Civil rights lawyers told The Daily Caller that President Barack Obama’s 2012 campaign managers may have violated employment law by hiring an overwhelmingly white office staff for his campaign headquarters in Chicago.
That skewed workforce is starkly visible in an April photo released by Obama’s Chicago office, which shows roughly 100 of the office’s staff.
Only two of the people in the photo, far in the back, are clearly African-American, far below their 13 percent of the national population, and their 33-percent representation in Chicago.
“Were I the general counsel of an employer in Chicago with the workforce in the picture … I would be concerned,” said Charles Shanor, a law professor at Emory University and the former general counsel at the Equal Opportunity Employment Commission.
“The workforce is overwhelmingly made up of young white males [and is] a demographic profile that could raise red flags under both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act,” he told TheDC.
If asked by managers, “‘Do we run a risk of legal liability?’ I would say ‘Sure,’” if a company’s picture showed only two African-Americans in a staff of 100, said Northeastern University’s Roger Abrams, a left-of-center law professor and former dean of the Rutgers School of Law.
Skewed hiring happens, Abrams told TheDC, because “people are simply not aware of what they’re doing … [or that] the racism, the sexism, the discrimination on the basis of other grounds, are just a way of life.”
“An underrepresentation of a particular group is a red flag … but underrepresentation by itself is not proof of a violation,” said Michael J. Goldberg, a law professor and former Acting Dean at Widener University.
This is not the first time Obama’s campaigns have bumped up against the law. In 2008, his campaign managers choose to accept donations from unidentified donors, and then returned some of those funds after investigations by online media outlets.
The Obama campaign did not respond to TheDC’s repeated emails about its hiring decisions.
Politico reported on April 18 that Stefanie Brown, who heads the campaign’s outreach to African-American voters, sent an urgent memo asking for help in “staffing up in states around the country, and I need your help to find qualified, African American candidates.”
The plea may be a response to the campaign’s pallor problem, which could hurt its standing with its vital bloc of African-American voters.
The image of Obama’s nearly all-white campaign staff “is not a surprise to me, because if you look at that [senior campaign] team you can’t see any diverse people,” an African-American diversity consultant told TheDC.
“I hope it gets fixed,” the consultant said, adding, “you’d expect something better from him.”
Officials with the Obama re-election campaign worry that turnout among African-American voters may fall below their participation level in 2008, partly because African-Americans have seen little recovery from the collapse of the 1994-2008 real estate bubble.
Since that collapse, the median wealth of African-American families has been halved, according to the Pew Research Center. And less than half of black men between 18 and 30 have full-time jobs, according to the Bureau of Labor Statistics.
Politically, the African-American community is being eclipsed by the Hispanic community, whose swing voters both the Democratic Party and the GOP are wooing.
But the image of Obama’s nearly all-white office staff is also a red flag for lawsuits claiming “disparate impact” violations, said lawyers.
Disparate impact law allows penalties against employers whose apparently color-blind practices unintentionally produce varying outcomes for women, African-Americans or Hispanics.
Disparate impact law is is a extension of more traditional “disparate treatment” law, which bars employers from intentionally treating individuals differently because of their skin color, sex or age.
Obama is a strong supporter of disparate impact law.
His deputies in the Justice Department, the EEOC and the Department of Housing and Urban Development are also using it to regulate banks’ lending practices, schools’ discipline policies, and hiring practices by every employer with more than 15 employees.
The Supreme Court affirmed this far-reaching law in 1971. Since the decision, titled Griggs v. Duke Power Co., employers have insulated themselves from some liability by hiring credentialed graduates rather than people without university degrees.
And since Congress updated the law in 1991, the burden of proof in disparate-impact lawsuits has been on employers to show that job requirements and hiring decisions are free of any rules, tests or practices that tend to reduce the hiring of minorities to below their percentage of the qualified workforce.
For a plaintiff to win, “there doesn’t have to be a conscious attempt [by an employer] to discriminate — there just has to be [hiring] criteria that have the effect of discriminating against a group,” said Goldberg.
If the Obama re-election campaign were to be sued, the photo shows that it would “have a strong burden to overcome,” Pacific Legal Foundation civil rights lawyer Joshua Thompson told TheDC.
For example, employers tend to lose lawsuits when they rely on “word of mouth” recruiting because white hiring managers are likely to know more whites than minorities.
Similarly, employers increase their legal risk if they exclude all job applicants who have criminal records, according to a recent EEOC decision. That’s because Africans-Americans are more likely to be excluded than whites, EEOC assistant legal counsel Carol Miaskoff told TheDC. They’re statistically more likely to have criminal records than whites, she said.
In practice, employers’ use of illegal practices can be detected by a careful legal investigation, said lawyers.
“[I] sure would like to know what criteria they used to determine who they hired, how they recruited and what the pool of applicants looked like,” Abrams told the TheDC after examining the Obama’s campaign photo.
Investigations take several months, said the EEOC’s Miaskoff. But “we wouldn’t get involved unless someone came to us and filed a case,” she said. “We don’t go around trolling for gotchas.”
In general, employers are safe from EEOC hiring lawsuits — but not private-sector lawsuits — as long as minority or female job applicants pass tests, or are hired, at four-fifths the rate of whites or men, regardless of their qualifications.
Skewed hiring is allowed, however, in some circumstances.
It is permitted when a pool of qualified applicants is itself skewed by a lack of qualified minorities, but that assumes the job qualifications are judged to be rational.
It is also allowed when minorities don’t want the advertised jobs — as long as their tasks, accommodations and compensation are judged to be the same as non-minorities.
But these factors don’t seem relevant to the whiteness of Obama’s office staff. There is little or no evidence, for instance, that African-Americans don’t want to work for Obama’s campaign. In fact, many of the pictures on his campaign website show unpaid African-American volunteers working in satellite offices.
Poling data also show that Obama’s support among African-Americans exceeds 90 percent, and that African-Americans comprise roughly 25 percent of the overall Democratic coalition.
And there is little or no courtroom-ready evidence that Obama’s team cannot find enough skilled African-Americans to work on software, websites, press releases, videos, and the many back office tasks that can make or break a campaign.
The office currently employs roughly 140 people, according to an online count by the independent group Democracy in Action. The April photo appears to show the section of the office used by many of the roughly 80 staff who work on technology-related tasks, such as video production, software development and data analysis.
No employer could argue that there’s a lack of qualified African-American office staff in Chicago, said Sharon Jones, a diversity consultant in Chicago.
“We’re in a situation where we have huge unemployment … [and] for racial and ethnic minorities, unemployment rates are double” that of whites, said Jones. “There are a lot of minorities who could fill jobs … [and] there are people who could move [so] I don’t think there is a lack of human capital.”
Also, employers with an earnest desire to hire minorities turn to professional groups, such as Black Data Processing Associates, whose 8,605 members include software writers, graphic designers and video producers. “We get calls all the time from major corporations looking for black designers. … I could send them a list of 25 or 30 people right away,” said a manager in the association.
The campaign’s staff does include several African-Americans, and some Hispanics.
For example, the campaign’s website features Loren Reedy, a receptionist, and Sheena Patton, the human resources director.
His upper-level political team also includes several senior African-American advisers. They include Valeisha Butterfield-Jones, the national youth director for the Obama campaign; Stephanie Brown, national director for the African-American vote; and Michael Blake, the deputy director of the campaign’s turnout operation.
“They’ve got [African-American] people there,” said Jamal Simmons, a D.C.-based political consultant. But “they could just do better.”
Disparate impact law is increasingly controversial.
Left-of-center lawyers say it redresses widespread discrimination in many areas of life, including housing, school discipline and hiring. It continues “the long tedious progress of getting rid of what I have described in my writing as American apartheid,” said Abrams. “This administration is continuing the battle against those who would like to discriminate on the basis of race, ethnicity, language and gender.”
Right-of-center civil rights advocates say it establishes a government-backed racial points system, throttles creativity by workers and middle managers, disadvantages uncredentialed blue collar workers and hurts business productivity, but aids politically connected lawyers.
Right-of-center critics also say it helped inflate the disastrous 1994-2008 housing bubble, partly because federal regulators used disparate-impact law to pressure banks until they provided mortgages to low-income African-Americans. Many of those low-income people lost their houses — and their limited wealth — once the economy slowed in 2007.
“People should not be chosen or rejected because of their skin color … whether they’re minority or non-minority,” said Roger Clegg, president of the Center for Equal Opportunity.
Unless there is actual discrimination, he added, “businesses and community groups and local governments should be able to make decisions without being second-guessed by federal bureaucrats and plaintiffs’ lawyers.”
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