Californians, like other Americans, like to think that race should never be a qualification for a job, that everyone deserves an equal opportunity and a fair shake. This principle undergirds our Civil Rights Act, which turns 50 this month. And yet increasingly, many employers are treating race as a qualification, especially for people of color. Just look at the Los Angeles Lakers’ acquisition of Jeremy Lin. “We think Jeremy will be warmly embraced by our fans and our community,” said General Manager Mitch Kupchak. Putting Lin on the court is a smart economic move in the country’s largest Asian-American market.
The prevalence of this kind of hiring—particularly in California, America’s most populous and most diverse state—suggests that the Civil Rights Act needs to be updated. California in 2014 certainly looks nothing like Alabama and Mississippi of 1964, which were Congress’s focus when it passed that year’s Civil Rights Act. The main question then was how to provide equal opportunity for African-Americans. The answer at that time was Title VII of the act, which prohibited racial discrimination in employment, and later court decisions allowing for affirmative action.
Twenty-first-century employers have come to value racial differences in ways that were unheard of in 1964, and do not fit with traditional conceptions of affirmative action. Organizations of all kinds today hire and place workers using a practice I have called “racial realism”: seeing color as a real and significant part of workers’ identities, a qualification that is good for business.
As with the Lakers and Lin, employers use racial realism to make customers of different backgrounds feel comfortable. As San Francisco-based Wells Fargo explains on its website: “To know our customers and serve them well, the diversity of team members throughout our ranks should reflect the diversity of the communities we serve.”
Government employers, including police departments and school districts, have also invoked racial realism, seeking to mirror the populations they serve to deliver more effective services. For example, California’s Education Code declares the importance of hiring racially diverse teachers so that “the minority student [has] available to him or her the positive image provided by minority classified and certificated employees.”
In low-skilled jobs, racial realism is often linked to perceived variations in abilities, rather than customer reactions. One study of Los Angeles employers found a common pattern of preference for Latinos due to their perceived diligence.
While racial realism lacks the animus that characterized the racism of the Deep South 50 years ago, it is still problematic. The Civil Rights Act provides no authorization for race to be a job qualification. And the Equal Employment Opportunity Commission has denied the legality of motivations like Wells Fargo’s. If employers in Alabama could claim they preferred white workers because their customers preferred white workers, the cause of equal opportunity would never have gotten off the ground. Courts have ruled that firms should have their workforces mirror their job applicant pools, not their customer bases. And California’s rationale for teacher diversity would seem to have been precluded by a 1986 Supreme Court decision, which explicitly stated that hiring teachers to be racial role models was impermissible.
Moreover, the employer preference for Latino workers, often immigrants, is often propelled by stereotypes, and often at the expense of other workers stereotyped differently, especially African-Americans. The Equal Employment Opportunity Commission has initiated action against employers who use this strategy, grouping the cases under a heading no one would have considered in 1964: “Hispanic Preference.”
For high-skilled nonwhite workers, racial realism can be a double-edged sword. They may have ready access to jobs—then find themselves pigeonholed in positions where they deal with same-race clients or citizens.
Why the shift from equal opportunity to racial realism? Demographics. American birthrates declined as the country became more educated, creating a great demand for low-skilled immigrant labor. Employer demand for labor brought immigrant workers here, but now immigrants themselves, and their descendants, are shaping employment patterns as consumers. Employers are feeling pressure to balance the rights of their workers and the interests of customers and citizens, including those of color, who rightfully expect the best service from businesses and especially from government.
The Civil Rights Act, as written, puts employers and employees alike in a bind. It is time to revisit the law, and make adaptations that fit our new demography—and the law’s original goal of equal opportunity for America’s most disadvantaged.
John D. Skrentny—co-director of the Center for Comparative Immigration Studies and professor of sociology at the University of California, San Diego—is author of After Civil Rights: Racial Realism in the New American Workplace (Princeton University Press).
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