- The Washington Times - Tuesday, August 2, 2011

Last week, the city of New Haven, Conn., agreed - finally - to pay $2 mil- lion and enhanced pension benefits to the firefighters in a celebrated case that went all the way to the Supreme Court a couple of years ago. The 20 firefighters (19 white and one Hispanic) sued after the city threw out the results of a civil service examination for promotions because it didn’t like the racial results.

The use of racial and ethnic preferences by federal, state and local governments - and public and private universities - is frequently (and rightly) criticized, but it should not be forgotten that many corporations are just as bad. They are severely infected with the virus of political correctness and also are fearful of bad publicity if Al Sharpton or Jesse Jackson says something unflattering about them, and every day you can read about awards given to this or that company for being tops in its “celebration of diversity.”

Such discrimination is, indeed, undeniably widespread yet cannot be justified legally, empirically or morally. It is also illogical.

Companies that use racial and ethnic preferences to achieve some predetermined, politically correct demographic mix - “to reflect our customer base,” as is commonly asserted - typically will argue that “cross-cultural competence” or the like is very important for their employees.


To sell a Pepsi to a black person, you see, you have to be a black person, or at least to have learned how to think like one.

Put like that, of course, this rationale is offensive as well as unpersuasive: The Phoenicians never could figure out how to trade with non-Phoenicians, nor the folks in Hong Kong to trade with Westerners, right? That’s obviously silly, but let’s unpack the companies’ argument anyway.

The argument makes these assumptions: (1) People tend to be quite different from one another depending on their melanin content and national origin, and so products must be marketed differently to different groups; (2) these differences cannot be learned or taught on the job; and so (3) it is essential that companies that have a diverse consumer base also have a diverse work force.

This argument has so many holes in it that one hardly knows where to begin. For starters, of course, it would justify preferences only in some parts of only some companies, namely those that are doing significant retailing with a broad consumer base. It would not justify special efforts to achieve diversity among truck drivers, for instance, or clerical staff, or research-and-development people, or the in-house accountants or lawyers, or any other employee who wasn’t involved in marketing the product.

It also would not work if the different “perspectives” had nothing to do with customers but assumed instead that some racial and ethnic groups have a different approach to, say, accounting or legal research or management or whatever - a position that relies, of course, on the crudest of stereotypes rather than treating people as individuals. Why use skin color or national origin as a proxy for someone’s background, experiences and viewpoints?

But let’s be charitable and take the most plausible scenario for the diversity argument. Let’s suppose that a company was going to launch a big push to improve sales of its product to Mexican-Americans in the Southwest and elsewhere in the United States and that, therefore, it was going to use preferences to try to increase the number of Hispanics in its marketing department. I stress that this is the most plausible kind of scenario for diversity-based hiring.

But wait, not all Hispanics are Mexican-Americans. A Cuban-American or Puerto Rican might have no particular knowledge of how to market to Mexican-Americans or any particular knowledge of Mexican-American culture. He might speak Spanish - but he might not, and the Mexican-American customer might or might not speak Spanish. If speaking Spanish is important, that skill can be a job requirement, and there would be no reason not to consider an Anglo or Asian or black applicant who spoke Spanish.

Even among Mexican-Americans, the prospective employee might or might not know something about Mexican-American culture. There are plenty of Mexican-Americans whose family members are fully assimilated and have been for generations. And what is it about Mexican-American culture that is so mysterious and yet so central to marketing that it cannot be fathomed by someone who happens not to have a Spanish surname? Again, traders have been doing business with people different from themselves for thousands of years.

Of course, the typical scenario is not even this plausible. We frequently hear the breathtaking non sequitur that we live in an era of globalization, and American companies, therefore, must hire more blacks. So, in order to understand how to market to foreigners, companies must hire more blacks, who are quintessential Americans. And would we allow companies that do little business in, say, Asia to limit the number of Asians they hire? No. For reasons of logic - and law - companies should forget about skin color and national origin and simply hire the person best qualified for the job.

The city of New Haven had to learn this lesson the hard way. It’s too bad corporate America hasn’t learned it, but maybe it will take some lawsuits to teach it, too.

Roger Clegg is president and general counsel of the Center for Equal Opportunity.