Obama Administration Seeks Quotas Based on Disability, Race, and Perhaps Sexual Orientation

by Hans Bader on March 2, 2012 · 1 comment

in Economy, Employment, Legal

The Obama administration is pushing quotas in the workplace and higher education, seeking to force businesses that have federal contracts to hire at least 7 percent disabled workers, and encouraging colleges to use race in admissions to achieve a “critical mass” of black and Hispanic students — a de facto quota.  It is also apparently drafting an executive order about sexual-orientation discrimination among federal contractors, an order that key administration allies would like to include “goals” (effectively, quotas) for gays and lesbians (most Americans work in states, cities, or counties that already forbid sexual-orientation discrimination, but these laws do not require preferences for gays or lesbians, and at least a few expressly forbid “affirmative action” discrimination against heterosexuals. Virtually all Fortune 500 companies already ban sexual-orientation discrimination).

As The Wall Street Journal notes, the 7 percent target for disabled-workers proposed by the Obama administration would cover “roughly 200,000 companies that generate $700 billion a year in contracts with the federal government,” including aircraft manufacturers, and “firms across the health-care, construction and information-technology industries.” Moreover, “companies that don’t hit the target could have their contracts canceled or could be barred from winning future contracts until they show they are trying to meet the target.” (It is hard to understand why the Obama administration thinks this quota is authorized by the disabilities-rights laws, which the Supreme Court has said are not “affirmative action” statutes, and thus require only “reasonable accommodation” of a disability, not a lowering of basic standards.  See, e.g., Southeastern Community College v. Davis, 442 U.S. 397, 410-11 (1979).) The 7 percent figure is not set in stone, and it may conceivably be reduced to a lower percentage when the rule is finalized.

As the Cato Institute’s Walter Olson notes in the Daily Caller, federal bureaucratic rules will make it impossible for even some employers that actually hire large numbers of disabled people to demonstrate compliance with the 7 percent quota:

Trouble is, it’s illegal under the ADA for employers to ask job applicants whether they’re disabled, even if the question is offered with favorable intent. So the rules contemplate a fan dance of “invited self-identification” in which workers are given repeated chances at successive stages of the hiring process to announce that they are disabled. Unfortunately for quota compliance, even after getting the job an employee may be too shy to offer such a self-identification, which means the employer may lose any “credit” for the hire. Perhaps equally frustrating, an employee hired with the quota in mind may turn out not to have any disability at all (“Dang it! And she looked so disabled!”).

The Obama administration also wants to impose sexual-orientation-based hiring “goals” on employers, but it is leery of the political backlash that might result from doing so, so it remains to be seen if the administration expressly includes such goals (quotas, really) in the executive order banning sexual-orientation discrimination by federal contractors that it is currently drafting. Even some liberal jurisdictions like New Jersey expressly ban sexual-orientation-based affirmative action in anti-discrimination laws that permit other forms of affirmative action, like race-based affirmative action  (i.e., New Jersey’s Law Against Discrimination (LAD)). But administration allies — like the Center for American Progress (which has been described as “Obama’s Idea Factory” by Time magazine) want not just to permit sexual-orientation quotas, but to mandate them!

As discrimination-law expert John Rosenberg notes, “A new presidential executive order would clearly enhance the movement already underway on campuses to provide “diversity”-justified affirmative action based on sexual orientation and gender identity.” Past executive orders banning discrimination against other minority groups have led to federal hiring goals and preferences for such groups. But “Supporters of a new executive order recognize the obstacle posed by the fear that such an order would lead to affirmative action for gays. In a “CONFIDENTIAL–NOT FOR CIRCULATION” memo to Rep. Barney Frank obtained by Metro Weekly, the Center for American Progress and the Williams Institute noted that ‘Requiring numerical placement goals for sexual orientation and gender identity would communicate a strong commitment to diversity and a belief that LGBT workers should receive the same protection as women and people of color. However, doing so may be logistically, legally and politically problematic.’ One way of finessing the problem, advocates suggest, is that ‘the executive order could omit any reference to any form of affirmative action based on sexual orientation or gender identity,’” but later construe vague language in the order as mandating affirmative action when the political climate shifts.

Federal anti-discrimination statutes do not yet prohibit sexual orientation discrimination, and the Obama administration cannot rely on the Constitution to justify mandating preferences for gays, since the Constitution only bans governmental discrimination, not private-sector discrimination, only bans “intentional” discrimination against minorities, and does not require affirmative action or discrimination in their favor, and does not even require that the government eliminate unintentionally discriminatory “impact” in hiring. See, e.g., San Francisco Arts & Athletics v. United States Olympic Comm., 483 U.S. 522 (1987); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979); Austin Black Contractors Ass’n v. City of Austin, 78 F.3d 185, 186 (5th Cir. 1996).

Imposing sexual-orientation quotas on religious colleges that receive federal funds or grants would violate the Religious Freedom Restoration Act, which prohibits the government from burdening the religious practices or convictions of a person or institution unless it has a compelling government interest that requires doing so, it cannot achieve that interest in a less burdensome way, and its restriction on religious freedom is narrowly-tailored. Regardless of whether or not the government has a compelling interest in banning discrimination based on sexual orientation, it certainly does not have a compelling an interest in forcing private institutions to discriminate in favor of gays and lesbians. (In Boy Scouts v. Dale, the Supreme Court held that even the need to ban sexual-orientation discrimination was not compelling enough to outweigh the Boy Scouts’ freedom of expressive association, so the government cannot ban sexual-orientation discrimination by all private entities, much less compel them to discriminate. When the government compels a private entity to discriminate, that may violate the Constitution, as the D.C. Circuit Court of Appeals noted in Lutheran Church–Missouri Synod v. FCC  (1998),  a ruling that held that an employer could successfully sue the government for forcing it to engage in affirmative action.)

The Obama administration avidly supports racial quotas in colleges and universities. It helped persuade a federal appeals court to uphold the University of Texas’s use of racial preferences in admissions, arguing that the university should be allowed to use race to achieve a “critical mass” of blacks and Hispanics (that is, a quota) not only university wide, but on a classroom-by-classroom basis, even if doing so resulted in substantial discrimination against white and Asian applicants.  The Supreme Court recently agreed to hear an appeal of that ruling in Fisher v. Texas. Although the Supreme Court’s past decisions allow colleges to use race to some extent (see Grutter v. Bollinger), the University of Texas’s affirmative action policy violates the Supreme Court’s requirement that race be used only as a “last resort” (see Bartlett v. Strickland), the Supreme Court’s ban on outright racial quotas (see Gratz v. Bollinger), and three of the four restrictions on the use of race contained in Justice Powell’s influential opinion in the 1978 Bakke case.

The Obama Justice Department is also pressuring banks to use racial quotas in lending. Assistant Attorney General for Civil Rights Thomas Perez has compared bankers to “Klansmen,” and he has extracted race-conscious settlements from banks “setting aside prime-rate mortgages for low-income blacks and Hispanics with blemished credit,” treating welfare “as valid income in mortgage applications” and providing “favorable interest rates and down-payment assistance for minority borrowers with weak credit,” notes Investors Business Daily.

Overzealous government mandates aimed at helping minority groups sometimes backfire. The Washington Times argues that the ADA actually harmed hiring of the disabled by turning them into litigation time-bombs for employers:

When the ADA was enacted in 1990, some 60 percent of disabled men were employed. Five years later, that rate dropped to 49 percent. Today, almost 80 percent of people with disabilities have left the labor force. These people no longer count as the unemployed because they are no longer looking for work. While these are shockingly low participation numbers, mandating federal contractors hire the disabled is not the solution.The ADA was supposed to protect the disabled from discrimination. What it actually accomplished was making the disabled among the most vulnerable candidates by making the prospect of hiring them much more expensive. Faced with not only the need for pricey physical accommodations but the possibility of expensive litigation, employers frequently take the safest route and simply do not hire the obviously disabled.

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