Meet Mr. Congeniality 1981

Filing frivolous discrimination

complaints has become the national sport of the federal government. Many people play, and competition is heated, but for my money the reigning

champ is a man I'll call Fred Lancaster (because, as explained in the main story, confidentiality rules forbid me from using his

true name).

Lancaster is a middle

level official of the federal

agency for which I am a

lawyer. In the past few

months he has:

Filed a complaint

because his friend in the

office was suspended for two

weeks. Lancaster claimed this was actually discrimination against him. The friend was suspended for threatening to kill two OCR employees.

• Filed a complaint alleging that someone told him that someone told him that someone said (that's fourth hand) that Lancaster's boss was going to get him out of the office.

• Filed another complaint alleging discrimination because his supervisor gave an assignment to Lancaster's assistant without going through Lancaster. During the investigation, the supervisor explained that she did this because Lancaster had refused to speak to his assistant for several weeks.

Filed a complaint because a fellow official had threatened to strike him. Lancaster alleged that prejudice was the motive. The fellow official is of the same sex, age group, and ethnic group as Lancaster.

• Filed complaints practically every time someone criticized his work or gave him assignments he didn't like. He also filed complaints each time his supervisor, unable to correct Lancaster's inadequate work, attempted to assign it to someone else. In all he filed more than 30

complaints in just over a year. That's one complaint every eight working days.

Last summer, two female college interns were assigned to Lancaster's office. He and another employee invited them to his apartment so he could "heip [them] with their SF-171s," procedural forms. At the apartment, he made what used to be called improper advances. The interns spoke to Lancaster's supervisor. The supervisor told Lancaster he was not to see the women socially. Lancaster filed! a discrimination complaint for sexual harassment.

These complaints are now in a complex, lawsuit-like formal hearing process, where they may remain for years. The Equal Employment Opportunity Commission rules forbid dismissing complaints merely because they are ridiculous. At no step of the way are federal officials permitted to toss these complaints back and say, "Aw, come on Lancaster, what do you take us for?" But that may not be necessary. It's very clear what Lancaster takes them for.

-N.M.

THE WASHINGTON MONTHLY JUNE 1981

or go unheard, while millions of dollars and thousands of hours are wasted on a process known by all its participants to have little if any meaning.

There are, I think, some simple steps that would uncomplicate things. First, agency offices of civil rights should be done away with. (Some OCRS have other functions besides processing complaints; these functions could be transferred to other parts of the agency.) All discrimination complaints should be heard by a single agency, probably the EEOC. This step alone would eliminate several redundant layers of procedure. It has been suggested repeatedly in the past. Second, other stages should be eliminated, particularly the EEOC-level review, which is just a replay of previous reviews. EEOC investigators and adjudicators could consider each case and propose findings, which would become final unless amended or reversed by the head of the agency accused of discrimination. Formal courtlike appeals would not be automatic, but limited to a strict standard of review where gross miscarriages of justice were indicated. Third,

ADOS should be informed of the charges against them and given a full right to respond. Lastly, there must be a way of weeding out the worthless complaints in order to free the system to address legitimate ones. I believe the best way is for any sanctions to come from an objective third party, rather than the complainant's supervisor (who is usually the ADO). The most convenient objective third party is the adjudicator, who would be authorized to dismiss groundless complaints. (Under my scheme the adjudicator would be an EEOC, not an OCR, employee, so he would not work for the agency under investigation.)

These changes would, I think, make the federal anti-discrimination system more efficient and equitable without removing necessary safeguards against prejudice. As it stands the OCR process is a practical joke, useful mainly to inept or malicious employees obsessed with selfishness. Only when both bigotry and selfishness are expelled from government can the system truly achieve its goals, public service and the spreading of justice. I hope these ideas don't strike you as old-fashioned.

What are the proper criteria for employ

ing people? Until recently, it was taken for granted that the only proper criterion was the ability to do a particular job. For example, it would have been assumed that the criterion for employing someone as an engineer was his ability as an engineer.

Practice that did not conform to this ideal was continually criticized. Such practices as denying blacks jobs because of their race were criticized by reference to this ideal, that is, these practices were criticized because a person's race is not a criterion of his ability to do a job. As a result of such criticism, legislation such as the U.S. Civil Rights Act of 1964 was passed to prohibit some of the practices that did not conform to this ideal, such as using criteria of race or sex for employment.

In recent years, however, in the course of apparently criticizing practices that did not conform to this ideal, such practices have been advocated. There has been a plethora of arguments to justify appointments on the basis of race, ethnic group, and sex. I propose here to examine several of these arguments: the compensation argument, the quota argument, and the biased-judgment argument.

Judy Wubnig

group X. This is supposed to be compensation to members of group X for the past wrongs done to members of group X in denying them employment because of this membership. For example, the argument is that if in the past qualified women were not employed as engineers solely because they were women, therefore, now in compensation, qualified women should be hired as engineers because they

are women.

This argument suffers from several related defects. It is based on a confused notion of compensation; it implies an endless retributive feud principle; and it is inconsistent.

a) Compensation: I can compensate someone, for example, Bill J., if I have done him some wrong and can make up that wrong. Suppose, for example. that I dislike redheads, and I have refused to employ Bill J. to tune my piano because he is a redhead. One can then argue that I have denied him employment for a bad reason and so have treated him unfairly (and have thereby lost the services of a piano tuner!). In this case, I could compensate Bill J. for this unfair treatment by niring him, or perhaps by some other means.

The wrong to be compensated for is the wrong done to the individual wronged. Bill J. receives no compensation if I hire another redhead, Tom S., and Tom S. cannot receive compensation for the wrong done Bill J., because the wrong was not done to him; that is. Tom S. was not denied employment because of his red hair.

The current compensation arguments, however, make this elementary mistake. It is argued, for example, that blacks should be hired because they are blacks, in compen sation for past unfair, racially discrimina

tory practices. But John P., a black, who suffered from such practices in the past, is in no way compensated by the present hiring of Paul R., also a black. And Paul R. deserves no compensation now, since he was not previously wronged by being denied employment because of his race.

b) Infinite Retributive Redress: The compensation argument depends on the assumption that one does wrong to someone else if one refuses to employ a person because of his membership in some particu. lar racial, ethnic, or sexual group. Hiring Paul R. now, because he is black, rather than hiring nonblack S because he is not black, is doing wrong to nonblack S, according to this assumption. So, according to the compensation argument, he or other nonblacks deserve compensation. Thus, in compensation, members of this group should be hired because they are nonblacks. This, in turn, will wrong blacks, who will then deserve compensation, and so on ad infinitum. Thus, the attempted compensation will not right wrongs but will continue the wrongdoing forever.

c) Inconsistency: The compensation argument is inconsistent. It assumes both that it is wrong to hire people because of their membership in a given racial, ethnic, or sexual group and that it is right to do so. Employing members of group X now, because of such membership, in preference to members of group non-X, is to do precisely what is condemned. Using the word positive or affirmative, as in "positive (racial, ethnic, or sexual) discrimination" or "affirmative action," changes the fact not one iota. The condemned past policy could just as well have been termed positive discrimination or affirmative action, and the discriminatory policy presently advocated is just as “negative" against members of group X.

If policies of hiring people according to racial, ethnic, or sexual criteria were bad in the past, they are bad now. If they are not bad now, they were not bad in the past.

In summary: the compensation argument is confused about who gets compensated for what. It entails an infinite redress of wrongGoing and subsequent compensation. And it contradicts the principle of proper employment practices, whose violation is supposed to be compensated for.

The Percentage-Quota Argument

The percentage-quota argument is that a

quota of A percent of any given kind of job should be given to members of a given racial, ethnic, or sexual group X because members of group X makes up K percent of the total population. If everyone were treated fairly, according to this argument, then the percentage of people in any subgroup of employed, such as engineers or mathematicians, would be the same as in the population as a whole. For example, approximately 50 percent of the popu

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This argument assumes that what would have been is known, that theories of what would have been are a sounder basis for practice than knowledge of what is, and that it is fairer to treat people according to what they might have been rather than according to what they are.

a) What would have been: The percentage argument assumes that fair employment policies are those that allow for the hiring of individuals according to their merits. The argument is that, if in the past all individuals had been hired according to their merits, then the percentages of people of different racial, ethnic, and sexual groups in any particular kind of employment would be the same as in the population as a whole. This is not, however, self-evident. There may be differences in interest, talent, education, and training in population subgroups, so that hiring by merit will not result in such percentages. For any or all of these reasons the percentage of mathematicians engineers, for example, from a given racial, ethnic, or sexual subgroup may differ from the percentage of the population composed of members of that subgroup.

or

If this assumption were correct, of course, then the predicted percentages would occur within whatever span of time would be necessary for a policy of hiring by merit to take effect. But then, in order to get these percentages, it would not be necessary to hire according to percentages but only according to merit. Since the percentage argument advocates a policy that is intended to rectify policies of not hiring according to merit, it actually assumes that people should be hired only on the basis of their merit.

The percentage argument, however, often involves a different approach. It is that present hiring by merit is not adequate, because in some racial, ethnic, or sexual group X, whose members make up K percent of the total population, the number of people with the ability for a particular kind of employment is less than K percent of the total number of those with this ability. The reason for this, it is argued, is that the members of such a group X did not have educational opportunities equal to those of members of other racial, ethnic, or sexual groups. The percentage argument then is that, since members of group X did not have educational opportunities equal to those of members of other groups, they were treated unfairly. Therefore, they should not suffer the consequences of their poorer education; that is, they should not be denied employ

ment in jobs for which they are not the best qualified. They should be hired to make up K percent of those in a particular kind of employment even though they are not the best qualified.

Let us first examine the assumption that, if everyone had the same educational opportunities. the percentage of members of particular racial, ethnic, or sexual subgroups in any particular kind of employment would have been what it is in the population as a whole-that is, the percentage of individuals in any such subgroup with interest in and talent for, say, basketball, piano, engineering, or mathematics is the same as the percentage of individuals in the total population with such interests and talents. How can this assumption be justified? No one has yet seriously proposed that all talents are evenly distributed. For example, no one would argue that the talent for playing basketball is so distributed, since clearly tall men are better basketball players than short women and tallness and maleness are not distributed in each racial, ethnic, and sexual subgroup of the population in the same way.

Forthcoming

Whatever method could be used to find out about the distribution of interest in and talent for a particular kind of activity would require examining individuals, individual by individual. That is, the evidence of distributions of characteristics in a given population depends on the evidence about individuals of that population. Evidence of distributions derived from evidence of distributions in random samples of the population still ultimately depends on evidence about individuals, namely, the individuals in the random samples. The evidence about the interests and talents of individuals is thus stronger and more certain than the evidence about distributions of these interest and talents in the population and population subgroups to which these individuals belong, since the latter evidence is dependent on the former. It follows, then, that the policy of hiring people according to the percentage assumption is more dubious than that of hiring people according to their individual merits, since the evidence for the percentage assumption is weaker and more dubious than that about the individual merits of people. The percentage argument, in other words,

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begs the question. Its validity depends on the assumption that people can be evaluated individually. To argue that the results of judging people individually must be wrong because these results do not conform to the hypothesized percentages is to reject the only possible basis for knowing these percentages. Thus the percentage argument refutes itself, for the only reason to accept the view that, for example, 50 percent of mathematicians should be women because 50 percent of those with the greatest interest in and talent for mathematics are women is that it has been discovered, by examining individuals, that 50 percent of those with the greatest interest in and talent for mathematics are women. It could be discovered only be examining individuals. The percentage argument thus presupposes that the most accurate way to judge individuals is to judge each individually.

b) If the hypothesized percentages would have been: Suppose, by hypothesis, that with proper education and training, 50 percent of the best-qualified mathematicians would have been women. The percentage argument is that 50 percent of mathemati cians should now be women, even if they are not, due to lack of training, 50 percent of the best qualified. But the hypothesis does not imply this conclusion-what would have been is not. A person without mathematica! training is not qualified to be a mathematician, even though he would have been one had he had the necessary education. To take another example: suppose John G. would have been a great pianist, drawing record audiences. if he had learned to play the piano. However, he did not study the piano, and so he is not now a great pianist; he will not draw record audiences to his attempts to play the piano, nor will "would have been" arguments persuade potential audiences differently.

In summary: The percentage argument depends on the very ability to judge individuals on their own merits whose use it rejects. It advocates hiring people without regard for their qualifications and solely because of their membership in some racial, ethnic, or sexual group X, because these individuals would have been qualified, given different education. But the argument itself depends or the assumption that there are qualifications that these individuals would have had, given different education. And the justification of the percentage assumption must ultimately depend on the ability to judge the qualifications of individuals. the kind of judgment the percentage argument rejects.

The Blased-Judgment Argument

It has been argued that evaluating individ

uals on the basis of merit, without regard to their racial, ethnic, or sexual characteristics, is impossible because only members of any such group X are capable of evaluating

other members of group X and because present criteria of evaluation are biased in favor of members of group non-X. Therefore, members of group X must be chosen in order to hire other members of group X, and members of group X must be hired in order to compensate for the bias of present criteria for evaluating merit.

a) Who evaluates? The argument that only members of racial, ethnic, or sexual group X should evaluate other members of group X is that only they can understand members of group X, by which is meant that only they can understand the thinking of members of group X. How can the policy based on this argument be implemented and how can the argument itself be justified?

The problem of implementing the policy of having members of group X evaluate other members of group X for potential employment arises only in the case when the employer is a member of group non-X. But, in precisely this case, in order to implement the policy, members of group X would have to be chosen (whether hired or not makes no difference to the argument) by members of group non-X to do the hiring of members of group X. This, however, involves either an infinite redress or that members of group non-X choose members of group X according to some criteria of evaluation, which do not include the criterion of membership in group X. If the original argument is valid, that members of group non-X cannot evaluate members of group X, then members of group X cannot evaluate members of group non-X, and thus the policy cannot be implemented. On the other hand, if the policy can be implemented by members of group non-X choosing members of group X to implement it, then the original argument on which the policy is based is not valid, that is, it must be possible for members of group non-X to evaluate members of group X.

The validity of this argument cannot depend on being argued by a member of group X (or anyone else). That this person thinks the argument is valid is not evidence of its validity. If a person's thinking that an argument is valid makes it valid, then anyone else's thinking that the argument is not valid would make it invalid as well. For example, my belief that this argument is invalid, which I am now expressing here, would, according to this subjectivist criterion, be a sufficient refutation of the argument.

The validity of the argument thus does not depend on the argument's being believed to be valid. If the validity of the argument can be recognized by anyone, then all people have the same ability to think about and evaluate arguments. In other words, if members of both group X and group non-X are to recognize the argument as valid, members of group X must be able to evaluate the thinking of members of group non-X and members of group non-X must be able to evaluate the thinking of group X, namely, the thinking that is the argument

itself. But, if this is so, then the argument refutes itself; its validity entails its own denial.

The very effort to persuade someone of the validity of the argument presupposes that it is invalid. If members of group X try to persuade members of group non-X of the validity of the argument, they are presupposing that members of group non-X can evaluate the reasoning of members of group X, that is, the argument that members of group X are offering. In the very act of using the argument, members of group X would show that they themselves do not believe it.

On the other hand, how could members of group non-X demonstrate to themselves that the argument is valid? They cannot do so by failing to evaluate the thinking of members of group X, since, in order to recognize that they have so failed, they would have to recognize the correct evaluation-that is, they would have to evaluate the thinking of members of group X correctly.

One might argue that one can indeed recognize one's own inability to evaluate the argument of another without presupposing that he has correctly evaluated it. For example, I might admit that I cannot evaluate Einstein's general theory of rela tivity without presupposing that I have indeed evaluated it correctly. This situation is not, however, that which is involved in the argument that members of given racial, ethnic, or sexual groups cannot evaluate the thinking of members of other racial, ethnic, or sexual groups. If I cannot evaluate the general theory of relativity, it is because my knowledge of physics is not adequate or my powers of reasoning are not powerful enough. The difficulties lie in the theory itself, the evidence presented and the reasoning used. They do not lie in the fact that I am not a German Jewish male..

On the contrary, the argument we are. examining denies that knowledge of the relevant material and ability to reason are adequate to evaluate thinking. It asserts that, for example, only female mathematicians can evaluate the mathematical abilities of other female mathematicians. If male mathematicians try to evaluate the abilities of female mathematicians, according to this argument, they will only admit to their inability to do so because of an admitted lack of mathematical knowledge; they will, indeed, think that they can evaluate any mathematicians, including female ones, on the basis of their mathematical knowledge. But in order to prove to themselves that they deceive themselves in believing that they can evaluate female mathematicians, they must in some way be able to recognize the correct evaluations of female mathematicians, which is only to say that they must be able to evaluate female mathematicians correctly.

The argument, therefore, that only members of group X can evaluate other members of group X, because only they can under

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