Why anti-discrimination laws make quotas inevitable

A woman reader writes:

"And while we're at it, for the record as a member of a so-called protected group (hard to argue that women constitute a minority in this country), I take great offense at the notion that standards need to be watered down for me to compete against anyone. I'm perfectly capable of competing on the only criterion that counts: performance. What I do take exception to is when people erect arbitrary "standards" that have little or nothing to do with performance in order to keep us "broads in our place"."

This points out why utterly colorblind and/or sex-blind anti-discrimination laws like the famous Civil Rights Act of 1964 inevitably lead to the state imposing racial or sexual favoritism. Most people say they are in favor of colorblindness and meritocracy; what they disagree about is not the concept of hiring the best, but in how exactly to measure who is the best. Which criteria really measure performance and which are mere "arbitrary 'standards'"? A good question -- and not an easy one to answer.

In recent years, many Republicans have been going around quoting the 1964 Act's Senate floor manager Hubert Humphrey's statement that he would personally eat the pages of the law if it brought about quotas, which of course it did starting a half decade later. The Republicans often say they want to get back to the original meaning of the act before it was perverted by bureaucrats and judges: harshly punish discrimination but not use quotas.

But, they don't understand the logic that drove those bureaucrats and judges to quotas. If you really want to wipe out discrimination, you must use quotas. If races have different talents, then even the most colorblind hiring processes will produce differential results.

For example, say that your firm mandates that it will only hire high school graduates as mechanics. This could hardly be discriminatory, right? Yet, it will have a large detrimental effect on Mexican-American applicants relative to applicants of other races. So, maybe this rule was really adopted because management dislikes Mexicans? And if it wasn't adopted to keep out Mexicans, well, maybe you didn't get rid of it because you don't like Mexicans. Or maybe the problem is that you don't like Mexicans as much as you like other people, so you were insensitive to the problems caused them by the rule.

Similarly, up-and-out career paths (e.g., make partner in a law firm by a certain age or get fired) are nominally sex-blind but in reality they cause women much greater problems than men, due to the old biological clock ticking away.

So, are these rules sexually discriminatory? Who knows what goes on inside of the heads of decision-makers? A really good novelist would have a hard time figuring out exactly what were the motivations of his own fictional characters in this case. Yet, those conservatives who favor punishing discriminators think bureaucrats can figure it out, no trouble.

In reality, enforcement comes down to whether the government is more worried about Type 1 or Type 2 errors. If the government cares more about preventing false positive findings of discrimination against an employer, it will let more examples of "real" discrimination slip by unprosecuted. But if its mandate is to prevent false negative findings in cases where a minority really was discriminated against, then it will incorrectly prosecute innocent employers.

The only logical solution to this fundamental problem with anti-bias laws is the radical one U. of Chicago law professor Richard Epstein proposed in "Forbidden Grounds" a decade and a half ago. For competitive firms, repeal anti-discrimination laws. For government agencies, police departments, unions, not-for-profits and other non-competitive employers, use quotas.

But that's not going to happen. Nobody has listened to Epstein just because he is logical. This isn't a question of logic but of whether or not you are on the side of all that is good and holy, even if it's objectively harmful and requires nonstop lying.

The reader continues:

"Let me offer this which I would immediately install if someone would name me Queen of the Universe tomorrow with full dictatorial powers:

"Recruiting standards would have to deal with the job at hand....none of this "bench press 300 lbs" when what you need is someone who can carry 100 lbs of firehose up a 30 ft ladder and hold a charged line steady on a fire. If by some miracle of God, the legendary 98 lbs weakling can perform this task consistently, why shouldn't he get a shot at the fire-fighters job? Not every fire fighter, including men, could survive the fire fighters Olympics. Some of these traditional physical standards had precious little to do with the ability to fight fires."

It's often overlooked that objective-seeming hiring standards can be used to discriminate either for or against a particular group. Fire fighter's physical fitness tests provide an excellent example of the difficulties of figuring out which standards "deal with the job at hand" and merely have "precious little to do with the ability to fight fires." Set the strength demands high enough and you can keep out virtually all women. Set the strength standards low enough and you can achieve the same level of female hiring as you could have with a blatant quota. This issue has been litigated extensively in sex discrimination suits against fire departments.

The hot button question is not who can carry 100 pounds of firehose up a ladder, but who can carry an unconscious smoke victim down a ladder. Of course, there is no absolute answer to this question since smoke victims weigh different amounts. The killer question is: how heavy of an unconscious body must a recruit be able to carry? Different people will differ on this life or death issue. For example, back when Ed Koch was mayor of New York, during one of these sex discrimination lawsuits seeking to lower strength standards, he told reporters that he favored the NY Fire Department hiring anybody, man or woman, who could carry Hizzoner's own 206 pound bulk out of a burning building.

In fact, not only will different people differ on this question, but the same person might well differ with his own previous view ... depending on how his diet is going. Three years ago, Koch's 206 pound standard struck me as a perfectly reasonable standard. At the time I was 6-4 and 195. However, it turned out the reason I was thin was I was wasting away with lymphoma. Today, I am healthy and happy and 210 pounds. Now, the thought of my dying in flaming, screaming agony because some woman firefighter can't haul my, uh, big-boned carcass out the window strikes me as repulsive. On the other hand, having a few fat slobs who weigh more than 210 pounds burn to death seems to me like a perfectly reasonable price to pay for the important goal of expanding career opportunities for women ... or at least it will until I get home and check my weight. (I had a big lunch.)

I don't believe this kind of case belongs in court. There is no absolute answer that can be arrived at through legal logic. It's a political question. Let Hizzoner decide. Women vote, and so do fat people. The political marketplace doesn't work as efficiently as the economic marketplace since it has typically has to come up with a single solution, but democracy's the best system we've got for reconciling competing interests in how the government should be run.

However, democracy requires an active press. When the news media self-censors news stories about the downsides to lowering standards to accommodate women, we have less democracy and more mediacracy. The power of working women in newsrooms lead to a major coverup of news stories about, say, the problems caused by the sexual integration of the military: e.g., plane crashes, kinder-gentler boot camps, rampant pregnancies, the state of naval wives whose husbands come back from long cruises on co-ed ships the father of some seawoman's new baby, etc.

For at least the first half of the 90's these kind of stories were only regularly available in the Moonie-funded Washington Times.

One other thing to keep in mind is that a stark quota or separate standards for separate groups can sometimes be less destructive to job performance than lowering standards for everybody. If we establish a quota saying that 10% of the Fire Department must be female, or that female applicants only have to be able to carry 125 pound people, that may well kill fewer citizens than applying the 125 pound standard to everybody regardless of sex. Under the two systems of blatant favoritism toward women, male firefighters will still have to meet the higher standard.

By the way, the outcome with the Fire Department of New York appears to have been that they hired some women to make the courts happy, but relegate them to the sidelines. Women firefighters in NYC are known to their male colleagues as "firewatchers." Thus, No New York firewomen died on 9/11. In contrast, here are the pictures of the 343 NY firemen who died that day.

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