As a management consultant focusing on fairness in matters of pay and related HR practices, I understand both sides of the arguments and the activism surrounding equality in employment and pay. Political and social voices are deafeningly loud on both sides. But my mom explained it all perfectly to me.
I learned from my mother–a devout Catholic, a Northwestern graduate, writer/journalist, documentary video creator who never used a computer, a feminist and a training director–that “you cannot legislate morality”. At age 63, this still explains a lot to me.
The Civil Rights movement started in the 1950s, when Rosa Parks refused to give up her bus seat to a white man. Dr. Martin Luther King Jr. became the voice of this movement.
The Law
I was born just prior to the passage of likely the greatest civil rights legislation of all time (or at least since post-Civil War reconstruction): the Civil Rights Act of 1964, initiated by John F. Kennedy, but signed by his successor, President Dwight D. Eisenhower. This act, and its numerous amendments, prohibit discrimination on the basis of race, gender, age, disability and many other categories of people. In business school, I studied Title VII of the Civil Rights Act, the Equal Pay Act, Americans with Disabilities Act, Age Discrimination in Employment Act and many others. My compensation and HR certifications are anchored by knowledge of these laws and executive orders.
In my view, the main impact of the Civil Rights Act on society was the creation of a million jobs for lawyers and government bureaucrats. Fair lending, education and employment practices improved as well following the enactment of these laws, but correlation is not necessarily causation.
The headlines were (and continue to be) shocking for the tens and hundreds of millions of dollars of administrative law penalties, court judgments and legal settlements. The underlying injustice that brought on these penalties were real, but perhaps the cure was far greater than the disease.. this is open to fair debate. But yes, the laws made a difference, perhaps mainly as a result of legal action, actual or threatened. True story:
In 2001, I was with Hewitt and I was assigned to run the North America compensation department for big soft drink company in the southeast US. The company had just settled a discrimination in employment lawsuit brought on behalf of about 50 black security guards who had apparently not been promoted fast and frequent enough. The penalty: USD 192.5 million dollars, with lawyers gorging themselves on this. Do you see my point?
The Heart
But did inner attitudes change? Yes and no. My mom said morality cannot be legislated. But in my experience I would say yes, attitudes have improved. So this begs the question: was inner change attributable to civil rights law, or was the law rather an outward expression of an inner change in the hearts of the totally-white congress who passed it? If my mom is right, and she always was1, then attitude change happened first, the law followed. But the lawyers and lawmakers love to take the credit so they can argue for more laws, their job security and considerable wealth on top.
Justice is Blind
The premise of equal rights is that the school, the employer, the housing lender should approve or decline applications on their merits, not on the applicant’s apparent race or sex, etc. In fact, in the US it is very well accepted that a resume should not include a photo. Justice should be blind, and that’s why the statue of lady justice is blindfolded. Equal Employment Opportunity (EEO) must be blind.
One Eye Open
In 1965, President Eisenhower signed Executive Order 11246 prohibiting discrimination on the basis of race, creed, color or national origin, as seen below. Amendments extended these protections to additional classes of individuals based on visible and non-visible personal attributes.
The funny thing about Executive Order is the addition of Affirmative Action clause:
Note that the affirmative action requirement only applies to federal contractors. It does not apply to government agencies themselves, only contractors. Note also that the affirmative action is to “ensure that applicants are employed.. and treated.. without regard to race, etc. The actions are then listed: employment, upgrading, demotion, transfer, recruitment, layoff, termination, rates of pay and selection for training, i.e. HR processes.
Affirmative Action (AA) is often associated with quotas, but the very first use of the term referred specifically to HR processes. Process fairness was the literal order signed by President Eisenhower. Quotas are not mentioned in the entire act. The Civil Service Division of the Department of Labor was empowered in the act to require “Compliance Reports” from contractors, which can include a requirement for “statistics” but there is no actual mention of quotas, i.e. minimum representation of minorities.
How was EEO/AA implemented? HR departments sent job applicants a written statement that “(company name) is an equal opportunity employer and no one will ask you for information regarding your race, religion, sex or national origin. But to comply with our Affirmative Action program, we request you to optionally complete the form below indicating your race, sex, national origin and religion. This information is not mandatory (under EEO), but helps us demonstrate our compliance with Affirmative Action.”
Read that again. Yes, we must be color-blind in employment, then peek to see if we are succeeding in hiring more blacks. I remembered my mom’s wisdom: you cannot legislate morality. One government bureaucracy was telling you not to discriminate, but another tells you to basically discriminate in favor of those who have historically been discriminated against. Don’t discriminate, but please reverse discriminate.
Sixty Years Later
So here we are today. ESG and DEI have dominated shareholder activism, Board discussions and even incentive plan design. HR departments are focused on transparency and Gender Pay Equity. To me this is evidence of the law profession, the “discrimination industrial complex,” the vast community of lawmakers, litigators, prosecutors, social activists, “reverend” fundraisers and shakedown artists, defense attorneys, bureaucrats and consultants who earn their living trying to solve a problem of the heart, using authority, mandates, budgets and never-ending shouts of racism.
As Morgan Freeman said when asked about racism; “just stop talking about it.”
I prefer to say my prayers every day, I ask God to help me do the right thing. I’m not perfect at anything, but goodness starts with proper relationship with God. For me, anyway, and this is my blog.
I have hired and promoted blacks, asians, latinos.. even some white people. Honestly, I really don’t pry into people’s personal lives. It’s none of my business. Their job performance is my business.
Let’s focus on doing what’s right, what our hearts tell us is right. That will do the job, I think.
- except her decision to smoke and declare all men are pigs ↩︎