Knowledge And Decisions

The qualitative dimensions of “availability” have also been stretched in affirmative action concepts. The barely “qualified” are counted as fully as the well qualified or the highly qualified. Indeed, the Equal Employment Opportunity Commission (EEOC) has stretched the concept of a qualified applicant to mean “qualified people to train”⁷⁵ — that is, people lacking the necessary qualifications, whose hiring would entail more expense to an employer than if he hired someone already qualified. Applicants or employees cannot be denied a job even for serious crimes. The EEOC ruled that because “a substantially disproportionate percentage of persons convicted of ‘serious crimes’ are minority group persons” an employer’s policy against employing anyone with a conviction for a serious crime “discriminates against Negroes.”⁷⁶ Employers could retain this practice only if they could bear the burden of proof of the “job-relatedness of the conviction” and, in addition, take into account the employee’s “recent” past employment history — to the ex post satisfaction of the EEOC.”⁷⁷

The EEOC defined which groups were “minorities” for legal purposes: Negroes, Indians, Orientals, and Hispanics.⁷⁸ Because this was an unconstrained choice by an unelected commission, it did not have to justify this selection to anyone, even though Orientals were included when they have higher incomes than other ethnic groups not included (such as Germans, Irish, Italians, or Polish-Americans⁷⁹) — and, in fact, had higher incomes and occupations than the average American.⁸⁰ The other officially designated ethnic minorities all have lower average ages and educational levels than the general population — a fact generally ignored in “representation” discussions. With the addition of women to the groups entitled to preferential (or “remedial”) treatment, all the persons so entitled constitute about two-thirds of the total population of the United States. Looked at another way, discrimination is legally authorized against one-third of the U.S. population (Jewish, Italian, Irish, etc., males) — and for government contractors and subcontractors, it is not merely authorized but required.

The shifting of the burden of proof to the employer after a prima facie showing of statistical “underrepresentation” (as administratively defined) was paralleled by a shifting of the burden of proof to the employer whenever a test had differential impact on the officially designated minorities.⁸¹ The apparently reasonable requirement that such tests be “validated” is in practice a virtual ban on tests for many employers, because the cost of such validation has been estimated by professional testers as “between $40,000 and $50,000 under favorable circumstances,”⁸² and many employers simply do not have large enough numbers of employees in each job classification to achieve statistically significant results in any case, even if they were willing and able to spend the money. The EEOC has even gone beyond requiring “validation” to requiring differential validation for each ethnic group — still more costly where possible, and possible in fewer instances. The importance of costs and of placing the burden of proof on the government in legal transactions is amply illustrated by the results in the exceptional area of administrative law, where the accused can be presumed guilty after a meager prima facie case. Under “affirmative action,” as administratively evolved, the prima facie case consists simply of systemic results (“underrepresentation”) legally equated with intentional behavior (“discrimination”). As a well-known scholar in this area has observed: “One may review these enormous governmental reports and legal cases at length and find scarcely a single reference to any act of discrimination against an individual.”⁸³