Does Sexual Equality Require Preferential Treatment?
The language of President Kennedy’s executive order on fair housing is of a piece with his Executive Order 10925 and the virtually identical language in President Johnson’s Executive Order 11246, both of which barred government agencies and contractors from discriminating against “any employee or applicant … because of race, color, religion, sex, or national origin” and required them to take “affirmative action” to ensure that all applicants and employees were treated “without regard to race, creed, color, or national origin.”
Since those orders were signed we’ve seen this language turned inside out and upside down. Where “affirmative action” originally meant ensuring that all applicants and employees were treated “without regard to race, creed, color, or national origin,” now it is seen as demanding precisely what it was originally designed to prevent — treating some better and others worse because of their race, ethnicity, etc. Do the proponents of adding sexual orientation to the protected categories regarding housing discrimination prefer the older or the newer version of affirmative action? Does it matter what they prefer? That is, even if it is not their current intention to promote preferential treatment based on sexual preference, is there any reason to believe that protecting against housing discrimination for sexual preference would not follow the same trajectory as the prohibition against racial discrimination?
Turning from housing to employment discrimination, consider ENDA, the Employment Non-Discrimination Act, which has been repeatedly introduced in Congress since 1994. Now, with a Democratic majority, the current version (S. 1584/H.R. 3017) stands a good chance of passage. Here is the operative text from the the House version, H.R. 3017:
SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.
(a) Employer Practices — It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation or gender identity; or
(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation or gender identity.
This definition of unlawful employment practices seems clearly to require that applicants and employees be treated without regard to their actual or perceived sexual orientation. But just as the proposed fair housing executive order discussed above shares the language of earlier executive orders on affirmative action, so ENDA is reminiscent of the language in earlier civil rights laws. For example, Title VI of the Civil Rights Act of 1964 provides:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
But, as we all know, this clear language has been “construed” by the courts to permit precisely what it purported to prohibit — treating some people better, and others worse, because of their race or ethnicity. Thus it would be irresponsible not to wonder whether ENDA will in fact end discrimination based on sexual orientation or, given the apparently unrestrained ability of courts to “construe,” actually wind up authorizing it in the manner of Title VI.
ENDA proponents tried to eliminate this concern:
[Sec. 4] (f) No Preferential Treatment or Quotas — Nothing in this Act shall be construed or interpreted to require or permit
(1) any covered entity to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any actual or perceived sexual orientation or gender identity employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such actual or perceived sexual orientation or gender identity in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.
But does this attempt to bar preferential treatment succeed? Does it really bar all preferential treatment by employers on the basis of sexual orientation, or only preferential treatment that is employed to correct “an imbalance”? What about preferential treatment undertaken for other reasons, such as to promote “diversity”? But, you ask, wouldn’t that sort of discrimination be covered by the provisions, quoted above, defining unlawful employment practices? Perhaps, but if it did so only to the same extent Title VI prohibited such practices that would not be very much. And even if this provision really did succeed in prohibiting preferential treatment, wouldn’t that mean that sexual orientation lacks the “protection” awarded to race and ethnicity (assuming, of course, that allowing preferential treatment can be viewed as protection)? Do ENDA supporters believe in such a double standard?
The question of the legal meaning of sexual equality became much less abstract and theoretical a few days ago when, on December 10, the Senate health committee sent to the floor President Obama’s nomination of Chai Feldblum to the EEOC. Feldblum has asserted that she wants “to revolutionize societal norms” regarding sex and gender. Although, as Politico points out, she disavowed for the committee some of her more radical positions, such as calling for the legal recognition of “committed, loving households in which there is more than one conjugal partner” and “queer couples who decide to jointly create and raise a child with another queer person or couple, in two households,” she continues to believe that “sexual liberty” should trump religious liberty. As she was quoted in the Weekly Standard: “I’m having a hard time coming up with any case in which religious liberty should win. … There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner.” And, as she wrote in a 2006 law review article, “once a religious person or institution enters the stream of commerce … I believe the enterprise must adhere to a norm of non-discrimination on the basis of sexual orientation and gender identity.”
The Senate must determine what sort of “non-discrimination” she would enforce at the EECO. And when Julian Bond says blacks, “of all people, should not oppose equality,” I think it is incumbent on him to explain what he means by equality. Do Feldblum and Bond mean non-discriminatory, colorblind equal treatment, as provided originally in civil rights laws and in the two presidential executive orders on affirmative action, or do they mean affirmative action as it is now understood, which requires preferential treatment? If they believe that equality requires preferential treatment of blacks but only (!) “without regard,” non-discriminatory equal treatment for those in the LGBT community, how do they justify the double standard?
When Fair Housing For All and other civil rights groups demand an executive order to prohibit discrimination based on “disability, familial status, national origin, sexual orientation, or gender identity,” do they mean for the government to act “without regard” to those categories, in the manner of the original executive orders on affirmative action and fair housing, or with regard to them in the manner of the liberal interpretation of current civil rights law? When they propose legislation banning discrimination against individuals because of “actual or perceived sexual orientation,” do they mean “without regard” to sexual orientation? And even if they do now, will they in the future? Whatever their intent, now or later, what will prevent the courts from “construing” this right to mean preferential treatment based on sexual orientation, etc.?
Do liberals today, in short, believe that one size of equality fits all, an “equality” that requires preferential treatment based on the protected categories, or do they believe that different groups deserve different kinds of equality, reminiscent of the different levels of “scrutiny” with which the Supreme Court looks at different kinds of discrimination?
I have long thought that the reversal of liberals on the meaning of equality has fueled the opposition to gay rights proposals. If voters had not witnessed liberals abandon — indeed, reverse — their dedication to colorblind, “without regard” racial equality, I suspect they would be much more willing to prohibit discrimination based on sexual preference.
There is no reverse discrimination in equal rights law. The author fails to establish the basis for the central complaint. Affirmative action has been and always will be about equality. Nobody is asking for special rights -we simply want to make racism and bigotry in the workplace illegal.
There is no liberal agenda here beyond treating all citizens equally before the law.
Peace.
DS
PS – Preferential treatment based on hetero status is what we have now – and that’s wrong.
White progressive pols, firmly ensconced in their positions replete with the accoutrements that wealth and privelege bring, absolutely want preferential treatment for everyone one of their loyal subjects at the expense of white Americans.
Every “Title” this or that, bill, SCOTUS ruling, and legislation that progressives envisioned was and is designed to hold together their voting blocks and maintain them as such.
As for Bond and the CBC, they will twist themselves into pretzels on order to make the comparisons between race and sexual orientation and do as they are told.
A side issue – the liberal white assumption is that everyone with brown skin or everyone who is “of color” feels the same way they do on all issues. Blacks do not support gay marriage. Perhaps with the application of enough propaganda, they will in the future. But the anti gay marriage stance has a lot to do with religion. I don’t see african americans being divorced from religion and turning to atheism in large numbers. And there are some groups that seem to be inoculated against liberal propaganda on social issues. It does not appear to work on muslims. I don’t anticipate muslims supporting gay marriage in the future, or abortion either. As the US becomes more “diverse” it will be interesting to see how these issues come out between the white progressive and the “person of color”
Blacks have been forced to turn to Christianity because the same goal for Native Americans was to “christianize and subject them to “civilization”. As though Christianity is a Civilized Religion. I am sorry many Blacks are Christians. As an Atheist and a Militant one, I wish they would quit a hostile religion that pretends to be so loving and caring but really wants money, more children to be born so the church can gain more converts. Christianity doesn’t really care about the poor. It’s the credit they get for “helping” others. It’s sad. Most of the monies go to the preachers or ministers or some of the hierarchy. It’s like all those Christian charity groups that disguise themselves in helping those in need. Only if you become a Chrisitan you get better treatment and that’s alot of bunk.
As for gay sexual lives, they are NOT a sin and NOT immoral. The lies the bible says about judging ye not and loving thy neighbor. Nobody truly practices what they preach. It’s all about the Old Testament scriptures and nothing else matters.
DS: Your tired old parroting of the progressive party line is getting tedious.
PS That white hetero status made this nation the greatest nation on earth until the progressives became the major factor in destroying it. Be thankful that those white hetero males cleared this nation and the world of most evil so that you can sit and type your tripe.
Here in California, it is illegal to use race or gender in awarding state contracts, in admission to state universities, and in hiring for state or local jobs. We passed this law in 1998, the famour “Prop 209″ which has been duplicated in several states. There is no longer “affirmative action” here unless it is required by a federal court order. Now, when a non-white person is admitted to or graduates from one of our state universities you can assume he got there on merit, not race.
This has been the cause of much gnashing of teeth among our local leftists.
Dvid S: you surely can’t be serious –selecting people on the basis of race is…racism–isn’t it?
Along with sexual preferences will come a boom of normalphobia where the normalphobes are encouraged by liberals to more publicly and enthusiastically practice their deviantness and perversions. Not around the normal liberals, of course.
So if the racial selection is for a good cause, say ending racism in hiring, housing, and promotions, it’s OK? So I gather torture in warfare is all right, provided it’s for a good cause, the ending of torture for all time? And I suppose the person doing the racial selection is not a racist any more than the person doing legal torture is not doing torture. There is a certain Alice in wonderland quality about all this. It reminds me of those climate scientists trying to hide their thermometer calibrations.
To the contrary, they believe that blacks should receive preferential treatment because of their race and that those who believe in colorblind equal treatment are either conscious or unconscious racists.
http://www.nytimes.com/2009/12/01/us/01race.html?scp=1&sq=unemployment%20black&st=cse
That race remains a serious obstacle in the job market for African-Americans, even those with degrees from respected colleges, may seem to some people a jarring contrast to decades of progress by blacks, culminating in President Obama’s election.
But there is ample evidence that racial inequities remain when it comes to employment. Black joblessness has long far outstripped that of whites. And strikingly, the disparity for the first 10 months of this year, as the recession has dragged on, has been even more pronounced for those with college degrees, compared with those without. Education, it seems, does not level the playing field — in fact, it appears to have made it more uneven.
College-educated black men, especially, have struggled relative to their white counterparts in this downturn, according to figures from the Bureau of Labor Statistics. The unemployment rate for black male college graduates 25 and older in 2009 has been nearly twice that of white male college graduates — 8.4 percent compared with 4.4 percent.
Various academic studies have confirmed that black job seekers have a harder time than whites. A study published several years ago in The American Economic Review titled “Are Emily and Greg More Employable than Lakisha and Jamal?” found that applicants with black-sounding names received 50 percent fewer callbacks than those with white-sounding names.
The biggest impediment to equality in this country has always been the cry that there is no inequality. Accept it, deal with it, move on.
Gods Balls::
fI love it when liberals make inane comments disguised as debate. Accept it, deal with it, move on, is the liberal”s “seig heil”.
The plight of black americans has little to do with the racism of whites and a lot to do with the racism of blacks. Many of us are tired of the old liberal and black refrains of racism. NAMING YOUR CHILDREN jAMAL AND lAKISHA IS A FORM OF SEPERATISM. If one wants to be equal, one needs to act equal. Diversity is not a strength, it is a weakness. One does not meld an armed force by marching in different directions. Why aren’t asians discriminated against? Because they are happy to be and act like other americans. No rap music, or funny looking clothing, no obscene crime rates, no accusations of racism by asians. Many blacks have risen above the ghetto mentality, unfortuately few white liberals have joined them. We have a black president, who , had he been white, couldn’t have been elected with his lack of experience. He was elected by guilt ridden liberal whites, and blacks who don’t care if they seem racist in voting for him by over 90%. How’s he working out for you liberals now? In my opinion he is a great speaker, but a stuid ass in all other ways. He has no Knowledge of history and for those of youwho think he is smart, why no magna cum laude from any of his schools. Why couldn’t he pass the Illinios bar exam? What you have is a wanna be black, black man- by his ow2n admission. We got a pig in a poke, and a wimp to boot.
Geez, idiot @9: You could have had the deceny to put quotation marks over the complete comment because you took it right from the NYT and the (false) study. What a putz.
Since the NYT has no respect for truth, what the paper cites is garbage. The paper took a trumped up study by the Univ. of Chicago-and we are supposed to believe their results. Not in a million years.
And we know this is crap because every HR office in every major company has a diversity quotient (officer) that MUST be met. The fact that there is a difference can be attributed to many things other than RACE.
But you libtards in your cushy jobs who feel guilty have to make everything about race. Hell quit your job and offer it to a black guy if you feel so bad; just don’t tell me I cannot have a job because a black must have it for AA and quota reasons.
If Jaamal and Lakiesha want to be separate then go get hired by a black business.
I guess that just the thinking of the left (all disaffected minorities should be put in one disaffected basket.) Yes, gays have suffered discrimination etc etc no one would doubt that, but I really feel that blacks and gays have a more dissimilar experience than a common one. Racial discrimination is obvious. You can plainly see what color a person is. No matter how the person behaves, he or she is still obviously black. A gay person has to do or say something that will tip another into oppositional behavior. Economically, gays were never in the same boat as blacks. Educationally, gays were never in the same boats as blacks. And blacks (as well as Hispanics and Asians) are far far more conservative than 99% of gay folks despite their history of being discriminated against—which the left can’t get.
it should not surprise anyone that if one group is offered special treatment they will run with it. …and fight any attempt to have it taken away.
when some of these laws were enacted those who pushed for them did not pay any price (personally) so they did it for votes or for guilt or a million other reasons, none of which have any attachment to equity.
it is an upside down world and is unsustainable.
you can only keep Darwin at bay for short times. He will always assert himself sooner or later. The consequences are somewhat predictable.
good luck all
@1
“There is no liberal agenda here beyond treating all citizens equally before the law.”
ROFL
Good one… thanks for the laugh!
Rosenberg has once again written an excellent piece on race and gender equality. Slippery slopes are called slippery because they tend to go downhill. Who would have believed that choosing people on the basis of race wouldn’t be racist. Of course those wanting gender “equality” actually really want gender preference. Can you imagine teachers being chosen on the basis of their homosexual preferences simply to “match” the so-called preferences of their students? As so often is the case, Rosenberg nails the topic by writing clearly, concisely and right on target. Would that our president would begin a post racial dialogue that mirrors the issues Rosenberg has raised here on Pajamas Media.
Funny that we are discussing this now, my buddy and I had a similar discussion just the other day where he got pretty fired up over the fact that if it is a private matter, then it should stay exactly that way, a private matter and not shoved into our faces in our society like it was a right. He had a point. If two consenting adults want to do what they want to do in the privacy of their own bedroom then fine. Why do we have to pay for it (surgeries), listen to it, or have our kids taught it in schools??
Here is the post from my website:
http://truthandcommonsense.com/2009/12/15/putting-my-buddys-two-cents-into-a-controversial-issue-paying-for-trangendered-surgery/
If a person is going to wave their sexual behavior in front of the world like a rainbow flag on a windy day, then yes, making taboo the discussing of homosexual sexual behavior is a demand for preferential treatment.
Accusing those who does not agree that marriage should be redefined to include people of the same sex as phobic is an attempt to suppress discussion and is an expectation of preferential treatment.
Suppressing discussion of whether the young can be influenced by the sexual conduct of adults is an expectation of preferential treatment.
Demanding that the world accept that homosexual sexual behavior is strictly in the DNA and any attempt to discuss the subject is attacked is expecting preferential treatment.
Sexual Equality should not require preferential treatment and should not suppress or forbid discussion about the topic.
It’s not sexual equality, it is sexual superiority because it cannot stand under questioning or discussion so must make taboo the voice of scrutiny or opposition or questioning.
I’m going to wade into this one cautiously. Let’s see how I do. I hate the idea that someone would hire me based on my skin color and not my merit as much as I hate the idea of being denied a job for the same reason. I was a staunch proponent of AA when I was younger, but I soon realized that in the end, it built resentment and failed to address the problems at hand. Many Americans of color lack the needed skills to be successful academically and professionally. The reasons for this are many fold and I care not to delve in to those issues as we could go on about it for hours. I do know that hand outs are not the answer
I wish affirmative action meant helping people help themselves. Malcolm X said if someone was doing a job better than you, look at what he is doing, because chances are, you are not doing the same thing. Like him or love him, Malcolm X had a point. We need to ask why there are achievement gaps and inequities. We need to ask what are Americans who are successful doing differently and then teach any American who does not know how to do these things how to do them. For example, Americans who happen to be Black tend to allow far more television than their “White” American counterparts. The percentage of televisions middle class Black American parents who allow their children to have televisions in their rooms, dwarfs numbers for every other ethnic group. There seems to be a correlation here. As a result, my kids are not allowed to watch more than an hour of television a night and they will never have televisions in their rooms. I also learned that asking probing questions of my children when we read together improves reading comprehension. So when I read with my child, we talk about the reading and it means .
There are some AA programs that I think work. The NFL is comprised of a large number of Black players but few Black coaches. Qualified less well known coaches may be overlooked. So the NFL asks that each team interview at least one qualified black coach. Then the coach is considered in the larger pool of applicants and the best coach is hired for the job. This system has produced two Super Bowl winning coaches.
Out of high school I was accepted to USC, UCLA, and some other schools. I scored a 940 on my SAT. I had good grades, but I worried that I was being offered charity. I refused the acceptance and the scholarship money I was offered and opted to attend a community college for two years instead. I gained skills and confidence and in the end took a scholarship that was merit based for students whose parents have not gone to college. This scholarship was a useful one because it recognized that because I was first generation, statistically, I stood less of a chance of graduating. Coupled with the scholarship money, I received counseling and social support structures that helped me get through college and fill the gaps left by my parents’ lack of knowledge about how to survive college. This is a social action program that worked.
There’s my piece.
I grew up during the late sixties/early seventies, before drugs and excuses destroyed vast sections of the black community. I found the old school blacks to be people of humor, love, intelligence (maybe not college book read, but common sense and a wealth of day to day knowledge), hope and respect.
Sadly, the drive to secure them as voting chattel by the left and the drive to repair past offenses by the right (commonly called nowadays- “white man’s guilt”) allowed the black community, especially inner city, to escape from accountability and responsibility. I watched as neighborhoods once safe to walk in, regardless of your color, became infested with gangs, prostitutes and blight. I watched as kids I went to school with, who intended to be successful in society, slowly be replaced by kids who prided themselves in being uneducated and scorned others who wanted to better themselves. I watched as a matriarchal culture where the mom or the grandmother drug kids to church every Sunday, and with a word or a raised finger could make disrespectful child shut up and say, “Yes, Ma’am” turn into a world where young black men target older black women for robbery and worse. All the time, the left in this country tried to blame everyone but themselves and the right refused to say what was on everybody’s lips in fear of losing even more campaigns.
I’m glad you posted and reminded us that there are people of honor and duty in all cultures. You keep your eye on the horizon and you’ll find your life full of satisfaction and success.
Good luck.