June 7, 2007

Is EEOC Backpedaling?

The U.S. Equal Employment Opportunity Commission has issued a new letter on the language appropriate for colleges to use in their job advertisements — a topic that critics of affirmative action have been pushing higher on the EEOC agenda. The new letter does not bar colleges from indicating that they welcome female or minority applicants for positions, but the letter uses language that critics of affirmative action see as a move in their direction. And the letter specifically endorses the use of language that does not indicate a particular welcome to certain groups.

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Some critics of affirmative action see the new letter as providing them with ammunition to potentially bring complaints against colleges for the way they recruit faculty members and other professionals. But defenders of affirmative action say that the critics have their facts and analysis wrong, and that colleges should go on doing what they have been doing.

At issue is a practice used by many colleges. In job announcements, many institutions state that they are equal opportunity employers or that they do not discriminate on various bases and then go on to say that they welcome applicants from particular groups. Such lines might say: “Female and minority scholars are encouraged to apply.”

Proponents of including such language say that it sends a message to potential applicants who are not white men that they are wanted — even if a department is made up largely of white men. But critics of affirmative action have been challenging such language as discriminatory. As soon as a college names some groups as being desirable, the college is effectively rigging a search, they say. The issue has come to a head with a series of letters sent by affirmative action critics to the EEOC and by a debate about the American Economic Association’s policy — since reversed — of refusing to post such job announcements.

An EEOC letter last year suggested that such job announcements were legal. “The commission has long endorsed focused recruitment as a lawful means of guarding against barriers to employment opportunity. Because members of groups that have been historically underrepresented in a particular profession may be deterred from applying unless they are encouraged to do so, such advertisements help employers attain greater diversity among their applicants. Such diversification is not equivalent to preferential hiring. If whites or men are underrepresented in some positions, it might be appropriate to ‘encourage’ applications from them. For example, in some cases it may be appropriate to encourage men to apply for some positions in nursing,” the 2006 letter said, largely echoing the views of colleges.

The new letter, written in April and just posted by the EEOC on its Web site, takes a different approach, responding to an inquiry from Roger Clegg, president and general counsel of the Center for Equal Opportunity, which opposes affirmative action. The new letter references last year’s letter — but with different language to describe it — and then goes on to deal with a question from Clegg about what he sees as a better way to indicate an open environment for all applicants.

“We commented that job advertisements typically should not indicate a preference based on race, sex, or ethnicity. We noted that there are circumstances under which focused recruiting is used in order to eliminate barriers to employment opportunity and attract a more diverse applicant pool. We also noted that the legality of a particular practice cannot be assessed outside the context of particular facts that have been fully investigated,” the letter said.

“Of course, there are different ways to develop a diverse applicant pool and particular circumstances will determine which methods are both lawful and efficacious. You suggested that a way for employers to signal that they welcome applications from all individuals without regard to race, color, religion, sex, or national origin, but without indicating a preference for any group, would be to use language such as the following: ‘Men and women, and members of all racial and ethnic groups, are encouraged to apply.’ We agree, and such a statement is lawful regardless of the surrounding circumstances, even if an employer had no need to diversify its applicant pool,” the letter added.

EEOC letters such as these are not binding law, but the agency releases letters that it thinks may provide guidance to the public on the agency’s thinking.

In an interview, Clegg said that the new letter had a significantly different tone and approach to policy. By saying what should not happen “typically,” Clegg said, the EEOC is signaling that most ads should not reference particular racial or ethnic groups. Even where the letter notes that in some circumstances, “focused recruiting” may be appropriate, the language is much less favorable, he said. And by endorsing his language, Clegg said, the EEOC was strengthening the position of those who don’t want references to some groups in job announcements.

Clegg said that while he would have preferred to see the EEOC go further, he found the latest letter to be “significant” and to indicate that the agency was sending a message to colleges that “most of the time, you shouldn’t be doing this.”

The Center for Equal Opportunity, which has in the past informed the U.S. Justice Department of affirmative action programs that the center believes are illegal, and which has prompted the department to go after such programs, may now be in a position to do the same on college job announcements, Clegg said.

Clegg said he had no problem — and in fact considered it “laudable” — for colleges to state that they will not discriminate, and to punish any employees who do so. And he said he had no problem with colleges “casting a wide net” by recruiting at historically black colleges or making sure that they move “beyond the old boy network.” But he said that there is no legal justification for extending a particular invitation to members of specific groups — but not all groups — to apply. He said that he sees “an irony” in colleges extending such invitations right after they pledge not to discriminate.

“Most schools have not been discriminating [against female or minority applicants] for decades, but have been seeking out if not granting outright preferences to women and minorities,” he said.

EEOC officials cautioned against reading too much into the letters, which are written in response to specific questions. Chris Kuczynski, assistant legal counsel at the agency, said that what is legal for a college to say “depends on a full investigation” and that the latest letter should be viewed as “a response to a particular formulation of the language and saying that this is an acceptable way to make the point.” As is always the case, he said, “what is legal is a matter of particular facts and circumstances.”

Defenders of affirmative action said Wednesday that they had no problem with the language Clegg proposed and that the EEOC endorsed, but that they believed it was still not only legal — but responsible — for colleges to note their interest in receiving applicants from members of groups that might not be well represented in certain fields or areas of responsibility.

Marshall Rose, director of the Office of Equity and Diversity at Bowling Green State University and a board member of the American Association for Affirmative Action, said that critics of affirmative action were “reaching for an issue that doesn’t really exist.”

There is no reason for the EEOC to be concerned about this issue, Rose said, because no one is getting hurt. “There are no issues in regard to white males or whites generally not getting employment in higher education or not showing up in application pools because of these statements,” Rose said. “It’s ridiculous.”

Rose also said that there are important reasons for colleges to state specifically some of those that they welcome. An ad on Bowling Green’s Web site, for example, states: “We are committed to a multicultural environment and strongly encourage applications from women, minorities, veterans and persons with disabilities.”

“We have to go back to why it’s important for us to be doing any of this,” Rose said. “We have real issues of discrimination, as we look at our society and we know that there are members of our society who because of their race and gender have not been included, and that continues to be the case. Despite some good efforts over the years, we are not representative of the communities we serve and we need to reinforce to those communities that are not represented that we are welcoming places for them, that we want them here — that’s a message that ought not to be discouraged, but ought to be encouraged.”

He added that such language does not hurt anyone. “It’s not a promise of employment — it’s a promise that they will be fairly and equitably considered,” he said. “The suggestion that somehow white males in particular are being discouraged is ludicrous.”

— Scott Jaschik

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Comments

Here’s a solution for the Marshall Roses:

Let Marshall Rose (and the academic deans and department Chairs who promote retribution for an historical wrong through discriminating against white and male applicants) resign and hand over their own jobs to members of “historically underrepresented” groups. Not only is the basis of their policy decades out of date, but their hypocracy is insufferable.

aitatxua, at 8:30 am EDT on June 7, 2007

War is Peace, Discrimination is Meritocracy

I’m old enough to remember a time when organizations with names like “Center for Equal Opportunity” were in the business of fighting for inclusion rather than exclusion. I’m also old enough to remember a time when the EEOC was not intimidated by interest groups that wanted to set the clock back to 1950. It is shameful that we are even debating the legitimacy of a statement that does nothing more than welcome and encourage applications from members of underrepresented groups.

I know that the foes of affirmative action, the honest ones anyway, would like to live in a society where merit was the basis for all rewards. So would I. But I also know that racism is an active barrier to meritocracy, as are economic discrimination and underfunded schools. As long as these problems remain unaddressed, affirmative action will bring us closer to true meritocracy than will simply wishing and pretending while our elite colleges and universities get whiter and whiter. When the athlete on the outside lane of the track (an undeniable victim of discrimination) is given a starting position ahead of her rivals, everyone recongizes that this bolsters, rather than diminishes, meritocracy. Fortunately, conservatives, bigots, and libertarians (NO, they’re not all the same people) do not administer track meets.

Unapologetically Tenured, at 8:40 am EDT on June 7, 2007

Whoa!

This idea will do more harm than good, in the long term. My religiously-affiliated school ALREADY uses explanations from hiring officers that candidates (who successfully pass through departmental hiring committees) are a “poor fit” for the mission, just because that candidate may have had a publication (as far back as1988) on an inappropriate topic (fill in any morally controversial topic in the news today—gay & lesbian studies, stem cell funding, multiculturalism, abortion, Marxism, feminism, even global warming—if you’ve done one, you’re done). Any college with a non-public mission will thus be able to write ads that are coded to NOT enhance diversity. As well, hiring decisions in such institutions lean on tiny ideological oligarchies that flag candidates found objectionable on PERSONAL levels. The process insures that new hires be part and parcel of the current warp and woof of the institution, rather than stretching the canvas. Any gains in racial and gender diversity could be threatened if ideological diversity is not part of the formula. Allowing focused searches may benefit minorities in large public universities, but in my landscape, such language would be good news for white males.

Daedalus, at 10:40 am EDT on June 7, 2007

To Unapologetically Tenured

Obviously there is a lot in your posting with which I disagree, but let me just ask you this narrow question: Wouldn’t the statement that I suggested and that the EEOC has endorsed—i.e., “Men and women, and members of all racial and ethnic groups, are encouraged to apply"—satisfy your desire to “welcome and encourage applications from members of underrepresented groups"? And it would do so without suggesting that applications from some groups are more welcome than those from others.

Roger Clegg, President and General Counsel at Center for Equal Opportunity, at 10:40 am EDT on June 7, 2007

Is EEOC Backpedaling? Is Clarence Thomas A Dogged Conservative?

Is the EEOC really systematically defunding it’s field offices, building giant backlogs of cases, receiving increased numbers of complaints each year and reducing minority staff at its Washington headquarters?

Did President Bush really just nominate a judge to the U.S. Court of Appeals, 5th Circuit who ruled in favor of a social worker who was rightfully fired for calling a black colleague “a good ole nigger.”?

Is Dick Cheney really still being paid a deferred salary from Halliburton, and has Halliburton’s stock really doubled during the Iraq War? Or did it triple?

Note to Writer: This isn’t Fox News. It’s OK to follow a story to a conclusive, objective end, rather than asking tentatively, for fear of not presenting a “fair and balanced”

perspective, whether an agency named for equal opportunity could actually have the audacity to brazenly roll back rights. It’s not a secret anymore, it’s happened at every unit of federal government, and it’s OK to spell it out.

Phil, at 10:55 am EDT on June 7, 2007

aitatxua

Aitatxua, for your information Marshall Rose is a member of a historically under-represented group. He has worked tirelessly at BGSU to ensure that no one is discriminated against and everyone is treated equally and fairly. I applaud his efforts.

TA, at 11:45 am EDT on June 7, 2007

To Mr. Clegg

You ask:

“Wouldn’t the statement that I suggested and that the EEOC has endorsed—i.e., “Men and women, and members of all racial and ethnic groups, are encouraged to apply"—satisfy your desire to “welcome and encourage applications from members of underrepresented groups"?”

No, Mr. Clegg, it would not. Your statement, read literally, simply encourages human beings to apply. While that might dash the dreams of, say, a scholarly inclined shetland pony, it does nothing to welcome and encourage applications from members of underrepresented groups.

A more specific and direct statement reminds women and minorities that the campus in question values diversity. As the article suggests, it also tells such applicants that they should not be discouraged by the fact that a given department may be primarily (or entirely) white and male. It reassures members of underrepresented groups that even elite colleges may be viable employment options. And, yes, it also makes the bold statement that, within the limits of the law, the university in question will do everything it can to ensure that the gender, racial, and ethnic composition of its faculty will not betray the enormous sacrifices made during the Civil Rights era.

Finally, Mr. Clegg, if I may, I’d like to ask you a question: If your preferred policies were implemented, and the proportion of, say, African American faculty members declined precipitously, or even stayed very low, would that trouble you at all?

Unapologetically Tenured, at 12:10 pm EDT on June 7, 2007

Reply to Unapologetically Tenured

There’s no doubt about it: You and I want different things. I want equal opportunity (hence the name of my organization, which puzzles you), with the best person being hired; you want equal results (i.e., a predetermined racial, ethnic, and gender mix), with the use of preferences if that’s what it takes. Fortunately, the law and the overwhelming majority of Americans are on my side.

Roger Clegg, President and General Counsel at Center for Equal Opportunity, at 1:35 pm EDT on June 7, 2007

It is ludicrous to posit that “encouraging applicantions from women etc” is somehow disadvantaging white males from applying.Watering down the language on employment ads is the first (small) step back to the days when ads were filled exclusively by word of mouth or who you knew, and when no thought was given to addressing issues of under-representation in the workforce and/or having our workforce be reflective of the real world. As our workforce becomes more diverse, and as we encourage young people to get their education so they can get better jobs, I can’t believe that there are those who feel threatened by wording which merely encourages qualified persons from under-represented groups to apply to a particular employer. Won’t it be wonderful if the day ever comes when employers won’t need to use that language, because their workforce doesn’t reflect any under-representation in its ranks?

Marta Santiago, at 1:35 pm EDT on June 7, 2007

For Mr. Clegg

I will take your response to my question as a “no".

As to what I want, it’s really very simple. I want equal opportunity that acknowledges the objective reality that some people already have built-in advantages over others. I want equal opportunity that understands the blindingly obvious truth that results do matter. I want equal opportunity that asks what we can do to mitigate disadvantages, rather than what we can do to enshrine privilege into the law. I want equal opportunity that doesn’t turn the entire Civil Rights movement on its head with the risible suggestion that white males are somehow the real victims in our society. In short, I want equal opportunity that recognizes that merit, whatever it may be, is a hopelessly endogenous variable, and that any definition of merit that systemically favors the wealthy and white over those who have often worked harder and come farther is meaningless.

Given the Supreme Court rulings in the Michigan cases, it is unclear at best that you have the law on your side. And all sorts of odious viewpoints have dominated American public opinion over the years. It’s really nothing to be proud of.

Finally, I am no more puzzled by the name of your organization than Winston Smith was when he contemplated the Ministry of Truth.

Unapologetically Tenured, at 2:15 pm EDT on June 7, 2007

Another reply to Unapologetically Tenured

If you want to make special consideration for applicants who are “disadvantaged,” fine—but don’t presume that all “underrepresented minorities” and women are disadvantaged, and don’t presume that all whites (and Asians) and men are rich people of privilege. As for “odious” viewpoints, I remind you that you are the one who wants to treat people differently based on their skin color and what country their ancestors came from.

Roger Clegg, President and General Counsel at Center for Equal Opportunity, at 3:30 pm EDT on June 7, 2007

Minorities are also men or women

Granted this is a picky point but since all members of racial and ethnic groups are also either men or women, let’s have it read:

‘Men and women, INCLUDING(not “and") members of all racial and ethnic groups, are encouraged to apply.’

Richard Reis, at 4:06 pm EDT on June 7, 2007

Marta Santiago, I must confess I don’t fully understand what the phrase “disadvantaging someone from applying” really means. However, I suspect the concern that some people may have when faced with an advertisement specifically welcoming, say, woman, to apply is that they, non-woman, in this case need not apply as the employer has decided he or she wants a woman in the advertised position.

To be frank, I would tend to agree. Someone who went out of their way to specify an interest in woman would tend to place an added value on the quality of being a woman and so a man would be at a disadvantage. I would equate it to an advertisement stating that “Latvian speakers” or “MBA holders” are encouraged to apply. These would not be interpreted as requirements for the job but who would not infer that people with these attributes would have a leg up? Ms. Santiago, I feel you are a bit naive then, if you think that the ad in question more times than not merely indicates an urge for woman to apply and certainly so if you believe people are unjustified in thinking otherwise.

I believe that it is wrong to bog discussion of this issue in whether or not an equal opportunity exists. Discussion should instead be on whether or not these actions can be justified. I believe that statistics (take my word or not that these exist) will back up many situations that warrant an edge for certain classifications of people and I support them. For my part, I still prefer that a case-by-case justification, even if only internally, be done before starting an affirmative action program. Of course I am neither alone in, or original in, this opinion.

stm60, UConn, at 5:30 pm EDT on June 7, 2007

It never ceases to amaze me...

the arguments opponents to affirmative action offer to defend their views. If you listened to their arguments about reverse discrimination, you would expect to see colleges and the workplace overrun by minorities and women, with unemployed and uneducated white males being interviewed on Oprah and Fox News about being downtrodden. Of course this has not happened and it never will. Even with affirmative action, we’ve seen modest improvements at best. The bottom line is, our society has not always welcomed women and people of color in mainstream activities, including employment. All these detractors need to do is come up with a better plan to deal with issues of exclusion, instead of shooting down the one solution that seems to offer some modicum of hope to those who have been classically ignored!

Janet Siders, HR Dir., at 5:50 pm EDT on June 7, 2007

Another Reply to Mr. Clegg

Nowhere did I all presume that all “underrepresented minorities and women are disadvantaged” or “that all whites (and Asians) and men are rich people of privilege". But it would be just as silly to deny that gender and, to an even greater extent, race and ethnicity represent barriers to equal opportunity that go beyond income and social class. Racism and sexism exist on every rung of the social ladder.

I do tire of the suggestion that those of us who want to redress inequality and discrimination are the real racists. Of course, I understand the rhetorical power of perverting Dr. King’s famous quote about judging people by the “content of their character” rather than the “color of their skin". But it is, at best, disingenuous to advocate locking in gender, racial, and economic advantages by appropriating the language of the Civil Right movement.

Unapologetically Tenured, at 10:05 pm EDT on June 7, 2007

It is amusing how UT, the self-described “conscientious objector” in the culture wars, always ends up leading the troops into battle against the dreaded right wing. If UT is a conscientious objector, I’d hate to come across a true left wing culture warrior.

>>I do tire of the suggestion that those of us who want to redress inequality and discrimination are the real racists.

And I do tire of the suggestion that those of us who disagree with treating people differently based upon their race or ethnicity “advocate locking in gender, racial, and economic advantages.”

Al, at 4:40 am EDT on June 8, 2007

As a white male in the market, I actually see that last sentance as discouraging. Because the ‘yang’ to this ‘ying’ is encouragement AND discouragement. ("Some underrepreseted classes are encouraged to apply, others are discouraged from applying") Yes, it would be wonderful if merit was the primary factor but we’re not there yet. Note the result of the official ‘colorblind’ 4th Republic: burning cars in Paris. Maybe it’s best to strike the sentence completly? I cannot see the day when Caucasian’s are officially minorities in the US and the sentance “white males are encouraged to apply". What lunacy.

jack ryan, If it looks like a duck..., at 4:40 am EDT on June 8, 2007

A reply to Janet Siders

“If you listened to their [opponents of affirmative action] arguments about reverse discrimination, you would expect to see colleges and the workplace overrun by minorities and women, with unemployed and uneducated white males being interviewed on Oprah and Fox News about being downtrodden. Of course this has not happened and it never will.”

You’re “amazed” at this because you miss the entire point, because you apparently view this as an issue of groups rather than individuals. The argument of opponents of affirmative action is that discrimination based on race or sex is per se wrong. That’s the case whether a single white male (or black female or other individual) was discriminated against or whether colleges are “overrun” with minorities or women because thousands of white males were discriminated against.

It’s not that it’s okay to discriminate as long as it doesn’t affect the overall statistics much; it’s the individual acts of discrimination against individual persons that represent the wrong. (Statistics can, of course, provide evidence of discrimination, but it is not the statistics themselves which define discrimination.)

Therefore, citing the number of white men who were able to obtain jobs or slots in college is irrelevant to the question of whether a particular person or policy discriminated against a particular white man. If so, that man is a victim of discrimination, and that represents a wrong.

David Nieporent, Attorney, at 4:40 am EDT on June 8, 2007

Still a C.O. in the Culture Wars

I suppose that to some people diversity is just another political football in the never-ending culture wars, interchangable with any other passing outrage. These are typically people who either have no personal stake in the future of higher education or are so hopped up on ideological adrenaline that their knees jerk involuntarily whenever they run across anyone they perceive to be the political enemy. Such people are well represented on IHE comment threads, usually on the political right, though occasionally on the left as well.

To me, however, diversity is an issue that goes to the heart of what kind of workplace I experience. It affects the ability of my institution to serve its students and its society in the most productive and inclusive way possible. That, and only that, is what I care about.

The culture wars are, in this case, about extending the vicious, take-no-prisoners politics of ideological division and character assassination into the academy. My concerns are about protecting my workplace and my career from those for whom colleges and universities are just another battleground in their never-ending struggle to crush their political opponents in order to achieve some sort of bizarre psychological satisfaction.

It’s a shame that some people are unable to comprehend the difference.

In any event, so long as you leave my workplace alone, you can go out there and rant about Terry Schiavo or Hillary Clinton or the global conspiracy to take away our guns and you won’t hear a peep from me.

Unapologetically Tenured, at 7:55 am EDT on June 8, 2007

AA Yesterday, AA Today, and AA Tomorrow

Shorter UT: I am happy and content with the left-leaning status quo in higher education. Those who have the temerity to question or threaten that status quo are troublemakers or outsiders, who obviously do not care about higher education and must be driven by some perverse ideological agenda. They should just leave us alone to do what we think is right.

How very George Wallace of you.

Al, at 10:30 am EDT on June 8, 2007

I’ll See your George Wallace and Raise you a Lester Maddox

If you’re going to try to insult me with a comically inappropriate historical analogy, at least make the effort to get the quote right. Wallace actually said, “Segregation now, segregation tomorrow, segregation forever.”

Speaking of which, does anyone really have any doubt on which side the 1963 George Wallace would have come down on the diversity/affirmative action debate?

Unapologetically Tenured, at 3:45 pm EDT on June 8, 2007

To TA & Unapologetic(ally Tenured):

Thank you, TA, for clarifying that Marshall Rose is a member of a historically underrepresented group (MUG). That may or may not explain his tribalism. By the way, I, too, am a MUG (though what does “member” really mean?..), and, I am authorized to call affirmative action unjust and unlawful.

To Unapol... Ten...: It is touching to see you so concerned about us members of underrepresented groups” (MUG). Now let’s measure your sincerity: rather than promote discrimination against non-MUGs, resign your own unapologetic tenured position and turn it over to a MUG. Or are you, too, a MUG promoting your own tribalism?

aitatxua, at 2:45 pm EDT on June 9, 2007

Not many not included as MUGs

According to a recent ABA journal, only 16% of America’s workforce is not ‘protected’ — a type of MUG.

Doesn’t sound like the catbird’s seat to me. Just courious, what is the % at the more vocal pro and con AA warriors here? For mine its about this.

Calvin Wonderbread, at 5:30 pm EDT on June 9, 2007

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