Practicing Discrimination with Pride
The managing partners of the nation’s 200 largest law firms are all seated in a ball room. From the podium at the head of the room, the master of ceremonies asks, “If your firm has an official policy of racial discrimination, would you please stand?”
Of course, all the partners remain seated. Then the master of ceremonies asks, “If your firm has a policy to promote racial diversity, please stand.”
Just about all the partners stand.
At work here is the myth of the one-sided coin — the notion that you can have hot without cold, light without dark, or up without down. Fact is, you can’t promote racial diversity without practicing racial discrimination — you have to be very conscious of who’s what.
Note: I use the term discrimination literally, not pejoratively.
Consider the firm of Thompson Hine, which offers a scholarship/employment program that clearly discriminates by race. According to this press release:
Applications will be accepted from second year minority law students (as defined in the Equal Employment Opportunity Commission Regulations, 29 C.F.R. Part 1602, i.e., Native American or Alaskan native, Asian or Pacific Islander, African-American or Black and Hispanic).
Note that white and mixed-race law students (other than Hispanic) are not eligible for this program, which includes a significant employment opportunity — a summer’s worth of on-the-job training, plus a very handsome salary.
Why is the firm doing such a thing? According to the firm’s blurb on diversity, the goal is lofty — to “make each of us better individuals.”
Again, we see the myth of the one-sided coin at work. Flip it once, and it comes up Black law students at Harvard are better than Black law students at Howard because Howard doesn’t have the diversity that Harvard has.
To say that diversity makes us better may sound nice, but it’s like saying we’re better than the Japanese, because we’re diverse and they’re not.
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According to Title VII:
It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
But then there’s 29 CFR Part 1608, the regulation that sets Title VII on its head.
According to the regulations, Title VII wasn’t really intended to eliminate racial discrimination in employment. The intent was “to encourage voluntary affirmative action. . . . Voluntary affirmative action to improve opportunities for minorities and women must be encouraged and protected in order to carry out the Congressional intent embodied in title VII.”
There it is. Title VII prohibits racial discrimination in employment, but the regulations encourage it, provided the beneficiaries are women and minorities. What’s more, the regulations are explicit about training programs, such as the summer job that accompanies the scholarship:
Employers, labor organizations, and other persons subject to title VII may, and are encouraged to take affirmative action . . . including on-the-job training, which emphasize providing minorities and women with the opportunity, skill, and expericence necessary to perform the functions of skilled trades, crafts, or professions.
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So . . . what’s prohibited is encouraged!
Now, if you’re the managing partner of a law firm that has a minority scholarship program and you’re asked whether your firm discriminates by race, go ahead and stand up. If you think it’s a good thing, practice it with pride.