Policy Antecedents of Identity Politics

Contextual Quote

"the anti-woke seem unaware that the things they care about have much to do with policy. They treat every cultural outrage as an isolated event, as just another instance of elites deciding to be “woke,” without such decisions being connected to anything government has ever done."

- Richard Hanania [1]

Discussion

The Three Policy Components of Wokeness

Richard Hanania:

Before proceeding, it is important to clarify what wokeness actually is. I’d argue it has 3 components:

1) A belief that any disparities in outcomes favoring whites over non-whites or men over women are caused by discrimination (Sometimes wokeness cares about other disparities too, like fat/nonfat, but those are given less attention. I’m putting aside LGBT issues, which seem to be at an earlier stage of wokeness in which the left is still mostly fighting battles regarding explicit differences in treatment rather than disparate outcomes, although the latter does get attention sometimes.)

2) The speech of those who would argue against 1 needs to be restricted in the interest of overcoming such disparities, and the safety and emotional well-being of the victimized group in question.

3) Bureaucracies are needed that reflect the beliefs in 1 and 2, working to overcome disparities and managing speech and social relations."

(https://richardhanania.substack.com/p/woke-institutions-is-just-civil-rights)

How Civil Rights Law Prepared the Current Context

Richard Hanania:

Each of these things can be traced to law. The Civil Rights Act of 1964 banned discrimination based on race and gender. While most at the time thought this would simply remove explicit discrimination, and many of the proponents of the bill made that promise, courts and regulators expanded the concept of “non-discrimination” to mean almost anything that advantages one group over another. An important watershed was the decision in Griggs v. Duke Power Co. (1971), in which the Supreme Court ruled that intelligence tests, because they were not shown to be directly related to job performance, could not be used in hiring since blacks scored lower on them, and it did not matter whether there was any intent to discriminate. People act as if “standardized tests are racist if they show disparities” is some kind of new idea, but it’s basically been the law in the United States for 50 years, albeit inconsistently enforced.

Standardized tests aren’t the only target of the doctrine of disparate impact. In 2019 (under Trump), the Equal Employment Opportunity Commission (EEOC) settled a suit brought against Dollar General for $6 million for doing criminal background checks that disproportionately prevented blacks from being hired. The Obama administration went after schools for disciplining black and white students at different rates, with predictably disastrous results. Police departments, fire departments, and other institutions use “gender normed” tests to stop the EEOC and private applicants from suing them for gender discrimination. This is of course completely insane; criminals can’t be relied on to go easier on female cops on account of their sex, but somehow we’ve all come to accept affirmative action policing and firefighting (in 2014, a guy who jumped the White House fence overpowered a female Secret Service agent and made it all the way to the East Room).

As the government invented new standards for what counts as “discrimination,” it was forcing more aggressive action on the part of the private sector. Executive Order 11246, signed by President Johnson, required all government contractors and subcontractors who did over $10,000 in government business to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." The category of “sex” was added in 1967. In 1969, Richard Nixon signed EO 11478, which forced affirmative action onto the federal government itself.

Across the federal government and among contractors, affirmative action assumed that “but for discrimination, statistical parity among racial and ethnic groups would be the norm.”

Government interpretation of the Civil Rights Act also invented the concept of the “hostile work environment.” UCLA law professor Eugene Volokh has written about how this has been used to restrict free speech. Writing in 1997, he pointed out that

The scope of harassment law is thus molded by three facts:

1. On its face, harassment law draws no distinction among slurs, pornography, political, religious, or social commentary, jokes, art, and other forms of speech. All can be punished, so long as they are “severe or pervasive” enough to create a “hostile environment.”

2. The vagueness of the terms “severe” and “pervasive” — and the fact that the law is implemented by employers, who have an incentive to oversuppress — means that the law may practically restrict any speech that an employer concludes might be found by a fact-finder to be “severe or pervasive” enough.

3. Finally, because an employer is liable for the aggregate of all its employees’ speech, wise employers will bar any sort of statement that might, if repeated by enough people, be “severe or pervasive” enough to create a hostile environment.

Putting all this together, harassment law potentially burdens any workplace speech that's offensive to at least one person in the workplace based on [protected characteristics] … even when the speech is political and even when it’s not severe or pervasive enough to itself be actionable."

(https://richardhanania.substack.com/p/woke-institutions-is-just-civil-rights)

Federal Racial Policies and the Rise of HR

Richard Hanania:

The rise of HR departments can be directly traced to the federal government’s race and gender policies, which involve direct control of the federal bureaucracy, the “carrot” of government contracts, and the “sticks” of EEOC enforcement and lawsuit threats.

As Harvard sociologist Frank Dobbin wrote in Inventing Equal Opportunity, it was civil rights law that revolutionized the American workplace. Corporations started to hire full time staff in order to keep track of government mandates, which were vague and could change at any moment. There was a sense of “keeping up with the Joneses,” in which every company and institution had to be more anti-racist and anti-sexist than the next one, leading to more and more absurd diversity trainings and other programs.

To decide whether an institution had discriminated against a protected group, courts and regulators would often use a “best practices” approach, meaning that if your competitors adopted the latest fad coming out of academia or the HR world, you felt the need to do the same. As I discussed in my podcast with Jesse Singal, this could help explain the success of the now-discredited Implicit Association Test, along with more modern innovations like Critical Race Theory-based training.

In their paper “The Strength of a Weak State: The Rights Revolution and the Rise of Human Resources Management Divisions,” Dobbin and Jack Sutton discuss the effects of 1960s and 1970s regulations on business practices in not only race policy, but environmental policy and retirement benefits.

The continuing ambiguity of compliance standards led management writers to advocate permanent antidiscrimination offices to track legal shifts. Because the courts were so fickle, Marino (1980, p. 25) advised executives to adopt the “Good-Faith-Effort Strategy,” the heart of which was a special office designed to signal that the employer was making every effort to figure out how to comply. In a Harvard Business Review article, Antonia Chayes (1974, p. 81) noted that “vigorous enforcement” had brought “serious top management attention to antidiscrimination legislation....Now the penalties imposed under employment discrimination laws are seen as posing a severe financial threat.” She advised executives to set up EEO and AA programs that could prevent lawsuits. Meanwhile, compensation of upper managers was being tied to affirmative action performance, and this led them to support dedicated antidiscrimination departments.

In their paper, the authors questioned 279 public, for-profit, and non-profit organizations on what kind of offices they had. One can see the growth of bureaucracy meant to keep up with government regulations over time.

While fewer than 30% of organizations had an HR office in 1955, by 1985 that number had grown to 70%. Although no organization in the study had an Equal Employment or Affirmative Action Office/r in 1967, 40% did in 1985. Later, the terminology shifted away from “affirmative action” to “diversity and inclusion,” but the ideas are largely the same.

Here’s a striking chart from Dobbin’s book showing the growth of personnel management, and the feminization of the profession over time.

Dobbin and Sutton argue that this is a general feature of American law, where the state is selective in enforcement and gives vague guidance that is subject to interpretation, like improving “safety” or fighting “discrimination.” They compare the US to France, where the government is more inclined to just issue direct mandates to businesses, who spend a lot less time and effort on private sector bureaucracy to keep up with how regulators and courts are thinking. The creation of bureaucracy means that it eventually gains its own power base and becomes able to advocate for its own interests. Ironically, if the US had just mandated gender and racial quotas, compliance would’ve been simpler and there would’ve been no need for permanent bureaucracies within each organization with an open-ended mission to stamp out all forms of “discrimination.”

This may explain something else I’ve always wondered about. The US seems to elect some of the most conservative politicians in the Western world, but has perhaps the wokest institutions. Civil rights law makes all major institutions subject to the will of left-wing bureaucrats, activists, and judges at the expense of normal citizens.

Thus, we see that every one of the main pillars of wokeness can be traced to new standards created by regulators and courts, mostly in the 1960s and 1970s but updated over time.

1) The idea that disparities mean discrimination is simply disparate impact.

2) Speech restriction is a hostile work environment.

3) The HR bureaucracy was created to enforce (1) and (2), in a world of vague and consistently shifting government standards to root out discrimination.

Recent controversy over Critical Race Theory training, like the debate about whether standardized tests are racist, misses the larger point that the entire concept of a full-time bureaucracy having to micromanage people’s work lives is a creation of government."

(https://richardhanania.substack.com/p/woke-institutions-is-just-civil-rights)