“Diversity: the art of thinking independently together.” – Malcolm Forbes***
In 2020, U.S. President Joe Biden, indicated his intent to put a Black female judge on the Supreme Court if he were elected president. Recently Supreme Court Justice Stephen G. Breyer announced that he will be retiring. Biden confirmed his intention to appoint a Black woman to the bench.
While many support the decision, others cry foul, asserting this is a form of reverse discrimination. Before jumping to inappropriate labeling, there are at least three things you need to know about reverse discrimination today.
Without taking a subjective position on the matter, what do you think? Not sure? Let’s look at it a bit further…
The Opposing Viewpoints
According to the Texas Tribune, Senator Ted Cruz expressed opposition to this decision in his podcast “Verdict with Ted Cruz” stating, “The fact that he’s willing to make a promise at the outset that it must be a Black woman — I gotta say, that’s offensive.”
According to the Tribune, he went on to say, that Black women are only about 6% of the U.S. population so Biden is telling 94% of Americans that they are ineligible. He also stated it’s an insult to Black women.
U.S. Senator John Cornyn stated he believes Biden is limiting the candidate pool.
The inference is that it is a form of discrimination… reverse discrimination. Tucker Carlson, Fox News host blatantly called it, “the casual racism of affirmative action.” Let’s explore some facts we need to know about reverse discrimination today.
1. Get Real Facts Before Make Claims of Reverse Discrimination
It is easy to throw out an arbitrary number like 6% in justification of what one states is wrong, or right for that matter, however, numbers and statistics are never that easy.
According to Pew Research, the Black population of the United States increased from 36.2 million to 46.8 million from the year 2000 to the year 2019. That is a 29% increase and places Black Americans at 14% of the American population.
Catalyst reports that women of color comprised 20.3% of the female population in America and are projected to be the majority of all women in the country by 2060. Black women made up 12.9% of all females in the country in 2019. According to the U.S. Census, women make up 50.8% of the population. To add a woman to the Supreme Court would be more than justifiable given these numbers. Technically, if women make up 51% of the U.S. population then women should make up 50 – 51% of the Supreme Court justices to create a fair and balanced court. Following this line of inclusive reasoning one would assume that at least four of the 9 justices should be female (we have three) and at least one should be Black or African American (.5 is 6% of 9 so let’s round up to a whole person). On the contrary there are none.
These are the figures that Ted Cruz and others should be sharing and considering. To use one number is to skew the discussion and affect millions of opinions with inaccurate representation of the facts.
2. The Burden of Proof is on the Accuser Not the Accused
Any accusation of discrimination against an organization or representative of an organization must be proven by the accuser. To know something about reverse discrimination ultimately requires knowing the definition of discrimination. The fact is, reverse discrimination is still discrimination and is treated the same way.
The Lazy Person’s Guide to Defining Discrimination
According to laws enforced by the Equal Employment Opportunity Commission (EEOC), it is illegal to discriminate against an applicant or employee because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against someone because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law forbids discrimination in every aspect of employment.
Individuals who fall into a protected class, i.e. race, religion, sex etc. must present facts that show that discrimination has taken place. Discrimination laws were enacted as a protection of those who fall into the minority ranks of the population and claims of discrimination are made against those who fall into the majority or historically advantaged population. A claim of reverse discrimination requires the same.
Reverse Discrimination is Discrimination
“Reverse discrimination” may be used to describe perceived discrimination against members of a majority or historically advantaged group (such as White, male or straight) based on their race, gender, sexual orientation, age, or other protected class, usually in education or employment.
While the term “reverse discrimination” is not expressly included in federal civil rights laws, these types of lawsuits are generally brought as discrimination cases under Title VII of the Civil Rights Act of 1964 and other statutes. Legal precedence has established that these laws are generally meant to prohibit all forms of discrimination based on protected characteristics, including those against members of a majority group.
Examples of reverse discrimination might include making hiring or promotion decisions in favor of individuals of color, despite the seniority, skills or experience of a White man; or promoting a woman or women exclusively based on their gender even though you have equally or more qualified men.
Affirmative Actions to Level the Playing Field
Though affirmative action is often used to negatively describe programs designed to advance or promote people of color and address inequality, it is really defined as an intentional effort to improve the educational or employment opportunities for people of color, women or individuals with disabilities.
3. Diversity Hiring Can Drive Organizational Success
Hiring for diversity is not a racist or illegal practice. It can, however, become an issue of discrimination or reverse discrimination if candidates are not equal in the skill and experience requirements for a job yet the decision is made to hire the less qualified individual simply because of their race, gender or other protected status.
Unfortunately, those who are critical of affirmative action and diversity hiring often spread the fallacy that affirmative action hiring is hiring a lesser qualified individual. They fail to realize they are confirming the reality of prejudiced thinking by assuming and asserting that people of color, women and those with disabilities are automatically less qualified than candidates from the majority group. To make matters worse, more people think this way than meets the eye. It can begin to show later as the person hired encounters repeated challenges from those who assume he or she is not competent to handle their new role. They may then experience an unofficial initiation or testing of their skills. A few words of enlightenment:
- If equal candidates are being considered and race, gender or some other protected status is used as the deciding factor for hiring or promotion, then the process is seen as a legal decision.
- Diversity hiring goals are acceptable, quotas are not. Hiring goals should be determined carefully and reflected in percentages. Do not set rigid quotas or numbers, like “we will hire 25 Asian women in the IT department.”
Closing Thoughts
Given the information we just reviewed, does it shed light on President Biden’s plans to appoint an African American to the Supreme Court? What we have in play with the Supreme Court appointment process is that a need has been identified to create more balance and greater fairness within the Supreme Court justices. Any leader, any political leader, should be able to look at the country’s demographics and conclude that more women and more people of color should be represented within the highest court in the country.
The first woman to be appointed to the Supreme Court was Justice Sandra Day O’Conner in 1981 by President Ronald Reagan. From 1779 to 1967, all of the Supreme Court Justices were white men. Over the years the Supreme Court has retained known racists, a member of the KKK, slave owners and those who upheld racial segregation. Are we really going to question the appointment of the first Black female, knowing that each of the esteemed women being considered is more than qualified to fill the seat?
Balancing the justices is not an act of reverse discrimination but a diverse appointment that is long overdue and one of justifiable change. We are making progress but I dare say, we still have a ways to go.