And the Facts Mean? (Part 4)

The EEOC has set an 80% standard for hiring and promotion. If a company hires 50% of the white people who apply, it must hire at least 80% of that or 40% of the minorities who apply. Failure to do so is considered prima facie evidence of discrimination. That rule might be useful in determining which companies bear investigation, but it is a terrible method of determining who is actually discriminating.

I've already discussed the fact that different groups have different characteristics. Some minorities, especially in the inner cities, have a culture that discourages education. Why should a company be forced to hire any certain number of them if the job requires cognitive skills? However there are also statistical problems with that rule.

Suppose for example 10% of the people living in a town are black and 90% white. A company in that town has four people doing a certain job. Now 10% of those four employees would be 0.4 people and 80% of that is 0.32 people. It is rather difficult to hire a fraction of a person. If they have one Black among the four employees, then 25% of the people there would be black, far in excess of the 10% of the population that Blacks represent.

Even if the company has 40 people doing that job, statisticians would tell us that it is unreasonable to expect exactly four of them to be black and 36 white. In fact statistically it would not be at all surprising if there were anywhere from zero to eight Blacks among those 40 workers. If you have the time, you can demonstrate this to yourself if you can find a few marbles of different colors. Put 9 of one color and one of a different color in a box and shake it up. If you don't have marbles you can use something else, maybe coins with a coin from a particular year representing the minority. You could even put a dot of fingernail polish on the minority coin.

This experiment is to simulate hiring at random, with the marbles representing the applicants. The nine majority color marbles represent the 90% white population in the town and the odd marble (or coin of a particular date) represents the 10% black population. Now without looking, randomly draw one marble from the box and record what color it is. Replace the marble, shake the box and draw again. Repeat this 40 times to simulate hiring 40 random people. How many times did you draw the odd marble? Probably not exactly four times.

Now repeat the above experiment at least ten times, each time recording how many times you drew the odd marble. Most likely once or twice you will draw the odd marble only once or not at all. Once or twice you will draw it 6 to 8 times out of the 40. Most of the time you will draw it three, four or five times out of the 40 tries. However even only drawing it three times fails the EEOC test of 80%, that means you only “hired the minority” 75% of the times that the minority “applied” for your job opening. Would you like to be exposed to charges of discrimination for the times you drew zero, one, two or even three minority marbles?

If you took the time to do this experiment what you have seen is normal statistical fluctuations. You can see something similar by tossing a coin ten times as I described in a previous blog. The most likely result is five heads and five tails. However there are many other possible results. Each of those other results is less likely than the five heads and five tails, but there are more of those possibilities so together they outweigh the probability of equal heads and tails. In fact the probability of getting exactly five heads and five tails is less than 25%.*

“But wait,” you say. “Don’t large companies hire more than 40 people, even more than 400?” Yes they do, but each work area usually has a much smaller number of people. Furthermore, even for larger numbers we would expect some deviation from the most expected value. The larger the number in the group, the less deviation we would expect percentage-wise, but there will be some. On top of that, as we go up the corporate ladder to more lucrative jobs, the number of employees gets smaller. A company may have 10,000 employees but will probably only have fifty or so in top management and fewer than ten at the vice presidential level or higher.

To say that a company is guilty of discrimination on the basis of statistics alone is to ignore those statistical fluctuations, as well as the fact that we cannot expect people of different backgrounds to have identical qualifications. Such a declaration of guilt ignores science. While statistical differences may raise questions, we should insist on actual evidence of biased actions before claiming that anyone or any company is guilty.

Now on somewhat of a personal note: I’ve been publishing five blogs per week and have enjoyed it. However there are also other things I would like to do, including complete a novel I started some time ago. To free up time for those projects I plan to cut back, initially to only three blogs per week. They will probably to be published on Monday, Wednesday and Friday. I’ll see how that goes and hopefully I won’t have to cut down to twice per week.

*For the mathematically inclined, the probability of getting exactly m heads out of n coin tosses is

P = (0.5)^n [n!/{(n-m)! m!}]

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And the Facts Mean? (Part 2)

Confession time: I belong to a group that has government approval but not a single black member. Furthermore I recently attended an international conference of people from similar groups and saw not even one black person there. If someone looked only at the statistics they might claim that we are discriminating, but I can assure you we are not. In fact I cannot remember a black person ever applying for membership. That group is my rescue team and the immediate cause of that racial imbalance is that we recruit only among competent mountaineers. However for some reason there are few Blacks involved in mountaineering. In fact I've yet to meet any though I did talk with a woman who once saw two Blacks climbing Washington's Mount Adams.

Even lacking firm statistics, it is clear that Blacks are seriously underrepresented in the mountaineering community and in mountain rescue. The area where I live has plenty of black residents, so why are there hardly any black climbers? I don't have any answers though I am very curious. It cannot be lack of inborn talent; black athletes have long demonstrated great talent. Nor can it be discrimination; mountains and cliffs neither know nor care about the skin color of people climbing them. I suspect the reason is a combination of culture and finances but that is a guess on my part, not backed up with any research.

Though not a big issue, the racial imbalance among mountaineers does illustrate the fact that statistical differences between groups are not necessarily caused by discrimination. We don't need to know what the reason is in order to know that some suggested reasons are wrong. I needn't know why there are few black mountaineers to know that discrimination is not the cause.

Now I like statistics, I think they can be fun and useful. However acting on statistics alone usually means bypassing vital information. If our mountain rescue team were accused of discrimination, the statistics might support the charge. If we were forced to include a certain number of black people, we would probably out of business. I’m not sure we could find them and even if we did, they would likely lack the mountaineering experience necessary to safe and effective rescue work. They would become a danger to us, to our subjects, and to themselves. The effect would be bad for all concerned, including the occasional black hiker we are called to help.

Statistics tends to lump people together in large groups. That is both its strength and its weakness. It is a strength because that allows us to make sense of large amounts of data – if we are very careful how we use that data. However statistics cannot tell us much about individual cases. It may tell us that young inner city black men are more likely to be criminals than are men of middle age living in the suburbs, be they black or white. However we should not use that information to convict any particular young black man from the inner city, there are also upstanding citizens among that group.

Statistics alone cannot tell us why some groups have different characteristics than others. Blacks may be underrepresented in mountaineering, but we have to dig deeper than the numbers if we want to learn why. Likewise Blacks may be over-represented among NFL running backs and underrepresented among quarterbacks in that league. The numbers won’t tell us why. However it is highly unlikely that discrimination is the reason for the NFL statistics. Football fans want winners and any team owner who put skin color ahead of ability to win games would soon face a bankruptcy judge. Team owners seek the players who will help them win. Even if those owners happen to be biased, they cannot afford to discriminate on the basis of anything but ability.

I’ve not heard of anybody wanting to charge NFL or NBA teams with discrimination, even though player racial statistics clearly do not reflect the average racial make-up of the U.S. population. That is wise, those players are hired for their ability, which is as it should be. Unfortunately that is not the case in other businesses. If a manufacturer or retailer fails to hire the statistically expected number of women or Blacks, and hire them into the statistically expected positions, that employer will probably be accused of discrimination. Furthermore, in violation of standard judicial procedure in this country, the burden of proof will be on the employer, not the accuser.

The Equal Employment Opportunity Commission has actually codified this over-reliance on statistics alone. Though the rules do show some understanding of variations from the statistical norm, that allowance is quite rigid, it fails to consider sample size or intergroup variations. Worse yet, they do not consider the fact that there are very real differences between groups. A factory located between an inner city and the suburbs is expected to hire people from the inner city into the same positions and in approximately the same proportions as employees from the suburbs. That ignores the fact that people from the inner city are almost certainly not as cognitively skilled as those from the suburbs.

Of course there is a way the factory owner can avoid that problem. He can move operations to a place where most people have the skills he needs, like somewhere a long way from the inner city. In fact if he wants to avoid bankruptcy he may be forced to do that. It is difficult to compete if you are forced to hire incompetent people. That means that the inner city people he might have hired into low paying jobs will now have no jobs at all. The rule intended to help those inner city people will in fact harm them.

The fact is that there are differences between groups. In many cities, the inner city black culture militates against doing well in school. It should be no surprise that the products of that culture lack the cognitive skills needed in many jobs. Research has also shown that women’s brains are different from men’s brains. That doesn’t mean one is smarter than the other, but it may well help explain differences in what they like to do and how they do it. It should be no surprise that women prefer different types of work than do men. That is no excuse foe discrimination against the inner city Black who does have the skills for a job, or a woman who happens to enjoy running a jackhammer. However it is a reason not to expect all groups to be equally represented in all occupations.

Unfortunately too many powerful people assume that any deviation from the most expected value automatically means discrimination. Nothing could be farther from the truth. However the fact that those people are sometimes in a position to force others to act on their false beliefs harms our economy.

Next I think I’ll have a little fun with the NFL running back and quarterback issue before I return to some statistical stuff.

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And the Facts Mean? (Part 1)

A while back my friend Randy loaned me a book. I returned it to him after reading only a couple of chapters. Can you guess why?

I suspect most will guess that I didn't like the book. Actually I did like it.

Your next guess is likely to be that he asked for it back, or I didn't have time to read it or something along those lines. All reasonable guesses that explain the facts – but again all wrong.

In fact I liked the book so much that I went out and bought my own copy.*

There are many other cases in our lives when the most obvious conclusion can be wrong, often flagrantly wrong. We seldom have perfect data, nor is our logic always flawless. That is just part of the human condition and we have to live with it. There are two basic ways of living with this imperfection: (1) We can recognize that we might be wrong and check our conclusions against new facts when we get them, or (2) we can assume that we are correct and refuse to consider evidence to the contrary.

Refusing to recognize the facts sets us up for major problems. What if the question is more important than why I returned the book to my friend? Maybe something like the wisdom of an investment you made? If information becomes available that the company you invested in now has unexpected problems, it would be wise to re-visit that decision. Most of us understand this and are willing to change our thinking if we get new information.

Unfortunately there are some whose intellectual arrogance causes them to stick with bad decisions, even when those decisions become costly. Worse, many of those people are third party decision-makers who do not pay the price for their mistakes. Instead their errors cause problems for others. Most of them are government employees who can impose the costs of their decisions on others. Since they do not themselves suffer the consequences of their bad decisions they have little incentive to correct their thinking.

For example, the Equal Employment Opportunity Commission charged Sears, Roebuck and Company with sex discrimination. The case dragged on for years, from 1973 to 1986. In the end an appeals court dismissed the suit, citing the “EEOC's failure to present testimony of any witnesses who claimed that they had been victims of discrimination by Sears.” In spite of not being able to find a single woman who thought she had been discriminated against, those government employees pursued a case against the innocent.

The EEOC had one fact, namely that there was a statistical disparity among Sears' employees. From that they jumped to the conclusion that Sears was discriminating. EEOC decision-makers failed to consider if there might be other reasons for that disparity. Discrimination was one possible explanation of the fact, but not the only one.

And who paid for that government action? First of course was Sears, its customers and stockholders. Those customers and stockholders were the sole source of the money needed for legal defense. Second, taxpayers had to pony up the money to prosecute the suit. Taxpayers, stockholders, and customers were all losers in that action, even though Sears “won” the case.

Perhaps a more important question is who did not pay for that action? The answer is the decision-makers who pursued a case on only statistical evidence (except insofar as they were taxpayers). Those bureaucrats continued to draw their salaries and receive their benefits, all tax paid. They were third-party decision-makers, suffering no consequences for the costs they inflicted on others.

There are of course many such cases in this country. The EEOC and others regard statistics alone as proof. In fact Alice Kessler-Harris, who testified for the EEOC in the Sears case, baldly states that she “did not agree that women's lack of 'interest' could absolve a company of charges of discrimination.” That even though she also “did think that there was some as yet undefined difference between men and women.” I find that an amazing position. She agrees that men and women are different and might have different interests. Yet she expects the statistics to show identity of outcome unless there is discrimination!

The EEOC and others have a severe form of intellectual arrogance that allows them to ignore facts and alternative explanations and assign any statistical difference to discrimination. A company in private business with such a distorted vision would soon fall prey to its competitors and probably go out of business. Unfortunately bureaucrats are insulated from reality and can continue to force their version of reality on the rest of us. That will not change until the voters demand that their government require real evidence, not just statistical differences, before charging companies with discrimination.

Next time I plan to discuss some of the reasons statistics alone can be a problem.

*The book was Vindicating the Founders by Thomas G. West.

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Identity Politics, Part 3, A Polarized Society

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Yugoslavia. When it existed as a country it was in the Balkan region, an area known for ethnic and religious strife and for fomenting violence. That violence too often spread to other countries and even triggered World War I. Yugoslavia itself was composed of diverse groups with historical animosities. Yet for a time under Tito the country was relatively peaceful. Whatever Tito’s faults, he kept ethnic tensions under control by not allowing demagogues to stir up old hatreds. That all ended after his death. Slobodan Milosevic re-ignited the historical mistrust and tensions. He undoubtedly saw political gain for himself by use of “divide and conquer” rhetoric. The result was that the country disintegrated, but not before thousands died in internecine violence.

Sri Lanka is another example. The Tamil and Sinhalese generally got along peacefully for decades. Then the newly independent government decided to make Sinhalese the official language and to institute an affirmative action plan, ostensibly to make up for past discrimination against the Sinhalese majority. The result was 25 years of nasty civil war and terrorist actions, even now only partly settled.

Yugoslavia and Sri Lanka illustrate the dangers of identity politics. Sadly, they are not isolated examples. Sunni and Shiites in Iraq, Catholics and Protestants in Northern Ireland, Armenians and Turks, etc. Wherever one group is pitted against another there will be strife, and it is not possible at the outset to know where that strife will lead. Favoritism in education, employment, and government benefits is nearly certain, but the problem often goes farther. It is common for both sides (or all sides when more than two groups are involved) to see themselves as victims and others as oppressors. That leads to a mob-like mentality, regarding the “oppressors” as a group of faceless enemies. This helps justify all manner of anti-social behavior, ranging from isolated attacks on individuals all the way up to armed revolution.

Where will the identity politics in the U.S. today take us? It is impossible to say. However we can know where it has taken us in the past. This country has seen Blacks lynched just because someone accused them of looking at white women. We have seen church burnings and bombings. We have seen race riots in which innocent shopkeepers were assaulted for the crime of being of a different ethnicity than the neighborhood majority. Fortunately at present we do not face overthrow of our government by armed revolutionaries, at least as far as I can foresee. However continued demagoguery can stir up strife in this country, including riots and other violence.

What can we do about this? First we must publicly and vociferously oppose the demagogues who try to pit one group against another. When a politician or other misleader advocates favoritism we must call it the bigotry it is.

Secondly we should emulate those parts of our society in which bias is most nearly eradicated. The most color-blind areas today are probably the military and professional sports. In those fields people are rewarded for performance, not for skin color. Few people care much about the color of LeBron James’ or Tom Brady’s skin. However both men have fans who care very much about their ability to get a basketball in a basket or a football into the hands of a receiver. Millions of young people work very hard to develop abilities similar to those of Brady and James.

What if we could spread the ethic of hard work and personnel qualification beyond sports and the military? What if we told the Jesse Jacksons and Al Sharptons of the world that they should encourage education and work instead of preference as the way to succeed (something Jackson used to do)? How would that change our society? Imagine millions of young people working as hard to learn math as some do to learn basketball. What would that do for them individually and for the country as a whole within a few years?

Let us tell the identity politics demagogues to crawl back under their rocks. Instead let’s encourage everybody to find enjoyable, fulfilling work and to become good at their work. And let’s reward them for performance, not for ethnicity or gender.

Identity Politics, Part 2

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Senator Patrick Leahy has strongly implied that criticism of Supreme Court nominee Sotomayor is racist. And what were those “racist” remarks? The culprits quoted Sotomayor verbatim. There is no doubt that Sotomayor made a racist statement. There is no doubt that she said it multiple times. Yet Leahy has the nerve to accuse people of racism when they simply point out what she said. Worse, he misquoted her, apparently deliberately.

Leahy claimed, “[Sotomayor] said that, quote, you 'would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.'" Notice that he claims to be quoting her verbatim. That was a lie; he was creatively editing her words to make her statement sound neutral when in fact it was racist.

What Sotomayor in fact said was, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." The claim that her race and sex would reach better decisions is clearly racist, as I’ve discussed in my blog on the Gander Test. Removing the racist part of the quote is dishonest. Leahy is a liar when he says that he is quoting her statement.

However we should not be surprised that someone like Leahy, well on the left of the political spectrum, would do such a thing. Many of those people are incapable of recognizing racism in anybody but a white person. Leahy probably thinks that telling his lie is actually serving a good cause. Many of those people actually believe that it is not possible for a Black or Hispanic to be a bigot. That is a part of identity politics, they judge people by the color of their skin or their sex, not by what they actually say or do. However racist is as racist does, contrary to what the leftists claim.

This is the other side of identity politics, excusing all manner of sin on the basis that the culprit is a minority. Worse, anyone who criticizes a minority, even for valid reasons, is labeled a bigot for having the temerity to speak the truth or a non-politically-correct opinion. This is widespread in our country today. For example, anyone who opposes homosexual marriage will be called homophobic and anyone who opposes affirmative action will be called racist. That is just the way identity politics works.

Another aspect of this is the article of faith on the left that any minority must be leftist. Many go so far as to call a black person who does not toe the leftist line “not an authentic Black.” In fact recently Senator Barbara Boxer used testimony by Harry Alford, chair of the National Black Chamber of Commerce, to imply that the other groups represent black people but that Alford’s organization does not because it does not go along with the leftist agenda.

Many of Boxer’s ilk think that minorities should remain in lockstep and not be allowed to stray from the leftist reservation. They think that minorities off that reservation lose their identity.

Can we change the adherents of identity politics? I doubt it, at least not most of them. They tend to have closed minds on the subject and will reject facts or sound reasoning. In fact they will call such facts and reasoning bias, but of course cannot tell us how they are biased. Oh there may be a few who listen to reason but most won’t. Most regard the accusation as proof, no more discussion needed.

What we can do is refuse to give in to the twisted accusations of identity politics. Of course first we must examine ourselves to be certain the charges are untrue. If they are all we need do is make a simple statement of that fact.

A leftist might say, “You’re a bigot, you called Sotomayor racist.”

A good response might be, “I am not a racist, in fact I have many Black and Hispanic friends. I simply quoted her own words, words she has spoken multiple times. Then I pointed out that if someone made a similar statement, claiming that a white man could make better decisions than a Latina woman, it would be recognized for the racism it is. Sauce for the goose is sauce for the gander and Sotomayor’s statements are racist.”

Such a response probably won’t change the mind of the accuser; he is likely too closed-minded to understand it. However it will have an effect on neutral observers. Furthermore it will help us avoid the temptation to become as biased as the accuser in an attempt to avoid the accusation.

Leahy and his ilk will undoubtedly continue to make false accusations of bigotry. However I do not believe they are the majority in this country. I believe most people are smart enough to see how ridiculous those accusations are.

Identity Politics, Part 1

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“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” So spoke the Reverend Martin Luther King Jr. in 1963. To a great extent his dream has been realized. Official barriers to certain races have been eliminated. The Jim Crow laws are no longer with us. Of course there are still bigots in the country but at least they can no longer use the force of law to keep people out of schools or jobs just because of skin color. However the official forces of evil have are still with us, ironically now sometimes represented by the very people who claim to follow Dr. King.

The identity politics of Dr. King’s time involved blatant discrimination against black people. Today’s identity politics is not as blatant but still advocates discrimination. In the name of civil rights some are now advocating that people be judged by the color of their skin or by their sex instead of by the content of their character or their ability. In the state of Oregon for example, the Department of Human Services brags about having a great majority of women in upper pay ranges. They claim that having a majority of women somehow gives them diversity. They also say that they need to hire more people of certain races. That is hardly the color-blind society of Dr. King’s dreams. I have to admit that I fail to see how that can be squared with the constitutional requirement for equal protection under the law.

Identity politics is based on the idea that certain people should be given preference. That used to mean not hiring Blacks, Irish or people of certain other ethnicities. Today it again means discrimination against people of a certain skin color or sex. It is a group-based instead of an individual based legal theory. If a white man of 50 or 100 years ago discriminated against a black man of that same time, identity politics says that today we should discriminate against a white man to make up for it. The fact that both men from 50 or 100 years ago are now dead does not enter into the equation, nor does the fact that neither the white man discriminated against today or the black man benefiting from discrimination were even born when the earlier discrimination occurred. This theory punishes and rewards people for actions outside their control, actions done by people long dead.

Suppose your neighbor whose hair is the same color as yours were to steal a large amount of money, then disappear. His victim also moves away to parts unknown. Would it be fair to require you to pay back the money to someone in the victim’s old neighborhood whose hair is the same color as the victim’s? Yet that is essentially what today’s identity politics does under the name of affirmative action. Its advocates want to punish people for having an appearance similar to dead bigots. They want to use that punishment to the advantage of people who look like dead victims of discrimination. Rewards and punishments are handed out to people who had no control over the actions on which those rewards and punishments are based.

Consider three babies born the same day in the same city. One is the child of a wealthy black physician, another the child of a white single mother who struggles to pay the rent, while the third is born into a middle-class Chinese family. The physician’s child goes to a top-tier university, expenses paid by his father. The white child manages to get into the same university, taking out loans and working part-time to get his education. Both graduate with honors and apply for the same job. Who do you think will be hired? Most likely the doctor’s child because of his skin color. In fact, for many jobs the black person will be hired even if his qualifications are lower than those of the white person.

And what about the child of Chinese ancestry? He wasn’t even admitted to that university, even though he was more qualified than the other two. He had the misfortune to live and study in California where students of oriental ancestry have done too well. They are discriminated against in order to restore “racial balance.”

Affirmative action is discrimination, pure and simple.

In the long run identity politics harms everybody. While it’s obvious how in harms those discriminated against, there is also real damage to the supposed beneficiaries. Those people are encouraged to spend their time and energy defending their preference instead of working to get educated and preparing to compete on a level playing field. The person who spends his time working to get preference in hiring may come away with a job but will probably not feel competent in that job. If he spends that time studying engineering, science, business or something similar he will probably become qualified for a rewarding and possibly lucrative career.

Fairness and the constitution both require a color-blind society. We must work toward that end. Identity politics and affirmative action mean judging people on ethnicity or other irrelevant characteristics, not on character or ability. That is discrimination, pure and simple.

New Haven – Who Won?

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In view of the Supreme Court decision in the New Haven firefighter case, I’m going to postpone the continued discussion of factual analysis. Instead I’ll discuss the New Haven case while it is still fresh.

The typical news headline in this case is that the white firefighters won. While true, that merely scratches the surface. There are many more winners than just a few firefighters. In fact I would argue that nearly everyone in the U.S., black, white, or any other skin color is a winner and that there are few if any real losers. True, there will be many who complain about loss of what they see as a deserved “helping hand.” However that “helping hand” is counterproductive in the long term.

First on the long list of winners in this case are members of the public who might need help from the fire department. They have more assurance that the commander of any fire-fighting unit will be competent to do his job. The firefighters are likely to be better organized and trained than they would under a less-qualified officer. The person trapped in a house fire or injured in a traffic accident will benefit directly from this improvement. This applies not only to New Haven, but across the country as well.

Second, millions of young people will have greater assurance that their study will pay off as they prepare for the careers of their choice. The New Haven ruling tells government agencies that merit and qualification, not skin color should determine hiring and promotion. It is likely that this non-discrimination will extend to non-government employers as well. This decision is likely to strike a blow against the de facto quota system that has come to exist in this country.

Third, minorities will benefit in at least two ways. First, as hiring and promotion become more merit based there will be less suspicion that the minority employees got their jobs because of skin color. Sadly, many competent people have been tarred with the same brush as those who got their positions as a result of the quota system. Those competent and dedicated employees will be more respected and have more self esteem as the system of preferences dies off.

The second way minorities will benefit is that they will be encouraged to develop their natural talents instead of relying on preferences. I recall the case of a secretary in our department many years ago. She had ability and could have been an excellent employee. Instead she did not apply herself and when threatened with discipline would say in effect, “You can’t fire me, I’m a black woman and you need me for the numbers.” Eventually she left the company, taking her attitude with her. It’s impossible to say for certain how much that attitude had to do with this next but it probably played a factor. Sadly I later saw her picture in the paper, sentenced to jail for dealing drugs.

“But wait,” someone says. “What about the minority firefighters denied promotion? Weren’t they harmed?” I would say that they were not. It is true that they may have had to live on a lower salary than had they been promoted. However salary is not the only or even the most important consideration in job satisfaction. Most people like to feel that they are productive in their employment. Promotions or hiring for preferential reasons militate against that, a person who got his job because of his skin color is unlikely to have the same satisfaction as will someone hired and retained because of his work.

If an employee thinks he can get promoted because of his skin color, he is likely to depend on that skin. However if he is confident that promotions are merit-based, he is likely to work harder and study harder to become more qualified. That will increase his satisfaction with his job and his life. For that reason I maintain that the firefighters who did poorly on the test also will benefit in the long term. They cannot change their skin color but they can change how they work and how they study for the next promotional exam.

It is true that many minorities have suffered discrimination and economic problems in the U.S. and elsewhere. However history shows that those minorities who overcome such problems do so by struggle, hard work, and education. Preferential treatment simply helps them stay in the same situation and thus works against them long term.

As the country follows the New Haven decision, everybody will benefit from the wisdom of the fourteenth amendment. That amendment simply requires that no state “shall deny any person within its jurisdiction the equal protection of the laws.” As I’ve described in my blog about the Gander Test, New Haven attempted to deny white firefighters the same protection the city would have given to minorities. The Supreme Court decided correctly in this case and we will all benefit from that decision.

The Gander Test

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There is often controversy over just what is and is not racial or sexual discrimination. Is it discrimination to give preference to someone in hiring or promotion? How about admission to a university? These questions have created lots of controversy and I’m afraid that too often our laws and court decisions have only confused the issue. However there is a clear test that can cut through the fog. It’s what I call the Gander Test.

Sauce for the goose is sauce for the gander. That old saying provides the basis for the Gander Test, a sure-fire means of determining if a decision or action is discriminatory. The test is simple, quick and as far as I can tell, 100% accurate if applied honestly. It consists of simply interchanging “goose” and “gander” roles in our thinking and discussion. If we think something might be discriminatory, we switch roles of the affected parties. If it is discrimination after the switch then it was certainly discrimination before the switch.

For example, suppose you are a manager who needs to hire someone. You have two acceptable candidates for the job, one a white man, one a woman or minority. You decide to hire the white man but someone asks if that was because of your bias. Or maybe you decide on the other person and someone asks if you were overcompensating just to get racial balance or meet a quota. How can you be sure you decided fairly? All you have to do is look at what you would have done had the qualifications been switched. What if each had attended the school the other in fact attended, worked where the other in fact worked, had the references the other in fact has, etc? Would your decision change if the qualifications were reversed? If not, your decision was almost certainly based on bias.

This can also apply to the case of the New Haven firefighter promotion test (Ricci v. DeStefano), so prominent in the discussion of Judge Sotomayor. Nobody was promoted because not enough minorities qualified for promotion. What if the situation had been reversed? What if, on a similar test in some fire department, 80% of Blacks qualified for promotion but only 40% of Whites? What if the city said, “we are going to nullify the results because not enough white people qualified.” Nearly everyone would object and call it racism. Jesse Jackson and Al Sharpton would organize demonstrations and protests. Editorials across the country would condemn the action. Almost certainly the courts would throw it out. Switching positions of goose and gander (Whites and Blacks in this case) allows us to see the discrimination clearly.

What’s that you say? Surely such a thing couldn’t happen, we would never expect Blacks to do better on any employment test than do whites. Think again. If the test involves running with a football or getting a basketball in a hoop, whites are seriously under-represented. Both the National Football League and the National Basketball Association have a much smaller percentage of white players than would be expected from the percentage of whites in the general population. What should we do about it? Should we force professional sports to use race-balancing measures when they decide which college players they are going to hire? Nearly everyone would object and call that racial discrimination. Jesse Jackson and Al Sharpton would organize protests, justifiable protests I might add.

What if a candidate for high office were to say, “I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life”? Again everybody would recognize this as bias. In fact many did recognize bias in Judge Sotomayor’s equivalent statement, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Again the Gander Test shows the clear bias in the original statement. Even President Obama who appointed and continues to support Sotomayor recognized the problem, calling it a poor choice of words. (Though the fact that she made essentially the same statement many times over a period of at least 15 years would lead us to the conclusion that it represents her real belief, not something she said by mistake.)

But wait, you say. Is there no constitutional way to help those minorities who don’t have the same education and opportunities as the rest of us? There is as long as the efforts to help are based on disadvantage and not on skin color. What if a state identifies poor schools and institutes a program to improve them, or to allow students from those schools to attend private or charter schools. That would pass the Gander Test. If the bad schools are mostly black (as so many are) we just imagine if it would be constitutional to allow special efforts to improve education of white children in bad schools. The answer is yes it is. The program is aimed at the disadvantages of the children, not at their skin color. In fact a case might be made that equal protection under the law requires that states provide equivalent educational opportunities to children in poor and rich neighborhoods.

The 14th amendment to the constitution requires equal protection under the law for everybody, regardless of race. Giving white people special protection or other advantage violates that clause. So does giving special protection to Blacks, Hispanics, or green people if they were to exist. It is the duty of our judges and elected officials to support that equal protection. It is also the duty of the citizens to encourage their “hired hands” to support such equal protection. We should all contact our senators and ask them to consider this when they vote on the confirmation of Judge Sotomayor or any other prospective judge.

Judge Sotomayor and the Firefighters

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Imagine yourself in the following situation:

Your favorite sports team just won a hard-fought and important game. Their months of practice and hard physical training practice paid off. The win puts your team in good position to win the championship so the players and fans are about to start celebrating. But wait what is this? The referee is signaling for attention. He asks for a microphone and announces, “The score shows that the team with the green jerseys won. However we believe that there should be more winning teams with white jerseys so we are nullifying the results and officially this game was never played. It will not count toward the championship.”

Or if you’re not a sports fan, imagine you’ve just completed a degree that qualifies you for the career of your dreams. Maybe it’s nursing, engineering, teaching or whatever you think would be an enjoyable and rewarding career. You got high grades and have been offered several positions. You take one of those jobs and go to the human resources department to do the paperwork for new employees. The HR manager takes one look at you and says, “Oh dear! We can’t have this! You have blonde hair and we’ve just decided that at least half of our new employees must have brown, black or red hair. We are canceling your employment contract. You call the other companies who offered you employment and find that they have similarly changed their requirements.

In either case I’m sure you would be incensed that people would change the rules after the game is over. In fact in some countries any referee who made such an announcement after a soccer game would put his life in danger. Yet many of our judges make equivalent announcements in employment situations. Sonia Sotomayor, nominated for the Supreme Court is one of those judges. In the case of Ricci v. DeStefano, she and other judges allowed the rules to be changed after the game was over. This had the sole objective of disallowing a win by a group they did not want to win.

New Haven, Conn. had arranged for a test to determine which firefighters would be promoted to captain or lieutenant. That test was carefully designed to be job-related, exactly what we would want is it not? All firefighters eligible for promotion had the opportunity to study and learn the needed material, then take the test and compete for one of eight lieutenant or seven captain positions. After months of study, the pressure of the test, and the anxiety of waiting, the results were finally announced – and promptly nullified. The rules had been changed after the game was over.

Why were the results nullified? There was no question of fairness, all test takers had the same opportunity to study (including one dyslexic who had to work extra hard but qualified for promotion in spite of his difficulty). Nor was there any question of applicability, nobody questioned if the test was in fact job-related. No, the nullification was because some people did not like the outcome. Not enough minorities qualified for promotion so all the hard studying of all test takers was for naught. After it was over the city decided that the game was never played because they didn’t like the results. That was racial discrimination, pure and simple.

I find it unconscionable that a city would do such a thing and that any judge would allow it to stand. Yet Judge Sotomayor and other judges did allow it, in spite of a clear constitutional provision that equal protection under the law shall not be denied. How can they claim that it is equal protection when people of one skin color are protected from failure while those of a different color are forced into failure?

In my mind, this type of decision should prevent any judge from being promoted, especially to the Supreme Court. One of the most important functions of that court is protection of the constitution. When a judge allows such a flagrant constitutional violation, that judge should never even be considered for promotion.

The constitutional provision should be enough for the courts to overturn New Haven’s discriminatory ruling. However there are good reasons why the city should never have made such a decision, even had it been constitutional.

First is the issue of fairness to employees and the resulting adverse effects on performance. Firefighters, like most employees, perform better and have higher morale if they believe they are being treated fairly. If that is not the case, they will have low morale and little motivation to improve their skills and to go out of the way to do an outstanding job. Why spend all that time in hard, boring study if your employer is just going to ignore your improved skills? Why risk your life to save someone in a house or car fire if your employer is going to promote someone on the basis of an irrelevant characteristic such as skin color?

Second, from the point of view of a citizen, what kind of firefighters and fire department officers do we want? Suppose you are having a heart attack, or trapped in a house fire or a wrecked car with gasoline leaking. A fire truck approaches. Do you care about the skin color of the firefighters aboard? I wouldn’t. I don’t care if they are black, brown, white or green with purple polka dots. Nor would it matter to me how many are male and how many are female. It would matter a great deal that they be competent and dedicated to their job. Any employment or promotion considerations beyond that are discrimination and risk my life.

Allowing racial discrimination in public employment not only violates the 14th amendment to the constitution, it is also unfair to those employees and puts citizens at risk. Any imbalance should be addressed at the education level, not by discriminating against qualified people of any race. Judges who approve discrimination should never be promoted and could do the country a favor by resigning.