reverse discrimination

Automakers Face Potentially Massive Race-Discrimination Class-Action Lawsuit Thanks to Obama Administration

by Hans Bader on July 23, 2010

in Bailout Watch, Economy, Employment, Legal, Nanny State, Odds & Ends, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

“Decisions on which car dealerships to close as part of the auto industry bailout — closures the Obama administration forced on General Motors and Chrysler — were based in part on race and gender, according to a report by Troubled Asset Relief Program Special Inspector General Neal M. Barofsky: ‘Dealerships were retained because they were recently appointed, were key wholesale parts dealers, or were minority- or woman-owned dealerships.’ Thus, to meet numbers forced on them by the Obama administration, General Motors and Chrysler were forced to shutter other, potentially more viable, dealerships. The livelihood of potentially tens of thousands of families was thus eliminated simply because their dealerships were not minority- or woman-owned.”

It’s likely that these race-based closures of auto dealerships violated Supreme Court rulings like Adarand Constructors v. Pena (1995), which say that the federal government can’t use race except to remedy the present effects of its own past discrimination, as I explain below. What this means is that terminated dealers could bring a billion-dollar class-action lawsuit challenging the use of race under 42 USC 1981 and the Constitution, based on cases like Gratz v. Bollinger (2003) (that Supreme Court decision let white college applicants bring a reverse-discrimination class action over a university’s use of race as a factor in admissions, even though it’s seldom clear in such cases exactly which white applicants would have gotten admitted if race hadn’t been used to admit some minorities).

This is just the latest harm the Administration has inflicted on automakers and dealers.  Its incredibly wasteful Cash-for-Clunkers program cost taxpayers and used-car and car-parts businesses billions, and drove up the cost of car-parts and used cars for dealers and consumers alike.

It doesn’t look like the automakers and the government have a valid defense to any lawsuit over the race-based car-dealership closures. There doesn’t seem to be any pattern or practice of discrimination against minorities in the auto industry that could conceivably have justified the use of race as a remedy under the Supreme Court’s Adarand decision (indeed, the automakers have long had affirmative action programs that provide a leg up to minority businesses), and in any event, the Obama administration doesn’t seem to have had any such remedial rationale in mind for using race. If it didn’t have a remedial rationale in mind for the closures, it can’t rely on one later, according to the Supreme Court’s ruling in Shaw v. Hunt (1996). And it can’t rely on a “diversity” rationale for using race (except in universities), according to federal appellate court rulings like Lutheran Church–Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998) and Messer v. Meno, 130 F.3d 130 (5th Cir. 1997). The government may be able to invoke sovereign immunity to limit any such liability to the terminated dealers, but the automakers won’t.

(Ironically, Cash-for-Clunkers, which was designed as welfare for the automakers, actually did virtually nothing for the U.S. automakers it was supposed to help, since it simply shifted auto purchases earlier, encouraging  Americans to buy cars earlier (during the program)  rather than later (after the program ended).  Indeed, it may actually have harmed GM and Ford, since their market share was lower during Cash-for-Clunkers than later on, when car buyers were turned off by Toyota’s safety recalls and bought more GM and Ford vehicles than before.  People who participated in Cash-for-Clunkers bought lots of Toyota vehicles as replacements, which did nothing for the U.S. automakers.)

The EEOC: “The Fox Guarding the Henhouse”

by Hans Bader on March 31, 2009 · 4 comments

in Economy, Employment, Labor, Sanctimony

“The Equal Employment Opportunity Commission, responsible for ensuring that the nation’s workers are treated fairly, has itself willfully violated the Fair Labor Standards Act on a nationwide basis with its own employees, an arbitrator has ruled.”

The EEOC has a much worse record of labor and civil-rights violations than most corporations and agencies with a similar-size workforce.

The EEOC was found guilty of systematic, illegal, reverse discrimination (discrimination against white males) in Jurgens v. Thomas, 29 Fair Empl. Prac. Cas. (BNA) 1561, 1982 WL 409 (N.D.Tex.1982). When he was head of the EEOC, Clarence Thomas tried but apparently failed to end the reverse discrimination that went on in the agency.

The EEOC also has had a lot of sexual harassment lawsuits against it (and I am talking about real sexual harassment, not weak claims based on a couple of off-color jokes, the sort of trivial thing the EEOC itself might unsuccessfully sue a private employer over).See, e.g., Spain v. Gallegos, 26 F.3d 439 (3rd Cir.1994).

In short, the EEOC is like “the fox guarding the henhouse.” See John Berlau, “Discrimination at the Opportunity Commission,” Insight, May 19, 1997.

The EEOC continued to discriminate against white male employees, including those white males, like attorney Joseph Ray Terry, that it sent to defend affirmative action in court. See, e.g., Terry v. Gallegos, 926 F.Supp. 679 (W.D. Tenn. 1996) (court ruled that agency discriminated against attorney Joseph Ray Terry, who has long argued in court on behalf of affirmative action).

Ironically, Terry, after winning his reverse discrimination suit, argued that the Civil Rights Act of 1964 preempted California’s state constitutional amendment banning reverse discrimination. I and the other attorneys who represented the amendment’s sponsors successfully argued that it did not. Although a trial judge agreed with him, the federal appeals court for the Ninth Circuit overturned that decision, and upheld the amendment, known as Prop. 209. That court also rejected claims by the ACLU that Prop. 209, by mandating equal treatment for whites, Asians, and males, and thus prohibiting many forms of affirmative action, itself violated the Equal Protection Clause of the Constitution. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997). (The ACLU also argues that free speech, privacy, jury trial, and other constitutional rights need to be restricted to protect minorities).

The world would be a better place if the EEOC spent more time rooting out discrimination in its own ranks, and less time trying to ban offensive words protected by the First Amendment, and less time suing the Salvation Army for requiring employees to speak English (a lawsuit far more harmful than the EEOC’s silly lawsuit against Hooters).

The EEOC seems hypocritical, but perhaps no more so than a President who harps endlessly on “responsibility” while proposing a budget that would increase projected deficits by $4.8 trillion to $9.3 trillion, flouting his repeated campaign promise to implement a “net spending cut” if elected (plus a pork-filled $800 billion stimulus package that will shrink the economy).