In 1992, the Government of Ontario proposed and ultimately passed legislation (since repealed) that attempted to enforce employment equity on the private sector. This is a three-part discussion of the legislation from the Hamilton Spectator. Although the details are specific, most of the arguments will apply to any such legislation anywhere.

Hamilton Spectator

Monday, March 16, 1992

Tilting too far

NDP's employment equity plan really just shifts inequities

© Charles Maurer

First of three parts

I am a typical bleeding-heart liberal who doesn't like to see people get hurt. I don't like to see people hamstrung in life by their sex, the color of their skin or other irrelevant impediments.

So I would like to see legislation requiring equitable employment and I was delighted to see the NDP government at Queen's Park commit itself to passing such a law.

However, I want legislation that is fair, legislation that will work. The recent discussion paper published by Juanita Westmoreland-Traore, Ontario's first Employment Equity Commissioner, proposes legislation that is not fair and cannot work.

The guts of the proposal is that employers shall be required to set 'numerical goals and timetables for hiring and promotion' of aboriginal peoples, persons with disabilities, racial minorities and women. Employers covered might include firms with as few as 10 employees: the minimum size is up for grabs.

A 'numerical goal and timetable' is, of course, a quota. In this case, a quota likely to discriminate against able white men.

People who like Ms Westmoreland-Traore's proposal claim that quotas are necessary because less drastic measures -- merely legislating against discrimination by race and sex -- do not work.

True, legislating against discrimination does not work. But quotas are not a desirable alternative. In this article, I will show that they are neither fair nor sensible. Tomorrow I will show that the proposed legislation in particular is not workable. The following day I will offer an alternative approach that is less objectionable and at least as likely to work.

Tilt playing field

There are basically two justifications for instituting quotas: either that they are fair or, if they are not fair, then they are an imperfect means justified by a desirable end. Let's look at fairness first.

One argument for fairness says that men, say, tilt the playing field against women, so we should compensate by moving the women's goalpost a little closer. 'Women are less aggressive than men so they need a helping hand to climb the male-dominated ladder' -- that kind of thing.

But think of Margaret Thatcher and the men she dominated in the United Kingdom's Parliament. All men do not take advantage of women (or blacks or whatever) and not all women (or blacks or whatever) are disadvantaged.

The trouble with group justice is that, nearly always, some members of a group are guiltier than others, while others are innocent. 'Better 10 guilty men go free than one innocent man be harmed' is an ethic that is fundamental to our system of criminal justice. It should be central to our system of employment justice too.

Male quotas

A second argument says that men, say, have long had a 100-per-cent quota in their favor, so reducing the quota to 50 per cent is appropriate and just.

As an argument, this is sophistry -- rhetorical smoke and mirrors. Quotas implemented by illegal customs differ fundamentally from quotas required by law. Nevertheless, the argument contains just enough truth that I might agree with the conclusion if there were some way to determine appropriate quotas. But there is no way and there can be no way.

Percentages based on the population as a whole cannot predict the percentages of people who will apply for any particular job. You advertise for six people to sell cameras in a new store. Let's say that overall in Ontario, half of all camera store clerks are women, so you are obliged to hire three women. Twenty women and 10 men happen to apply. All of these applicants are qualified but the five most qualified happen to be women. In this circumstance, it would hardly be fair to you or to the best applicants to pass up better women in favor of lesser men.

To avoid these problems, advocates of quotas often recommend setting quotas in proportion to the number of applicants. But this does no better. In the example above, you would have to hire four women and two men. Again you would be forced to pass up a better woman in favor of a lesser man.

(Actually, the proposed legislation would not require this because you would be allowed to hire more than your quota of women. On the other hand, in a comparable situation with the sexes reversed, you would not be allowed to hire more than your quota of men. This is another of the proposal's inequities.)

Many factors

The basic problem is that for an employment quota to be fair, only one parameter can differ: sex (or skin color or whatever). Everything else must be the same. But with heterogeneous homo sapiens, everything is never the same, especially employment qualifications.

One licenced mechanic has had 30 years experience but has never worked on foreign cars. A second has worked on everything for 17 years but lives so far away that his commute would often see him tied up in traffic when you need him in the shop. A third has had seven years of general experience and lives nearby but is so foulmouthed that she would repel customers.

A businessperson can and must weigh factors like these in the context of his or her business. A quota cannot. A quota cannot create justice, it can only exchange one set of injustices for another.

'But,' you might say, 'it will be a smaller set. Quotas create more justice overall and rough justice is better than no justice at all. Besides, this way our young women and blacks will have role models that they otherwise would not have.'

I might agree with these arguments in the special legal circumstances of treaty Indians on their reserves. But rough justice should effect some kind of justice at least. If a good end is to justify iniquitous means, the means must be obviously effective. If the means are not likely to reach the ends, the means cannot be justified.

Don't work

And quotas, as a means to employment equity, have not been shown to work well. Indeed, they appear not to work at all.

Take a look southward. For 20 years, the American government has covered somewhat over half of the workers in that country with equal employment legislation for blacks comparable to what the government proposes for Ontario. It has spent perhaps $2 billion to enforce it. The result: 'Social scientists have been unable to reach any agreement about . . . whether governmental policies make . . . (discrimination) worse or better.'

This is the observation of Steven Shulman and William Darity Jr., editors of a recent book of academic papers on racial discrimination in the United States. Drs. Shulman and Darity assembled authors who differ widely in their social politics (a rarity in books on discrimination) and who all demonstrate considerable sophistication in statistical methodology (another rarity).

Drs. Shulman and Darity's observation may seem surprising, since figures have been widely published showing that blacks' levels of employment and income have risen towards whites' since employment equity was brought in. But many factors other than employment equity have also been at play. Teasing out the various factors requires statistical analysis of mind-numbing complexity. The results are not obvious.

Take, for instance, the paper Drs. Shulman and Darity published by University of Maryland economist Samuel L. Myers Jr.

Dr. Myers found that, on the whole, blacks have not become better off economically. 'Economic progress has been but an illusion for the masses of blacks.'

True, Dr. Myers said, blacks' incomes were once increasing compared to whites (they have since decreased). But this was largely because a disproportionate number of highly paid whites retired or took disability pensions. In other words, blacks' earnings did not go up so much as whites' earnings went down from age and infirmity.

That is blacks as a whole. Dr. Finis Welch of UCLA looked only at blacks in firms included in employment equity legislation. These tend to be more competent than blacks hired by the other firms, for firms covered by the legislation tend to be larger and pay more than other firms, letting them be choosier.

Dr. Welch found that those blacks -- at least the men, on whom he concentrated -- did indeed show an increase in earnings. But, he says, that increase did not come from employment equity. It came because blacks have been staying in school longer than before, because additional schooling has been bringing increasingly higher wages, and because blacks have been leaving the rural south for areas where employers pay better.

Dr. Welch did also find that more blacks were hired by firms covered by employment equity. But the entire increase came shortly after the legislation and presidential orders were passed, and before they began to be enforced. The vast amount of money spent on monitoring and litigation came later and appears to have made no difference.

I see three ways to interpret this. Either the legislation's passage was an impetus for liberal executives to follow their consciences and a means to help them overcome the objections of their more conservative co-workers -- or the same liberal climate of opinion that allowed this legislation to pass also induced executives to liberalize their hiring policies. Or both.

Dr. Myer's and Dr. Welch's data together imply that for the past generation and for society at large, the employment equity legislation in the United States has not affected blacks' condition in any significant way. After 20 years, at a cost to government and industry of untold billions of dollars, legislation like that which Ms Westmoreland-Traore proposes cannot be shown to work.

This is because quotas do not create employment equity, they create different employment inequities. We do need to enforce equitable employment but quotas will not do it. Legislation requiring quotas -- the legislation proposed by Ms Westmoreland-Traore and the government -- must not be allowed to pass.

Pain of unfair rejection

In her discussion paper on employment equity, Juanita Westmoreland-Traore, Ontario's employment equity commissioner, waxes eloquent about 'the humiliation suffered when a job is denied on a false pretense . . ., the gradual loss of respect in the eyes of younger family members . . ., the gradual warning of hope and the onset of resignation and fatalism.'

However, Ms Westmoreland-Traore speaks exclusively of her 'designated groups'. She forgets that the undesignated, whom she would discriminate against using quotas, are quite as human.

It has become common to hear people say of a candidate about to be interviewed, 'No matter how good he is, we're not going to be able to hire him because we have to hire a woman.' I don't even work in a company yet I have heard this -- and then seen the candidate's humiliation when he was rejected as unsuitable.

I have also seen 'the gradual waning of hope and the onset of resignation' in men who have had this happen to them time and time again.

Just as bad, I have seen the humiliation suffered when a woman was accused of getting a job just because she was a woman.

Ms Westmoreland-Traore is right that a job should not be denied on a false pretence. To anyone.

A quota by any other name ...

Ms Westmoreland-Traore takes pains in her discussion paper to explain -- or try to explain -- that a 'numerical goal and timetable' differs from a quota.

A 'numerical goal and timetable,' she says, is a 'flexible' number that can be exceeded. On the other hand, 'when a quota is met . . ., no further effort is needed.'

Thus would she have a sales quota not be a quota.

Proponents of quotas avoid the word because 'reactionaries' react to it. However, if hiring and promotion quotas sound awkward and obnoxious, it is because they are awkward and obnoxious. Changing the language will not change the reality. You can call a camel 'sweetheart' if you like but it will still stink like a camel.

Part II: the proposed plan won't work
Part III: an alternative