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Since this technically banned all possible criteria, companies couldn’t follow the letter of the law. Instead they hired fancy lawyers to tell them which way the winds were blowing. The lawyers told them that college degrees were okay, resumes with biographies and experience were maybe okay, and interviews were okay. Tests were out. Anything more creative was out.
A disparate impact case made the news recently. The Biden EEOC sued convenience store chain Sheetz for running criminal background checks on their employees. They didn’t allege any intentional discrimination. They just said that more minorities fail criminal background checks than whites, therefore it’s disparate impact, therefore Sheetz has to drop the criminal background check.
(the article links to another case where the Obama EEOC sued a corporate events planner, demanding they give monetary compensation to an employee who they had refused to hire simply because he had committed attempted murder and lied about it on their job application)
Is Sheetz the only company that does criminal background checks on its employees? Do they do the background checks differently than any other company? My understanding is that the technical answer is that to do background checks without being sued, you have to prove in some very formal way that the specific crimes you’re looking for would be bad for your specific industry, and maybe Sheetz didn’t prove that a general history of violence was bad for convenience stores. But if this sounds kind of fake to you, and you’re wondering whether the real rule is “the government has wide discretion to prosecute whoever it feels like”, Hanania’s answer is “definitely yes”.
His position is that all of these rules are so broad that every company is always violating them in some sense. No company has exactly the same distribution of minorities as “the applicant pool”, whatever that is. No company has some magical hiring rule that has literally zero correlation with race, especially since black people are on average poorer, less educated, and less likely to have any given achievement (so any attempt to choose better employees over worse will necessarily disadvantage them). In real life, the bureaucracy’s rules are something like “don’t do anything different from other companies in your industry, and especially don’t be caught seeming less woke”. Hanania argues this creates an arms race / ratchet. Every company wants to be at least 50th percentile wokeness or above. But not every company can be above average. So everybody gets more and more woke, with no end in sight.
Continuing with Sheetz: according to the article on the lawsuit, in 2020 they “introduced the IDEA initiative”, ie Inclusion Diversity Equality & Accessibility. Their website has a big picture of a black woman saying “We’re Building A Great Place To Work For All”, and boasts that they’ve created a special forum for black employees. They’ve made 60% of managers women, started a Woman’s Leadership Program, offered generous maternity leave, and written letters to the Chamber of Commerce on how the George Floyd murder made them realize “we quickly needed to learn, listen, be vulnerable and humbly approach . . . culture-shifting work”. Companies hope that if they do enough of this stuff, the EEOC will agree they’re an ally in the civil rights project and not sue them under their wide discretion to sue basically anyone. Too bad they’re getting sued anyway; some other convenience store must have done more of this stuff. Surely some executive is wishing they had just tried having one more mandatory diversity training…
Harassment Law
Harassment law might win the award for most complicated chain of reasoning from real legislation to enforcement:
Legislation says you can’t discriminate against minorities
If you bully minorities out of your company, that would be a way to discriminate against them.
So you can’t have an environment that’s so hostile to minorities that they inevitably leave.
In some sense, anything that offends a minority is part of this environment.
Any joke, political comment, flirtation, etc, could potentially offend a minority.
Therefore, every business owner needs to monitor their employees for jokes, political comments, flirtatiousness, and take action against any offenses.
Hanania has several complaints here. First and most legibly, it (say it with me) gets taken too far.
Volokh lists a large number of [examples of things that have been found to be] evidence of a hostile work environment: signs with the phrase “men working”; “draftsman” and “foreman” as job titles, pictures of Ayatollah Khomeini and a burning American flag in a cubicle; an ad campaign using samurai, kabuki, and sumo wrestling to refer to Japanese competition; jokes of a sexual nature not targeted at any particular person; misogynistic rap music […] even terms like “great view” and “walk-up” have been cited as potentially trying to exclude blind people and those in wheelchairs.
And
In a 2015 and 2016, a black father and son named Owen Diaz and Demetric Di-az2 [sic] worked at a Tesla plant. They sued the company for racial discrimination, with the father’s claims alone making it to trial….racial slurs were used in the presence of Diaz, and he saw racist graffiti on a bathroom wall. It appears that the workers allegedly responsible were mostly or all minorities themselves, and each time an allegation could be verified, the employee was punished. Tesla claimed that they had taken enough steps to address the concerns of Diaz […] a jury disagreed, and awarded the plaintiff $137 million, an amount that the judge reduced to $15 million. In response to the verdict, Tesla released a statement pointing out that witnesses confirmed that the slurs were used in a friendly manner, usually by African-American employees, and without hostile intent.
(fact check: this article says the racism also included demands to “go back to Africa” people leaving drawings of caricatured black cavemen at the employee’s desk, threats, and claims that black employees were "given the most menial and physically demanding work" - and that these claims were backed up by testimony from two dozen former workers and a cellphone video showing people telling a black employee that they are going to “cut you up, n—-r”. This seems like a sufficiently different story that I’d like to know whether Hanania still stands by his version)
Other parts of harassment law lead to more unfair double-binds. For example, you can’t be seen to “retaliate” against someone who accuses another worker of harassment. So suppose that a minority employee is bullying a white employee, the white employee resists, and the minority accuses them as “harassment”. Maybe there’s even a full trial, everyone agrees this is what happened, and the white employee is found totally innocent. Still, you can’t fire the bully, because that would be retaliation for a harassment complaint. And since you probably don’t want the bully and their victim in the same department, you need to move one of them. And you can’t move the bully, because that would be viewed as “retaliation” for the harassment complaint and they could sue you for millions of dollars. So you have to punish the victim.
But Hanania doesn’t just say this kind of thing goes too far. He has some broader point that I have trouble interpreting - basically that corporations used to be cozy, chummy places full of banter and flirtation that everyone enjoyed, and now this has been universally replaced with the bland soul-draining bureaucratic corporate aesthetic satirized in works like Office Space.
Is this true? People talk about Mad Men (I’ve never seen it) as reflecting some kind of corporate golden age where at least high-ranking men enjoyed their jobs. If so, did it change because of harassment law? Or because neoliberalism replaced the work-for-thirty-years-and-get-a-golden-watch corporation with the work-for-three-years-and-then-seek-a-better-job-elsewhere corporation?
Still, Hanania really hammers in this point that we should apparently all be angry about the loss of corporate flirtation - he calls the current regime, “a sexless, androgynous, and sanitized workplace” which is “contrary to human nature [and] miserable”. Without civil rights law, we could have “organizations that combined the aspects of a church, a social club, a matchmaking service, and a traditional business.”
In such a world:
Some corporations start encouraging dating and forming close personal bonds among their employees. This can take many forms, from Christian matchmaking to promoting a party-like atmosphere. These pro-relationship corporations will come in conservative or liberal forms. Other firms explicitly market themselves as providing a more “professional” or “classic” work experience . . . we will see a period of wild experimentation, with some forms of corporate organization drawing a great deal of media coverage. People will criticize many of these experiments, and they will become the subject of public outrage. After civil rights law has been defanged, however, government no longer has the ability to easily shut such efforts down. Eventually, public anger subsides, and the idea of the media attacking a firm because it dislikes its internal culture will seem as intolerant as attacking a religious community for its doctrines, or homosexuals for what they do together as consenting adults.
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