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Eric Holder Should Be Careful of What He Wishes For

And these diversity programs are often accompanied by elaborate diversity "instruction," which directs employees to "celebrate diversity" and increase the number of minority employees (specifically those in management positions). Employees are told that hiring and promoting minority employees because they are minorities are good and beneficial endeavors.

Elaborate justifications (e.g., improved "performance" for diverse companies, the ability to market the employer's products in minority communities) have been concocted for these diversity programs, without much factual justification. But at their core many of these efforts are illegal and spawn division, not racial unity. Courts have repeatedly refused to accept a "diversity" rationale or exception to Title VII of the Civil Rights Act (and comparable state statutes) prohibiting employers from discriminating on the basis of race, color, religion, sex, or national origin in hiring, firing, or "otherwise ... with respect to compensation, terms, conditions, or privileges of employment."

In his follow-up testimony in 2007, Clegg reported that none of the companies he cited denied the existence of their "diversity" programs or took issue with the characterization of their efforts. The question remains: How do these practices go on, when in fact it is illegal under Title VII and analagous state statutes for employers to hire or promote based on race or ethnicity? Clegg explained in a telephone interview that two things are at play.

Clegg says, "One, is that there is strictly a cold blooded legal calculation that they'll have fewer problems if they ‘celebrate' diversity' than if they operate in a colorblind manner. They see obvious advantages to having the numbers ‘right.'" Both in defending litigation and in staving off consumer-based protests and boycotts, Clegg explains that "this is the deal they have made." Few if any lawsuits are filed by non-minority employees, the EEOC shies away from attacking pro-diversity programs, and even conservative public interest legal groups often prefer not to take on private businesses. The risk then is low that they will face adverse consequences by adopting "diversity" programs and policies. And if they do adopt diversity plans, they might just hike the number of minority employees, help fend off discrimination suits, and enjoy the plaudits of liberal civil rights organizations. If it weren't illegal, this would be an incontrovertibly "smart" business decision.

Secondly, these "diversity" programs exist in part because non-lawyers and even misinformed lawyers have come to believe that discrimination in the name of diversity is acceptable. "The conventional wisdom is that this is okay," says Clegg. Moreover, once personnel and resources (whole departments in some cases) are devoted to diversity programs, they take on the air of respectability and legitimacy.

So in this regard, Holder may have a point. Perhaps it is time to start talking more about all of this. Employees who observe discrimination masking as diversity would be better served to speak up and not remain mute in the face of diversity indoctrination and policies which reward hiring by race and ethnicity. As Clegg says, employees "shouldn't accept this. They should complain about it." Skirting or outright violation of the law for some ill-conceived notion of diversity is, Clegg reminds us, "all bad stuff." And in these economic times it may in fact have significant adverse consequences for non-minority employees who may not enjoy a plethora of employment or promotional opportunities.

Holder, it seems, may have unintentionally stumbled on a truth lurking in many workplaces in America. Employees, by and large, have passively accepted the institutionalization of "diversity," which is nothing more than disguised discrimination. They are reluctant to speak up both because of fear of the social confrontation and of potential adverse employment consequences. But they should not be afraid to discuss, protest, and confront racism in the workplace -- however it is dressed up.

If more employees begin to do just that as a result of Holder's speech, it would have contributed (albeit unintentionally) to the further reduction of discrimination in America. And that would be a very good thing indeed.