Obama Seeks Disability Quotas

Cross-posted from Open
Market

The Obama administration is pushing quotas in the workplace
and higher education, seeking to force
businesses that have federal contracts to hire at least 7 percent disabled
workers, and encouraging colleges to use race in admissions to achieve a
“critical mass” of black and Hispanic students — a de facto quota.  It is
also apparently drafting
an executive order about sexual-orientation discrimination among federal
contractors, an order that key administration allies would like to include
“goals” (effectively, quotas) for gays and lesbians (most Americans work in states, cities, or counties
that already forbid sexual-orientation discrimination, but these laws do not
require preferences for gays or lesbians, and at least a few expressly forbid
“affirmative action” discrimination against heterosexuals. Virtually all
Fortune 500 companies already ban sexual-orientation discrimination).

As The Wall Street Journal notes, the 7
percent target for disabled-workers proposed by the Obama administration would
cover “roughly 200,000 companies that generate $700 billion a year in contracts
with the federal government,” including aircraft manufacturers, and “firms
across the health-care, construction and information-technology industries.”
Moreover, “companies that don’t hit the target could have their contracts
canceled or could be barred from winning future contracts until they show they
are trying to meet the target.” (It is hard to understand why the Obama
administration thinks this quota is authorized by the disabilities-rights laws,
which the Supreme Court has said are not “affirmative action” statutes, and
thus require only “reasonable accommodation” of a disability, not a lowering of
basic standards.  See, e.g., Southeastern
Community College v. Davis, 442 U.S. 397, 410-11 (1979).) The 7 percent
figure is not set in stone, and it may conceivably be reduced to a lower
percentage when the rule is finalized.

As the Cato Institute’s Walter Olson notes
in the Daily Caller, federal bureaucratic rules will make it impossible for
even some employers that actually hire large numbers of disabled people to
demonstrate compliance with the 7 percent quota:

Trouble is, it’s illegal under the ADA for employers to ask
job applicants whether they’re disabled, even if the question is offered with
favorable intent. So the rules contemplate a fan dance of “invited
self-identification” in which workers are given repeated chances at successive
stages of the hiring process to announce that they are disabled. Unfortunately for
quota compliance, even after getting the job an employee may be too shy to
offer such a self-identification, which means the employer may lose any
“credit” for the hire. Perhaps equally frustrating, an employee hired with the
quota in mind may turn out not to have any disability at all (“Dang it! And she
looked so disabled!”).

The Obama administration also wants
to impose sexual-orientation-based hiring “goals” on employers, but it is
leery of the political backlash that might result from doing so, so it remains
to be seen if the administration expressly includes such goals (quotas, really)
in the executive order banning sexual-orientation discrimination by federal
contractors that it is currently drafting. Even some liberal jurisdictions like
New Jersey expressly ban sexual-orientation-based affirmative action in
anti-discrimination laws that permit other forms of affirmative action, like
race-based affirmative action  (i.e., New Jersey’s Law Against
Discrimination (LAD)). But administration allies — like the Center for American
Progress (which has been described as “Obama’s
Idea Factory” by Time magazine)
want not just to permit
sexual-orientation quotas, but to mandate
them!

As discrimination-law expert John Rosenberg notes, “A new
presidential executive order would clearly enhance the movement already
underway on campuses to provide “diversity”-justified
affirmative action based on sexual orientation and gender identity.”
Past executive orders banning discrimination against other minority groups have
led to federal hiring goals and preferences for such groups. But “Supporters of
a new executive order recognize the obstacle posed by the fear that such an
order would lead to affirmative action for gays. In a “CONFIDENTIAL-NOT
FOR CIRCULATION” memo to Rep. Barney Frank obtained by Metro Weekly, the
Center for American Progress and the Williams Institute noted that ‘Requiring
numerical placement goals for sexual orientation and gender identity would
communicate a strong commitment to diversity and a belief that LGBT workers
should receive the same protection as women and people of color. However, doing
so may be logistically, legally and politically problematic.’ One way of
finessing the problem, advocates suggest, is that ‘the executive order could
omit any reference to any form of affirmative action based on sexual
orientation or gender identity,'” but later construe vague language in the
order as mandating affirmative action when the political climate shifts.

Federal anti-discrimination statutes do not yet prohibit
sexual orientation discrimination, and the Obama administration cannot rely on
the Constitution to justify mandating preferences for gays, since the
Constitution only bans governmental discrimination, not private-sector
discrimination, only bans “intentional” discrimination against minorities, and
does not require affirmative action or discrimination in their favor, and does
not even require that the government eliminate unintentionally discriminatory
“impact” in hiring. See, e.g., San
Francisco Arts & Athletics v. United States Olympic Comm., 483 U.S.
522 (1987); Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 279 (1979); Austin Black Contractors Ass’n v. City of Austin, 78 F.3d 185, 186
(5th Cir. 1996).

Imposing sexual-orientation quotas on religious colleges
that receive federal funds or grants would violate the Religious Freedom
Restoration Act, which prohibits the government from burdening the religious
practices or convictions of a person or institution unless it has a compelling
government interest that requires doing so, it cannot achieve that interest in
a less burdensome way, and its restriction on religious freedom is
narrowly-tailored. Regardless of whether or not the government has a compelling
interest in banning discrimination based on sexual orientation, it certainly
does not have a compelling an interest in forcing
private institutions to discriminate in favor
of gays and lesbians. (In Boy
Scouts v. Dale, the Supreme Court held that even the need to ban
sexual-orientation discrimination was not compelling enough to outweigh the Boy
Scouts’ freedom of expressive association, so the government cannot ban
sexual-orientation discrimination by all private entities, much less compel
them to discriminate. When the government compels a private entity to
discriminate, that may violate the Constitution, as the D.C. Circuit Court of
Appeals noted in Lutheran
Church-Missouri Synond v. FCC (1998), a ruling that held
that an employer could successfully sue the government for forcing it to engage
in affirmative action.)

The Obama administration avidly supports racial quotas in
colleges and universities. It helped persuade a federal appeals court to uphold
the University of Texas’s use of racial preferences in admissions, arguing that
the university should be allowed to use race to achieve a “critical mass” of
blacks and Hispanics (that is, a quota) not only university wide, but on a
classroom-by-classroom basis, even if doing so resulted in substantial
discrimination against white and Asian applicants. The Supreme Court
recently agreed to hear an appeal of that ruling in Fisher v. Texas. Although the Supreme Court’s past decisions
allow colleges to use race to some extent (see Grutter v. Bollinger), the University of Texas’s affirmative action
policy violates the Supreme Court’s requirement that race be used only as a
“last resort” (see Bartlett v. Strickland),
the Supreme Court’s ban on outright racial quotas (see Gratz
v. Bollinger), and three of the four restrictions on the use of race
contained in Justice Powell’s influential opinion in the 1978 Bakke case.

The Obama Justice Department is also pressuring banks to use
racial quotas in lending. Assistant Attorney General for Civil Rights
Thomas Perez has compared
bankers to “Klansmen,” and he has extracted race-conscious settlements from
banks “setting aside prime-rate mortgages for low-income blacks and Hispanics
with blemished credit,” treating welfare “as valid income in mortgage
applications” and providing “favorable interest rates and down-payment
assistance for minority borrowers with weak credit,” notes Investors Business Daily.

Overzealous government mandates aimed at helping minority
groups sometimes backfire. The Washington
Times argues that the ADA actually harmed
hiring of the disabled by turning them into litigation time-bombs for
employers:

When the ADA was enacted in 1990,
some 60 percent of disabled men were employed. Five years later, that rate
dropped to 49 percent. Today, almost 80 percent of people with disabilities
have left the labor force. These people no longer count as the unemployed
because they are no longer looking for work. While these are shockingly low
participation numbers, mandating federal contractors hire the disabled is not
the solution. The ADA was supposed to protect the disabled from discrimination.
What it actually accomplished was making the disabled among the most vulnerable
candidates by making the prospect of hiring them much more expensive. Faced
with not only the need for pricey physical accommodations but the possibility
of expensive litigation, employers frequently take the safest route and simply
do not hire the obviously disabled.