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PaperclipPerfector  11mo ago (text post)   28353 thread views

Culture War Roundup for the week of May 29, 2023

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The Supreme Court is expected to rule in June on Students for Fair Admissions v. President and Fellows of Harvard College, and is expected to strike down racial preferences in college admissions. The looming decision is starting to worry people in the DEI industry.

This Supreme Court case could spell the beginning of the end for affirmative action. It’s a looming crisis for corporate America (use reader mode to unmask the article. Paywalled version here).

Gillard and her colleagues in DEI are bracing for a crisis. Gillard created Factuality, a 90-minute interactive game and “crash course” in structural inequality that has been used as an employee-training tool at companies such as Google, Nike, and American Express, as well as at Yale University, among others. Factuality has seen an uptick in demand in recent years, but Gillard is under no illusions about why companies hire her: “I really feel that there are people who participate in these programs and initiatives because it’s required and mandatory,” she tells Fortune, “and that with this decision they’re just emboldened to stop.”

There's some funny stuff in the article too, for anyone who's wise enough to not bring up politics or religion at work:

It’s crucial, too, for companies to diligently vet public statements related to diversity initiatives. For example, in today’s climate, making public promises that a company’s board will be 25% female could create a legal vulnerability, Bryant, the McGlinchey Stafford lawyer, says. “Sometimes messages that are very well intended can get an organization in hot water if it’s not necessarily done and crafted in the right way.”

That’s a lesson several of Carter’s clients learned last year after announcing plans to pay for employees’ travel costs if they have to cross state lines to get abortions following the overturning of Roe v. Wade. Instead of just applause, they faced controversy and complaints.

“There were employees who said, ‘This goes against my values, and I am upset that you would be seen as a company supporting abortion,’ ” Carter says. “A lot of clients said, ‘We thought we did the right thing. But now these people are upset.’ ”

If the legal landscape does change, this is a chance to empirically test Richard Hanania's thesis that Woke Institutions is Just Civil Rights Law. If the majority of woke supporters (at least within institutions) are supporters only because of civil rights law, then support for wokeness could turn pretty quickly.

I would be happy to let corporations discriminate at will, as long as there's no law requiring them to discriminate in a particular direction. Let woke capital duke it out with meritocratic techbros and see which kind of company performs better. There's a lot of iffy research out there claiming that diversity has benefits for team performance etc. but this would be the true test. I'd expect the equilibrium to be a diversity of companies with different hiring policies based on their company goals and the purpose of each job role. Maybe for engineers and accountants meritocracy is best, while for public-facing roles the workers should be chosen by their appeal to customers, including by matching customers' race and other currently-protected characteristics.

If the legal landscape does change, this is a chance to empirically test Richard Hanania's thesis that Woke Institutions is Just Civil Rights Law.

I'm almost certain that Hanania has the pathophysiology correct. His mistake is in thinking that this makes the problem easier rather than impossible. The Civil Rights Act is probably the singular most beloved act of congress in American history, maybe not by up-or-down popularity vote, but certainly by intensity-weighted metrics like "number of people who are willing to die to preserve it." Legislative repeal is a non-starter. Judicial review seems promising at first -- the Roberts Court espouses all the principles of freedom and limited government required to overturn the law on a pure legal basis -- but should they touch the cornerstone of modern American legal and ethical theory that is the Civil Rights Act of 1964 they would get packed within a month. Anyone hoping for Republican senate support should expect the John McCain Experience.

No aspect of the CRA would actually need to be repealed to achieve most of what Hanania wants, which is the elimination of disparate impact doctrine. That is not enshrined in the text but was instead created through bureaucratic EEOC decisions, executive orders, and legal decisions. One president who takes interest in the issue, along with a favorable decision from the Supreme Court, could eliminate the legal basis of the ideology.

If you think that isn’t enough, I’d probably agree. I am in favor of giving people the freedom to discriminate however they want. The only durable discrimination is that enforced by law. Unjust discrimination really is too unprofitable in a free market. If Mormons want to live in a neighborhood that bars residence of non-Mormons, they should be allowed to. They will pay for it through reduced home prices, but I have no desire to infringe upon their ability to make that choice.

Further, without repeal or amendment, businesses are still liable to bogus workplace discrimination claims that receive outlandish payouts.

So DEI would not disappear, it just wouldn’t be compelled by law. That would still be a meaningful step forward from the current state of affairs, with no legislation required.

No aspect of the CRA would actually need to be repealed to achieve most of what Hanania wants, which is the elimination of disparate impact doctrine. That is not enshrined in the text but was instead created through bureaucratic EEOC decisions, executive orders, and legal decisions.

This is false. While the Civil Rights Act didn't originally include disparate impact (the Supreme Court developed it in Griggs), it was eventually codified in the Civil Rights Act of 1991. See 42 U.S. Code § 2000e–2.

The Ricci v. DeStefano opinion briefly reviewed this.

I knew about the history of judicial decisions, but was unaware of that legislation. Thanks for correcting me! I think represents a meaningful challenge to the vision presented by Hanania in the Federalist Society speech to which I linked. He operates under the impression that only Griggs need be overturned. In my estimation, after reviewing what you’ve provided, is that the ruling of Griggs is now enshrined into law and no longer reliant on precedent.

What then is the path forward? My initial reaction would be a wide-reaching ruling that recognizes that intelligence is the single best predictor of job performance, and so any semblance of g-loading makes a test or requirement meets the standard “that the challenged practice is job related for the position in question and consistent with business necessity.” Standardized tests, IQ tests, leetcode, etc. would be de facto protection for all hiring on merit, with disparate impact damned.

Does that seem like a viable path forward in your estimation?

I've been reading up on the same, spurred by Palladium's recent piece on a related topic.

The 1991 CRA lists the goal "to codify the concepts of business necessity", but it doesn't actually do anything to define that term. The most common legal theory I can find is "No Alternatives", which states that you can use an aptitude test as long as there's no alternative that would have less disparate impact. The actual implementation seems to be a hedge magic of best-practices, derived through the flailing of HR departments reacting to lawsuits. Critically, the burden of proof is on the business -- if you're causing a "disparate impact", you're guilty by default unless you can prove the necessity.

So, there could be room for the courts to clearly spell out a way of proving business necessity. If I were a lawyer I'd go digging for court cases where such a proof has been successful.

No alternatives means nothing and is entirely up to discretion. If an alternative results in 50% more diversity hire but 1% less efficiency, is it viable? What about 10% more diversity for 80% less efficiency? I doubt there are many alternatives found that result in increased efficiency, and if there are, the firm that doesn’t implement them will be punished by the market.

Thanks for sharing the Palladium article. It’s a death spiral that I remain more pessimistic about than Hanania, and my ideations have shifted from how best to change it towards how best to avoid the catastrophic consequences.

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