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Podcast: The Viability of Affirmative Action in 2020

Podcast: The Viability of Affirmative Action in 2020

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Podcast with Dr. Linda Ashar, Faculty Member, School of Business, American Public University, and Dr. Gary L. Deel, Ph.D., J.D., Faculty Director, School of Business

Affirmative action is a topic that is often heard in both education and business. It is particularly important in business to ensure diversity in hiring, so that companies and their employees can reach their full potential.

Have affirmative action policies been effective in balancing demographics in the workplace? In this podcast, Dr. Linda Ashar talks to Dr. Gary Deel about the origin of affirmative action policies, whether all companies should have a formal policy as part of their recruitment and hiring practices, and some of the common misunderstandings about affirmative action. Also, learn about other ways companies can evaluate and audit their hiring practices to ensure they are fairly representing community demographics and addressing any biases.

Read the Transcript

Dr. Linda Ashar: Hello, everyone. This is Dr. Linda Ashar at American Public University Systems. Welcome to my podcast, Politics in the Workplace. In this podcast, we cover a broad variety of topics of interest in the 21st century.

Politics in the workplace is a very broad concept these days, because if you think about it, the workplace is a cross-section of society. It very much touches on the employers and the employees and also their families and has a broad reach into societal issues in our country, our local communities, and globally, so we enjoy exploring a lot of topics that I hope will be of interest to everyone.

Today, our topic is the viability of affirmative action, and it is my privilege to welcome as our guest, Dr. Gary Deel. Gary is an associate professor and faculty director for the School of Business at American Public University. He teaches courses in human resources management and employment law.

Gary also teaches as an adjunct professor of hospitality management for the University of Central Florida, the University of Florida, and Colorado State University. He also runs an expert witness consultancy firm through which he helps attorneys litigate hospitality industry cases.

Last but not least, Gary has a new podcast here at American Public University Systems called Intellectible, which debuted on July 24th this year covering a variety of hot topics and diverse fields such as business science, medicine, history, art, and philosophy, so we look forward to hearing a lot from that podcast. Gary, welcome.

Dr. Gary Deel: Thanks very much, Linda. Happy to be here.

Dr. Linda Ashar: Affirmative action and its viability is a topic that’s debated back and forth from time to time and a lot recently. It’s become even more of a topic of relevancy with the George Floyd death and increase in advocacy for human rights and race relations, which of course is an origin of affirmative action. I think it would be helpful for all of us listening today if you could first give us a little background, especially for workplace application of what we’re talking about with affirmative action.

Dr. Gary Deel: Sure. Affirmative action originates all the way back with the Kennedy administration. This was an attempt made by the federal government to balance the scales of fairness and opportunity in the workplace.

Essentially, an affirmative action policy would suggest that in a situation where you have two candidates that are equally qualified and appealing for a particular position. Obviously in this context and for this podcast, we’re talking about the employment environment, but it’s worth noting that affirmative action is also used in the higher education environment for enrollment and admissions.

What we’re really talking about here is two candidates or more for that matter — it doesn’t have to be two — but you can imagine a fictitious scenario. And it really is fictitious because of course, there are no real-life circumstances where two candidates are perfectly evenly qualified, whether that be for admission to a university or for a job. But we’re imagining a hypothetical scenario where we have two candidates that are perfectly equally qualified with respect to their education, their experience, their credentials, and so on.

Under an affirmative action policy, a company that is looking to hire one candidate, but is faced with this dilemma between the two, would look to variables of demographics, minority. And this could be based on gender. This could be based on race and ethnicity. It could be based on national origin.

You could conceivably create an affirmative action policy around any protected characteristic that you want, but essentially what it gets down to is that the company would look to those factors, would evaluate its composition, its diversity within the workforce. And then all things being equal, again, in this sort of hypothetical and realistic world, would give preference to the candidates that identify with characteristics that are underrepresented in the organization.

In other words, if the organization looks at their internal situation just as an example, and pun intended, a black and white example here and says, “Well, we have, let’s just say 80% of our workforce is white or Caucasian, and 20% of our workforce is Black, right?”

For this simple example, we’ll exclude all the other races in the hypothetical. If that were the case, and we had two candidates vying for the same position, one of which was Black, one of which was white and everything else being equal, right? We would, in theory, give preference under an affirmative action policy, to the Black candidate for the purposes of balancing representation in our workplace, but…. as we will get to I’m sure in the time of our podcast today…..there are many more nuances to affirmative action than just what I’ve described here.

It is far more complicated than just trying to create a perfect balance of 50/50 across a workforce. There are many more variables you have to look at and different perspectives on this issue.

If we get nothing else done today through this conversation, my hope is that at a minimum we help people to understand, who listen to this episode, why affirmative action is not a policy that should receive any type of reactionary “no” or “yes.” It should not be a policy that is blanketly prohibited or blanketly endorsed. It’s something that has a purpose in specific context and has a benefit in specific context, but not in every context and not in every way. And so this is where, again, the details matter.

People tend not to like that because it complicates the logic that underpins these kinds of political opinions. It’s easy just to say no affirmative action ever or yes affirmative action always, but it’s just not that simple. It never is and so hopefully today, we’ll parse some of that and explain why.

Dr. Linda Ashar: Well, what was the reason affirmative action was even dreamed up in the first place back in 1963? What was the reason the government wanted to put it in place?

Dr. Gary Deel: Right. Well, the original context was to give a set of equality standards in the workplace surrounding federal contractors. It was originally not intended for or not applicable to the private sector. It was only applicable to public-sector partners with the government.

If your company has a contract with the government, the idea would be that you would be beholden to these standards, because the government would not be implicated in any type of racial profiling or prejudice with respect to the way that people are treated for hiring. Obviously at the time of affirmative action’s inception in the ‘60s, that was a pretty popular practice in certain parts of the country.

In an effort to curb that, and this was obviously as you noted ‘63, so prior to the enactment of the Civil Rights Act in 1964, which under Title VII gave a lot of other protections within the private sector. This was an effort by the Kennedy administration to ensure that the government would not be complicit at a minimum even if the private sector still had the freedom to do so.

The government would not condone that kind of behavior from its partners in terms of, for example, discriminating in the workplace and saying that as a company we’re only going to hire—again, I’m using the classic simple example—but we’re only going to hire white people and no Black people.

There were companies, of course, who at the time, endorsed such policies and the government did not want to be implicated under the Kennedy administration in that kind of racism, frankly, and prejudice. So that was the original sort of inception of this, and slowly it evolved into something that I suppose now is as good a time as any to note that affirmative action is not required, right?

It is never required unless and until under specific circumstances. If an employer is found to be guilty of having committed discrimination or prejudice in the workplace, violated the Civil Rights Act, for example, in Title VII with the way that they hire, then one of the remedies that are available to the courts and the regulatory process under the Employment Opportunity Commission is the imposition of a mandatory affirmative action policy.

That’s something that can be put in place and imposed for the purposes of rectifying the imbalances or the injustices that are taking place within an organization. But if you are an employer who is not currently under investigation by the EEOC and has not been convicted, frankly, of having committed discriminatory hiring practices and so on and so forth, then affirmative action is an option that you can undertake. It’s something you can do if you want to.

But frankly, a lot of employers decline to do so because of the controversial nature of this policy, of the idea and the fact that it is fairly divisive. That there’s many opinions, most of which unfortunately, or many of which are uninformed.

People have formed opinions or ideas around this without the complete picture. That’s what I’m hoping we’ll accomplish today, is to help alleviate some of that missing information.

If you do it and you do it wrong, it can be — and this is where the sort of the devil’s advocate view toward affirmative action comes in. Opponents of affirmative action describe affirmative action as reverse discrimination. Because they look at the idea that you would give preference to a minority and say, “Well, isn’t that just the same kind of discrimination that we’ve been trying for decades and decades to remove from our society?”

And we’re just flipping it instead of giving preference to the majority. Instead of giving the white person the job, now you’re giving the Black person the job, but the reason all things being equal, is still race.

I think there’s some fairness in that argument, but again, this is why a lot of employers steer clear of affirmative action because they risk, if they adopt it and they do it wrong in a way that isn’t truly taking into account the spirit of affirmative action. In other words, that you really must consider all other factors and not give preference to things like race or gender in the absence of other variables that would give cause for you to hire somebody else.

For example, if you had two candidates and one had vastly more experience or better education but you’re still giving preferences to minorities strictly because of their minority status, well, that’s not affirmative action, right? That’s not really what this policy, this philosophy, was designed to convey. It was designed to create an environment where when you have more or less equal candidates, you create a sense of balance in the scales toward underrepresented minorities in your workplace.

Dr. Linda Ashar: Well, wasn’t the original thought or the continuing thread, if you will, that affirmative action is needed because of an insidious underutilization of minorities and oppression by denial of opportunity for jobs and education and advancement? And, without affirmative action those opportunities do not exist because of prejudice and bias in the workplace that’s gone on since a hundred and some years?

Dr. Gary Deel: Absolutely, and I think that’s a really good point. To speak to that a little further, there’s two types of injustices that policies like affirmative action are attempting to rectify.

There’s the conscious, what I call the mens rea from our legal world, that guilty-mind perspective. In other words, someone who is racist and knows they’re racist, right? They understand what they’re doing. They are the author of their actions in that sense and they know that they’re discriminating as opposed to disparate impact, it’s disparate intent, right?

It’s the act of discriminating for the sake of discriminating. We know that’s why we’re discriminating, and my goal is to eliminate minorities or reduce or minimize the amount of minorities in my workplace.

We want to stop that. And in a just world, we don’t make decisions based on immutable characteristics like race, color, creed, national origin, so on and so forth.

But the other type of wrong that we’re trying to right with policies like affirmative action is the subconscious bias that enters the minds of every person in viewing the world through their own lens, right? It’s an implicit bias that many people unfortunately are not even aware of.

I would say this to the listeners, and I would say this to anybody. If you’re listening to this podcast episode and you are of the opinion that you are not biased, you need to look up the definition of “bias” and truly understand it a bit better because every single person in the world regardless of your context, is biased in one way or another.

You cannot help it. You are a product of your experience and the context of the perspective of your life. Every interaction that you’ve ever had with another human being, be they white or Black or male or female, the town you grew up in, your family values, the church you went to, if any, the school you attended, the sports you played, the places you visited.

Everything that you’ve experienced in your life has culminated in a world view that is different from every other perspective on the planet, right? I could never hope to see the world in exactly the same way that Linda sees it. That is because her life experience has been different than mine. In some ways drastic, in some ways subtle, but nonetheless, she sees the world differently.

We know this from research that, we’ve looked at hiring recruiters and we’ve done studies where we give human resources recruiters, people that are looking to hire talent in the workplace. We give them a stack of resumes with no pictures, just names and these are all contrived made-up, fictitious people.

It should be noted at the onset that these recruiters are not people who espouse racist ideologies or prejudice, right? If you ask them, “Do you have a dislike toward Black people, or women, or minorities. Do you hold any hard feelings?” They would swear up and down, “Absolutely not. No way, no how. I am in no way biased in this respect.”

And yet nonetheless, when we run these studies, we find that an analysis of the resumes, give them the stack and they go through them and you take a look at how much time is afforded to each one in reviewing the qualifications. The average time you get in front of a recruiter these days isn’t much anyway, you’re talking seconds, but we can see a notable statistically significant difference between names that are, for example, African American sounding.

You have Bill and Ted and Denise and Lisa, but then you have, Jerome and Tyrone and then you have Kia and Tenicia. And you have these names that ring in the community from a cultural standpoint of being African American, even without having seen a picture. We can show a statistically significant difference in the amount of consideration given to those groups, which obviously is unfair and wrong.

Now, does that mean that the person who showed less consideration to those groups is racist? Not necessarily, right? Again, it’s an implicit bias that is a product of their upbringing, and it may not be something that they’re even aware of that they’re doing. Oftentimes, it isn’t.

I think the discussion around guilt is a separate conversation, but it’s wrong nonetheless. I think that part of affirmative action is recognizing that.

I use the example often when I explain this with students. If you imagine someone in your school when you were growing up that you didn’t like, maybe you had a bully, right? And just picture that person in your mind, male, female, big, small, white, Black, whoever they were, right?

Someone you just detest. It could be someone in your family, right? An uncle that you just don’t ever like to talk to, or whoever it is in your community, in your life.

Then imagine coming across someone who maybe is coming in and applying for a job to work at your organization and you’re the decision maker in this front. And this person looks remarkably like the person in your life that you have hard feelings toward, right?

Again, whether it’s a family member or community member, or the school bully from years and years ago, but they are an uncanny doppelganger for this person. They’re not that person, but you can begin to imagine how the subconscious and your emotional reaction to seeing someone who reminds you of that person that you despise in your life will change your perception in a way that is totally unfair to the individual standing in front of you.

This is what we’re talking about when we talk about implicit or subconscious biases, that policies like affirmative action are attempting to rectify.

Dr. Linda Ashar: Those are really good points. I have seen a couple of those studies you referred to on names. In fact, I had a class a few years ago that we looked at that study, and one of my students, a female student, she was very candid about our opinions and everything.

She said she was going to go home and talk to her mother about choice of names, because she felt that that had an impact on her ability to get past the first interview on many jobs she’d applied for. I didn’t really have a good response for that. It was just an observation she made, but it struck home to me that people carry burdens they shouldn’t have to carry in something as simple as a name.

Dr. Gary Deel: Absolutely. No better example of that than Barack Hussein Obama. There’s a reason why President Obama didn’t emphasize his middle name very often. He actually made light of it a few times in White House correspondence dinners and sort of acknowledged how in light of the geopolitical world and Saddam Hussein’s atrocious reign in Iraq in the last few decades prior to his death, that’s not a name you want to be associated with.

Even though, again, to President Obama’s credit, he’s in no way affiliated, associated, no family connection. Just happens to share a quite common name among Middle Eastern cultures as his middle name, but it’s that stigma that we really can’t help as a product of being human.

We have this reptilian brain operating as sort of a firmware underneath everything else and it helps, it’s designed at its core evolutionary level to keep us safe. If we know there’s danger in some type of external stimuli, we can go back to the example of the high school bully.

You were hardwired, if you had a bully, to recognize that when you see that person, the appropriate response is fear, right? And maybe a fight or flight because you know, the danger is nearby. This is what’s operating underneath all of your conscious thought.

To see someone that is recognizably similar in appearance to that person will trigger that same emotional response, whether you like it or not. To a certain extent, we certainly can’t eliminate our biases.

And that’s the first thing that for someone who may be listening and realizing for the first time that they’re biased, please don’t lament that, right? I mean, to be biased is to be human.

There’s nothing we can do to eliminate our bias. It is a product of the lens with which we see the world. We can’t take that lens off. We can’t remove those glasses. But what we can do is be aware of it. By being aware of it, we can attempt to counter it and that’s what affirmative action does.

The idea being that again, if you look at an employment environment and of course the larger the employment environment, the better. If you’ve got a workplace of 10 people, that’s probably not statistically significant of anything, because there’s just not enough of a sample population to establish any trends in your hiring.

But let’s say, for example, that you’re Amazon and you’ve got thousands upon thousands upon thousands of employees. Well, now you can look at some data trends and see, well, how do we reflect the surrounding populations where we operate?

And we haven’t gotten to this yet, but this is a very important piece of the affirmative action puzzle, is the demographics in the areas where your business operates. Because if you operate, for example, in Atlanta, it’s a very different demographic population than in other cities around the country, so that needs to be taken into consideration.

When you compare your actual statistics in large corporations to the surrounding areas, and you notice it turns out nobody was aware of this and we weren’t trying to do it, but it looks like you can use it… Atlanta, for example, and Atlanta’s demographic population happens to be roughly 50% African American and 50% other. So that would include the groups white Caucasian, Asian, Native American, and so on.

If we look at that and we’re saying Amazon distribution facility in Atlanta, and we say, okay, we’ve got a couple thousand people. We’re only 20% African American for example. The question would come up or should come up as to why?

If the positions that we’re hiring for, and again, we haven’t parsed this topic yet, but if we’re just hiring basic unskilled labor, in other words, there are no specific qualifications for the job. You don’t have to have a special licensure or a degree. We’re just hiring people that are willing to work.

The question arises: Then why do we have such a disparity between the general population in our surrounding area and the hiring statistics, right? And then we can go back, and we can look at how many people did we interview? How many people did we exclude, and how are we filtering out such a substantial portion of the population?

Then an affirmative action policy would follow up on that and say, “You know what? If we have an implicit bias here, no one’s intending to do that. So we need not slap anyone on the wrist at this point, unless we can establish there’s some malicious intent there, but we want to fix it.” And so we would put a policy in place that would give preference, all things being equal to try to rebalance those scales.

Dr. Linda Ashar: Isn’t the key, the effort that is made to try to recruit? I mean, you can recruit and not find viable candidates, correct?

Dr. Gary Deel: Absolutely. I think that’s where you need to really look at how you’re going about recruitment and what your standards are.

I often use, I wrote an article for Online Career Tips, which is one of APUS’s blogs. I want to say it was last summer, I believe, on affirmative action. I commonly use this example as a point of context for why this subject is complicated because I use Atlanta and we just talked about Atlanta being roughly 50% African American and 50% other.

If you’re hiring in Atlanta and you’re Walmart or you’re Amazon, and you’re just looking among the general population, in other words, you don’t have any specific requirements for the job. You just need people with a pulse and a pair of working hands, and the willingness to come and show up and do the work.

Well, then you would expect all things being equal. Assuming you’re reaching out to all communities and you’re not specifically targeting one neighborhood over the other, that you would get equal representation.

Your demographics within your workplace would roughly approximate the demographics proportionality of the surrounding area. Consider a different example. Consider hospitals and doctors’ offices.

Now if we’re a hospital system in Atlanta and we’re hiring for doctors, our demographic expectations should be vastly different than those of the surrounding population, because it turns out when you look at the statistics among graduates of medical schools and licensed doctors, African Americans are not nearly 50%, right? Even in the Atlanta area, there just aren’t.

Of all the doctors that would be available and eligible to apply for a doctor job in Atlanta, 50% of them are not African American, right? I believe it’s under 10%. I think at most it’s 13 or 14, but I think it’s actually under 10.

To suggest or say to yourself that proper source of balance in Atlanta in a hospital would be 50% African American doctors doesn’t take into account the specific requirements of your position and the demographics that you should be looking at. You’re basing it on the general population instead of the specific group of eligible candidates from which you might hire.

Now, I need to caveat by saying that a totally valid argument and discussion could be had, separate and distinct from this, about why African Americans are underrepresented in medical school and among licensed doctors.

I think that’s a totally fair point. And if we wanted to have a separate dialogue about how we improve that situation, I think that’s totally fair, but I’m simply suggesting that if you’re an employer in that environment here and now in the moment, looking at the surrounding general population is not an accurate metric for how you should discuss or determine your demographic balance in your workplace. You need to look at the requirements.

In the case of doctors, it’s pretty clear. You can’t practice without certain licensure, so there’s a very hard sort of wall between everyone else and the folks that are eligible for those positions, it’s pretty non-negotiable. It’s like us as lawyers. You cannot practice without a bar license, period.

What you need to look at is the demographics of the people that are actually eligible for the position and then those separate discussions could take place around, there are disparities and the proportionalities of folks that are eligible.

Well, then we need to fix that too and maybe there’s a place for affirmative action in say, medical school and law school admissions. Don’t we have affirmative action in those? Isn’t that the corollary to having affirmative action in higher education that we do have?

Well. Yeah. We certainly ought to, and I think that that’s important as well. If you are the Dean of a law school or the dean of a medical school, or really any university for that matter, you should care about the diversity of your admissions, right?

If you are finding that as you’re recruiting students from—we discussed this previously—but depending on where your markets are, you need to consider what balance looks like for you to make sure that you’re giving opportunities to all groups, particularly those that again are historically disenfranchised and historically underrepresented.

We know that this is not just a product of a lack of determination or willpower; it’s not just about pulling up your bootstraps. I believe it was people to judge who had the useful phrase, I don’t think he originated this, but it’s hard to pull yourself up from your bootstraps if you don’t have boots.

There are historical, cultural, institutional components, challenges to the reason why minorities, whether it be by race or by gender and so on, are underrepresented among certain groups in society and that’s not fair, right? And it does deserve some rebalancing.

The key is to determine what that rebalancing looks like and where it’s most appropriate, and that is the complicated piece.

Dr. Linda Ashar: One might also say if someone’s willing to sell you the boots, but the straps are removed.

Dr. Gary Deel: Yeah. I think that’s a fair corollary, too. Yeah.

Dr. Linda Ashar: We’ve been talking about here a lot of good reasons socially and culturally why affirmative action was instituted, why it’s been ongoing. Has it been effective?

Dr. Gary Deel: I think that the answer to that is as complicated as anything else that we’ve parsed today. I think it depends.

For those that go to law school, I’ve said since I went to law school and you may agree with this or not, but I’ve said that I wish everyone could have the opportunity to go without the burdens of the time commitment and the financial commitment, because it really affords you an appreciation for nuance that you don’t get in any other context. One of the first things you learn in law school as you go through the case law and the precedents, is that the answer to almost every question is: “it depends.”

That’s the initial starting point and so to answer your question, has it worked? It depends. It depends on the context. Not in all places and in all situations, but has it helped overall? Yeah, I think so.

I think it’s done more good than harm, but where it has been misused or abused and demonized, it has created this divisive atmosphere around affirmative action, because again my sense and read of the surrounding environment in this political environment is a lack of fundamental understanding of the nuances that we’ve been discussing for the last 30 minutes or so.

You have to look carefully at the demographics, the location, the fairness that results from these policies, and you can’t overdo it because then you are totally conceding the point of the opposition, which says that, again, this is just reverse discrimination. What we’re interested in is balancing the scales, mitigating the effect of our implicit bias — or explicit bias as the case may be — and ensuring that there is fairness and opportunity in the workplace for everybody.

I think where you’ve seen it vilified is where it has been misused or misapplied in a sense that has created that environment of people feeling like they don’t have a fair shake just because of the color of their skin. But it just happens to be that the roles are reversed now, so it’s the white person who didn’t get the job because a Black person was hired because of affirmative action, and they feel like they got shafted because the policy doesn’t speak to their interest in that particular context.

The fact of the matter is they may feel that way even with an appropriate execution of affirmative action. But if we’re truly interested in balancing the societal scales of fairness and opportunity, then that may be to a certain extent an inevitable byproduct, but you certainly don’t want to make it worse than it has to be by misusing these policies in a way that creates unfairness on the other side.

Dr. Linda Ashar: I think another abuse of it has been, with all due respect to many employers, it’s easy to say, “I can’t hire you because I have to hire the non-white people.” I think that foments bias.

Dr. Gary Deel: Absolutely. Because there’s a feeling of resentment walking out of that situation, not just resentment for the employer, by the way, but a resentment that creates racial prejudice because then the enemy becomes the person that got preference over you.

Dr. Linda Ashar: Instead of saying, “I’m following the guidelines that employers follow and I hired the best applicant for this situation who has the qualifications.” If there has to be anything said at all, and I think probably something has to be said in those situations because they are what they are.

But those are not the kinds of answers that are given. It’s either left with nothing said and let the bias percolate, or an easy, bad, answer is given. I don’t know if it’s an easy answer, but a negative answer is given, which by the way implies the deep resentment of the employer for making that hire.

Dr. Gary Deel: Absolutely. Well, I think there’s two motives there on the part of the employer. One is just laziness in attempt to not give an articulate answer to a question. I think you’re right. I mean, there’s no need, neither one of us here are talking about being dishonest with candidates about why they didn’t get a job, but I think you can be more articulate and genuine than just saying you didn’t get it because you weren’t Black or you didn’t get it because you weren’t a woman.

I think that, as you said earlier, there’s a good-faith argument to be made about the best candidate for the job, regardless of the circumstances without making that person feel as if they were a product of some type of unfair discrimination.

The other motive unfortunately, however sinister, is resentment on the part of the employer, who, oftentimes as a hiring manager, you were not the author of the affirmative action policy of your company. And therefore, when you’re doing the hiring, you feel like that policy has been shoved down your throat.

You may not personally agree with it, and I’ve worked with consulted and talked with people who have had this exact professional situation in their lives where they would rather not be constrained by the confines of an affirmative action prerogative, but upper management, executive management in their company has demanded it of them. And so as they go through that process, they are not shy about letting candidates know that they don’t agree with it and they’ll come right out and say, “Hey, I don’t like this at all, but I can’t hire you because you’re not a Muslim or you’re not a woman or not African American.” Or whatever the case may be.

Dr. Linda Ashar: I read an article proposing that the concept of inclusion — workplace and diversity inclusion — has somewhat replaced affirmative action in employment concepts and workplaces as a better approach to affirmative action. Do you have any thoughts on that concept or how you would define what it is?

Dr. Gary Deel: Yeah. I struggle with this concept because obviously we wish that we had a more well-tuned tool that was less divisive for accomplishing the same objectives. I struggle with it, but I am of the opinion and I’ve advocated this in my writing is that a lack of regulation generally leads in only one direction. It’s not to be a nihilist with this, but only to say that where people can take advantage, I think that power and corruption and greed tend to grab hold and never let go of one’s motives and ambitions.

I think that we’ve seen that over and over and over again and so I’ve been a proponent for active regulation of the workplace from the federal level, state level. Whatever’s most appropriate. I’m not a huge fan of the operations of the government. They’re wasteful and it’s a messy process. It’s often ugly.

Right now, we’re in total gridlock, politically speaking. It’s difficult to see how that could be in any way productive.

I often hearken back to my hero, Dr. Carl Sagan, who is an astronomer from the 20th century and the way that he talked about science and the tools of science. He described science as a tool for understanding the world in which we live. He was clear to say — and I’m paraphrasing this — but that science is not a perfect tool, but it is the best tool that we have by far.

I think in the context of trying to rectify societal wrongs against cultures, groups, individuals, but these entire subsets of our population about which we ostensibly care very much, right? As members of our society, as friends, family, and neighbors.

I don’t know of a better institution than the government to enforce the fairness and opportunity that we all purport to espouse, and so for example, the 1964 Civil Rights Act. It had its opponents and it was very messy to get it passed, and there’s still a lot of dispute about what it means and how far it goes and we’re constantly amending it.

There’s no denying that effort has made a positive difference in the lives of people who were otherwise discriminated against and looked at as second-class citizens in society. Is it perfect? No, it’s not. We’re constantly moving toward that goal of perfect, never actually reaching it, but to use an analogy, I’ve talked about how for example we have a problem as a corollary with gender-based pay discrimination in our society.

What’s interesting to me is that we can audit financial records and your tax records to make sure that you’re paying every penny of the taxes you’re supposed to be paying, but the government is not allowed, or at least not in the practice of, looking at your organizational demographics to make sure that you are paying men and women fair wages based on what they’re owed and their positions and their seniority in your workplace.

It’s illegal not to do that, but yet we have no intent or no inclination to use data that is publicly available to the government. Not publicly available to the general public, but in the IRS databases and the Social Security databases. We know who men and women are in our society, and we know what they’re paid because they’re all reported on W-2s and 1099s and so forth, and yet we don’t take advantage of that opportunity to create some type of proactive audit scheme.

Those who disagree with that as an invasion of privacy or concerns over big government I think ought to reevaluate what they’re worried about the government finding if they audit their tax demographics the same way they would audit their individual tax records to make sure that they’re not claiming exemptions that they’re not entitled to and so on and so forth.

We have not taken that affirmative step. We tell the industry we hope you’ll do the right thing and if someone is not being paid fairly, we hope they’ll find out. And of course, President Obama signed into effect the Lilly Ledbetter Fair Pay Act, which took this step forward in ensuring that statutes of limitations did not run for females who were — or really any gender — who was paid unequally compared to their counterparts in their workplace but the same could conceivably be done for things like affirmative action to assure that there’s no disparate — and again, it can be really nuanced and there should not be a presumption of guilt anywhere. It’s kind of like a tax audit.

Again, when you audit someone’s taxes, the IRS doesn’t just send the police to come arrest you. There’s a question, there’s an investigation, there’s an opportunity to respond and only if you fail to deliver with reasonable answers, do they turn it over to the Department of Justice for prosecution and so on and so forth, and this would be no different.

It would be a routine kind of audit procedure where we would look at the trends and hiring demographics among the largest companies. And there could be exclusions for this just like there are in the Fair Labor Standards Act, in the Civil Rights Act, where small businesses, truly small businesses have like 15 employees or less are excluded, but larger companies are required to report on their trends and statistics.

Then if we see disparities of a certain extreme nature, we can say, “Okay, why? Tell us why. There must be a good reason why you have not hired anybody from a minority demographic in your workforce of a thousand or 5,000 people.”

So we give you an opportunity to explain yourself and if not, then steps are taken from there, but I think that’s an important element in, again, the oversight of the government ensuring that we are doing the right things even when no one is looking. Because if it’s left to our own devices, I think history has shown us that we’ll cut corners where we have to.

Dr. Linda Ashar: One last point that I think is worth looking at. We have just a little time left, and I’d like your thoughts on this. We’ve been talking about demographics.

Let’s look at a remote employer who’s hiring American citizens, but they’re all over the United States. What’s the demographic? Do they look at how many African Americans — let’s just stick with African Americans because that was the key impetus for affirmative action, just for the purposes of our discussion. Is the national demographic for that classification under affirmative action, the demographics that that employer then needs to be looking at for hiring?

Dr. Gary Deel: Yeah, I think that’s a good place to start, but I think that the conversations should continue from there. For example, if you say, okay, we’re eligible to hire nationwide.

Well, America is roughly 13% African American by population. But again, if you are a university like APUS, most of our hires at least as they pertain to faculty are the holders of masters and/or doctorate degrees, which is a very limited subset of the population. We’re talking about..I know the doctorate holders are roughly 2%, and I think that graduate degrees are like another 14 or 15.

All said and done, you’ve got less than 20% of the population that is even eligible. And what you need to do then is try to parse, if the data’s available, what percentage of all of the graduate degree holders in the U.S. are African American or are female, or what have you, right? Then that’s a more accurate subset of people that are eligible for the positions that you’re hiring for.

Now, to be fair, a university like APUS also hires people for positions that don’t require graduate degrees. You have advisors, and you have student services representatives, and you have security guards, and you have groundskeepers.

I mean, there’s all kinds of positions, janitors and so on and so forth. Everything in between for which people might be eligible and would not be eligible to work in the same organization as a faculty member.

Again, this gets back to the idea that you’ve really got to look at the specifics of the position that you’re hiring for and then the specifics of the demographic population that is eligible to do that job and it requires a lot of careful thought, but as it should. In anything as important as this is in creating the societal balance that we all espouse, that we all want to see in our society, I think it deserves the time that we need to put into it.

Dr. Linda Ashar: Gary, what would be your closing thoughts on this topic? We’ve called this a viability of affirmative action. Give us some wrap-up thoughts on this. What would you like to add to close out our discussion here for our listeners?

Dr. Gary Deel: I would advise anyone considering an affirmative action policy to think it through carefully. Again, I don’t think it’s a one-size-fits-all solution for any organization. I’m not necessarily advocating it en masse for everyone.

I think that there are ways to achieve the goals of balance without a formal affirmative action policy, but it requires aggressive oversight of the balance of your hiring statistics to make sure that you’re not—that the implicit biases in all the people that are making those decisions are not culminating in some type of unfairness across the spread of your workplace.

Whether you call that an affirmative action policy and you’re giving actual preference to candidates, or you are just providing thoughtful training and coaching and oversight to the decisions made by these recruiters, that’s another way to attack it without having a blanket rule around preference. But in other cases, that may be necessary.

Either way ,I think that the message to take away from this conversation is some thought and consideration should be given to the way that you hire your employees to ensure that there’s balance in that fairness and opportunity for all demographics, and particularly for the immutable characteristics that are protected by law, race, color, creed, national origin, gender, religion, sexual orientation to a certain degree. Although it’s not been federally codified and ensuring that those are not determinants of who gets an opportunity to work for you, because we know that they’re not determinants of one’s character.

I recently wrote an article just recapping it. I thought it was timely to talk about Dr. Martin Luther King’s “I Have a Dream” speech. He was very clear in his speech that people today there’s a common meme that is “don’t judge me.” You can’t judge me because you don’t know what I’m going through.

There should be no judgment of any kind, but I often point out when I hear that, that Dr. King was very clear on this and I think that he had the right perspective, which was not “don’t judge me, but judge me based on the things that matter.” To paraphrase one of the famous lines from that speech, it was “I have a dream that one day my children will grow up in a country where they are judged not by the color of their skin, but by the content of their character.”

The point being not “don’t judge me, but just judge me based on what matters, the things that define my character as a person.” And we know that these protected characteristics, race, color, creed, national origin, and so on are not determinative of one’s character and so we should fight with every amount of effort that we can, to ensure that they are not the determining factors of our hiring decisions.

Dr. Linda Ashar: In other words, fundamental human values.

Dr. Gary Deel: Absolutely.

Dr. Linda Ashar: Gary, thank you so much. I appreciate all of your insight. I’ve enjoyed it very much, and I’m sure our listeners have too.

Dr. Gary Deel: It’s my pleasure. Thank you for having me.

About the Speakers

Linda AsharDr. Linda Clark Ashar is a full-time associate professor of business, law and ethics in the School of Business at American Public University. Having practiced law in federal and state courts for more than 30 years, Dr. Ashar continues to manage her own law practice part-time.

An experienced litigator, her practice focus is employment and labor law, agriculture and equine law, public interest, and management consultation for businesses and nonprofit organizations. Dr. Ashar has represented both employers and employees. She has a bachelor’s degree in English from Muskingum College, a master’s degree in special education from Kent State University and a Juris Doctorate in law from the University of Akron.Gary Deel

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

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