All Commentary
Thursday, November 1, 1984

Preferential Hiring Revisited

Dr. Noland is Professor Emeritus, University of North Carolina, and remains active with his writing and industrial and educational consulting work.

Discrimination is familiar behavior. We discriminate all the time—in the goods we buy, in the candidate we support at the polls, in the religion we prefer, even in choice of marriage partner (where options exist!). Children discriminate when they issue invitations to their birthday parties. Teachers, in awarding grades, must discriminate between good and inferior work. And the list goes on. Most discrimination is completely justified; in fact, much is morally required.

The dictionary definition of discrimination is neutral, but current social and political climates have done a good job of changing that. Now the predominant meaning is non-neutral, even pejorative. In this atmosphere, those who discriminate are subject to complaints, reproach, even condemnation. In race relations, we are being told to practice reverse discrimination in order to compensate for the evils of the past, the exploitation of blacks by whites. But if one takes “discrimination” in a deprecatory sense, to include wrongful or unjustified treatment as part of its meaning, then “reverse discrimination” must likewise imply wrongness because reverse direction wrongness is still wrongness.

Disagreement on the merits of reverse discrimination is widespread and may ultimately prove untamable. It is a debate that transcends earlier debates on racial segregation and subordination. The last two did not attack our moral beliefs as reverse discrimination does. They called on us to condemn and denounce such morally corrupt attitudes and behaviors as lynchings, hatred and hypocrisy, and to stand up for the preservation of elementary liberties—not an impossible assignment as judged by the progress we have made in these directions. But reverse discrimination digs much deeper.

Here we are called on to find answers to more basic questions about social justice and human rights. Informed people, open-minded to arguments on both sides, willing to devote substantial time and energy to careful examination of the moral and legal merits of the problem, may differ stoutly on the rightness of preferential hiring. It raises many difficult questions. Since we have not had good success at predicting and weighing the future effects of alternative social policies, must we not approach the solution of this particular problem with extreme care and healthful skepticism? Are the broad principles of justice with which we must wrestle sufficiently clear and do they have defined limits? Is the degree of precision we are able to achieve likely to be sufficient to justify the arbitrariness we may find ourselves having to employ? Is the job of finding pertinent established and universally accepted principles likely to be too difficult?

One view of reverse discrimination, commonly called the social utility approach, argues that the public interest, the “common good,” the well-being of society overall, hinges on our providing ways and means to improve the lot of blacks in our society, resulting in the creation of motivating role models for the most deprived of all blacks, the young ones. Opponents of this position question the benefit-to-cost ratio of such a policy and point to other ways to reduce racial stereotypes, promote integration, and improve the economic condition of blacks.

Distributive Justice

A second approach to reverse discrimination speaks of distributive justice. Here our society is called on to increase opportunities and improve conditions of the disadvantaged, those toward the bottom of the socioeconomic-political spectrum, who themselves do not have the resources necessary to alter their life chances. Here is an ira-plied emphasis on improving the welfare of blacks. To remedy this situation, the argument runs, there should be suspension of equal opportunity until the disadvantaged catch up; in short, unequal opportunity favoring blacks should be mandated.

Opponents call such a program charity, that while the society should help the needy, demanding relief as a right is unacceptable. Furthermore, ask these opponents, what kind and amount of redistribution is due to whom, and under what circumstances? While some redistribution may be commendable, would we not be placing the burden of achieving such a goal unequally, too heavily on white job applicants disadvantaged by being in competition with blacks who are being shown preference? Under such an arrangement, the expression “equal opportunity employer” would be a gross misrepresentation, for in reality we would have an “unequal opportunity employer favoring blacks.” Again, reverse discrimination is still discrimination.

In an interview reported recently in U.S. News & World Report Frank Askin, General Counsel, American Civil Liberties Union, was asked: Is reverse discrimination justified? Yes, said Askin, or else “we doom the nation to another era of racial strife.” Racial quotas are necessary in order not to diminish the opportunities which are now being opened to members of minority groups. Advancement opportunities for whites will diminish but that is the price we must pay.

Eugene Rostow, Sterling Professor of Law and former Dean, Yale University Law School, was asked the same question. His reply: No, it is using “an immoral, illegal means to achieve a very good end.” Reverse discrimination is not the fastest way to help minorities recover from years of mistreatment. If you take a lot of people who really can’t do the work, as you would have to do under a quota system, you find that many of them drop out. “They are bitter, bruised and badly hurt by their experience.”

Quotas or Goals?

A major reason for citing the above opinions, in addition to their obvious utility in pointing up two strikingly different points of view, is that the word “quota” appears in both. So often “quota” is confused with “goal.” The two are quite different.

In both of the approaches to reverse discrimination briefly described above—social utility and distributive justice—this difference is important. A quota sets both a ceiling and a floor. If there are not enough qualified workers to meet a quota, some who are not qualified will be added. If there are more qualified than the quota allows, some who are qualified will be rejected, usually on the most arbitrary and irrational grounds. Even when employment circumstances change, the quota is unlikely to be altered, for it was initially set for reasons unrelated to personnel supply and demand. Even the late Justice William O. Douglas proclaimed that there is no way to reconcile a quota system with the Fourteenth Amendment mandating equality of opportunity.

A goal is altogether different: both its underlying reason and its content reflect human circumstances. The purpose of a goal is to include, but not exclude. If there are too few persons to meet the goal, it will not be filled. However, if, in the future, the pool of qualified persons rises above the goal, it can be exceeded justifiably. According to J. Stanley Pottinger, former Assistant Attorney General in charge of the federal Civil Rights Division, the key word is flexibility. “A goal serves as an objective to be reached, but unlike quotas, a goal should not become carved in stone. Changing circumstances beyond the employer’s control, or estimations which prove through experience to have been unrealistic when made, can impair an employer’s ability to meet a goal regardless of his good faith efforts to do so.”

Compensatory Justice

Now we come to what is likely the least publicized but potentially the most troublesome of all approaches to reverse discrimination: compensatory justice. Here the focus is on preferential hiring as a way of compensating blacks for the “wrongful benefits” whites have enjoyed at their expense. This raises the question: To what extent does preferential hiring of some threaten the basic right of equal employment of others?

If a community owes compensation to blacks, does each white mem-ber, W, of that community owe each black, B? The answer here, where the community is considered distributively, is no. Here the syllogism we studied in introductory logic would run:

Major premise:       Each member of the community owes B

Minor premise:       W is a member of the community

Conclusion:             Therefore. W owes B

This begs the question, for the major premise is precisely what is in dispute.

Nor does the community taken corporately “convict” W, for liability generally is not something born of mere group membership and is not distributed to individual members in a complex organization.

Of course an individual may owe his fair share to his community, but there are recognized criteria for determining the amount (e.g., property evaluation for tax purposes). But what is the white job seeker’s fair share? All this smacks of distasteful anonymity, one’s being accused of owing somebody something without the chance to defend himself. For contrast, it reminds one of the nature of a fair trial, sacrosanct except for genuine emergency situations, that a prosecution witness cannot give testimony anonymously because it would violate the defendant’s right to confront and cross-examine his accusers. So another question becomes: Is not one’s right to consideration for employment as basic as his right to a fair trial?

In 1969, James Forman presented the Black Manifesto to American churches, demanding that they pay blacks $500 million in reparations (later other institutions were asked for reparations also). Forman’s argument ran as follows: For three and a half centuries blacks in America have been “exploited and degraded, brutalized, killed and persecuted” by whites; that whites have been guilty during this time of, first, legal slavery, then legal discrimination and forced segregation, resulting in their extracting enormous wealth from black labor with little return to blacks. We need to raise blacks to the level they would have now if they had not been so subjugated. It is the fair way to compensate for the sins of the ancestors of present-day whites. (Perhaps there was the concealed belief here that it would also be the most effective way to redress wrongs because it would strike at one of the most sacred of possessions, pocketbooks!) These facts, Forman argued, justify a demand for reparations on a massive scale.

While the Black Manifesto charges wrongs to white America rather than white Americans, it is important to note that if the federal government mandates a general policy of preferential hiring, white job applicants will be asked only if they are white, not if they have ever wronged blacks. So here we would have the assumption of vicarious liability, i.e., that work performed or deprivations suffered by one person have produced results accruing to the benefit or advantage of another. But how does a white take care of these assumed wrongful benefits? By forfeiting his right to equal employment consideration? By having the government mandate that blacks must be accorded preferential hiring rights?

Let us consider a simple business transaction where obligations and implications parallel a white’s status under preferential hiring. Suppose Alexander, A, and Brown, B, are next-door neighbors, living in white houses with identical architecture. A goes on vacation but before he goes he pays a contractor to paint his house—again white, just as originally painted. An “enemy,” C, learns of this business transaction and that B went on vacation at the same time. So C switches the residence numbers of plates stuck in the adjacent lawns: 316 and 318 exchange places. The painters paint the wrong house. The mistake is discovered when A returns; somebody owes him compensation. Is it B? Is it the contractor? Obviously it is C, but his identity is unknown. The house cannot be “unpainted,” so the benefit to which B is not entitled cannot be taken away without disturbing his other rights. B has no obligation to A: since B’s house did not need painting, he cannot pay A without incurring a loss. He benefited from a wrong, to be sure, but he had no choice in the matter, no way of avoiding the benefit. So the premise, “He who benefits from a wrong must, willingly or unwillingly, help pay for the wrong” is false; it should read, “He who knowingly and willingly benefits from a wrong must help pay for the wrong.”

Now let us return to the white applicant’s case and see the parallel to this one. Preferential hiring takes away the white applicant’s undeserved benefits by taking away his right to equal consideration for employment. We must ask not whether he benefited from wrongs done to blacks but whether he deliberately took advantage of the benefits or refused to avoid them when he easily could have. This may be true of some whites—this deliberately taking advantage—but conceivably not all.

There are, of course, situations where imputing vicarious liability is in order—but in all such cases the person made liable possesses some control that would enable him to avoid liability. Parents, by exercising control over their children, can escape liability for their children’s debts by seeing to it that the children do not incur unwanted debts. Criminal law makes a participant ina felony liable for the criminal acts of his co-participants, but one can avoid risk of such liability by shying away from felonious behavior. But whites in the past, in their employment relationships with blacks, did not realistically have such avoidance behavior available.

Early Influences

A further word in defense of whites in the past is in order. During the time when discrimination against blacks was pervasive, any attempt to avoid the taint of advantage would have been difficult if not impossible; in many instances the price paid actually would have been loss of employment. Whites had a competitive advantage over blacks because their early socialization, beyond their control, had given them a more secure level of self-respect and self- confidence. Young children have no control over their early socialization; by the time they are able to understand and evaluate social behavior the basic features of their personalities are in place. In fact, much the same can be said about basic educational advantages, e.g., reading and mathematical skills. Even in adulthood, membership in a community defines and reinforces one’s self-respect and self-confidence. So it is hard to see how injustices done to blacks could have been avoided by individual whites.

It seems likely that some of the opponents of preferential hiring—perhaps even a substantial number of them—refrain from absolving all whites of complicity in the evils of the racist system, and even accept the idea that blacks are entitled to some compensation in our society. However, they may at the same time be concerned that preferential hiring lies outside the realm of acceptable means for compensating blacks because it violates a basic human right, that of equal consideration for employment. There are two crucial and related points here: personal guilt is necessary for the creation of personal obligation, and benefits accruing to one from someone else’s wrongdoing do not obligate.

One of our worst traits has been the imputing of vicarious liability to our “enemies.” We attribute to all in a group the guilt of one of its members. Perhaps the most celebrated case is the blood feud between the Hatfields and McCoys, which raged for thirty years (1865-1895) and left twenty-seven dead. In such inveterate strife, when first a member of one family kills a member of another, the shooting begins in earnest; every member of each group immediately becomes a suitable object of retaliation by members of the other. Here we have the nasty application of “collective responsibility” and “guilt by association,” which, fortunately, we succeed in rejecting most of the time. Opponents of preferential hiring suggest that we do it here.

While there may be a place at times for some limited principles such as vicarious liability, we must proceed with utmost caution. So far our society has subscribed to a moral code that opposes the ascription of liability and guilt to one who could not avoid what he did. If we ever arrive at the point of rejecting this view, we will have succumbed to what we have been trying to avoid: stereotyping and tainting, sources and propagators of racism itself.