What is most important about many Supreme Court decisions is not what the Justices say but how lawyers react to their words. Grutter v. Bollinger, in which the Court gave its ambivalent blessing to racial discrimination in higher education, had nothing to do on its face with employment practices. Justice O’Connor’s majority opinion based its holding – that the University of Michigan Law School could use race as a “plus factor” in admissions – on the supposedly unique value of “diversity” to legal education, and the companion case, Gratz v. Bollinger, rejected a similar form of “affirmative action” at the undergraduate level. Nonetheless, it was predictable at the time that the principle of Grutter would be simplified to “Diversity trumps nondiscrimination” and would be extended to hiring decisions.
A new article in Workforce Management, a magazine for human resources executives, shows the interpretive process at work (Garry G. Mathiason, “The Plus Factor”). The author isn’t a left-wing theorist but a working lawyer specializing in employment issues, a man whom major companies turn to for day-to-day guidance on how to avoid being sued for their workplace practices. What he says in Workplace Management can fairly be taken as indicative of the advice HR departments are hearing these days from counsel. It shows how Grutter is fostering blatant discrimination and how “diversity”, for all its fuzzy, benign glow, operates as a cruel exclusionary device for those whose only offense is to be better qualified for a job than this month’s favored victim class.
Mr. Mathiason begins by posing a hypothetical situation:
You’re in the office of Rick Garcia, a department manager for the online version of Working People magazine. He is struggling to decide which of two applicants will be hired. One has slightly superior skills and a proven record of performance. The other is also well qualified but has less experience. The first candidate is Hispanic and the second is African-American. Rick’s department is 60 percent Hispanic and has no African-Americans even though the magazine’s editor, Margaret Chen, has made diversity one of the publication’s core values.
As Rick wrestles with the problem, the action before you freezes. You’re in the midst of an online diversity-training program. His dilemma becomes yours as the narrator asks: “How would you advise Rick regarding his hiring decision?”
Thousands of companies are facing such decisions today as they attempt to build diverse workplaces. And since the Supreme Court’s June 24, 2003, decision in Grutter v. Bollinger, the answer to this diversity-training exercise has started to change. Justice Sandra Day O’Connor, writing for a divided court, has approved the careful use of race in educational settings as a “plus” factor in individual selections, recognizing the critical importance of building a diverse student body. Now the time has arrived to consider whether this legal lesson should be applied to the corporate workplace.
After “should” has been finessed with a few paragraphs of praise for the business value of “diversity” (contrast Fay Hansen, “Diversity’s Business Case Doesn’t Add Up”), we are told how to apply the lesson:
If Justice O’Connor’s rationale for law school selection criteria is applied to the workplace, race could be considered in the building of a workplace that honors diversity among qualified applicants. Companies desiring to change the composition of their current staff that have been unable to justify the selection of one well-qualified candidate over another well-qualified candidate may now be able to more openly use race or other “diverse characteristics” as a “plus” factor.
Although at one time they were faltering, corporate diversity programs are now being reborn and structured to mirror many of the criteria used by the University of Michigan LawSchool. . . .
And now let’s go back to the hypothetical Working People magazine, and Rick Garcia’s decision between two qualified but unequal applicants. Should he hire the more qualified candidate, regardless of race? Should he hire the African-American candidate but be careful not to admit that race played a role in the decision? Or should he hire only a qualified candidate but consider the positive impact of improving workplace diversity as part of the decision-making process?
Applying the message sent by Justice O’Connor in Grutter, the last choice becomes the most correct one. Of course, hiring decisions are complex, and review by the human resources and legal departments is always wise in situations that could threaten litigation. Nonetheless, the court has issued a bold legal mandate justifying the use of race as a “plus factor” when choosing between qualified candidates. Many employers are interpreting this mandate as being broad enough to reach the contemporary workplace.
What is breathtaking about this call for apartheid-style thinking is its callousness. The choice for a real department manager wouldn’t be between two hypothetical representatives of ethnic groups but between two human beings, one of whom will be told, if Mr. Mathiason’s recommendation is followed, that his superior experience and qualifications aren’t enough to get hired when pitted against the gauzy abstraction of “diversity”. Why did he bother to acquire experience or qualifications? He doubtless gave up some pleasurable activity for their sake, and they proved worthless in landing a job.
Mr. Mathiason would have, I suspect, a ready answer: The unsuccessful Hispanic applicant need only find an open position for which he will be the “underrepresented minority”. Then he can edge out a white or Asian on the basis of ethnic identity. The job market can turn into a racial spoils system, but the corruption will, at least, be diverse.
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