of 60 years old for pilots due to safety concerns. To be sure, many people may rather put their lives in the hand of an experienced 62-year-old pilot than one making their maiden voyage. But age discrimination is also very different from race and gender discrimination. No white person can become a black person and generally speaking very few males become females and vice versa. But every young person becomes an older person. Hence corporate age laws are developed by people that all face the same consequences. For this reason, age discrimination makes little sense. The bottom line, debating work contracts which consider color-blindness, gender-blindness, and age-blindness makes more sense than debating controversial and inflammatory age, race, and gender discrimination cases.

Tuesday, August 6, 2019

Discrimination and the Court (Part I)

The Supreme Court interpretation of the Title VII of the 1964 Civil Rights Act progressively moved from preventing discrimination to guaranteeing racial outcomes. In fact, the SCOTUS interpretation of Title VII was vastly different than what Senator Hubert Humphrey notes suggest was the true meaning behind the legislation. Title VII was necessary to end state government regulation used to enforce separate but equal policies on companies and minorities. Title VII was initially successful at reducing government regulations which, in turn, helped increase minority wages and participation in the work force. The gains from Title VII were short lived once SCOTUS and Congress began growing the federal government to guarantee racial outcomes by the early 1970s. The progression of SCOTUS interference is illustrated in the line of cases from Griggs v. Duke Power to Guardians Association v. New York City to Connecticut v. Teal to Watson v. Fort Worth Bank to Wards Cove v. Antonio to name a few of the key cases. To keep up with SCOTUS, Congress passed the Equal Opportunity Employment Act (EOEA) which made hiring and promotion guidelines even more stringent than Title VII. Congress and SCOTUS had one goal and that was to make sure no company practiced discrimination. This is a noble goal, but by placing the burden of proof on defendants to prove they were not discriminating and creating outrageous guidelines for hiring tests and interviewing practices a few things were bound happen. First, many companies not practicing discrimination were incorrectly found guilty of the practice. Second, not only would qualified whites be passed over for jobs and promotions, so too would qualified minorities. Third, even though the government and the Court did not specifically sanction quotas, companies were forced to implement them or face discrimination charges based on precedent and legislative rules. Fourth, the same rules for companies did not apply to government agencies and their hiring practices. Fifth, it increased hiring costs and made companies less efficient. Finally, these regulations stagnated not only minority wages and work force participation but it did the same to poor whites. Yes, Title VII racial discrimination laws and SCOTUS enforcement worked to widen the socioeconomic gap between the rich and poor.

Similarly, Title VII and the EOEA influenced SCOTUS to push for outcomes in gender equality. It was not enough to insure women and men were not discriminated against for jobs they were qualified to work. Instead, SCOTUS pushed for results in cases. For instance, in Diaz v. Pan American Airways, SCOTUS correctly held that Pan Am could not discriminate against men for airline attendant jobs. However, the decision was about balancing gender participation in the airline attendant profession. But why should Pan Am feel compelled to hire non-qualified males to guarantee balanced outcomes in the flight attendant profession? Pan Am should only hire those male candidates that meet their customer service guidelines that women are generally better at meeting. This same standard should apply to women wanting to be a building contractor or deep-sea fisher, they should not be discriminated against if they meet the job qualifications. The bottom line, companies should not be compelled to lower their hiring standards to guarantee balanced racial or gender outcomes.

Title VII does not treat gender the same as race because the law contains the “Bona Fide Occupational Qualification” (BFOQ) exception. Of course, there are many exceptions that may apply to gender and not race such as being a professional football player. In International Union v. Johnson’s Control Inc., SCOTUS held that denying pregnant women the right to work in an area with dangerous levels of lead was unconstitutional. Johnson’s Control merely wanted to protect a fetus from dangerous levels of lead exposure. However, SCOTUS viewed this as Johnson’s Control trying discriminate against pregnant women and held, they should be allowed to work in the dangerous area if they wish to do so. Would SCOTUS hold Johnson’s Control free from liability if babies were being born with deformities? SCOTUS could have easily seen Johnson’s Control as a BFOQ exception to protect both the health and wellbeing of the mother and baby. The bottom line, Johnson’s Control was found guilty for doing what was right.

Similarly, in Los Angeles Department of Water and Power v. Manhart, SCOTUS held annuity pension plans could not be calculated based on the life expectancy for women and men separately. These annuity pension plans had to be calculated together using a unisex formula. Since women’s life expectancy is longer than men, the average annual annuity payouts would be slighter lower for women. Manhart would insure the annual payout for women would be higher. Instead of finding a BFOQ exception, SCOTUS held annuity pensions had to be calculated based on unisex formulas. This holding would be cause for companies to stop annuity pensions (which is what happened) or to stop hiring women because it cost them more for benefits while at the same time it decreased the cost for benefits for men. Manhart is a welfare case because it transfers wealth from one person (men) to another person (women) and there is nothing in Title VII to justify any welfare program. In Gedulig v. Aiello, SCOTUS held that pregnancy did count towards unemployment disability compensation. Since disability compensation was already costing companies twice as much for females than males, SCOTUS found it made no sense to add to that unbalanced cost ratio. Should women be denied more disability compensation and should men dispute the already unbalanced cost ratio favoring women? These are dilemmas raised by attempting to guarantee equality: it is impossible to rationally satisfy everyone

SCOTUS found “voluntary” affirmative action in Title VII where none existed in Steelworkers v. Weber. However, Title VII does allow for affirmative action but only in cases where companies or unions were found to have discriminated against minorities and or women. But there is nothing that permits wholesale affirmative action policy in Title VII. In fact, Title VII was designed to be a “color-blind and gender-blind” statute. What this means is that company decisions to hire and promote were to be made without considering race and gender. Senators Joseph Clark and Clifford Case, who were instrumental in the passage of Title VII, wrote:

There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race.