Coyote Blog

A while back I wrote about the Obama Administration's near exponential expansion of EEO reporting

 It takes the current EEO-1 (the annual exercise where we strive for a post-racial society by racially categorizing all of our employees) and makes it something like 15-20 times longer.  In addition, rather than simply "count" an employee as being on staff in a certain race-gender category, we now have to report their income and hours worked.  Either I will have to hire staff just to do this stupid report, or I will again (like with Obamacare) have to pay a third party thousands of dollars a year to satisfy yet another government reporting requirement.  This is utter madness.

Get this -- the report has 3600 individual cells that must be filled in.  And this is in addition to the current EEO-1 form, which also still has to be filled out.  The draft rule assumes 6-7 hours per company per year for this reporting.  They must be joking.

Fortunately, the Trump Administration has at least temporarily suspended this requirement:

On Tuesday, the White House suspended a burdensome reporting requirement for employers that would have cost them $400 million while yielding information of questionable value. It did so in rejecting changes to the EEO-1 form made at the end of the Obama administration.

The White House Office of Management and Budget stated that the pay collection and reporting requirements “lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.” It explained its reasoning in a letter to the Chair of the Equal Employment Opportunity Commission, Victoria Lipnic.

The Obama administration had claimed that rewriting the form to include 3,660 boxes for companies to check or fill out would help identify wage discrimination. But very little of the information it sought would have shed any light on potential wage discrimination.

Yesterday, I came home exhausted.  I have been working late nearly every night for weeks, at a time of year when most of my business is not even open yet (the business is seasonal).  I realized to my immense depression that I have been spending all my time on regulatory compliance.  I have not been pitching new clients or bidding on new prospects or making investments or improving our customer service processes -- though I have ideas for all of these.  I have been 100% dedicated through 14 hour days to just trying to keep up with and adapt to changing government rules.

Break rules, changing minimum wages, heat stress plans, mandatory sexual harassment training, OSHA reporting, EEO reporting, Census reporting, and most recently changing rules on salaried workers that Obama just waived his wand and imposed -- this is what has been consuming me.  I have been trying to roll out a new safety program to the field and can't do it because I keep having to train for one of these new requirements (one learns there is only a limited number of things one can simultaneously roll out to front-line staff).

At some point regulation will accrete so fast that it will be impossible to keep up.  I am going to call that the Regulation Singularity, and for businesses my size, we are fast approaching it.

Prominent libertarian think tanks often rank state business climate by their tax regimes.  I am all for low, sensibly-structured taxes.  But for most of my time, taxes are irrelevant.  We are shutting down businesses left and right in California and it has zero to do with taxes.

Congress is considering adding gays and lesbians to the list of protected groups covered by the EEOC.  As former chairman of a group that tried to get gay marriage legalized in Arizona (at least until we were shot down by gay rights groups that did not want libertarians or Republicans  helping to lead the effort), I hope I don't have to prove that I have no problem with differences in sexual orientation.  But I have a big problem with Federal employment discrimination law.

If you are unfamiliar with how it works, this is perhaps how you THINK it works:  An employee, who has been mistreated in a company based on clear prejudice for his or her race / gender / sexual orientation, etc. has tried to bring the problem to management's attention.  With no success via internal grievance processes, the employee turns finally to the government for help.

Ha!  If this were how it worked, I would have no problem with the law.  In reality, this is how it works:  Suddenly, as owner of the company, one finds a lawsuit or EEOC complain in his lap, generally with absolutely no warning.  In the few cases we have seen in our company, the employee never told anyone in the company about the alleged harassment, never gave me or management a chance to fix it, despite very clear policies in our employee's manuals that we don't tolerate such behavior and outlining methods for getting help.  There is nothing in EEO law that requires an employee to try to get the problem fixed via internal processes.

As a result, our company can be financially liable for allowing a discriminatory situation to exist that we could not have known about, because it happened in a one-on-one conversations and the alleged victim never reported it.

What I want is a reasonable chance to fix problems, get rid of bad supervisors, etc.  A reasonable anti-discrimination law would say that companies have to have a grievance process with such and such specifications, and that no one may sue until they have exhausted the grievance process or when there is no conforming grievance process.  If I don't fix the problem and give the employee a safe work environment, then a suit is appropriate.  The difference between this reasonable goal and the system we actually have is lawyers.  Lawyers do not want the problem to be fixed.  Lawyers want the problem to be as bad as possible and completely hidden from management so there is no chance it can be fixed before they can file a lucrative lawsuit.

I worry in particular about how this will play out with a new gay/lesbian discrimination law.  We have employed a number of gay couples over the years, and never had any particular internal issue  (I had to defend one couple in Florida from a set of customers who thought that it was inherently dangerous to employ gay people around children camping, but I did so gladly).  But I know I have employees who have religious beliefs different form my own such that they think gay people are damned, evil, whatever.  So now what do I do when I have one of these religious folks in conflict with an employee who is gay?  If I don't separate them, I am going to get sued by the gay person for a hostile work environment.  If I move the gay person, I will get sued for gay discrimination.  If I move or fire the religious person, I will get sued for religious discrimination.

I am happy to work hard to build a respectful, safe work environment, but such laws put me as a business owner in no-win situations.  And the lawyers who craft this stuff consider this a feature, not a bug.  Heads I sue you, tails I sue you.

I was filling out my EEO-1 forms the other day (that is a distasteful exercise where the government is leading us towards a post-racial society via mandatory reporting on the race of each of my employees).  For each employee there are five non-white categories:  Black, native American, native Hawaiian, Hispanic, and Asian.  I started to think how interesting it is that the Left supports numerous government interventions in support of the first four, but never mentions Asians.

This can't be solely due to lack of past discrimination.   Watch a movie from the 1930's or 1940's and you will see Asians shamelessly stereotyped** as badly as any other race.  And generations who lived and fought WWII had many members, even a majority, that harbored absolute hatred against one Asian people, the Japanese.  We only sent one group to concentration camps in the 20th century, and it was not blacks or Hispanics.  Of course "Asians" is an awfully broad categorization.  It includes Chinese, with whom we have had a complicated relationship, and Indians, for whom most Americans until recently probably have had little opinion at all one way or another.

One problem for many on the Left is the fact that Asians are considered a serious threat (both as immigrants and as exporters) to the Left's traditional blue collar union base.  Another is that they are an emerging threat to their little darlings trying to get into Harvard.  I have heard the squeakiest-clean, most politically correct liberals utter to me the most outrageous things about Asian kids.  Which is why I was not really surprised that white parents in California who claim to support merit-based college admissions immediately change their tune when they find out that this will mean that far more Asia kids will get in.

I have been working with some data on state voting and voter registration patterns by race in the wake of the recent Supreme Court decision vis a vis the Voting Rights Act.  The Left went nuts, saying that blacks and Hispanics would again be discriminated against in the South, and the Obama Administration vowed to get on the case, saying that it would begin with Texas.

By the way, Texas may make perfect sense politically for Obama but is an odd choice based on the data.  Minority voter registration and voting rates as compared to the white population are usually used as an indicator of their election participation and access.  In the last election, according to the Census Bureau in table 4B, blacks in Texas both registered and voted at a higher rate than whites.  In Massachusetts, by contrast, in that same election blacks registered at a rate 10 percentage points lower than whites and voted at a rate about 7 points lower.

But if you really want something interesting in the data, look at the data and tell me what group, if we accept that low participation rates equate to some sort of covert discrimination, deserves the most attention (from the same table linked above):

US Voter Registration Rates (Citizens Only)

White:    71.9%

Black:    73.1%

Hispanic:     58.7%

Asian:     56.3%

US Voting Rates (Citizens Only, last Presidential election)

White:    62.2%

Black:    66.2%

Hispanic:    48.0%

Asian:    47.3%

** Postscript:  I am not an expert on discrimination, but I watch a lot of old movies and read a lot of history.  To my eye, stereotyping of Asians has been more similar to anti-Semitic portrayal of Jews than to stereotyping of blacks or Hispanics.  Blacks and Hispanics have most often been stereotyped as lazy and unintelligent.  Asians and Jews are more frequently stereotyped as scheming, plotting, and intelligent-but-evil.  Frank Capra, who directed a lot of good movies also directed a series of heavy-handed propaganda movies for the government during the war.  The one on Japan is interesting -- your gardener's quiet mien is actually masking a nefarious scheme.  Even in the 1940's Japan was portrayed as economically frightening to us.

Update:  Over the last couple of elections, Asians have shifted to voting fairly heavily Democratic.  So a cynical person would suggest that they might suddenly "discover" this group.  We shall see.

I have been reading of late some histories of Germany in the 1930's, with a particular emphasis on racial laws and policy.   Over time the expanding bans on Jewish participation in the economy and society as well as preferences given to non-Jews for government jobs led to some practical problems, including:

• What percentage of Jewish blood made one Jewish?  The Nazis messed around with this problem a long time, in part because of Hitler's absolute reluctance to get involved in such details.  Was it one grandparent?  Three grandparents?
• How does one test for such things?  In the thirties, there was an boom in geneology research in Germany, as everyone raced around trying to figure out what evidence was sufficient to establish someone's race

It would be nice to think we put this kind of thing to bed, but here we are in the 21st century running around trying to answer the exact same questions

• Does 1/32 Cherokee blood make Elizabeth Warren the member of a protected group?  Does 1/8 black blood mean George Zimmerman is not a racist?
• We are building infrastructures to make rulings on race.  I found this story amazing

This story reminded me of the 1980s case of the twin red-haired Boston firefighters who claimed to be black, based on a photo of a great-grandmother and alleged oral history. While I remembered that they had gotten fired for their alleged fraud, I didn’t remember this detail:

Under current rules, said [general counsel to the state personnel office] Ms. Dale, candidates who say they are members of minority groups are judged by appearance, documented personal history and identification with a minority community. Disputes over claims of minority status are resolved by the Department of Personnel Administration.

 And indeed, there eventually was a two-day administrative hearing, in which the hearing officer determined that the twins failed all three criteria, and thus were not black. A judge upheld the ruling, finding that the twins had claimed minority status in bad faith.I have to admit being under the impression until now that as a legal matter, minority status was an in issue of self-reporting. But at least in the Massachusetts Civil Service system, one can get fired for “racial fraud.”

• Every year, in the name of some sort of racial harmony, I have to sit down and report to the government on the race of each of my employees.  For 364 days a year I can ignore the race of my employees, but one day a year the government makes me wallow in it.  Here are part of the instructions:

Self-identification is the preferred method of identifying the race and ethnic information necessary for the EEO-1 report. Employers are required to attempt to allow employees to use self-identification to complete the EEO-1 report. If an employee declines to self-identify, employment records or observer identification may be used.

Where records are maintained, it is recommended that they be kept separately from the employees basic personnel file or other records available to those responsible for personnel decisions.

Race and ethnic designations as used by the Equal Employment Opportunity Commission do not denote scientific definitions of anthropological origins.

I am told we are trying to create a society free of racism, but the results sure look a lot like racism to me.

Our new era in race relations begins this week with the Federal government sending me a nasty-gram that I have not yet proven to the government that I know the race of every one of my employees.  The EEO-1, a quite distasteful annual requirement from the feds, is a report we must file showing the number of people we have employed of various races and ethnicities.  Rest assured, readers, I have, after naively believing that race was irrelevant in evaluating my employees, now educated myself as to the race and gender of all my employees and reported this understanding to the government.

I have a dream that my four little children will one day live in a nation
where they will not be judged by the color of their skin but by the content of
their character.

Today I am spending much of the day filling out my EEO-1 report for the government.  This report requires me to officially report the race of each of my employees.  One of the most distasteful things I have to do all year.

Today, I am filling out my EEO-1 form, which I always find a mildly distasteful task.  For those who don't know, the EEO-1 is an annual report the government requires of all but very small corporations.  It requires me to list numbers on how many of my workers are black females or Native American males or Asian or whatever.  I have to ask all my managers to stare at the skin color of their employees and tell me what flavor everyone is so I can report it.  The government is careful to tell us that it is bad form to actually ask people what race or ethnicity they are, so it is up to us to apply whatever racial stereotypes we carry to the task of identification.  So much for a color-blind society.