Gail Heriot, professor at University of San Diego School of Law and commissioner on the U.S. Commission on Civil Rights, joins the podcast to explain how legal changes made to the Civil Rights Act in the 1990s forced radical politics and easy offense out of academia and directly into corporate America. Gail convincingly explains how concepts like microaggressions, racial identity politics, and respecting the 87 genders took off in the ’90s thanks to a combination of malincentives written into the law, bad court decisions, and a hefty dose of private sector CYA. She gives Inez an alternative explanation for the origins and timeline of wokeness.
TRANSCRIPT
Inez Stepman:
Welcome to High Noon where we talk about controversial subjects with interesting people and where I feel like we talk all the time about the roots of wokeness. We have a lot of focus on where this ideology comes from, intellectual lineage, et cetera, et cetera. But in this conversation, I often think we talk too little about why we really see that ideology gain institutional power starting not just a few years ago.
I would argue not. Some people want to drag it all the way back to 1776 with many stops in between, but in the ’90s and with the discussion around political correctness, et cetera. I think my guest this week has in some ways the most concrete and specific and therefore potentially actionable explanation for why we suddenly seem to live under a regime that adjudicates basically all questions on a hierarchy of identities and oppressions, whether that’s in the public context or whether that’s in the private company context.
I’ve been wanting to have her on here for quite a long time. I think her work intersects … or intersectional. Your intersectional Gail, with many of the most important questions that we have to be willing to deal with if we’re ever going to find a way out of this mess.
With that, I’m really pleased to welcome Gail Heriot onto High Noon. Gail’s a professor of law at University of San Diego School of Law. She is also on the US Commission for Civil Rights, although she’s not speaking in that capacity today. Gail, thank you so much for coming on High Noon. I’ve been looking forward to this for a long time.
Gail Heriot:
Well, thank you for having me on.
Inez Stepman:
Let’s start with something that I think a lot of people forget, which is funnier because it’s not that long ago, but people think about the 1964 Civil Rights Act and they think about the entire movement in the 1960s for that act. But they don’t think a lot about the changes, some of them very substantive and important that were made to this law in 1991. Can you maybe in a broad-brush way lay out some of the changes that you think have had a bigger impact than people perhaps think about on a day-to-day basis?
Gail Heriot:
I mean, it’s interesting because in 1964 when Congress initially passed the Civil Rights Act that included Title VII, that was a big change and everybody knew it was a big change. From then on, discrimination on the basis of race, sex, religion, or national origin in employment was forbidden all across the country. That seemed to everyone like a real sea change.
They don’t really get into the legal minutiae that the Civil Rights Act of 1991 was all about. And it’s not surprising. I mean, why should non-lawyers be paying attention to things like proof of causation? What damages are available? But in fact, it turned out to be much more important, I think, than the average American might have realized.
I think even much more important than the average member of Congress realized. The one I’ve talked the most about is the change in the way that the remedies for a Title VII action were done. Back in 1964, only two kinds of remedies, as we call them, were available to someone who could prove that they’d been discriminated against on the basis of race, color, sex, religion, or national origin.
Number one, you could get an injunction. If someone had not been hired because of their sex or had not been given a promotion because of their race or had been fired because of their religion, they could get an injunction ordering that they’d be hired, that they’d be promoted or they’d be reinstated. The other thing they could get was lost wages.
If you hadn’t been hired, and you should have been, you could get money for that. If you hadn’t been promoted and you should have been, you could get money for those past lost wages. Same with someone who was wrongly fired. But that’s all you could get.
When I tell my students about this, sometimes they think that the reason for that is that Congress wasn’t really serious about discrimination, that they didn’t really care. That’s not the reason. For non-lawyers, the reason is going to sound really weird, but it’s true. That is that Congress was trying to avoid the possibility that there would be jury trials.
They didn’t trust juries in the Jim Crow South to fairly apply the law. They limited the remedies. Again, I bet you non-lawyers who were listening are thinking, “What’s that got to do with juries?” Weirdly, it has a lot to do with juries. If you look at the United States Constitution, the Seventh Amendment, and you read that amendment, it looks like we’re guaranteed civil juries in lawsuits for which the damages are above a certain amount of money.
But it’s not really true. What’s really true is that in the federal court, you’re guaranteed a jury trial. If the case were traditionally … I know this is going to sound complicated to people who haven’t gone to law school, but you have. They have to be cases that traditionally would’ve been brought in courts that under old English law would be called common law courts.
If it were instead the kind of case that would be brought before a court, the old English courts called equity courts, there’d be no right to a jury trial. I don’t want to get too further into the weeds on that. It’s just that this is one of the quirks in the world that lawyers know about and non-lawyers tend not to. That is whether the kinds of remedies one can get for up for a lawsuit will determine whether or not you can get a jury trial or not.
That’s the reason that Congress did that. But weirdly, it turned out to have been a good thing for other reasons. When the law was amended in 1991 to include punitive damages and damages for emotional distress, bingo, suddenly, suddenly employers were very worried about the possibility of Title VII lawsuits in a way they weren’t before.
They were, in fact, I would say panic-stricken. If you look back at all the things that were going on in the early ’90s, oh, my goodness, employers were going off the deep end worrying about lawsuits, particularly harassment lawsuits.
Inez Stepman:
I think we’re all familiar with the archetypal sexual harassments. Initially was on CD-ROMs that people would have to watch and go through. Can you explain how loosening the remedies side and making it potentially much more lucrative to file a hostile workplace environment suit or one of these discrimination suits has worked with what was initially quite a vague definition of what discrimination actually looked like and why we didn’t see that explode?
Because I feel like the rejoinder to people like Christopher Caldwell and others who have pointed to the Civil Rights Act and said basically, we live under a different constitutional regime now than we did before the Civil Rights Act of 1964, and that new constitution essentially has created the world we live in today.
They have an uphill battle to explain why it is that this really didn’t take off in any serious way until the ’90s. How do those two halves work together, the definition side and the remedies?
Gail Heriot:
Yeah. It’s funny because back in the 1980s, the Supreme Court decides that harassment lawsuits are in fact viable lawsuits under Title VII, and that would include sexual harassment. It also include racial harassment. But things didn’t explode and they didn’t explode because the remedies were very limited.
Really, if you were just bothered by some harassment, that would not be enough reason to bring a lawsuit. Like the Supreme Court defines harassment in a way that, well, it’s not really clear what they think should be covered. I mean, they’re using very loose language and it’s impossible for employers to tell what’s going to constitute harassment and what won’t constitute harassment.
But unless the plaintiff has lost wages or wants an injunction, it’s very unlikely there’s going to be a lawsuit. But as soon as the 1991 Act passed, suddenly there’s all this pressure on that vague definition of what constitutes harassment. I mean, what constitutes harassment was clearly in the eye of the beholder under the definition that the Supreme Court was giving.
It would be harassment if somebody thinks of it harassment, but maybe somebody else would not think of it as harassment. But once it became lucrative to sue, whoo, now, there are all sorts of lawsuits and all sorts of arguments about what might constitute harassment.
It could be enough if the cumulative effect of lots of little tiny pinpricks might add up to an offensive environment. You could have a large office with lots of different people working in it. One person happens to put up on the bulletin board a racy cartoon, another one likes to call people dear, another one tells a dirty joke or so, another one brings in a book that has a racy title.
At some point, that’s going to add up to sexual harassment. Now, I’m not talking about the hardcore quid pro quo kind of sexual harassment where a woman is told if she doesn’t engage in sexual relations with her supervisor, she’ll lose her job. You can put that one to the side because those are quite serious allegations.
But these hostile environment cases that are defined cumulatively, every employer in the country was being told by their legal advisors, you got to make sure that you come in and you control employee behavior at the pinprick level because those little pinpricks can add up. If they do, you’re going to be liable for real money.
Bring on the trainers, bring on the bureaucracy designed to make sure that hostile environments don’t develop. Because employers really could only control this at the individual level of those individual small things, we started to get a really different office culture than what we were used to where employees, both men and women, both African Americans, Latinos, whites, Asian Americans, all felt like they started to have to walk on eggshells.
That wouldn’t have been true in the 1980s because the level of fear on the part of the employer was not so great.
Inez Stepman:
What you’re saying is the concept that comes to mind as you’re talking is microaggressions. We tend to think of this as something that came out of the academy, and yes, it did. There’s a story there. I had yes on to talk about that story and the spread of these ideas from the new left in the ’60s and the universities and graduating their little minions into every aspect of life. That is a huge part of the story.
But I think you have a much more convincing case as to why we really saw this break in the ’90s, saw concepts like microaggressions start to develop. Because there was this enormous incentive for a company of any size to essentially make sure that anything that would be remotely considered offensive by anyone, by the most sensitive among us potentially could cost them millions of dollars. They became very, very CYA about the whole thing and quite tyrannical in doing that.
Could you maybe, just to flesh it out a little bit, could you give us an example of what a typical case might look like before these ’91 revisions versus what the kind of case that you’ve seen in the last couple decades or more?
Gail Heriot:
In the 1980s, if you had a racial or sexual harassment case, the amount of money that would be involved would be the amount of lost wages. Very often there are no lost wages and therefore those cases tended not to be broad unless the person wanted an injunction. That’s a pretty heavy-handed way of dealing with harassment.
It’s a good way to deal with not getting the job or not getting the promotion or getting fired unfairly. But most people don’t want to bring an injunction where the court has to supervise whether or not somebody’s joke is a little too off-color. What happened was a perfect storm. Suddenly real money is involved.
There would be the money that would be going towards punitive and emotional distress damages. Attorney’s fees are involved and the cumulative nature of hostile environment cases so that you don’t want to say, “Don’t engage in a hostile environment,” because that doesn’t mean anything to anybody.
The employer’s going to go down for these individual little statements, individual things that could add up and they’ve got to deal with it that way. Then there’s a add to that perfect storm, absolutely perfect storm. There are rules against retaliation against anyone who makes a Title VII claim.
What that means, if someone says, “I believe I was discriminated against on the basis of race or sex. I didn’t get the promotion,” you can’t retaliate against them. But when it comes to harassment, now, if you’re simply saying, “Hey, I believe I’m being harassed.” You’re not allowed to say, “I think you’re being overly sensitive.” You’ve got to treat it as if it’s very seriously.
The employer has to then handle every complaint and every complainant with kid gloves. You start getting complaints that are really very minor. You bring in the trainers. You try to get people to understand, they have to avoid even the smallest defense. That’s big business.
Over time, that has become a billion-dollar business. They have to keep coming up with reasons that you need to keep using their training services, whether they’re in-house or outside contractors. They want to stay relevant. So, what do you have to do? You have to start inventing new and exciting ways to say, “Here’s something else you shouldn’t do.” I think that’s why the microaggression thing took on new life.
It was invented on campuses. But employers started hearing these training organizations and their in-house trainers saying, “Hey, not only do we have to avoid really offensive things like using epithets that never should be used in polite company, but we have to remember that there are all sorts of little things that even nice people may not realize are offensive.”
In the 1990s and even more so in the early 2000s, you started getting trainers who would tell people, you should never say, never say that the job should go to the most qualified person. That’s offensive. You should never say that men and women have equal opportunity. That’s offensive.
Any kind of pushback on the harassment industrial complex, maybe we should call it, all of that was off the table. You couldn’t do that. Microaggressions and then that has morphed in more recent years into training on white privilege and they keep upping the ante.
Inez Stepman:
Yeah. There’s this whole incentive structure here. Leaving ideology for a moment aside, there’s just so many incentives for everybody involved to keep this train continually pushing, as you say, towards ever more minute imaginations of oppression because the employees, to some extent, benefit from it. If they can claim one of these identities, they have the potential for very high payout.
The corporations, they just want to avoid these high-dollar lawsuits and potentially also the cultural impact of having their company names splash across the papers for discrimination, which carries a heavy penalty in our society. But more just the stuff that you’re talking about, this actual penalty. Of course, then there’s this entire, as you say, billion-dollar industry of training courses.
I would argue, it’s funny, even 5 or 10 years ago when I used to talk about education policy, I would say, “Oh, we need to modify and wind down the student loan program because it’ll be better for us as those of us on the right, because what bank is going to loan someone $120,000 to go study gender studies?” Well, I have to revise that now.
I mean, this industry has gotten so big. You can have a very lucrative job if your degree is essentially in the latest cutting-edge offenses. This is a very lucrative, actually, position. Don’t you think?
Gail Heriot:
Yeah. It is. It is. I used to think that people who majored in some of these grievance studies departments would not get jobs. But they do. They do these days. Every major corporation, every medium-sized corporation these days has someone whose job it is to prevent these lawsuits. They’ve got a stake in making sure that that keeps going.
It’s interesting. When it comes to wokeness, you hear a lot of explanations, and I think these are useful explanations that follow the intellectual history of wokeness starting early on. But it’s always very important to look at the incentives created by law that it’s true that culture affects the law. But law also affects culture.
Over time, the legal incentives created by the 1991 Act have affected our culture, and not always for the better. The nice thing about the ’64 Acts and its limited remedies is that it made sure that, yes, harassment cases could be brought, but they would have to be the ones that were quite serious, the ones that were so serious that they involved lost wages or were so serious that it was worth it to the plaintiff to want an injunction. Now …
Inez Stepman:
To quit. To quit an entire job without having another one lined up. I mean, that itself is a pretty high standard. People, that’s a vulnerable position to find yourself in. You’re not going to do that unless the job you’re at is engaged in something quite awful.
Gail Heriot:
Exactly. Now, we’re in a situation where somebody can be fired for completely different reasons. They’re fired because they didn’t show up for work on time, or they’re fired for any reason that would be valid and unrelated to Title VII. But they’re desperate at that point. They may be thinking to themselves, “Well, it may be that my firing had nothing to do with my race or sex, but I was harassed and I still suffered emotional distress damages.”
Well, maybe they sincerely believe that’s the case. But even so, that doesn’t mean that we want to have a definition of what constitutes offensive conduct that is such that ordinary comradery among employees suffers. I mean, we are now in a world where that comradery is much more difficult to achieve, and that’s not good for anybody. It’s not good for women. It’s not good for men. It’s not good for members of any race to have a situation where people feel like they’re walking on eggshells at work.
In fact, there is data now showing that male supervisors are less likely to want to mentor female employees because they’re worried. They’re worried that something that they will say will be taken amiss. They’re worried in ways that I think are perfectly rational. The same, I think, with race. That we’re in a situation where people think, “I will have to work on eggshells, walk on eggshells if we hire into this small office, somebody from a different background, a different race, a different religion.”
You don’t want that. You want a situation where people can actually feel that their colleagues are their friends.
Inez Stepman:
Let’s get to the enforcement piece of this. Let’s talk about the EEOC. A lot of these cases are not going through traditional channels, they’re jettisoned and what constitutes harassment and what doesn’t, and hashing that out. Where does that come from? What’s the EEOC and how does this whole bureaucratic agency fit into all of this?
Gail Heriot:
Oh, boy. Back in 1964, as I said, Title VII was a big change, big change in the law. It was a big change, particularly in the states that did not have such a law. Many states already had it. But at any rate, Congress figured there were going to be lots of lawsuits and they figured it would be expensive and that a lot of the people who were genuinely discriminated against would not have the resources to bring an expensive lawsuit.
They set up an agency, the Equal Employment Opportunity Commission, the EEOC. The idea was that the EEOC would be able to take in complaints. They called them charges, but it’s just as easy to call them complaints, from employees that would not require a lot of procedure and that the EEOC employees would investigate and attempt to mediate the problem.
They’re still there. They’re big now. It’s a big agency at this point. But if you want to bring a lawsuit under Title VII, under the law, the first thing you have to do is to file a charge with the agency or with a state agency. You can’t just bring your lawsuit without having gone to the EEOC. The EEOC now employs thousands of people and they attempt to mediate these disputes.
Most of the cases that are brought to their attention, they find are not worthy of their … They find no cause. A lot of charges are filed that are not meritorious under the law. But the thing is, no employer wants to even have to start down this road. They want to avoid this.
What tends to happen is that employers are trying to avoid even that first step because that’s going to cost them money. They’re going to have to have a lawyer go in and explain what happened. It creates an interesting dynamic that I think has been a big problem. I think it’s also a big problem for lawyers.
I mean, you went to law school, I’m sure you remember that most of what you did was read judicial decisions. That’s what law students do. That’s what law professors teach from. They’ll have a big book filled with all sorts of judicial decisions. But most of the law doesn’t occur in court. Most of the law occurs down a little lower.
At this point, for employers, the name of the game is “Don’t let it even get started. Don’t let it even be a charge that’s filed with the EEOC.” Everybody’s trying to be in a situation where they’re not even … It’s not just they want to avoid ultimate liability. They don’t want a case to be brought in court. One step backward, they don’t want a charge to be filed with EEOC. One step backward, they don’t want to fight at all.
They don’t want to have an employee even complain within the internal offices that the company has. That has created this dynamic towards let’s avoid anything that is anywhere near harassment under the law, that’s anywhere near offensive.
Inez Stepman:
You have a great law review article, basically title that I’m going to butcher it, but everything is presumptively illegal under title …
Gail Heriot:
Oh, yeah. Well, that’s dealing with disparate impact, which is yet another can of worms.
Inez Stepman:
We’ll get to that in a moment. But just the headline is what we’re same … We end up in the same place with the headline. But before we move there, I want to talk about some of these incentives to settle, because I have a lawyer friend who has been around the edges of some of these cases.
He wanted to know why it is that we don’t have some brave Republicans who might be willing to not only tweak some of the things like the remedy side that you’ve been talking about, to put some limitation on what can be punitive damages or to actually go and try to define harassment in a more clear, bright line way that companies wouldn’t need to constantly bend over backwards to avoid.
But he also talked about the pleading standards, raising the pleading standards and saying basically, because there’s such a recognizing that there’s such an incentive for companies to settle as soon as you get into discoveries for all, they incur all the costs, they incur all the bad press, blah, blah, blah, blah, blah.
There’s such an incentive that it becomes very, very incentivized for … I don’t want to use this word incentive too many times. But it becomes a very tempting proposition. As you said earlier, for example, an employee that’s fired for any reason, anybody who’s looking for a payout to get involved in one of these litigations on the assumption that the company may well write them a six-figure settlement just to avoid the whole mess, to begin with.
I’m wondering what you think about his suggestion of making the pleading standards a little bit tighter, and he compared it to securities litigation, he said, “We recognize in other parts of the law that there are these mal-incentives to get people into court, and therefore we have slightly different levels of pleading standards for those cases.”
Gail Heriot:
I like the idea. I think that could help. It won’t help in this area as much as it would help in certain other areas because we have the EEOC and their standard for the charges is by design. It’s way, way, way down, much lower than what you’d see even in an ordinary court for things for which there aren’t high pleading standards.
I don’t think it’s going to be easy to change the standard at the EEOC level, because the whole idea here is that you should be able to file one of these charges without having to hire a lawyer. I know people do hire a lawyer at that stage. But given that you’d get a lot of pushback on the notion of you’re going to change the entire nature of the EEOC if you have them demand high standards of pleading.
People file charges with the EEOC that just hardly say anything, and that gets the ball rolling in weird ways sometimes. But I do think it would help to have higher pleading standards at the court level. I think that would help. You’re right. What happens is employers when they’re sued, that makes the news, particularly if it’s a class action or a big case of any sort, that makes the news.
What doesn’t make the news is the stuff that happens that it does not benefit women or minorities, where employers, unbeknownst to anyone, say, “Maybe we shouldn’t hire the first woman into this department. We’d just be asking for the possibility of a harassment lawsuit if it doesn’t work out. That worries me a lot.”
Or the supervisors who don’t tell anyone, but just don’t mentor women, because they’re afraid if they are seen as paying too much attention to a female employee, that it will be misinterpreted instead of a mentor-mentee relationship, but it’ll be interpreted as harassment. That’s stuff that doesn’t get attention because it happens in such small ways that no one notices.
I worry about how we are going to deal with this, how are we going to get politicians to pay attention? Back in 1991, or I should say back in 1990, we almost had a politician that was careful about these issues. It was President George H.W. Bush. The first version of the ’91 Act, he was urged by his top lawyers, White House Counsel Boyden Gray and Attorney General Thornburgh to veto it. He did. He vetoed the first version of that bill that came to his desk.
Just a few weeks later, they had the 1990 elections. As usual, in a midterm election, the Democrats ended up, or rather the party that’s not in the White House ended up gaining a few seats in Congress. The newspapers reported that it was in part because of the veto. His political advisors told him, “Oh, my gosh. You lost votes because of the veto. Don’t do that again. If there’s another version, please sign it.”
Although the attorneys were telling him, “Look, this is not a good bill.” The political advisors were saying, “You got to sign it. You got to sign it.” He did. I think what’s happened in the 30 years since then, politicians keep thinking that they will be punished if they don’t go along. I think it’s only in very, very recent years that more conservative elected officials are realizing that you can’t go on forever simply going for whatever the far left wants.
Inez Stepman:
Yeah. I guess my next question is where do you think the politics of this will go? Because as you say, until recently even opening the words Civil Rights Act and you have Republicans just running for the hills, nobody wants to bring some of these modifications that you suggest, even though they’re in some ways highly technical. They don’t even get into the ideology of how we should treat each other, how we should deal with race in America.
Some of these are just legal incentives that are broad-based across the whole system that’s been built up around this law and basically saying, “We have an incentive for bad actors. We have an incentive to settle. We don’t have an incentive to get to the truth of a lot of these cases.” Instead, we’ve created a system where everybody constantly has to cover their rear end and has to meddle in the affairs of their employees, making sure they cannot say anything that might be potentially offensive to anybody.
Do you think that there is something shifting? Certainly, I feel it on the right, at the people level, the voters level. I think people are really fed up with how far this has gone and this regime, and they feel intensely afraid to speak at work. I mean, some of these polls are 65% of Americans feel that they can’t express a contrary opinion, a controversial opinion.
A large part of that is their employment. Some of it is all the ideological stuff that we always talk about, about shifting values. I always talk about what’s being taught in K-12 and so on and so forth. But a lot of it is just straight-up incentive and fear. They’re afraid they’re going to lose their jobs because the companies are policing this.
I see the opening on the popular level to talk about some of these things once again in a way that I didn’t think that was possible 5 or 10 years ago. But on the other hand, how many things have been discussed on the right, on the popular level, and foundered on the shores of what Mitch McConnell was willing to entertain?
Where do you think that whole conversation is within the Republican Party? Do you think there are people in the Republican Party who might be more willing than in the past to reopen some of these legislative conversations?
Gail Heriot:
I think there are Republican leaders these days who are willing to look carefully at the incentives that our laws have created. On the other hand, on the other end of the spectrum, the demands on the left are worse than they’ve ever been. It’s more bipolar than it was before. For a while, the left was dragging conservatives and moderates to the left.
The left is not any less demanding than it was before. If anything, it’s more demanding. There’s going to be substantial disagreement. But is it possible that we can come up with solutions here? I think it’s possible. But it’s going to be hard. It’s going to be hard at this point.
Inez Stepman:
I want to turn to another one of your expertise, your areas of expertise within Title VII, and that’s disparate impact. You have this title I alluded to, I pulled it up, “Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal.”
Gail Heriot:
It sure does.
Inez Stepman:
Your abstract says, “It gives the federal bureaucracy extraordinary discretionary power.” Basically, this paper discusses basically how this disparate impact liability stemming from this Griggs case in 1971, how that has played out. Again, then how the 1991 law intersected with it. Can you maybe tell the story of the Griggs case, disparate impact, and how that law in 1991 intersected with all of that and then where we are now on disparate impact?
Gail Heriot:
Okay. As we all know, Title VII outlaws discrimination on the basis of race, color, religion, sex, and national origin. When you hear that word discriminate, it’s quite clear from what was said on the floor of Congress and just what the word discriminate means. It’s talking about people who are actually taking these issues into account, and whether they’re doing it consciously or unconsciously.
They’re treating people differently based on their race, sex, national origin, religion, or color. But holy toledo, in the early 1970s, the Supreme Court decided a case called Griggs v. Duke Power Company. Law professors like to say, “Hard cases make bad law.” Boy is that ever the case with Griggs.
The Duke Power Company, as soon as Title VII went into effect, it changed the rules for how you could get hired. They were a North Carolina company. They had been discriminating on the basis of race prior to Title VII. No one denies that. They were making decisions based on race.
When Title VII went into effect, it started to require a high school diploma for certain jobs and to require a passing grade in certain standardized tests that they would give in order to get jobs. The argument was made, you’re only doing this in order to exclude African Americans. That African Americans in this part of North Carolina were less likely to have high school diplomas. They were less likely to do well on the exam.
The accusation was made that you’re just doing this because you want to discriminate against African Americans. But importantly, the trial judge found that wasn’t true. Maybe the trial judge got it wrong. There’s actually some evidence that the trial judge didn’t get it wrong. But I’m inclined to think that the trial judge did get it wrong.
It goes up to the Supreme Court. The Supreme Court can’t change that. They can’t disagree with the trial court’s finding a fact. They go and they say something that has really been a big problem ever since. They say that it’s not just a question of discriminating in the sense of treating people differently.
It’s also going to be a violation of Title VII if an employer picks a job qualification where people of one sex or one race will tend to do better than another race, another religion, another national origin group unless the employer can prove that they have an absolute business necessity for doing so. Okay. Now let’s think about what that means.
I have challenged many, many people, large crowds that I’ve spoken before. If you can think of a job qualification that both sexes, every race, every religion, every national origin group does equally well at, then I will give $10,000 to your favorite charity because there is no job qualification for which … A job qualification that would really be used in the world for which there is no disparate impact on some group.
You got to remember, it’s not always the same group, but there are a lot of groups that are protected by Title VII. For example, on strength requirements. This is going to come as a shock to you. But on average, men are stronger than women. Height requirements, on average, men are taller than women. There are exceptions, of course.
College degrees, Asian Americans are more likely to have, for example, a science technology, engineering, or mathematics degree, a STEM degree than whites or than Latinos or than African Americans. Left-handedness or right-handedness, that was the one I thought maybe that one does not have a disparate impact, but it does.
In certain cultures, it is common to try to discourage left-handedness still. Those cultures tend to be disproportionately right-handed. If there’s a requirement that you be right-handed in order to operate certain machinery, that will have a disparate impact on those ethnicities, those national origins where it’s less common to discourage left-handedness and vice versa if they need to be left-handed to get the job.
If you require any college degree, you will find, for example, that Jewish Americans are more likely to have college degrees than Jehovah’s Witnesses. That is not meant to be a statement that Jehovah’s Witnesses are somehow less worthy. I think it actually speaks very well for Jehovah’s Witnesses that they are particularly likely to evangelize among groups that need a little extra help in the world. That’s a good thing. That speaks very well for the group. But they are less likely to have college degrees on average.
There are plenty of exceptions over and over and over again. My favorite example, and I’m sure lots of people have noticed this. What ethnic group is most likely to have experience in the manicure industry? If I want to hire manicurists and I want three years of experience, what group is likely to be advantaged by that? Can you guess?
Inez Stepman:
Vietnamese.
Gail Heriot:
Vietnamese-Americans, because weirdly enough, there’s a story behind that.
Inez Stepman:
Yeah. I’ve read that story. It’s a funny. It’s like an American actress, right?
Gail Heriot:
Yeah. Yeah. Tippi Hedren, the woman who starred in Alfred Hitchcock’s The Birds. She went to visit the refugee campus right after camp, right after the fall of Saigon. There were people who had escaped Vietnam at the end of the war there. It was important to get people jobs as quickly as possible.
She’s a movie star. They admired her manicure. She had lovely, lovely fingernails. She got the idea of sponsoring a group of women to go to manicure school because it was a quick way to get a job. The schooling doesn’t require that much time. Those young women then paid for their sisters and cousins to go to manicure school, and they became very entrepreneurial, and suddenly, boom, they were dominating an industry here on the West Coast and I think in many parts of the country right now. Vietnamese Americans are more likely to have that experience.
Hispanic Americans are more likely to have jobs as jockeys and high-stakes horse races, has to do with the build, and I suppose interest. But my point is everything, everything that actually is used to make a distinction between who gets a job and who doesn’t get a job is going to have a disparate impact on some group.
That means that anything that an employer does in terms of specifying what counts as a qualification for a job they’re trying to fill, it will always be presumptively illegal. That’s the world we live in. These days, I don’t know if you’ve noticed this, you’re too young to have noticed this. But 40 years ago, it used to be much more common for employers to have very specific job qualifications.
You knew whether you were going to qualify or not. They don’t publish their qualifications now. They’re silent about it because they don’t want to be told “You can’t do that. You can’t do that.” That has not been good for the country, I don’t think. It makes it actually easier to hide discrimination. But that’s the world we’re in.
The 1991 Act, alas, is very clear from the legislative history that the Griggs decision was contrary to what Congress intended. It was a clear misinterpretation of the act. I mean, absolutely crystal clear. There’s so much in the legislative history that shows that they wouldn’t have intended this. They did not intend this.
But it became part of the law. Unfortunately, Congress recognized it in the 1991 Act. There are some clauses in the Act that refer to disparate impact. As a result, it’s going to be much harder to get the Griggs decision overturned.
Inez Stepman:
Why do we have some … Because as you say, everything, every requirement has a disparate impact on someone. Why is it that, for example, university degrees, that seems to be the one thing that employers can put in an ad. You could say, “Bachelor’s preferred, master’s preferred.” Why is it that universities or that requirement, employers do not get in trouble for putting in these university requirements?
I know Michael Lind, for example, has proposed that actually as an act of jiu-jitsu that when Republicans control the executive branch, that they start to apply disparate impact analysis on employers based on university requirements. Why is it that some things seem to remain, even though as you say, there’s no basis in the law to say that that’s any better than putting in three years of experience or can pass this aptitude test that has to do with the machinery that you’re operating or something like that?
Gail Heriot:
It’s very interesting. I mean, the remedies provision that we were talking about earlier, which makes it so that plaintiffs can sue and get serious money, they don’t apply to disparate impact cases. Disparate impact is mainly administered by the EEOC and they will deny this. But if you ask me, the EEOC, which is usually controlled by people who are well left of center, they pick and choose which disparate impact they want to go after.
University degree, they like that one. I think because it’s a democratic constituency. They think that it’s just fine to require a college degree. But I don’t see why that would be not a violation of the law. It seems very clearly that it is. There are very few jobs for which you can say there is a business necessity of requiring a college degree, and yet that tends to be something that they ignore.
On the other hand, what the EEOC has been very big on trying to stamp out is criminal background checks. They don’t want employers to be able to refuse to hire employees based on criminal convictions. They call that having a disparate impact based on race, that African Americans are more likely to have felony convictions and therefore they should not be … employers should not be able to say, “we won’t hire people who have felony convictions.”
That strikes me as a very odd approach. It’s very clear why employers would want to have rules against hiring people with felony convictions. I understand why it’s also important to make sure that people who have been to prison and are now out, they need to be able to get jobs. But the best way to do that is to do it the way that Congress had been doing it up to it for a while.
That is to have special subsidies that allow employers to get a tax deduction for hiring somebody who’s had a felony conviction. That way, the employers who are in the best situation to do that, they’re the ones that make the decision to opt into the system. Instead, we tell all employers, you can’t have a rule against hiring people with felony convictions.
That strikes me as very bad policy that employers are afraid that they can’t turn down an applicant who has a felony conviction. That’s a formula for trouble. It certainly would cause members of Congress in 1964 who passed Title VII to, I think, just faint in disbelief that such an interpretation of the law were possible.
Inez Stepman:
Yeah. We’re a long way from 1964. Gail Heriot, thank you so much for coming on High Noon. I really recommend Gail’s work not just on this subject, which I think she’s particularly critical on, and that’s why we’ve spent this hour on it. But she’s also written extensively about Title IX, about due process.
She’s the one who predicted exactly the way that Vostok would go at a conference a few years ago. We’re all like, “No. No. This is too ridiculous.” She was like, “No. This is the law. There’s a plausible textual interpretation here.” Lo and behold, now we all have to deal with Vostok.
She also has a number of books, the latest of which I believe is called The Dubious Expediency: How Race Preferences Damage Higher Education. She’s worked on issues of affirmative action as well and just has really her fingers in almost every issue of this expanding civil rights regime that has burgeoned out.
I think she has a very good case to pinpoint for us where exactly this ideology that had been gathering steam culturally, where this ideology really tipped over and became this institutional and tyrannical force that many of us experience today. Gail Heriot, thank you so much for coming on High Noon. It was a pleasure to have you.
Gail Heriot:
Well, thank you.
Inez Stepman:
Thank you to our listeners. High Noon with Inez Stepman is a production of the Independent Women’s Forum. As always, you can send comments and questions to [email protected]. Please help us out by hitting the Subscribe button and leaving us a comment or review on Apple Podcast, Acast, Google Play, YouTube, or iwf.org. Be brave and we’ll see you next time on High Noon.
