By Rick Manning
Racism in the NBA has been all the talk show rage over the past week, as people double down on their declarations of Los Angeles Clippers owner Donald Sterling’s despicable, private and illegally recorded rants.
However, did you know that the National Basketball Association’s entire player hiring practice is racist based upon the newest legal theory on the subject espoused by U.S. Labor Secretary Thomas Perez.
Perez believes that intent does not matter in determining if a hiring practice is racist, only the outcomes. So, if a company has an open hiring process, and ends up hiring 80 percent Asian Americans, 4 percent African Americans and 8 percent Hispanics and 8 percent whites, that business could be deemed to have engaged in racist behavior in hiring due to its proportional over representation of Asian American workers.
The reason? The Labor Department, and in fact the entirety of the Obama Administration is operating under a legal theory that holds if a company’s hiring procedure doesn’t reflect the demographics of their physical locale, then the outcome of their hiring process should be treated exactly the same as if the company deliberately excluded minorities from employment.
This legal theory has already been applied against employers by the Labor Department, and the Equal Employment Opportunity Commission has used it as the basis for declaring employment questions about an applicant’s arrest record to be racist, due to the disproportionate numbers of African Americans who get screened out by the question.
Using the same screening mechanism, the players in the National Basketball Association should reflect the demographics of America. According to the U.S. Census Bureau, this would mean that 63 percent of NBA players would be white, 17 percent would be Hispanic, 13 percent would be black, 5 percent Asian, 1 percent American Indian or Alaska Native and about .2 percent Hawaiian islander or other Pacific Islander.
No one, not even racial diversity radical Perez, is advocating that the NBA or any professional sports league reflect the demographic diversity of the nation. Instead we want our entertainers to be on stage based upon their skill without regard to the color of their skin.
If this point is so obvious for our entertainers, then why should it be so hard for Perez to understand when it comes to the workplace?
Clearly if there are discriminatory practices that deny people of equal ability and qualifications, employment opportunities based upon race, the Labor Department should step in. But this concept that the racial make-up of a workforce is the basis for fining employers, even when there is not even a smidgeon of evidence that the organization engaged in discriminatory practices is absurd.
Yet, that is the driving philosophy behind the current Labor Department’s enforcement of federal laws against employment discrimination.
When it comes down to sober evaluation, Perez’ outcome based anti-discrimination legal theory has a disparate impact against having a rational labor policy. All employers should be able to make the exact kind of personnel decisions that have been made in the NBA, where the personnel decisions are made based upon the skill of the players and not whether their skin tones match up with the demographics of their surrounding community.
Rick Manning is the vice president of public policy and communications for Americans for Limited Government.
