Feb. 27, 2000

COLORADO LEGISLATURE FLIRTS WITH RACIAL PREFERENCES

The Colorado House of Representatives evidently has no objection to a little racial discrimination in a good cause.

It has passed and sent to the state Senate legislation, HB 1195, purporting to correct "underutilization" of various protected classes in state employment.

Who's protected? Just about everybody. All women. Anybody with a disability. Anybody 40 or older. All Hispanics. And, naturally, anyone of any race other than white.

I figure that leaves about 10 percent or 15 percent of the population unprotected.

How such a small sliver of the population could cause substantial underutilization of the large majority is a mathematical puzzle; there aren't enough of them.

But that small difficulty did not dissuade lawmakers, who approved measures to remedy "underutilization" of any protected class in any job group in any state agency. That's defined only vaguely, as meaning an employment rate "substantially less than the availability of that protected class" for that job group within a reasonable recruiting area (statewide, for administrative, professional or technical jobs).

I don't know what "substantially" means, and the bill doesn't say. But in and of itself disparity is not proof of discrimination, and absent discrimination - as the preamble to the bill acknowledges - the Equal Protection clause of the Fourteenth Amendment bars racial preferences in hiring.

The bill proposes three remedies. First, if some protected class is underutilized in a given job group (the classification of state jobs by similar content, wage and opportunity), the state personnel director can establish trainee or intern positions for that job. These positions are to be filled "on an appropriate alternating basis between protected classes and those otherwise referable."

I don't know what "appropriate" means, and the bill doesn't say. Nor does it say whether these positions are available to members of any protected class or just the ones underutilized by one agency, leaving ample room for mischievous interpretation by managers intent on fostering a racial spoils system.

Second, temporary or provisional employees who are members of an underutilized protected group can take any promotional examination they're qualified for. That seems harmless, but not exactly fair to the people it's supposed to help. If protected persons can test for promotion early, while unprotected persons have to wait until they have more experience, who is more likely to look good on the test?

Third, state agencies can lower standards in order to hire from an underutilized protected class. If there's no one from that class in the top three applicants, the agency can ask to hire from among the top 10. That could be a slight difference in qualifications, or it could be enormous.

If the job posting is for multiple vacancies, every additional candidate referred from the eligible list must come from one of the underutilized protected classes.

This hiring by racial classification is invidious, and absent admitted or proven discrimination by the agency involved, unconstitutional. But if people are committed to the improbable principle that races and genders should be represented in every job classification in every agency in proportion to their numbers in the available pools of applicants, they could at least apply the principle in a neutral manner. Just don't hire from any overrepresented group.

Preferences for women in jobs where they're underrepresented; preferences for men where they are.

But this bill operates in only one direction. If one office employs an unusually large number of African-American women, but underutilizes Hispanic women, and another office down the hall does the reverse, both of them are permitted to adopt racial preferences that disadvantage unprotected white men, who may have nothing to do with either disparity.

Besides this bill's moral deficiencies it suffers from practical problems. How is a state agency supposed to determine how many disabled Asian men over 40 it is supposed to have doing a particular job?

Inevitably, the personnel system establishes guidelines for broad classes of jobs, and these harden into quotas.

I know legislators hate to vote against bills like this, which is probably why it slid through the state House with little notice. Now that we're paying attention, state senators will not enjoy the same invisibility.

(664 words)