Posts Tagged ‘disparate impact’

Arbitration Clauses: Protection for White Employers?

February 24, 2010

Arbitration Clauses:  Protection for White Employers?

I was recently reading through Fundamentals of Business Law:  Summarized Cases, 7th Edition by Roger LeRoy Miller and Gaylord A. Jentz.  The subject of arbitration in employment disputes came up.  Arbitration is where, rather than one party formally suing another in court, the two parties take their issue to a neutral and private, jointly agreed upon, 3rd party who hears both sides, and renders a legally binding (in most cases) decision. One option that employers have at their disposal is to include arbitration clauses in employment contracts.  For the most part, these are agreements that if either the employer or the employee have a non-criminal legal dispute arise between the two, they will have it settled by a private arbiter rather than a court of law.  So if an arbitration clause exists in a contract, yet one party still tries to sue in court, will the courts refuse to hear the case?  Obviously exceptions exist, such as if the clause appears to be too one sided (“unconscionable”), but by in large, the answer appears to be Yes.  But what about “discrimination” lawsuits, those legal magic bullets that seem to turn the Constitution and hundreds of years of accepted principles of jurisprudence on their heads. Wikipedia reports that “the Federal Arbitration Act requires that where the parties have agreed to arbitrate, they must do so in lieu of going to court, provided that the proceeding is fundamentally fair — that is, equivalent in fairness to the public courts.”  Fundamentals of Business Law seems to concur.  The book even lists a case, Circuit City Stores, Inc. v. Adams, where an employee with an arbitration clause tried to sue his employer for discrimination in state court, and the Supreme Court found that the arbitration clause was valid, and that the suit should not be heard.  One acknowledged exception to arbitration clauses is to contracts involving interstate transportation workers.  According to the book, “arbitration is normally simpler, speedier, and less costly than litigation.”  I checked the website of Grand Valley State University, which tracks some employment arbitration cases.  Of their non-union arbitration cases listed, dealing with the topic of various types of employment discrimination, the arbiters seemed to side overwhelmingly with the employers.  Although some arbiters found that the employer did not have just cause to terminate an employee, with the question of whether or not discrimination occurred, the results seemed to go something like 16 to 1 in favor of the employer.  I’ll admit that I don’t know how representative this sample is, but it doesn’t seem entirely implausible that it mirrors national results.  In contrast, when such suits are brought into court, depending on the race of the judge, a ratio of only about between 1 to 1  and 4 to 1 cases ended in favor of the employer.  So arbitration clauses seem to be generally enforceable, and are more likely to result in quicker, less expensive, more favorable outcomes for employers accused of discrimination.  My suggestion to white employers:  Obviously, consult a lawyer first…but if they see no problem with it, make all employees sign employment contracts, and include arbitration clauses in them that require all discrimination disputes to be brought before a private arbiter.  This seems like a fairly effective way to minimize exposure to the Reverend Al and his bunch, so at first I was surprised that not more employers choose to take this route.  Then I remembered…almost all hiring/employment considerations at large institutions fall under the control of the “human resources”-diversity-industrial complex these days.  The black woman in charge of HR at your company doesn’t want to minimize the organization’s exposure to legal liability.  She just wants to help wage her little piece of the race war.  Not including arbitration clauses in employment contracts is a good way of sandbagging her enemy’s defenses.  Not that her superiors really care.  Remember the first law of workplace diversity in Corporate America…given a choice between diversity (and accompanying bankruptcy) and efficiency, Corporate America will choose bankruptcy every time.

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Ricci Redux?

February 23, 2010

Steve Sailer (no surprise there) writing at Vdare.com (again, not surprising) is all over another entrance exam for firefighters challenged as being “discriminatory.”  This one is in Chicago.  Apparently Chicago gave an entrance exam for prospective firefighters. 

“Anyone who scored 64 or below was deemed not qualified. But the city set a second cutoff score of 89 points. Officials told applicants who scored below 89 but above 64 that although they passed the test, they likely would not be hired because of the large number of people who scored 89 or above. The majority of those in the top-scoring group were white; only 11 percent were black.”

Well, blacks do appear to make up about 34% of Chicago residents, but what was their proportion of the test-takers…you know…the percentage that would actually show how different the actual results were from the results that would be expected assuming no group differences in ability. 

The Supreme Court isn’t determining whether or not illegal discrimination actually took place, but whether or not the black applicants can still sue.  Apparently under law, “people are supposed to sue within 300 days after an employment action they seek to challenge.”  However, “the first lawsuit in the case was filed on March 31, 1997, 430 days after the city announced the results.”

Every possible effort is made to hand the world to blacks on a silver platter.  All they have to do is just show up to the hand-out line within 300! days, and they still can’t even manage that.  Again, the Richard Hoste joke…nay…soon to be proven prophecy…that pretty soon we’re going to have to start “paying state workers to put dollar bills under the pillows of blacks while they’re sleeping.”

The black applicants’ argument seems to be that every time a white firefighter was hired instead of a black, between 1996 and 2001, “a new act of discrimination” occurred, and the 300 day limitation started over again.  The article states that “the court is expected to make a decision before fall.”  It sounds like they’re going to fold.  The article also stated that “the Supreme Court on Monday seemed willing to let a group of African Americans sue Chicago.”

No surprise here, but Sonia Sotomayor and Ruth Bader Ginsburg are both quoted as favoring the black applicants.  The AP article also had this little passage:

“Deputy Solicitor General Neal Katyal argued that if the court allows the city of Chicago to hire using its flawed method, that will tell employers they can get away with a discriminatory test if they manage to avoid a lawsuit within the 300-day limit .”

I’ll give them credit, the Obama Administration sure is active in supporting quotas.  Do you really think a McCain administration would have been as active…or active in any way…in opposing them?  I checked on Neal Katyal.  Apparently this guy is a young minority legal “wunderkid,” “who successfully [defended] Salim Hamdan, Osama bin Laden’s chaffeur, before the U.S. Supreme Court in 2006.”  He was also a Georgetown Law professor at age 27.  So basically, this guy could punch his own ticket anywhere in the legal profession, and probably make millions of dollars.  Why take a second-string civil service position?  Probably for the ability to work on anti-white cases like this.  Call it a labor of love.  According to the Department of Justice’s website, “the Office of the Solicitor General is tasked to conduct all litigation on behalf of the United States in the Supreme Court, and to supervise the handling of litigation in the federal appellate courts.”  So why was the Solicitor General’s office getting involved in this anyway?…The U.S. Government wasn’t being sued?  Probably because the Solicitor General is Elena Kagan.  Again, former Dean of Harvard Law, tons of accolades, she could definitely do better than this position in terms of wealth, glory, or prestige.  Why take it if not to harm whites?

Sailer asks:

“Will anybody nationally come to the defense of the Chicago firemen most qualified to save lives?”

Yeah…I’m sure National Review’s working on a cover story for this right now!  Actually, I don’t know…this Katyal guy defended Bin Laden’s driver…and “terrorism” seems to be the sole concern of the modern “conservative” movement…maybe we could use that.  You really think help is on the way?

Sotomayor, Bader Ginsburg, Katyal, Kagan…the best legal minds of the non-White-gentile world take pay cuts to advance their hatred of us.  The best and the brightest of the White-gentile legal world stay awake at night dreaming up legal justifications for torturing Israel’s enemies.  Yep…”the future’s so bright I gotta wear shades.” (Timbuk3)

Decades of Failure: Part 2 – Failed Approaches: The Failure of Persuasion

February 14, 2010

Opponents of racial quotas are no closer to having them abolished now, than they were back in 1978 when the Bakke decision provided the first glimmer of hope.  In fact, quotas have become even more blatant and entrenched, and we are rapidly moving toward a time when they will be explicit and unassailable.  Current efforts have failed, and it is important to acknowledge this and understand why.  Only then can we alter our approach to a more effective one.  I decided to write a lengthy article, bit by bit, about the failure of quota-opponents to make any progress over the last few decades.  I will post each part of this article as soon as I have completed it.

Part 1:  Running on Empty, is here.

Decades of Failure

The Fight Against Quotas 

Part 2:  Failed Approaches:  The Failure of Persuasion

   Efforts to persuade our opponents seem to fall into two main categories; appeals to morality (fairness) and appeals to the self-interest of minorities. 

   The appeal to fairness would seem self-explanatory to almost any European-American.  May the best man win…May the most qualified applicant get the job.  Disciples of this approach continually walk away frustrated because they fail to understand the simple fact that the desired result of our opponents is to effect the outcome itself, and not the process that leads to it.  Whites have the harmful tendency to incorrectly take it as a given that other cultures share European (in particular Anglo-Saxon) values with regards to justice, opportunity, and responsibility.  In reality, many, if not most, of the world’s population has absolutely no problem with the idea of assigning individual outcomes on the basis of one’s group identification.  Many immigrants to America come from parts of world where a person can be held legally liable for the actions of their blood relatives.  Appeals to righting real or imagined historical grievances committed by the white majority, through the imposition of collective group punishment, are readily accepted by these segments of the population.  Other cultures practice forms of in-group morality, where individual fairness may be cherished within the in-group, but either neglected or discouraged in dealings with out-groups.  Still other cultures may encourage individual-based justice, yet value it lower than the prospect of personal financial gain.  Appeals to a value won’t influence people who either don’t hold that value or do not prize it over conflicting ones.  The views of Thurgood Marshall, probably the most distinguished black American to have worked in the legal profession, which is supposed to be the pinnacle of fairness and blind justice, are representative of the feelings of most non-whites; “you guys (whites) have been practicing discrimination for years. Now it is our turn.”  These appeals to morality will not even work on white quota-supporters who were born and raised in a society cherishing these values.  For them, again, the outcome, not the process, is the object of their efforts.  They don’t care about a minority getting a fair shot at a job, they care only about that minority actually getting said job.  Reasons for white support of quotas vary.  In its malignant form, support for quotas among whites can be caused by racial self-loathing, leading to a desire to see whites displaced.  In its more benign form, it can result from moral status seeking, where individuals hope to able to point to a given number of minorities elevated to higher positions as concrete and tangible proof of their concern for others, as demonstrated by the results of the policies they championed.  Either way, what they desire is the actual awarding of the empty position to a minority.  At the end of the day, arguing about the merits of a process won’t convince an individual that their desire for a given result is wrong. 

   The second main approach of efforts to persuade quota supporters seems to focus on attempting to convince minority beneficiaries that quotas are harmful to them.  Simply put, this will not work because it is not true.  The conventional wisdom, believed by many “mainstream” quota opponents, is that quotas benefit only a small percentage of minorities, and at the same time, stigmatize the vast majority of minorities, who hold positions that they are deserving of.  To begin with, large numbers of minorities will never oppose quotas because, far from being harmed by them, they are actually beneficiaries of them.  According to Richard Hoste, of the 351 blacks admitted to a top-14 law school in 2008, only about 57, or approximately 16%, had at least the required LSAT score necessary to be truly deserving.  In his 1999 analysis of the effect of affirmative action on whites, the anonymous statistician La Griffe du Lion came up with numbers, based on the distribution of IQ and 1997 incomes, that would suggest that about 4,239,000 of 15,428,000 black workers, or approximately 27.5%, were in income quintiles higher than the ones they would belong in under a meritocracy.  There are two things to keep in mind when considering this number.  First off, 13 years later, quotas and discrimination against whites are much more prevalent now than they were in 1997.  Second, his analysis just tabulates the number of blacks who do not belong in the income quintile that they are currently in.  The first four quintiles have a range of about $10,000 to $15,000, and the fifth quintile consists of all of those making $45,000 a year or more.  So this method wouldn’t take into account a black head-janitor making $18,000 a year (2nd quintile), who was really only qualified to be a regular rank-and-file janitor making $16,000 a year (also the 2nd quintile).  When you take these two facts into consideration, it is entirely arguable that at least 50% of blacks currently hold a position of which they are not deserving based on merit.  This means that any randomly selected black, that you try to convince to abandon support for quotas, is just as likely to personally benefit from them as he is to be unaffected or harmed by them.  Good luck with that!  The idea that quotas unfairly stigmatize hoards of deserving professional-class minorities is also false.  The hilarious irony of the “stigmata” argument is that it tends to be completely inverted from reality in that it is typically directed towards high-status and/or professional blacks, attempting to convince them that quotas further down the socio-economic ladder cause whites to incorrectly think that they don’t deserve the high socio-economic positions which they hold, and that they obviously do deserve by virtue of their…well…holding them.  A typical example of this would be a statement along the lines of the following:  “Colin Powell [or fill in your distinguished black professional of choice] should be against quotas…he obviously doesn’t need them…look at how articulate [a favorite adjective of those explaining the success of a given black professional] he is…look at how successful he is…there is just no way that he could have risen to that level of prominence due solely to affirmative action.”  This line of reasoning seems to be based on the unfounded belief that somewhere…somehow…there just has to be some occupational status threshold-level beyond which quotas no longer have any effect.  Old Colin had a ready-made response for our naïve imaginary friend.  With regard to the harm caused to the alleged legions of capable blacks holding high status positions that they actually deserved on merit, Powell’s advice, as quoted by Richard Hoste was to “get one of those well-paying jobs (through affirmative action) to pay for all the therapy they’ll need to remove the stigma.”  Powell’s lack of concern is typical of the black professional class.  The reason for this is that the black intellectual, statesman, or pundit whom the quota-opponent is trying to convert is actually more likely to be helped by quotas than the lower status black who is supposedly stigmatizing him.  Trying to convince a black college professor to oppose quotas because the hiring of an undeserving black auto-mechanic has tarnished his holding of a professorship, of which he is deserving, won’t work because a given black college professor is actually less likely to be deserving of his job than a black auto mechanic is of his.  Assume that members of Group B (which make up 10% of the population), on average, have lower intelligence than members of Group A (which make up 90%), and that intelligence is a valid predictor of occupational capability.  Let us also assume that members of Group B make up only 5% of those with IQ’s over 120 (hypothetically the occupational requirement to be a professor) and only 8% of those with IQ’s over 100 (the hypothetical occupational requirement to be an auto mechanic), and that members of Group B are required to make up a proportional 10% of both professions.  Average IQ of 85 or not, it doesn’t take that much brain power to realize that a higher percentage of Group B professors will be unqualified for their jobs than the percentage of Group B auto mechanics who are unqualified for theirs.  Truth be told, mentally contrasting the difference in abilities of Samuel Huntington and Henry Louis Gates probably has more of a negative effect on how the average White views the abilities of a black auto mechanic than the effect mentally contrasting the difference in abilities of auto mechanics Patrick and Kareem has on how the average White views the abilities of Cornell West.  We can look back now and clearly see that decades of efforts to persuade our opponents have failed both to convince them to abandon their support for quotas and to halt the actual practice of quotas.  Legislative efforts haven’t fared any better.

Required Reading: The Best of Sailer

February 13, 2010

A couple of months ago, when Ricci and Sonia Sotomayor were all over the news, Steve Sailer wrote a ton of articles about the case/nomination, and about AA and “disparate impact” in general.  If you are new to the topic, or if you want to learn more, his writings are a great place to start.  Sailer has a sharp mind and a sharper wit, and manages to demolish the arguments of quota-supporters.  Here are some of his articles that you should check out:

http://www.vdare.com/sailer/090406_graduate_school.htm

http://www.vdare.com/sailer/090419_ricci.htm

http://www.vdare.com/sailer/090426_ricci.htm

http://www.vdare.com/sailer/090531_sotomayor.htm

http://www.vdare.com/sailer/090607_sotomayor.htm

http://www.vdare.com/sailer/090628_bazelon.htm

http://www.vdare.com/sailer/090709_sotomayor.htm

http://www.vdare.com/sailer/090712_ap_tests.htm

http://www.vdare.com/sailer/090720_ap_tests.htm

http://www.vdare.com/sailer/090726_fdny.htm

The Recession’s Disparate Impact/Fighting Back: File an EEOC Charge

February 13, 2010

This recession/depression has taken a particularly brutal toll on men and whites, and in particular, white men.  It’s been estimated that 4 out of 5, or 80%, of job losses have come at the expense of men.  Part of this is that male-dominated industries (predominantly in the private sector) have been devastated and do not have the government protection that female-dominated industries (predominantly in or supported by the public sector) have.  If you are white and/or a male, and you have lost your job recently, while less-deserving “minorities” or women have kept theirs, at your place of work, I would encourage you to file an EEOC complaint against your employer.  Here’s information on how to do so:

http://www.eeoc.gov/facts/howtofil.html

The disparity in job-losses can not be explained entirely by differential recession-impact on differing areas of employment.  Much of it is deliberate.  Either the result of fear of lawsuits for firing minorities and/or the discriminatory decisions made by the female and/or minority-dominated “human resources” profession, which now holds so much power over hiring/firing decisions.

File a complaint…what do you have to lose?…pride?…you think being on unemployment won’t take that away from you anyway?  Perhaps the main complaint is that men don’t want to feel like “whiners” by saying they were discriminated against, but just remember, minorities and women do this all the time.  Not doing the same thing in return doesn’t make you better than them when the result is losing your livelihood.  Somebody who willingly agrees to bring only a knife to a gunfight isn’t brave…they’re stupid.  Even if you can’t prove that you were chosen to be laid-off because you are white and/or male…who cares…file anyway.  Clog the system with so many complaints that it overloads!  Even if your claim is found to be unsupported, the 5 seconds that it takes under-qualified and over-paid EEOC government employee Shaniqua to sigh in disgust, crumble it up, and throw it away, is 5 seconds that she now won’t have available to harass an honest white employer facing a bogus discrimination lawsuit.  File! Baby! File!

An Introduction

February 13, 2010

The recent Ricci decision has brought racial quotas back into the debate. While the outcome may represent a victory (albeit a small one in practice), which has been lauded beyond its true significance by “establishment” conservatives and “mainstream” quota-opponents, it does nothing to change the overall trend of our society. That, the first premise of this blog, is as follows: We are rapidly moving towards an age when all decisions concerning individuals, will be based one way or another, on their membership in certain demographic sub-groups, with the end result being that members of preferred sub-groups will always be at least proportionally represented (at least equal to their share of the population), when it comes to achieving any desired outcome. Since probably no sub-group has within itself the natural abilities for its members to achieve every desired outcome proportionally, these results will come at the expense of more deserving individuals from less-favored sub-groups. In short, we are becoming a quota-nation…every hiring, firing, admissions, and pay decision is heading towards being based solely on an individual’s race, sex, ethnicity, religion, sexual orientation, etc. Some groups will be favored over all others…some groups will be favored over some and favored less than others…some groups will be favored over no one. Many will feel injustice. White male conservative heterosexual Christians without disabilities will feel it the most. The second premise of this blog is as follows: That American institutions, as long as they continue to exist in any form remotely resembling that of today, will continue to operate this way indefinitely. It’s possible to slow the pace of the slide towards complete quota-ism. It’s possible to achieve some small individual victories here and there. It may even be possible, in the immediate near-term, to make some progress in the other direction. But the longer-term trends are baked in the cake. The minority population is too high. The remnants of America’s traditional individualistic culture are too weak. The elite of our society is too hostile to the historic population and has too much power with which to act on that hostility. The frequency of group-based, in particular race-based, outcomes in American institutions will not lessen in your lifetime. Things will not get better in your children’s lifetime either. This blog will track the decline into quota-totalitarianism. It will also examine ways that individuals themselves might be some of the lucky few that escape the hard bigotry of proportional representation. But make no mistake about it, the only way to avoid the effects of the broader trend is to abandon American institutions entirely.