Disparate impact discrimination against U.S. citizens?

Has the Equal Employment Opportunity Commission ever sued employers over their disparate impact discrimination against American citizens?

By definition, H-1B visa hiring constitutes 100% disparate impact discrimination against American citizens. A decade ago, American citizen Dana A. Rothrock filed a complaint with the EEOC pointing out that he couldn't get hired for a computer job at the Texas Department of Criminal Justice, which was using H-1B visas to hire Filipinos and other foreign nationals, since he was an American.

On May 28, 2003, the EEOC explained that they were rejecting his complaint because [here and here]:

While Title VII does not prohibit citizenship discrimination per se, citizenship discrimination does violate Title VII where it has the "purpose or effect" of discriminating on the basis of national origin. 

Employment discrimination against a national origin group includes discrimination based on a group of people sharing a common language, culture, ancestry, and/or other similar social characteristics. American is not a national origin group as defined by Title VII of the Civil Rights Act, as amended. ... 

Sincerely,
Roberto Coronado
Federal Investigator

Shouldn't the EEOC's official motto be "Who? Whom?"

My old articles are archived at iSteve.com -- Steve Sailer

Obama Administration's cutting edge of job-killing

From the Houston Chronicle on the Obama Administration's assiduous efforts to make it harder for employers to hire good employees:

P. David Lopez, general counsel for the Equal Employment Opportunity Commission, was in Houston recently to speak before a conference about race discrimination and his agency's efforts to take on large-scale, nationwide investigations. ... 

Q: What are the big, cutting-edge discrimination issues facing the EEOC?

A: We're going through difficult economic times right now. It's important to us to identify discriminatory hiring practices and policies that are excluding people unlawfully from the workplace. 

I think the EEOC is in a unique position to do that. We're able to look at the patterns within a particular employer in a way a private individual isn't. You often don't know why you weren't hired. We can examine an employer's reasons and try to identify if there were any hiring screens. 

We have a race discrimination case out of Chicago (that involved) a contracting company for custodial services. They had a predominantly Eastern European and Latino workforce and the (lack of) representation of African-Americans compared to the availability was statistically significant. They were using either word-of-mouth recruitment practices or relying on certain ethnic press. 

We resolved it for $3 million and approximately 550 people benefited - the people who applied but weren't hired. The consent decree requires the company to actively recruit African-Americans. The whole goal is to make sure it doesn't happen again. 

Another case we filed is a nationwide challenge to criminal arrest and conviction screens. We challenged that as having a disparate impact against African-Americans and Latinos. That is still pending in Baltimore. 

I watched some of The Wire, and thank God the Obama Administration is cracking down on employers discriminating against criminals in Baltimore. These companies will make much higher profits once the Obama Administration forces them to overcome their bias against Baltimore convicts. Who wouldn't want to hire Baltimore's crooks? Didn't President Obama say Omar, the gay gunman, was his favorite character on The Wire? I don't want to be guilty of insider trading, but you should buy Baltimore real estate now, because, obviously, employment in Baltimore is going to boom once the Obama Administration stops all this irrational discrimination against Baltimore's armed robbers and murderers. Who wouldn't want to be an employer in Baltimore once the Obama Administration is in charge of your hiring policy?

Oh, now I notice that this case is "nationwide." The case is pending in Baltimore merely because the Obama Administration just wanted a jury of Wire characters. So, good times are here again ... nationwide!

Another one was filed in Ohio and we're looking at the use of credit reportsto screen out applicants. We allege it has a disparate impact against African-Americans.

Credit checks and criminal screens (were big) in the '70s and '80s and sort of disappeared but with the new economy, employers are adopting these types of employment screens. That is something that has generated a lot of interest at the EEOC. 

Q: Why are more employers using credit scores and criminal convictions to weed out job applicants? 

A: My speculation is that employers are in a position to generate much more interest in jobs and they're looking for shorthand ways to screen applicants. If we're able to establish disparate impact, then it's the employer's burden to demonstrate the hiring qualification is job-related. 

(Employers) say it relates to honesty and performance. But that's where most of the litigation and discussion has centered - whether these screens can really be job-related and a business necessity. 

Q: With so much information available online about virtually everyone, how much checking should an employer do before making a hiring decision? 

A: I think they need to be very cautious doing online background checks. 

There is the potential that if employers do that, certain classes of individuals will be scrutinized more heavily and you'll only look at the Facebook pages of certain applicants. There are potentially disparate treatment implications in doing that.

Speaking of fighting discrimination, shouldn't the Obama Administration be filing disparate impact lawsuits based on job applicants having Facebook v. MySpace pages?

My old articles are archived at iSteve.com -- Steve Sailer

Walmart sex discrimination case

Walmart is the biggest private employer in the world, has the biggest annual revenue, and earns the 9th largest profits. 

The Supreme Court is currently considering whether a massive class-action lawsuit claiming to represent all million-plus female employees of Walmart can go forward based on disparate impact statistics. 

The crude view of discrimination is the standard Who-Whom one, which assumes that of course Walmart pays less to women because Walmart is run by white men, who are evil. 

A more sophisticated view is the Malcolm Gladwellian one. Back in the 1950s, Gary Becker wrote his doctoral thesis for his adviser, Milton Friedman, on how discrimination is economically irrational because it costs the employer profits. If you pay below the market rate, you get lousier employees and customers go away. 

In a section in Blink on how car salesmen charge women and blacks more money, Gladwell added a new level to the U. of Chicago theory: Discrimination happens not because business executives are evil but because their consciousnesses about their biased implicit associations haven't yet been raised by expensive-enough guest speakers at their annual sales conventions. Walmart executives, like car salesmen, are, when you stop and think about it, the real victims here. They're leaving money on the table because they don't realize that they don't realize that everybody is equal, which everybody is, of course. That goes without saying.

In my experience, however, Walmart never leaves money on the table. 

My old articles are archived at iSteve.com -- Steve Sailer

Obama Administration: New Orleans PD not shooting enough whites

From WWLTV:

The [Department of Justice Civil Rights Division's] report found from 2009 to 2010 all 27 incidents of NOPD deadly force were against African Americans, and in 2009  the department arrested 500 black and 8 white males under age of 17, which diverges "severely" from national data.

Disparate impact, I tell you!

In 2000 (the most recent data I can find), the NOPD was 51% black. I can't find anything in the Obama Administration's report on the racial identity of these NOPD police officers they are criticizing. That seems like a bit of an omission for a Civil Rights Division report, no? How often does that division forget to mention the racial makeup of an organization they are criticizing?

What former Mayor Ray Nagin called "Chocolate City" had its first African American mayor in 1978 and its first black police chief about a quarter of a century ago. A residency requirement for cops worked to discourage working class whites from joining the NOPD.The NOPD, which had always been shady, became notoriously gangsta in the late 20th Century.

This part of the Civil Rights Divisions' report on the New Orleans' Police Department report makes interesting reading in light of the Civil Right Division's requirement that the Dayton Police Department hire more marginal applicants(see below):

NOPD hired hundreds of officers during a relatively short time period; one estimate is that 400 officers were hired during the three year period following Katrina. In its press to hire these officers, NOPD reportedly lowered its recruiting standards, essentially removing the physical agility requirement and asking the Civil Service Commission to score the written portion of the application less vigorously.

... At the time of our review, the attrition rate for the latest recruit class was nearly sixty percent. Of the sixty-six recruits that successfully completed the recruitment and background investigation, thirty-nine were eliminated from the training class. NOPD expended thousands of dollars to test, train, and conduct background checks on what were clearly marginal applicants, a waste of funds that NOPD could have better used in a more targeted recruiting process. Nonetheless, NOPD’s decision to eject unqualified candidates before they became officers was the appropriate one. In interviews with NOPD officers at all ranks, we heard the consistent complaint that the Training Academy routinely graduated police recruits who were sub-par and not fit for duty.

Meanwhile, the Obama Administration is working to New Orleansize the Dayton Police Department.

Prediction: Nobody in the Obama DOJ will ever notice the contradiction between their complaints about New Orleans police applicants being scored less vigorously on the written test and their simultaneous demands that Dayton police applicants be scored less vigorously.

That would be HateLogic!

Let me add that the politics of this appear a little byzantine. Federal intervention in the police force was demanded by the new mayor, the first white mayor in 32 years, who was elected after lots of poor black voters were flooded out of the Lower 9th Ward. My guess is that the white mayor's intention is to bring the feds in to stage a quiet coup against a black-dominated institution, but to do it in the name of Civil Rights.

Very clever ... but can this kind of double bankshot maneuver be executed adroitly when nobody is allowed to mention in public what the problem is and only vaguely hint at what the solution is? After all, the Civil Rights Division doesn't have much practice at requiring organizations to grade hiring tests more vigorously. Are Obama's DOJ minions  going to be able to remember that the point of this exercise is to hire smarter, less criminal cops -- i.e., whiter cops? That's not exactly what Civil Rights Division lawyers are trained to do, as Dayton shows. From the report, it looks like the best they'll be able to do is force the NOPD to hire lots of Hispanic and Vietnamese cops. As I said, a double bankshot.

We shall see.

My old articles are archived at iSteve.com -- Steve Sailer

Obama sends sharp warning to employers

The NYT runs a long, mildly gloating article over the Washington Post's Kaplan unit being sued by the Obama Administration for disparate impact job discrimination in a precedent-setting case:

E.E.O.C. Sues Kaplan Over Hiring
By STEVEN GREENHOUSE

Sending a sharp warning to employers nationwide, the Equal Employment Opportunity Commission sued the Kaplan Higher Education Corporation on Tuesday, accusing it of discriminating against black job applicants through the way it uses credit histories in its hiring process. 

With the unemployment rate close to 10 percent, is it really a good idea for the Obama Administration to be "sending a sharp warning to employers nationwide?"

The lawsuit, an unusual intervention by the federal government on the issue, comes amid rising concerns that employers are denying jobs to applicants with damaged credit histories, even in cases where creditworthiness does not appear to be directly relevant to the job...

Private and government surveys have suggested that about half of all employers use credit histories in at least some hiring decisions.

Justine Lisser, an E.E.O.C. spokeswoman, said that credit histories were often inaccurate and might not be a good indicator of a person’s qualifications for a particular job. “Credit histories were not compiled to show responsibility,” she said. “They were compiled to show whether or not someone was paying the bills, which is not always the same thing.”

In the E.E.O.C.’s suit, which was filed in federal district court in Cleveland, the agency said that since at least January 2008, Kaplan had rejected job applicants based on their credit history, with a “significant disparate impact” on blacks.

“This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity,” the commission said. The agency did not specify what types of jobs were involved.

... The company added that it typically conducted background checks on all prospective employees. “The checks are job-related and a necessity for our organization to ensure that staff handling financial matters, including financial aid, are properly screened,” Kaplan said. Kaplan and other for-profit education companies have come under intense scrutiny from the federal government because of concerns that the industry leaves too many students unable to repay large federally backed education loans, while providing them with little help in finding jobs. The Department of Education has proposed regulations that would cut off federal financing to for-profit education companies whose graduates have high debt-to-income ratios and low repayment rates. 

Let me see if I understand this: One part of the Obama Administration says that some of what Kaplan does borders on being a scam (which seems pretty plausible); meanwhile, another part of the Obama Administration demands that Kaplan hire people who on average have worse track records of untrustworthiness.

Sounds like a  plan to me!

The bigger issue is not Kaplan,  of course, but the Obama Administration choosing to make it riskier to hire Americans (instead of outsourcing or insourcing to illegal aliens less likely to sue). Obviously, taking away a tool that firms find profit-making in hiring just discourages hiring; yet, I don't think that's obvious to many people these days when it comes to race, where we've all been taught to shut our brains off and just point fingers at bad people.

The federal lawsuit is seeking a permanent injunction to stop Kaplan’s use of credit histories in hiring and other employment decisions. The agency is also seeking lost wages and benefits for people who were not hired because of Kaplan’s use of credit reports to screen applicants, and it wants Kaplan to make employment offers to those individuals.

Michael J. Zimmer, a professor of employment law at Loyola University in Chicago, said that, under federal law, “if an employment practice has a disparate impact on a certain race, you have a case.” He said that the E.E.O.C. would not have brought the case unless it had reviewed statistics about Kaplan’s hiring.

“I think the issue is going to boil down to whether it’s justified as job-related and necessary for business,” he said. “That’s the defense’s standard in a disparate impact case.”

As I said last month in VDARE, the most obvious area where Obama could use his political capital to boost hiring is by declaring victory in the war on discrimination:

... Obama could announce that his election as President shows that the civil rights war is officially over and it’s time to reap the peace dividend: the federal government can dramatically cut back its persecutions of employers for race-related reasons.

Nothing the President could do with a stroke of his pen would do more to cut unemployment by making it legally safer to hire Americans than Obama announcing that, between now and the 50th anniversary of the Civil Rights Act in 2014, he will lay off most of Equal Employment Opportunity Commission bureaucrats and other federal racial inquisitors.

And the business climate would be immediately improved by Obama abolishing the EEOC’s innumerate “Four Fifths Rule.”

Sure, if Obama declared victory on civil rights, his base would howl. But, that's pretty much how you accomplish something as President: by stabbing your supporters in the back.

Conversely, could a President Haley Barbour abolish the Four Fifths Rule in 2013? Of course not, he'd have to boost pointless enforcement to show he's on the side of the angels.

But Obama actually has an opportunity here for statesmanship, which he's, so far, failing utterly to seize, and public affairs discourse is so braindead over anything approaching race that nobody even notices his chance.

My published articles are archived at iSteve.com -- Steve Sailer