For educational use only

Heritage Foundation Article

An excerpt from the article by Nelson Lund (The entire article seemed a bit long for this forum)

UNDERSTANDING AFFIRMATIVE DISCRIMINATION

Group-based employment preferences are incompatible with the ideal of equal opportunity that every federal employment statute has claimed to advance. They are also incompatible with the views of the overwhelming majority of Americans. (5) For the same reasons that Congress has quietly accepted the insidious spread of such preferences, however, it will be reluctant to abolish them. Powerful special interests, ranging from civil rights lobbyists and labor unions to significant elements of the business world, will ferociously defend the discriminatory status quo. Legislators who make their stand on the principles articulated by Hubert Humphrey and Martin Luther King, Jr., will be accused of racism, insensitivity, and political expediency. As a consequence, true expediency may tempt them to soften the rougher edges in the current system through cosmetic reforms and empty symbolism, leaving the underlying problem unresolved.

One common perception about affirmative action is that it began as a benign effort to combat discrimination and has evolved gradually into the current system of quotas and preferences. Affirmative action, according to this view, simply requires employers to "cast a wider net" so that members of historically neglected groups can enjoy the opportunity to compete on an equal footing for jobs and promotions. While there is some truth in this view, there also are indications that it was no accident that "affirmative action" became a device for smuggling legalized preferences into the fabric of American life.

In September 1965, for example, President Lyndon B. Johnson issued an executive order requiring federal contractors to agree that they would take "affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." (6) This sounds perfectly innocuous. Only a few months earlier, however, Johnson had said that "equality of opportunity is essential, but not enough." What was really required, according to Johnson, was a transition to "the next and the more profound stage of the battle for civil rights.... We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result." (7)

Whatever the original vision of affirmative action may have been, it soon became a tool for imposing equality of results rather than equality of opportunity. While federal law on its face forbids discrimination against members of any racial group or either sex, this apparently simple principle has been obscured and twisted by a complex web of lies, censorship, doublespeak, and code words. Those whom the law now disfavors can be denied a job or promotion because of their skin color or their sex without being victims of "discrimination" in its new legal meaning. This miracle is accomplished by calling the denial either (a) affirmative action taken to prevent discrimination; (b) an unfortunate side effect of an attempt to cure "historic injustices"; (c) a prerequisite to achieving "diversity in the workplace"; or (d) the result of a presumption of "social disadvantage" for everyone in the preferred racial group.

The dizzying and ever-changing array of intellectual rationales for discrimination has been accompanied by an elaborate code of misleading language. Quotas become "measurable goals and specific timetables." When a job applicant is rejected because of race, it was not really because of his race: it was just that the favored person had his race counted as a "plus factor." Or discrimination isn't really bad unless it is also "stigmatizing" (an effect that apparently can be experienced only by certain legally favored groups). All of this evasive rhetoric has arisen because the underlying practices are so difficult to defend. And because of that difficulty, they are rarely defended. Instead, they often are just carried out covertly. But the discriminatory nature of affirmative action cannot be concealed entirely.

Example: A 1989 poll of Fortune 500 executives indicated that only 14 percent of these firms even claimed to eschew discriminatory preferences in favor of merit-based hiring decisions. A majority of the firms claimed to employ "affirmative action goals," and a full 18 percent acknowledged that they have adopted specific quotas. (8)

Example: In 1990, Max Frankel, who was then executive editor of The New York Times, acknowledged that the standard of excellence that his organization applied to employees depended upon the individual's skin color:

We've reached a critical mass with women. I know that when a woman screws up it is not a political act for me to go fire them. I cannot (easily) say that with some of our blacks. They're still precious, they're still hothouse in management, and if they are less than good, I would probably stay my hand at removing them too quickly. It's still a political act and it would hurt the organization in a larger sense, so you tolerate a little more in the short term. (9)

Example: The state of California enacted a law setting a goal that "by fiscal year 1992-93, 30 percent of all new hires in the California Community Colleges as a system will be ethnic minorities." (10)

Example: After the Philadelphia Inquirer was criticized for an editorial advocating that poor black women be encouraged to use the contraceptive Norplant, the paper's editor announced a quota of 50 percent minorities and 50 percent women for all newsroom hires during the succeeding five years. (11)

Example: The Xerox Corporation has adopted a kind of "hidden hand" alternative to quotas: Annual bonuses are based in part on a manager's success in promoting blacks and women. (12)

Example: The Washington Bureau chief of the Los Angeles Times has announced that no white males will be hired "until we [do] more for minorities and women." (13)

Example: Apparently seeking to increase the "diversity" of its workforce by hiring more women, the U.S. Forest Service's Pacific Southwest Region created "upward mobility positions" limited to "applicants who do not meet the [Office of Personnel Management] qualifications requirements." A Forest Service spokesman defended its amazing search for unqualified workers with the following revealing comment: "On its face, this seems bizarre. However, the intent if not the choice of language was appropriate to the circumstances.... " (14)

Example: On January 20, 1995, Oklahoma City decided to withdraw from the U.S. Department of Justice's Police Hiring Supplement Grant program, under which it had been authorized to hire 25 officers. Police Chief Sam Gonzales objected to a Justice Department letter that demanded an "underutilization analysis" for women and minorities and an affirmative action plan including specific steps to achieve "goals" for correcting the underutilization that the Justice Department assumed must exist. Justice Department officials also demanded that the city develop a specific plan for the "equal employment of women and minorities within the Police Department's sworn personnel." Chief Gonzales commented: "I believe this particular language to be very significant in that it states `equal employment' of women and minorities rather than `equal employment opportunity.'" (15)

End excerpt

I'll let you folks chew on the full article while I head to la biblioteca.

-- Ken Decker (kcdecker@att.net), January 08, 2001

Answers

The Media's Favorite Think Tank: How the Heritage Foundation Turns Money into Media

By Norman Solomon

Based in a spacious brick building a few blocks from the Capitol, the Heritage Foundation is running the most effective media operation in American politics. Heritage has succeeded with a savvy strategy: Raise a lot of money from rich people with a right-wing agenda. Hire writers, commentators and out-of-office politicians who share that agenda, and call them "fellows," "policy analysts" and "distinguished scholars." And, always, back them up with a public-relations juggernaut that's second to none.

The big money came easy. Back in 1973, beer baron Joseph Coors contributed a quarter-million dollars to get the project rolling. Since then, some very conservative foundations and wealthy families have been key benefactors for a soaring budget. Today, Joseph Coors is an honorary trustee, and the board of trustees includes such bluebloods as former Treasury Secretary William E. Simon, Richard M. Scaife, Grover Coors, Jeb Bush and Amway Corp. co-founder Jay Van Andel.

The Heritage Foundation boasts of enormous clout on Capitol Hill--yet insists that it doesn't "lobby," a necessary denial to retain tax- exempt status with the IRS. News outlets of all sizes don't seem to notice the contradiction.

Typical of the routine flood of media mailings sent out by Heritage's PR department was a recent five-page treatise (5/13/96) headlined "Foreign Aid Wins Few Friends at the United Nations." According to a small-type disclaimer, "Nothing written here is to be construed as...an attempt to aid or hinder the passage of any bill before Congress." However, the release itself concluded: "This year, when the U.S. foreign aid budget is scrutinized by Congress as a target for reaching a balanced budget, Congress would do well to cut the program further and seek to abolish the Agency for International Development."

If you have any doubt that the Heritage Foundation is engaged in systematic lobbying, consider the words of Heritage vice presidents Stuart Butler and Kim Holmes, published in the 1995 Annual Report issued in spring 1996:

Butler: Heritage now works very closely with the congressional leadership.... Heritage has been involved in crafting almost every piece of major legislation to move through Congress.

Holmes: Without exaggeration, I think we've in effect become Congress's unofficial research arm.... We truly have become an extension of the congressional staff, but on our own terms and according to our own agenda.

Butler: That's right. As Kim knows, things have been happening so fast on Capitol Hill we've had to sharpen our management skills to take full advantage of the opportunities. There has also been an unprecedented demand on us to "crunch the numbers" for the new congressional leadership.

Given the Heritage Foundation's direct involvement in "crafting" so much congressional legislation, it's ironic that Heritage has been in the forefront of efforts to impose a political gag-rule on certain other nonprofit organizations in the form of the Istook Amendment, which would ban lobbying by any nonprofit that received money from the federal government. (For-profit groups receiving federal money--like the arms industry--would be free to lobby all they wanted.)

Heritage Foundation staffers helped write the Istook Amendment (Christian Century, 8/16/95), testified in favor of it on Capitol Hill widely distributed a printed argument in favor of it, became a source for journalists covering it, and wrote a Washington Post op-ed article promoting it (9/1/95).

Without a hint of irony, Heritage's annual report for 1995 brags that its new Government Integrity Project "helped expose one of Washington's best-kept secrets: that more than $39 billion in federal subsidies is given annually to nonprofit advocacy groups that lobby government. This sparked furious debate all year long on the use of tax funds by special interests."

Greatly aided by its own tax-exemption, Heritage collected $29.7 million in contributions last year, with core funds coming from just a few places: In 1995, a total of 31 checks from donors like the Olin Foundation and the Bradley Foundation accounted for $8.5 million; another 123 donors supplied $2.6 million more.

The Korea Connection

Heritage has a long history of receiving large donations from overseas (Los Angeles Times, 9/5/88), and the annual take from abroad currently includes upwards of several hundred thousand dollars from Taiwan and South Korea. According to a document uncovered by members of South Korea's National Assembly in autumn 1988, Korean intelligence gave $2.2 million to the Heritage Foundation on the sly during the early 1980s (The Nation, 1/23/89). Heritage officials continue to "categorically deny" the accusation. But Heritage's latest annual report does acknowledge a $400,000 grant from the Korean conglomerate Samsung. Another donor, the Korea Foundation-- which serves as a direct conduit of money from the South Korean government--has given Heritage almost $1 million in the past three years (Wall Street Journal, 8/10/95). However, U.S. media outlets rarely allude to Heritage's financial links with Korea--even when such ties are directly relevant.

The New York Times avoided the subject in a news article (3/12/96) about two former South Korean leaders, Chun Doo-hwan and Roh Tae-woo, on trial for the massacre of many hundreds of pro-democracy demonstrators at Kwangju in 1980. The article, by Nicholas Kristof, merely said that the pair's attorney "quoted from a report by the Heritage Foundation, the conservative American research institute, referring to the protesters in Kwangju not as democracy campaigners but as 'rioters.'"

Likewise, a Washington Post dispatch (4/9/96) cited the views of Daryl Plunk, "a Korea specialist at the conservative Heritage Foundation"--but made no mention of the monetary ties between South Korea and Heritage.While quick to quote the Heritage Foundation, major media outlets have not often probed it. But the Wall Street Journal (8/10/95) did take an exceptional look at the Heritage-Korea connection:

Unlike most other think tanks, Heritage not only suggests ideas but actively pushes them in Congress. And in some cases, its legislative efforts would benefit the goals of major donors. Heritage scholars, for example, have drafted specific language for legislation that would help South Korea by encouraging the U.S. to include Seoul more directly in U.S. dealings with North Korea. Meantime, one of Heritage's largest donors, the Korea Foundation, is an affiliate of the South Korean government, according to Yoo Lee, a spokesman for South Korea's embassy here. Heritage President Edwin Feulner says he isn't aware that the Korea Foundation is an arm of their government.

Feulner, the Journal reported, "has taken an active role in promoting South Korean issues in Congress through actions such as testifying before committees to promote the think tank's pro-South Korea positions. Meanwhile, one in six of Heritage's 24 known major donors last year--gifts of $100,000 or more--were Taiwanese or South Korean concerns."

Media Machine

By now, the Heritage Foundation is the most widely cited think tank in the United States (EXTRA!, 5-6/96). Appearing frequently on television and radio, Heritage personnel also generate a nonstop flow of op-ed pieces for newspapers. At the same time, Heritage produces a blizzard of press releases, position papers, news conferences and seminars aired on C-SPAN. For good measure, Heritage headquarters has a radio studio that serves as a convenient broadcast facility for talkshow hosts from around the country who want to beam their live programs home from Washington.

In the nation's capital, many outfits rake in big bucks while trying to affect U.S. government policies. The Heritage Foundation is notable for the shrewd way it spends money: lavishing much of its budget on an ongoing PR campaign that targets news media across the United States. Forty-two percent of Heritage's budget goes to some form of publicity, described as "media and government relations" or "educational programs."

Since 1977, Heritage V.P. Herb Berkowitz and public relations counsel Hugh Newton have coordinated Heritage's nonstop media barrage. Like gunslingers blowing smoke from the barrels of their six-shooters, they're glad to recount how so many notches got in their media belts.

Heritage Foundation became a legendary Washington player in late 1980. "Ronald Reagan's election changed a lot--made us much more important," Newton said in an interview. Berkowitz added: "They rode in, we had the bible ready." The "bible" was a Heritage report-- "Mandate for Leadership"--calling for deregulation of business, deep cuts in social programs and huge spending hikes for the Pentagon. President Reagan adopted it as the blueprint for his administration.

Today, Heritage works closely with the Republican congressional majority. "Heritage is without question the most far-reaching conservative organization in the country in the war of ideas," Newt Gingrich proclaimed in a November 1994 speech.

In its latest annual report, the Heritage Foundation touts its public relations program as "a trend-setter among the world's think tanks-- global in its reach, but focused in its message and methods." As the report notes, "Heritage research is carefully targeted to those who make, interpret, and finance national policy: Congress, the media, and the academic, business and philanthropic communities."

Corporate Ties

Although Heritage's own listing of its trustees identifies most as heads of large corporations, Heritage PR specialists prefer to downplay corporate support. In a letter (5/7/96), Newton informed me that Joseph Coors's donation of seed money to Heritage was "his personal, not corporate money." Newton added that "this past year only 6 percent of our total revenue came from corporations," with that figure presumably based on his narrow definition of "corporate money." (Even then, the claim is difficult to verify, since nine of Heritage's largest current donors "wish to remain anonymous," according to the annual report.)

Newton was also eager to belittle the significance of funding from overseas: "As for Asian money, it comes from corporations with many of the same interests as our American corporate contributors."

Through it all, an aggressive and far-reaching media strategy has been central to Heritage. "The objective in the mission statement is to help change policy in America," Newton said during our interview. "Well, you can't do that by just talking only to 535 people [in Congress]. They often react to what media is saying in their home state." His letter to me declared flatly: "Our two primary audiences are Congress and the media." And, indeed, the Heritage media machine has effectively reached out to reporters and pundits across the mainstream political spectrum.

But in his book The News Shapers, professor Lawrence Soley of Marquette University observes that "among beltway think tanks, Heritage associates have the weakest scholarly credentials." Instead of seeking quality, "the Heritage Foundation appears to strive for quantity"--feeding a glut of material to Congress and the news media. He adds that "the biggest names at this think tank are not thinkers, but former Republican officials." (These days they include Heritage "fellows" Edwin Meese, Jack Kemp and William Bennett, all highly paid for their expertise.) "Given the backgrounds of individuals at the Heritage Foundation, there is little question as to why it is more accomplished at lobbying than research." Soley describes Heritage position papers as "sophomoric."

What the Heritage Foundation does is scholarship in the same sense that military music is music--something to march along with, in lock- step. Author Russ Bellant describes the Heritage Foundation as "less a traditional think tank...than a propaganda center that creates justifications for preconceived positions and then professionally packages the results in a format palatable to politicians and the press."

In his 1991 book The Coors Connection, Bellant predicted that "the Heritage Foundation will continue to be a key element in the phalanx of rightist groups with an agenda of austerity for the poor, hostility to minorities and women, upward distribution of wealth for the rich, economic domination of the Third World, with repression and bloodletting for those who rebel."

Such criticisms don't seem to bother the men in charge of public relations for the Heritage Foundation. They exude pride in the awesome achievements of their superb media operation. Its successes, however, mark journalistic failures. The Heritage Foundation has shown how big money and corporate alliances can make enormous gains in manipulating the nation's main organs of mass media. [And gullible private citizens.]

-- Sophomoric PR as "Scholarship" (the.best@you.can.do?), January 08, 2001.

I too find it diffficult to believe that he considers the Heritage Foundation to be a good source.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 08, 2001.

Tarzan:

The best you can do is quote someone else trashing the messenger? I believe we can safely assume that you can't argue with the message, since given the opportunity, you conspicuously fail to do so.

Tell us, Tarzan. In what way is Lund wrong? Cut 'n pasting a whole lot of stuff that says "look over there" isn't going to distract anyone who is really interested in YOUR position on these matters. So far, you flunk badly.

And I am really curious how you respond to the actual message. Remember the message? Lund wrote it.

-- Flint (flintc@mindspring.com), January 08, 2001.

White House Executive Order 11246 of 1965 (AKA ‘Affirmative Action’)

This was but one of LBJ’s ‘Great Society’ legislation’s and like the whole package did not turn out too well. Of course, to be opposed to continuing this farce will bring forth cry’s of ‘racist’ from the liberal left. Tough shit.

Affirmative action is guilty of robbing the very soul from those it supposes to benefit. They spend the rest of their lives knowing that they were not ‘good’ enough to secure the job position or university acceptance on their own merits. Only the intervention of the government allowed them to be ‘selected’. Of course, for each of ‘them’ a more qualified individual was denied, simply because ‘they’ were not of the proper race or sex. Sure makes for a harmonious attitude towards the minorities, aye? Lyndon Johnson was a criminal scumbag if ever there was, and a democrat to boot. For his own personal political gain, he sold our country down the sewer and we must now reverse his actions and heal the wounds.

-- Barry (bchbear863@cs.com), January 08, 2001.

Flint-

I would have thought it would be obvious, even to the ignorant (that would be YOU Flint) that this article is little more than this man's opinion and rhetoric. There is very little of substance in the article itself, just a few examples of abuses done in the name of affirmative action but not actually involving an honest-to-goodness affirmative action plan. Don't you find that ironic? He's tossed out a few hyperbolic examples , many of which have been reversed for quite some time, such as the US Forest Service policy and others which were never in effect in the first place, such as the Philadephia Inquirer and LA Time policies, to support his opinion that affirmative action is a tool for imposing results rather than opportunity, and yet these examples themselves don't actually involve affirmative action plans.

Once again, and slowly, for your benefit, calling something affirmative action doesn't make it affirmative action any more than calling a group of men an army unit makes those men an army unit.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 08, 2001.

Tarzan:

I'm hoping that between you and Ken, you will clear up some of my admitted ignorance. I'm not stupid, I can see spin from both sides.

My own experience does bias me. I got a Master's Degree in government from a prestigious school, and applied for work (25 years ago). I was even *invited* to apply for jobs in government, provided I did my homework, researched the job and its requirements and prepared a plan to follow.

When I didn't get these jobs, I asked why. I complained that it took a lot of time to do the research and prepare the plans. And I was told that for quota reasons, I was simply *not qualified* for the jobs. However (here's what really NARKS me!) they invited me to apply because those whom they were required by quota to hire had no clue what to do, and my plans were so well researched and written that they used them to guide the new minority hires!

Now, to you this might not count as "evidence" of preferential hiring practices. To me, this is incontrovertible. When I asked what I could do to actually qualify myself for a job, I was told (in all seriousness) that I could legally change my name to Hernandez and I'd be hired on the spot! They even had *guidelines* for name-changing for qualified applicants (i.e. WASPs) to follow!

Now, you can't tell me this didn't happen to me. I fought against it for TWO YEARS, then returned to college, got another degree in math and computer science, and found work immediately in the private sector. My experience predisposes me to consider affirmative action to be a strictly results-oriented process. There are quotas. They are real. I've seen even in the private sector that firing a minority person is a political act, legally dangerous.

No, I don't have the big picture. But so long as you deny my own experience, I must doubt you have it either.

-- Flint (flintc@mindspring.com), January 08, 2001.

Why, Tarzan, do you think I went to the trouble of entitling this post, "Tarzan v. Eve?" For the record, I don't write for the Heritage Foundation nor do I use Nelson Lund as nom du plume. I thought the article was interesting and might provide a useful in allowing you and Eve to continue your discussion... at least you don't have to wait a minute for the old thread to load.

Perhaps you could do me the courtesy of waiting for my position on affirmative action and then attacking me.

Insofar as the source, I read conservative and liberal rags. The articles in The New Republic and Dissent offer the same type of op-ed style... complete with personal opinions. And I don't think the media or academia are pristine sources... want to compare economic writings between the University of Chicago and the U Mass Amherst?

-- Ken Decker (kcdecker@att.net), January 08, 2001.

When I didn't get these jobs, I asked why. I complained that it took a lot of time to do the research and prepare the plans. And I was told that for quota reasons, I was simply *not qualified* for the jobs. However (here's what really NARKS me!) they invited me to apply because those whom they were required by quota to hire had no clue what to do, and my plans were so well researched and written that they used them to guide the new minority hires!

You suffered under an abuse of affirmative action from twenty-five years ago. The system has changed considerably since then. I don't wish to minimize your situation, but you can't compare one organization's misapplication of affirmative action procedures from twenty-five years ago to all affirmative action and EEOC plans today. To do so is the equivalent of southern blacks claiming egregious, systemic discrimination based on the former existance of Jim Crow laws.

My experience predisposes me to consider affirmative action to be a strictly results-oriented process. There are quotas. They are real.

With all due respect, if you actually see quotas in action, please go to the EEOC. Quotas are illegal and whistle-blowers are covered under federal law.

I've seen even in the private sector that firing a minority person is a political act, legally dangerous.

You know, ALL firings are a politcal act and every time you fire someone you open yourself to legal danger. My company has never been subject to an EEOC suit, but we have three suits currently pending in California where we didn't give the employees their final paycheck on their last day. This is against state law. We're getting sued and will probably lose.

No, I don't have the big picture. But so long as you deny my own experience, I must doubt you have it either.

Oh please. I could completely validate your experience and you would still regard me with doubt. You are so committed to your point of view that to consider any other is impossible. You are suffering from a meme.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 08, 2001.

Why, Tarzan, do you think I went to the trouble of entitling this post, "Tarzan v. Eve?"

Because you wanted to watch a debate?

For the record, I don't write for the Heritage Foundation nor do I use Nelson Lund as nom du plume.

For the record, I never said you did.

I thought the article was interesting and might provide a useful in allowing you and Eve to continue your discussion... at least you don't have to wait a minute for the old thread to load. Perhaps you could do me the courtesy of waiting for my position on affirmative action and then attacking me.

And perhaps you could do me the courtesy of actually waiting for me to attack your position before accusing me of attacking it.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 08, 2001.

Tarzan:

[You are suffering from a meme.]

No, I'm a conservative in the sense of a liberal who got mugged. I know that at the time, this situation was not unusual or exceptional. I also know that I have seen less of it in the private sector. I once lived down the block from a small machining company that hired a black woman for the tool crib, and went broke when she wouldn't hand out any tools (didn't feel like getting up, y'know), and the company was sued by every civil rights group in the city when they tried to fire her. Killed the company. But that was also over 15 years ago.

If things have greatly changed in the interim, I'd be glad to read about it. Indeed, I'm hoping that some real, current information gets presented here, from all viewpoints and with lots of links. From what I have seen offhand (some news reports, some magazine articles) affirmative action still exists, and it is NOT color blind by definition. As I wrote earlier, if it does ANYTHING it is ipso facto discriminatory. If affirmative action has been rendered obsolete by EEOC's utterly unbiased requirements, I wasn't aware of it, and neither are those who support the industry Ken mentions.

But I'm open to real information. As things stand, if you are correct than an awful lot of businesses are very stupid. If it's a meme to observe what's happening and draw logical conclusions, then I'm glad to have it.

-- Flint (flintc@mindspring.com), January 08, 2001.

If things have greatly changed in the interim, I'd be glad to read about it. Indeed, I'm hoping that some real, current information gets presented here, from all viewpoints and with lots of links.

Here's something for you. From the 1979 Code of Federal Regulations on Labor, Section 1607.17:

The goal of any affirmative action plan should be achievement of genuine equal employment opportunity for all qualified persons. Selection under such plans will be based upon the ability of the applicant(s) to do the work. Such plans will not require the selection of the unqualified, or the unneeded, nor will they require the selection of persons on the basis of race, color, sex, religion, or national origin.

In 1975, the discrimination you suffered was legal. By 1979, it was not.

From what I have seen offhand (some news reports, some magazine articles) affirmative action still exists, and it is NOT color blind by definition.

OF COURSE affirmative action exists! Affirmative action plans are utilized by the EEOC to prevent lengthy court cases. It is enacted to remedy current discrimination. Contrary to popular myth, it is not any preference plan in existance, but only those developed in conjunction with EEOC guidelines and personnel. .

If affirmative action has been rendered obsolete by EEOC's utterly unbiased requirements, I wasn't aware of it, and neither are those who support the industry Ken mentions.

Affirmative action is not any plan a company implements. This is a common misconception.

But I'm open to real information. As things stand, if you are correct than an awful lot of businesses are very stupid. If it's a meme to observe what's happening and draw logical conclusions, then I'm glad to have it.

An awful lot of businesses are stupid about an awful lot of subjects, regardless of affirmative action. What you're observing is a certain amount of fear and hysteria often fostered by those with an ax to grind. It's Y2K FUD all over again. Someone who stands to make money off fear of the EEOC starts a business, then some tin-pot commentator with an ax to grind throws in some lurid examples of non- affirmative action preference programs and presents them as affirmative action. Others pick up the cry and say something silly like, "MY GOD! This is the greatest threat to American business of our time! Why, EEOC complaints have risen 7% in eight years!" and someone else decides to write a few articles on it, promting others to get in the business, yada yada yada.

Why do you think I am so insistant on hard data? Inductive reasoning is useless if you only look at evidence that supports one point of view.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 08, 2001.

Tarzan,

Rarely does a law not have a lofty purpose. The real question is not what noble thoughts fill the legal tomes, but the real life consequences of legislation.

"The (employment) laws are based on wonderfully vague terms such as "wrongful firing" and "reasonable accommodations," terms that are sweeping in scope, are open to limitless interpretation, and derive power from the employee's ability to take management to court. (Walter K.) Olson points out that employment law is, in fact, the fastest-growing area of litigation in the United States, with job- bias suits increasing more than twentyfold since the mid-1970s." -- SHRM Book Review

Continuing from the same review...

"...the cost of simply bringing a case to trial is likely to exceed $100,000. Olson cites one widely referenced survey showing that median awards in sex and handicap discrimination cases amounted to $100,000, and age discrimination cases, $200,000. Further, a 1988 survey indicated that awards for sexual harassment and defamation averaged $375,000. With this in mind, the author concludes that employers are generally finding it hazardous to hire, fire or promote employees."

The "hard data" is that lawsuits against employers are growing and they are expensive to fight (and worse to lose.) I suggest this is why many employers choose to settle rather than undergo the expense and publicity of litigation.

The odds of getting hit with a employee lawsuit are relatively low. The costs, however, can be pretty high (see my Texaco example). The costs are far more than the straight legal fees, but include the damage to public image, increased regulatory oversight and a negative impact on a firm's ability to recruit women and minorities.

One might argue this fear, rational or not, makes equal opportunity initiatives more effective... sort of like IRS audits. Chances are you'll get away with fudging on your taxes... but there's Hell to pay if your caught.

Is it stupid to consider the possibilty your tax return might be audited?

You are using a narrow, legal definition of affirmative action. To me, it seems Flint is using the phrase to describe the formal and informal incentives for firms (public or private) to consider gender and race in hiring decisions. To you, it's hysteria... and you can run your company accordingly.

As with Y2K FUD, the market will separate the "smart" from the "stupid," at least in the private sector. Those companies that "blow" money on lawsuit avoidance will be punished with lower profits... just like the individual consumers who bought hardened concrete bunkers.

-- Ken Decker (kcdecker@att.net), January 09, 2001.

Hi Ken -- thanks for the "invite". I haven't had a chance ro read this thread thoroughly yet, but I'll probably want to join y'all when I do.

-- eve (eve_rebekah@yahoo.com), January 09, 2001.

Ken-

Frankly, I'm surprised that you would quote someone else's opinion on a book you've apparently never read. This is third hand information, the equivalent of "Martha said that John said that Joe thinks..." I am also surprised that you would use anonymous statistics and imply that they are hard data. I am glad you've tempered your position to your suggestion.

Admittedly it is indeed unlikely, but potentially expensive, to deal with a lawsuit. The problem is, does the fear of litigation affect the cost-benefit analysis of hiring, disciplining, and firing employees? If you make a claim that it does, as you did on a previous thread, you must be prepared to present hard evidence.

It is certainly not stupid to prepare for the possibility of an IRS audit. Likewise it is not stupid to prepare for the possibility of an EEOC investigation. However, letting the fear of an audit or an investigation overwhelm your business and prevent you from making certain decisions would be foolish.

You claim that I am using a narrow definition of affirmative action. Quite frankly, I'm using the legal definition of affirmative action. Calling any preference plan affirmative action is as accurate as calling all sodas "Coke", something we do here in the south, as in "Can I get you a Coke?" "Sure," "What kind do you want?" "Orange," In the south, the word Coke means any soda, but when you get right down to it, Coke is the drink, Coke, not Pepsi, not Orange Crush, not Mug Rootbeer. Unless you are drinking from a can that says COKE on the side, in white letters on a red background, you aren't drinking a Coke. Likewise, if you run into a preference program that wasn't developed and executed within EEOC guidelines with EEOC knowledge and approval, it isn't affirmative action.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 09, 2001.

"Tarzan vs. Eve"? Sounds like an Ed Wood film.

-- Bemused (and_amazed@you.people), January 09, 2001.

Tarzan,

Anytime I use someone else's work, I try to provide the appropriate credit. I have only started a review Olson's work, but thought the SHRM quote was well phrased. If you'd like, I can move the sentences around and write a similar opinion. I'm also digging for the hard data you desire. The data on the increase of lawsuits and the costs is available, but do be patient.

Proving that litigation impacts the cost-benefit analysis of personnel decisions is a bit like "proving" the fear of audits influences how one does one's income taxes. I think the intuitive argument strong enough to move the debate beyond "if" to "how much." Of course, feel free to disagree.

It would be easier to discuss this without your chronic use of hyperbole. There is a difference between "influencing a cost-benefit analysis" and "letting fear ... overwhelm your business and prevent you from making certain decisions." I have not argued that businesses are paralyzed with fear... simply that most are aware of the costs and risks of employee litigation. Businesses routinely consider costs and risks in decision making.

I suggest the existence of human resources departments, personnel policies, etc., provide de facto evidence of an awareness of legal liability. As noted, I suggest the existence of training, consulting and legal services, books, manuals, tapes, (i.e., a market) demonstrate a level of concern. Since businesses are spending money on these goods and services, by definition, these expenses have increased the costs of personnel decisions.

While I take lunch, here are some data (and opinions):

"57% of respondents' companies faced employment-related lawsuits within the last five years." Society of Human Resource Management

"Each year U.S. employees file more than 40,000 federal and state discrimination suits--a 2,200 percent increase in the past two decades. The most alarming news: Employers lose nearly 60 percent of employee lawsuits, with verdicts averaging $167,000, plus $40,000 in legal fees." The Portland Business Journal

"The number of wrongful termination lawsuits in the late 1970's was about 200. The number of lawsuits a decade later had grown to 25,000. And the trend continues to accelerate in the 90's. The average termination lawsuit is currently settled for $600,000 and companies lose 64% of these cases." Staying Out of Court by Rita Riser

"A survey of 450 top HR executives and in-house lawyers conducted by Jackson, Lewis, Schnitzler & Krupman, one of the nation's leading employment law farms, confirms the increase in lawsuits. Three out of five human resources people responding to the firm's 1995 survey said their companies are being sued by an employee, an increase of 10 percent over the last two years. "Our practice has grown by 35 percent in the past year because of the increase in litigation," says management lawyer Martin Payson of the firm's White Plains, New York office." HR.COM

"Nearly 40% of all lawsuits new filed in federal court are employment related." Mindy Farber, LLB

"Before 1991, successful plaintiffs were generally entitled to recover lost wages, reinstatement to their former jobs and a reasonable attorney's fee. And these cases were generally decided by a judge (without a jury). Then in 1991, Congress amended the 1964 Civil Rights Act to permit jury trials in employment-discrimination cases and authorized the recovery of additional emotional distress and punitive damages. In one fell swoop, Congress significantly increased the incentive for disgruntled employees to sue and HR professionals to lose many more nights' sleep." Why "Jury" Is A Four Letter Word by Matthew T. Miklave

"U.S. companies spend an estimated $200 million to $300 million a year on diversity training, yet lawsuits filed by women and minorities rise annually." HR.COM (I wonder if Greg Caton managed to sell $200 million in Y2K survival soybeans?)

Interesting Litigation Statistics

Before I go, I think you miss my point. Flint and you will be talking in circles until you agree on a common defintion.

Back to my sandwich... for some reason, soup didn't sound particularly appetizing today.

-- Ken Decker (kcdecker@att.net), January 09, 2001.

Tarzan,

I posted to you this morning on the other thread. Let me know if you want to continue our "conversation" on that thread or would prefer this one. I'll go either way. With threads, I mean. :)

-- eve (eve_rebekah@yahoo.com), January 09, 2001.

Ken:

Good idea. As you've tried to say, I've been referring to ANY attempt on the part of ANY government agency to modify the incentives to change hiring, promoting, and firing practices in ANY direction.

Clearly, this encompasses far more the narrowest possible interpretation of EEOC policy. For me, it even includes giving preference to minority owned businesses when the government goes out for bids on something.

Now, maybe the term "affirmative action" is not properly applied to the constellation of government efforts to encourage increased participation of favored minorities in economic activity generally. Maybe "affirmative action" technically means some very specific EEOC policy. In that case, I'm willing to change terminology to whatever allows us to address the issue of government-encouraged discrimination.

I notice that rather than recognize the general topic being addressed, Tarzan is content to hide behind the letter of specific laws and attack anyone who's interested in the overall reality. I've noticed Tarzan can look at whole industries full of smoke and deny any possibility of a fire.

I admit I'm not real impressed when Tarzan demands hard evidence, you provide a list of actual, real instances, and Tarzan rejects them on the grounds that they are being cited by someone with whom he disagrees! One gets the impression that supplying hard evidence *in and of itself* disqualifies that evidence because only right-wingers would do such a thing. And then we're back to "where's the evidence"?

Does this strike you as evasive? Does defining "affirmative action" as a specific clause of a specific law and hiding behind it strike you as evasive? Does admitting the enormous cost of litigation and yet denying you have a shred of evidence that this cost influences any decisions strike you as evasive? Does responding to specific allegations with empty personal attacks, without a word addressing the allegations, strike you as evasive?

I think Tarzan is working so hard at evading the subject for some good reason. I wonder what it really is.

-- Flint (flintc@mindspring.com), January 09, 2001.

Proving that litigation impacts the cost-benefit analysis of personnel decisions is a bit like "proving" the fear of audits influences how one does one's income taxes.

If you couldn't prove it, why didn't you say so in the first place?

I think the intuitive argument strong enough to move the debate beyond "if" to "how much." Of course, feel free to disagree.

So you want to move beyond the realm of hard facts to intuition. I guess that trip to the library wasn't so productive after all. Well, there's no shame in admitting when you've come up empty. I have not argued that businesses are paralyzed with fear... simply that most are aware of the costs and risks of employee litigation.

No, you said they FEAR litigation. Not "are aware", but "fear". If you want to temper your position, that's okay.

I suggest the existence of human resources departments, personnel policies, etc., provide de facto evidence of an awareness of legal liability.

Actually, companies have had HR departments and personnel policies long before the EEOC and affirmative action were on the scene. I guess back at the turn of the century they were aware of the legal liability of discrimination, right?

Anyway, HR departments are devoted to programs that involve employees, from recruiting to outplacement, and everything in between, such as benefits, 401K, and employee development.

As noted, I suggest the existence of training, consulting and legal services, books, manuals, tapes, (i.e., a market) demonstrate a level of concern. Since businesses are spending money on these goods and services, by definition, these expenses have increased the costs of personnel decisions.

The same argument could be made for COBRA, OSHA, and changes in the H- 1 visa law. At the same time, you could argue that the proliferation of a non-union workforce and the lowering of employee expectations as regards to PTO, benefits, and pensions have decreased the cost of personnel decision. What a bullshit way to attempt to support your point.

"57% of respondents' companies faced employment-related lawsuits within the last five years." Society of Human Resource Management

Ah yes, I remember this study. It was quite controversial in SHRM circles because of how poorly it was executed. This survey is of limited value because it defined employment related litigation as including,workers compensation and wrongful death suits, in addition to disputes over employment per se, and because the employers covered by the survey were self-selected (in other words, not a true representative sample). I know you can do better than that.

"Each year U.S. employees file more than 40,000 federal and state discrimination suits--a 2,200 percent increase in the past two decades. The most alarming news: Employers lose nearly 60 percent of employee lawsuits, with verdicts averaging $167,000, plus $40,000 in legal fees." The Portland Business Journal

AND ANOTHER uncredited quote. Not only do you not cite the date or name of the article, you don't even mention which Portland the quote comes from. Come to think of it, without knowing the date, one can't even tell which two decades are under discussion. Does this pass for acceptable in KenWorld?

Anyway, it's another misleading statistic. The number of suits FILED by the EEOC bears little resemblance to the number of cases which reach LITIGATION. For instance, as you can see from this page (which I'm too lazy to hyperlink), the number of charges filed is in the tens of thousands each year.

http://www.eeoc.gov/stats/charges.html

And from this page, you can see that the number of EEOC cases actually reaching litigation has not reached more than 500 for any single year between 1992 and 1999.

http://www.eeoc.gov/stats/litigation.html

"The number of wrongful termination lawsuits in the late 1970's was about 200. The number of lawsuits a decade later had grown to 25,000. And the trend continues to accelerate in the 90's. The average termination lawsuit is currently settled for $600,000 and companies lose 64% of these cases." Staying Out of Court by Rita Riser

Can you provide some more detail on this one, as in where these statistics come from? We can track EEOC lawsuits through their numbers, but even you must admit that private lawsuits are difficult to track, particularly out of court settlements. According to the National Center of State Courts, 96% of all civil cases are settled without a trial. Moreover, as you probably know, the details of most settlements are sealed. So where does Riser get her statistics?

"A survey of 450 top HR executives and in-house lawyers conducted by Jackson, Lewis, Schnitzler & Krupman, one of the nation's leading employment law farms, confirms the increase in lawsuits. Three out of five human resources people responding to the firm's 1995 survey said their companies are being sued by an employee, an increase of 10 percent over the last two years.

Here's another instance where lawsuits are not differentiated. We're not certain if they're harassment suits, wrongful death suits, or worker's comp suits. I'm sure I don't have to explain the problem to you.

"Nearly 40% of all lawsuits new filed in federal court are employment related." Mindy Farber, LLB

"While employee lawsuits make up approximately 15% of all federal lawsuits, the majority of these cases are shown to have no merit and are either dismissed or settled," Rober Reich, Secretary of Labor.

"U.S. companies spend an estimated $200 million to $300 million a year on diversity training, yet lawsuits filed by women and minorities rise annually." HR.COM (I wonder if Greg Caton managed to sell $200 million in Y2K survival soybeans?)

Interesting. Although I couldn't find any articles on HR.com that actually discussed diversity training, I did find this little gem.

"Although there are many misconceptions regarding the EEOC and affirmative action programs, successful lawsuits are not as common as you might think. In fact, according to labor deparment estimations, following the 1991 change in the Civil Rights act, employee lawsuits have increased at roughly the same rate as growth in employment... in fact, employers may have more to fear from being sold outdated, overpriced training packages than from a large jury award," HR.com

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 09, 2001.

Barry-

One of my favorite LBJ quotes is "When you got 'em by the balls, their hearts will follow." No question LBJ was from the old school and played the game of politics well, even though, in some cases, his decisions have not borne out to be correct, historically speaking.

-- Aunt Bee (Aunt__Bee@hotmail.com), January 09, 2001.

Ken:

I do not believe Tarzan is interested in observing the facts, but rather in obfuscating them away. If Tarzan observed someone chasing someone else down the street while swinging a club, to hear him tell it, it would never cross his mind that the first person was running away from the club, much less in fear. Purely circumstantial, no proof whatsoever, nope, sorry, not good enough!

And yes, there's a bunch of smoke, and right underneath it is a fire, but can you *prove* that the fire is causing that smoke? No? Didn't think so. No evidence at all, just intuition.

Given this level of denial, how can you ever hope to move on to such hopeless notions as chilling effects, or single factors altering an equation with multiple variables? Forget marginal costs. Tarzan won't see ANY costs, much less costs at the margin.

I can see why Tarzan reacted as he did to the suggestion he become a military denialist. How can you describe the subtleties of the real world to someone who denies the obvious with a straight face?

I still wonder why he'd take such a position, though. Surely we haven't achieved such perfection that any change would make things worse? Maybe Tarzan realizes that, as Lund argues so cogently, the only way to keep doing what we're doing is to deny we're doing it. It's a sad policy we must defend by pretending it's not in force, and treating any and all direct evidence with evasions, denials, redefinitions, and out of hand dismissals.

We are watching bankruptcy in action.

-- Flint (flintc@mindspring.com), January 09, 2001.

Tarzan,

You still have not taken my advice about not wasting bandwidth by cutting and pasting snippets from my earlier post. Once more, exercise a bit of courtesy just say what you will. Trust me, it won't interfere with your ability to condescend.

The trip to the library was fine. I have no doubt I will be able to prove my points... at least to a reasonable person standard. It will take me some time to find empirical evidence to support my thesis... and a reasonable person.

What I am debating now is whether I am inclined to continue the discussion given what I consider your sarcastic and unpleasant manner. I don't mind you disagreeing with my points, or even mocking my lunchtime Internet factoids. Hey, I haven't dug into the serious business or economic journals yet.

In short, Tarzan, why the "bullshit" attitude?

Why hack on my factoids and then serve up an unlinked, undated, unattributed HR.COM opinion quote in response? Where is your proof that there are misconceptions regarding the EEOC? Cite your studies. Show me the data. How can the anonymous author know what "you" think. What labor department estimates? DOL? On what is this estimate based? How are employee lawsuits defined? What employment growth data is used? Is this EEOC data or private civil suit data? Where is the proof that employers should fear "outdated, overpriced training packages?"

I'm curious enough to continue my reading, but I'm losing interest in continuing this discussion. Why don't we part in a mutual lack of admiration?

-- Ken Decker (kcdecker@att.net), January 09, 2001.

Flint,

I agree. You can't prove social science questions like physics. At best, I'll find some survey data that shows businesses worry about employee lawsuits. Tarzan will simply reject the survey and/or state that businesses are acting "irrationally." Unless employers are willing to be absolutely candid about their fear (and in my experience, few are), we have to "prove" fear by other means. Pre- rollover businesses acted sanguine, but spent a boatload of money on Y2K. Would they admit they were scared. (They did... of lawsuits) If I wanted to prove businesses were scared about Y2K, I'd use the same method... look at how businesses spend money and how the markets look. One of the reasons I relaxed about Y2K was the lack of success of Y2K remediation firms. Law firms specializing in employee litigation seem to be doing quite well.

Personally, I think Tarzan is a warmed over Y2K poster who thought you and I were terribly unkind. I think his goal is to goad us as much as possible in return for our sins. We may have hurt his feelings once upon a time. I also suspect he is a human resources person who really thinks his narrow legalistic interpretation is reality.

Ah, well, the opposite of love is not hate, but indifference.

-- Ken Decker (kcdecker@att.net), January 09, 2001.

I do not believe Tarzan is interested in observing the facts, but rather in obfuscating them away.

As soon as Ken actually brings up a fact, I'll observe it. He has simply brought up conjecture to bolster his opinion.

And yes, there's a bunch of smoke, and right underneath it is a fire, but can you *prove* that the fire is causing that smoke?

Actually, all Ken has produced are a bunch of people who smell smoke. Now the smell of smoke can be produced by a lot of things, clogged or polluted heating ducts, someone smoking a cigarette in the next room, a loaf of bread that was left in the oven too long. Ken would have us abandon the house simply because someone smelled smoke rather than find out the actual cause. I can hear him now, "Three people smelled smoke, therefore we can use inductive reasoning to prove there's a fire,"

How can you describe the subtleties of the real world to someone who denies the obvious with a straight face?

Oh man. That's exactly the argument that Denis, Diane, Yourdon and the rest of the doom crew used. It was obvious to them that Y2K was going to be TEOTWAWKI and it's obvious to you that affirmative action is any program you care to name. You used to rail against what was "obvious" to that crowd. Now you use the "obvious" as your ally. Looks like you abandoned your critical thinking skills the day after the rollover.

I still wonder why he'd take such a position, though.

Because as you've proven, many otherwise reasonable people have been fooled by popular myth into believing the EEOC and affirmative action are something they are not.

Ken-

You still have not taken my advice about not wasting bandwidth by cutting and pasting snippets from my earlier post.

I cut and paste so there is no confusion as to what I'm discussing. If you're concerned about your words being posted multiple times, I suggest you consider them carefully the first time around!

I have no doubt I will be able to prove my points... at least to a reasonable person standard. It will take me some time to find empirical evidence to support my thesis... and a reasonable person.

Oh, I get it. The problem is not that you haven't provided any quantifiable evidence, it's that I'm not reasonable. Sure Ken. Whatever you say.

In short, Tarzan, why the "bullshit" attitude?

Because you disappoint me, Ken. On Y2K, you were very capable of providing reams of well-supported documentation. You argued cogently and patiently in the face of what was obvious to the masses. You backed yourself up consistantly and thoroughly with logic. I lurked on the original Timebomb board and on the other board, in part because I admired your posts. I even used them to help persuade my relatives not to waste money on a generator or a cabin in the woods that would serve as nothing more than a Y2K fortress. You were a very persuasive poster. And yet, with regards to this issue, you seem completely incapable of supporting your position with anything like hard research. You seem to have a certain inability to think objectively about the equal opportunity laws and programs. The fact that many of your quotes have spoken about employee litigation as a WHOLE and not equal opportunity lawsuits in particular speaks volumes as to that point. As you should know, there are several laws and agencies employees can file under, EEOC being only one of them. Yet you lumped them all together, making the same sloppy mistakes the FUD meisters made pre-Y2K.

The irony of the whole thing is that I agree that employers should be aware of the law, and I agree that the 1991 change to award monetary damages created an incentive to lawsuits which has lead to more litigation. I agree with you in part. However, you simply haven't shown that those laws have affected the cost-benefit analysis of hiring, disciplining, and firing in any quantifiable way. You've been talking around that point for days now. I wish you'd either come up with some sort of hard evidence or back off the point. In either way, I'd still have some respect for you. But to simply toss out other people's unsubstantiated postions and pretend that they're part of an inductive case to prove your point, man, that's just sad.

I don't know what happened between December of 1999 and January of 2001 to make you such a sloppy researcher, but whatever it was, I'm sure glad it happened after rollover.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 10, 2001.

I also suspect he is a human resources person who really thinks his narrow legalistic interpretation is reality.

I'm not an HR person. I'm in IT, but the software we develop and work with is very HR driven, so I have to know my way around the law as it stands today, not twenty-five years ago. Unfortunately, I don't have the luxury of "accepting the obvious", I have to find out the truth.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 10, 2001.

Tarzan,

I think you mistake me for Charles Reuben... the true provider of "reams" of data.

My arguments about employer fear of lawsuits is quite similar to my arguments on Y2K. During the Y2K debate, I did not cite a single academic journal. I used a minimal amount of statistics... and readily admitted that I could not prove Y2K would not be significant problem. Read my first article entitled "Y2K and Risk."

Repost of Y2K and Risk on the Spinoff Forum

By your standards, I could have never proven Y2K would have a modest impact. The requisite data and analysis were not available. All I had was anecdotal evidence and inductive reasoning. For example, I noted that there was not a surge of insider stock selling in 1999 and concluded that company insiders (including CIOs) were not overly concerned about rollover. I had no hard data on this observation, no survey, no study, no peer review.

I observed the low stock prices of Y2K remediation firms. I found the wages for programmers had not skyrocketed per some predictions. The data on Y2K spending varied. Public and private entities seemed to be spending money on "Y2K," but on what? My experience suggested IT departments were using Y2K as a cash cow for needed (or wanted) system upgrades. Some of the money spent seemed meant to demonstrate "due diligence" to minimize litigation. There were reports of businesses "afraid" of Y2K lawsuits, but no definitive study.

I had the same arguments with the Y2K doomsayers as I am having with you. I pointed to the NERC, and they (rightfully) suggested the NERC was not an objective source. Much of the data were self-reported and the doomsayers rightfully questioned the validity. Survey data actually suggested small businesses were not ready for Y2K. My response was not quantitative but inductive... I trusted the motive of self interest to ensure small businesses were "Y2K ready." According to Yourdon's software metrics, this was not possible. My counter-argument was not empirical... but that remediation was not the same as software development.

The doomers rejected my arguments with an attitude strikingly similar to yours. And I never did meet their standard of "proof." Nor am I likely meet yours.

I am not sure enough "hard" research exists on the subject of employer fears of litigation. I suspect some of the data comes from firms with a vested interest in promulgating fear... the Y2Knewswire phenomena. I also suspect firms are not entirely candid about employee litigation. I doubt firms spend $200 to $300 million per year on "diversity training" because they think it's a really swell idea. I imagine some of the motivation is "CYA." "Hey, your Honor, look at the money we spent promoting diversity."

I look into the marketplace and look at businesses spending money on activities that seem designed to minimize employee litigation. As with Y2K, I am not sure if the fear is rational or not... but the expenditures suggest some level of concern. The fear of litigation permeates every element of business decision making. (No, I can't prove it but I have some contracts on my desk that weigh a couple of pounds.)

Oh, and my argument is not limited to "those laws." My statement was that the fear of litigation influenced the cost-benefit analysis of hiring, disciplining and firing. The context of the conversation was gender and racial discrimination, however, my statement was meant to include age, disabilities and other employee litigation related to personnel decisions.

I find it curious that you found my Y2K arguments compelling while you reject the same style with employee litigation. I reject this notion that if I cannot produce the data within your short time frame that I am "sloppy." Hey, reject my Y2K arguments as inadequate. I don't mind. I may have been right by accident. Reject my inductive reasoning... but lighten up on the attitude.

-- Ken Decker (kcdecker@att.net), January 10, 2001.

My statement was that the fear of litigation influenced the cost- benefit analysis of hiring, disciplining and firing. The context of the conversation was gender and racial discrimination, however, my statement was meant to include age, disabilities and other employee litigation related to personnel decisions.

You might have a case if you had actually mentioned any issue other than equal opportunity before. However, this is the first time you've mentioned anything other than race and gender. For the record, here's what you said:

Directly and indirectly, public and private employers are forced to act carefully in hiring, discipling and firing workers. Gender and race matter in the workplace.

Gender and race. Not worker injuries, not pregnancies, not unionisation, but gender and race.

The issues surrounding race and gender, including litigation, have made employers cautious in dealing with employees. Justified or not, employers are concerned about dismissing a woman or minority employee because of the threat of litigation (and the attendant negative publicity). This threat of legal action effects the cost- benefit analysis of hiring, disciplining or firing employees.

Once again, race and gender, nothing else.

Try this for your own edification... go on a few job interviews. When the ask you why you are leaving your old job, tell the interviewer you are suing your former employer for discrimination.

Discrimination. Not wrongful death, not workplace injury.

We have laws that give preference to a Harvard-educated African American woman from a wealthy family over a white male high school dropout. Gender matters. Race matters.

Gender or race may not matter to you in your particular position, but it does matter to many American workers and businesses. Have you ever managed a contract with an MBE/WBE requirement? Have you ever been investigated by the EEOC? Have you ever been sued for discrimminatory hiring practices? These things happen every day... you want more links?

You have consistantly framed your own argument in the context of race and gender. Now you want to pretend that this entire time, you've been talking about other grounds for litigation too.

It's almost as though you want to re-write history.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 10, 2001.

(sigh)

Gender and race are the most common forms of discrimination in the workplace... but, amazingly, I realize bias against age, disability and other intrinsic characteristics exists. Pregnancy is directly related to gender... although I can't quote you a study that proves only women have babies.

I notice that you completely ignore any point you cannot easily dismiss. My Y2K arguments that you allegedly admired are no different than my arguments here... and your style is no different than the Y2K doomsayers. Rather than make an honest attempt to engage in discourse, you nitpick, demand and mock. The tactic is to keep one's opponent on the defensive and avoid actually making a real counter-argument. I'm tired of the disappointed headmaster act, Tarzan, particularly after a year of "Big Dog" Lipton.

My thread on California Employment Law is a little good-bye present for you. If I have or haven't provided sufficient proof, so it goes.

-- Ken Decker (kcdecker@att.net), January 10, 2001.

Ken:

I have to laugh. You present a complex, documented, nuanced argument. Tarzan takes half a sentence from ALL of this, out of context, and focuses *entirely* on misrepresenting it. I called this evasive, and understated the case drastically.

I explained that I was talking about ANY government program that attempted to change the economic position of favored groups (I gave minority-owned businesses as an example), and Tarzan continues to claim I'm only talking about a specific clause within EEOC law, simply ignoring everything else.

You'd think it would occur to him that one can't make a case by running away from the argument and hiding. Thanks for the material you've posted. Something Tarzan claims doesn't exist sure has attracted a lot of attention, cost a fortune, and put roadblocks in the path of an awful lot of people. Definitely worth reading and thinking about, for anyone not committed to avoid either.

-- Flint (flintc@mindspring.com), January 10, 2001.

Gender and race are the most common forms of discrimination in the workplace... but, amazingly, I realize bias against age, disability and other intrinsic characteristics exists.

Oh come on. First you limit your entire argument to race and gender (while I talked about types of discrimination protected by equal opportunity), then you tried to claim that you were actually talking about all grounds on which employee litigation can be based, although perhaps you didn't realize that other grounds of litigation are covered under other agencies and sets of laws. NOW you try to pretend you weren't actually talking about just two forms of discrimination but all forms of discrimination. This of course begs the questions of why didn't you mention any other forms of discrimination and why post a bunch of info about general employment related lawsuits if you were only concerned about equal opportunity bias?

Pregnancy is directly related to gender... although I can't quote you a study that proves only women have babies.

You really aren't very good at this, are you? While gender bias is covered by the EEOC and affirmative action, pregnancy is covered under the FMLA.

I notice that you completely ignore any point you cannot easily dismiss.

Actually, I was starting to feel sorry for you. You've turned yourself inside out trying to make an argument that is unsupportable, then, when that didn't pan out, trying to alter your stance to show you didn't make the argument you made.

Rather than make an honest attempt to engage in discourse, you nitpick, demand and mock.

How can you discourse with an opponent whose so lazy that he quotes uncited sources and unsubstantiated studies? I mean come on, Ken. How can you expect someone to discuss an article which lacks an author, a date, or even a location of publication.

You can't be serious. Or maybe you are. In which case, I was wrong about you. The tactic is to keep one's opponent on the defensive and avoid actually making a real counter-argument.

Frankly Ken, you failed to produce a single argument that was anything other than a chimera. I kept hoping you would come up with something, but instead, all you found were more opinions.

I'm tired of the disappointed headmaster act, Tarzan, particularly after a year of "Big Dog" Lipton.

And I'm tired of your mental masturbation. You were asked repeatedly to either put up or shut up. You could do neither. How very, very sad.

My thread on California Employment Law is a little good-bye present for you. If I have or haven't provided sufficient proof, so it goes.

It's certainly heart warming to watch you change your argument so drastically. Short of an admission that all you had was theory and conjecture, it's the best present I could have gotten. Thanks!

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 10, 2001.

And here comes Flint, playing the part of towel boy to the bloated, defeated boxer.

I called this evasive, and understated the case drastically.

Given your tenusous hold on the issues, I consider this a compliment. When somebody's opinion becomes the equivalent of hard data, give me a call.

I explained that I was talking about ANY government program that attempted to change the economic position of favored groups (I gave minority-owned businesses as an example), and Tarzan continues to claim I'm only talking about a specific clause within EEOC law, simply ignoring everything else.

Oh no, now you're lying too! Oh, what a surprise.

I never actually characterized your opinion, sport. This entire discussion has been about real and actual affirmative action, not "what Flint considers to be unfair". I thought by saying that three or four times, it would have sunk in. Apparently, I've overestimated you as well.

You'd think it would occur to him that one can't make a case by running away from the argument and hiding.

I only see one person running here, Flint, and that's Ken, who's argument has changed three times now. Although you may disagree with my position, at least it has never changed and has remained internally consistant. Unlike like Ken's amusing "the argument I made is not what I was talking about... and that last statement I made wasn't what I meant to say either" routine.

Something Tarzan claims doesn't exist sure has attracted a lot of attention, cost a fortune, and put roadblocks in the path of an awful lot of people.

Oh, another funny from Flint! I never claimed that affirmative action doesn't exist, nor did I claim that employee litigation didn't exist, nor did I claim that non-sanction and possibly illegal preference programs not exist. Your whole argument is hinged on lying about my position. You should have left the table when you were dismissed, young man.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), January 10, 2001.

Flint,

I'm glad you found the research interesting. Gary Becker (1992 Nobel Prize in Economics) has some interesting microeconomic theories on discrimination in the workplace. Becker argues that a competitive marketplace will ensure the eventual elimination of nonrational discrimation because firms that bear the additional expense of a "taste" for prejudice will be less profitable.

Becker also argues that the best remedy for disparities is to invest in the human capital of women and minorities... particularly early in life. By the time we are adults, the return on investment in areas like nutrition, education, etc., is much lower.

For me, the answer is not to impose regulatory burdens that increase the marginal cost of labor. The unintended consequence of affirmative action (broad definition) is to make women and minorities more "expensive" to hire, in part, because of the perceived risk of litigation. Since the passage of the ADA, the percentage of disabled workers has actually declined. Becker suggests a straight hourly wage subsidy to the seriously disabled. This would lower the marginal cost of these workers and create an incentive for hiring... as long as the gov't could keep the paperwork under control. Instead, we have vague, litigation-friendly legislation that increases the marginal cost of disabled workers.

Ironically, the people who have benefited the most from affirmative action legislation are the lawyers and consultants....

Tarzan... what part of "good bye" don't you understand? We're done here. I see apples; you see oranges. This is not uncommon... and I really don't mind as long as the disagreement is civil. You cannot manage a paragraph, however, without some insult or snide remark. Now that you have made your opinions perfectly clear, perhaps you can find some other thread while Flint and I continue our discussion....

-- Ken Decker (kcdecker@att.net), January 10, 2001.

I am an HR person but I'm not a frustrated one. Tarzan has acted like a smug jerk but he is correct on affirmative action. I think he's stuck to a strict definition of affirmative action because there is a strict definition of affirmative action out there, it's not just another management concept that's open to interpretation. There are racial preference programs out there that people call affirmative action but they aren't actually affirmative action. If I were judging this debate Tarzan would get points for being accurate but he'd lose those points for being a jerk. Ken would get points for interesting articles but he would lose points for not addressing the question at hand. I'd call it a draw.

For the record my company has 800 employees and revenues of 60 mill. We spent $15,000 on divesity training last year. We sent our employee development person to a few EEOC sponsored seminars and now we have her conducting internal training. This is roughly the same amount of money we spent on our intern program. Our biggest expenditure is recruiting not affirmative action training. We've had a couple of employee sponsored lawsuits in the last couple of years but they didn't go anywhere. As far as I can tell from my local SHRM colleagues this is pretty typical. most are aware but not paranoid.

-- Alice in Wonder Bra (alice@wonder.bra), January 10, 2001.

Alice,

If you don't mind, I would like to ask you a few questions. In your work in human resources, are you or your colleagues ever influenced by race or gender in making personnel decisions? Do you worry about lawsuits? Do you spend time doing work to minimize lawsuits? Have you seen a woman or person of color not fired or disciplined because management was worried about a lawsuit?

As you have read, I think managers worry about employee lawsuits. It's not affirmative action but the idea that a disgruntled employee can find an attorney and the next morning you are reading a newspaper article about a discrimination or wrongful termination lawsuit against your company. In my experience, this fear of lawsuits has let some employees slide when other employees were disciplined and even terminated for the same behavior. I hope you work in a more fair, progressive environment.

-- Ken Decker (kcdecker@att.net), January 10, 2001.

Alice:

You certainly sound less frustrating to deal with. I admit I wasn't aware that "affirmative action" referred to a specific, delineated regulatory program. Apparently my crime was using the term improperly to refer to preference programs in general. I'm willing to change terminology, so long as we can agree that there are preference programs, whatever they might be called, and that these programs *really do* influence hiring, firing, discipline, promotion, etc. I think this is a necessary starting point before we can possibly discuss the nature and impacts of such influence, and since impacts are the entire goal of preference programs, they are worth considering. That's a promising start.

-- Flint (flintc@mindspring.com), January 10, 2001.

In ten years I can honestly say I've never seen a personnel decision that involved race or gender. During layoffs we have given employees who are over forty an extra two weeks severance so you could say that we've given preference to age but that's also the law not our policies. I don't worry about lawsuits I feel confidant enough that we are not discriminating and can prove it that its just not really a concern. We don't have any lawsuits to minimize. I have never seen an employee of any race or sex kept on or not disciplined because of fear of a lawsuit. I've never even heard of that happening. If an employee is underperforming and you can prove it you don't have a thing to worry about, but you must be prepared to back yourself up with documentation.

I have no idea why you seem so worried about affirmative action and discrimination lawsuits then turn your attention to all employee litigation. Workmans comp claims are much more of a headache than EEOC claims and very different. Why do you lump them together? I think thats what made Tarzan lose it.

My biggest headache is recruiting. Getting people in quickly who know what they're doing and who aren't ax murderers or drug addicts. We spend a lot more time worrying about the integrity of our hiring process (at least with background checks, references and drug tests then we do EEOC issues.

I do quite a bit of networking and just haven't seen concerns about diversity or even general lawsuits come up that often. Most companies are more concerned about recruiting, retention, and productivity than they are getting the right diversity mix. Its hard enough to get qualified people in the first place!

-- Alice in Wonder Bra (alice@wonder.bra), January 10, 2001.

I don't see how you could have missed that point Tarzan was harping on it pretty hard from the get go. Non affirmative action preferance programs would seriously walk a thin line between legal and illegal. Anyway it doesn't sound like you want a conversation but that you want me to agree to your point. I hate to take the same stand Tarzan took but I've never even met anyone who had a non sanctioned preferance plan let alone seen one in action. I've been at this for ten years I network extensively and I'm an active SHRM member. Come to think of it, I've never even heard of anyone advocating a non- sanctioned preference plan, so I don't think I have much to add to the conversation. I guess I can kind of understand why Tarzan went off the deep end, since this is the one subject every non-HR person wants to talk about when they hear your a people-pusher but honestly I don't see what all the fuss is about. There probably are some nonsancctioned affirmative action plans but I think the whole issue has been sensationalized. Anyway I'm not interested in being drawn into a pissing match and since this is what I do ten hours a day it doesn't hold that much fascination for me I just thought I'd weigh in before going to bed.

-- Alice in Wonder Bra (alice@wonder.bra), January 10, 2001.

Alice,

It sounds like you work for a wonderful, fair business. My professional experiences have not been as uniformly positive.

Personally, I'm not worried about affirmative action lawsuits. What I said was that the fear of litigation influences the cost-benefit analysis of hiring, disciplining and firing employees. If you'll read my post entitled "The Economic Effects of Employment Law...," you'll see that there is research that concludes that California employment laws have resulted in the loss of jobs. The research focuses on the broader category of wrongful termination, but clearly a significant percentage of wrongful termination lawsuits involves allegations of discrimination.

The real issue is the erosion of the legal concept of "employment-at- will." Changes in employment law, including those we can loosely call affirmative action, have given employees increased grounds for litigation... and increased incentives to litigate.

The Rand study cited in the "California" research states that 83 percent of corporate executives say the fear of a lawsuit influences their decisions. Another study in the thread attributes the increase in jury verdicts is directly related to the increase in discrimination cases.

I think the research is valid, although obviously not compelling enough for Tarzan. Please feel free to point out any errors you think the authors made in the research. I provided the links to the source documents.

Oh, and with all due respect to human resources staff, I think the question is one of microeconomics.

-- Ken Decker (kcdecker@att.net), January 10, 2001.

Alice,

My frustration is that HR people and microeconomists speak in two different languages. I have no idea what a "non affirmative action preference program" would be. (Yikes!) I don't know who "sanctions" plans or what they require. Tarzan kept bringing up these legal affirmative action plans and the EEOC.

Discrimination-based lawsuits are a far broader issue than the EEOC and "affirmative action" programs. I am not arguing that employer are running "stealth" affirmative action or preference programs. Instead, I am arguing that employers are reacting to changes in the legal environment like the Civil Rights Act of 1991. Changes in legislation have given employees a greater ability to sue employers for more reasons and more money.

I don't think employers are setting up programs or telling the HR department, "For God's sake don't fire any Blacks in accounting!" I think the process is far more subtle. It's not unusual for a CEO to say, "Let's do a better job of recruiting women and minorities." I have heard from a nonprofit agency head, "We have to remember different cultures have different attitudes towards time" in response to an employee's tardiness. I have heard fellow managers express concern about the lack of women or persons of color in different divisions... and I have seen a woman promoted because the lack of men in a "management team."

This behavior has nothing to do with the EEOC or "affirmative action." The driving forces are an honest desire to promote diversity and sensivitity and to avoid the ugly spectre of a lawsuit. Do you think any CEO wants to read about a class action discrimination suit against his firm?

Enough for one evening... sleep well.

-- Ken Decker (kcdecker@att.net), January 10, 2001.