The confluence of catastrophic wildfires in southern California and the imminent inauguration of Donald Trump have made discussions, debates and rants about diversity, equity and inclusion more strident and urgent than ever before. The debate is important and necessary. As it seems to have been practiced in much of our academic, governmental and corporate environments, DEI is a failure. But it need not be. If properly structured, DEI policies can move toward resolution of past injustices. But for that to happen, we must understand at least three things.
First, we must acknowledge that it is not possible to heal every wound of historic discrimination, and attempts to do so cost more in resentment and inefficiency than they return in actual remedies. Second, when we can approximate an equitable solution to past discrimination, competence, rather than diversity, must be the operative rationale. Third, we must understand that disparate results in hiring, promotion and retention for some occupations might be the better social outcome.
You can’t unring the bell
Proponents of DEI initiatives often have good-faith aspirations to develop comprehensive remedies for classes of people who suffer the legacy of past unjust discrimination. Some of them see racism, sexism or other forms of discrimination as “systemic,” the result of alleged ongoing discriminatory laws and policies. But I’m not so sure that such systemic structures exist any longer, at least not as official policy. And where disparate impacts do occur from facially non-discriminatory laws — laws that do not appear to discriminate but can have a discriminatory effect — we have robust regulatory and legal options to fix them. Needless to say, any vestiges of current unjust discrimination should be eliminated.
On the other hand, however, descendants of people who were the victims of such laws in the past do indeed suffer the residual negative implications of those laws. It is not unreasonable to assume that the grandchildren of victims of Jim Crow laws, for example, have less wealth (and fewer of the opportunities that typically accompany wealth) than classes of people who were favored by them. Eliminating the laws has not magically eliminated their residual effects. The problem, though, is that there is no magic remedy for doing so, as some DEI proponents seem to think. In my law practice, I often must tell clients who have legitimate grievances that there are no legitimate solutions. And attempts to invent them often do more harm than good. As I explain below, I’m not suggesting that we just throw up our hands and say, “tough luck to you.” But I am suggesting that we must, regrettably, let go of the chimerical notion that every past wrong can be fixed. Far too often, the “cure” is worse than the disease.
Diversity among the qualified
Having said that, properly structured DEI programs can be a partial cure and should be implemented. But “properly structured” is the key. Typical DEI programs segregate applicants into pools of underrepresented and “disproportionately” represented applicants. Then jobs are filled (or promotions granted) solely to those in the underrepresented group until “equity” is achieved. The result, of course, is that the “most qualified” from the underrepresented group might be (and often are) less qualified than many in the disproportionately represented group of applicants who have been set aside. This results in less competent, or even incompetent, applicants being hired or promoted. The fiscal and social costs of this process can be devastating.
The better approach is to divide applicants into “qualified” and “unqualified” groups, without regard to proportionate representation. The unqualified would be eliminated from contention, of course. But among the qualified, where all else is equal, it may be a just outcome to favor those applicants from underrepresented demographics. This is especially the case if it can be demonstrated that these applicants are legacy victims of past discriminatory structures. Isn’t this “unfair” to other applicants? Not necessarily. If two qualified applicants cannot be distinguished in any other way, how else does one decide who gets the job or promotion? Flip a coin? Draw straws? My suggestion goes some direction in answering the problem of legacy discrimination without rewarding unqualified applicants. Only one person will get the job. It is an equitable solution to award it to the person who has had an appreciable disadvantage in attaining the qualifications for it. Is this a perfect solution? Of course not. But it’s a much better alternative than eliminating an entire demographic at the expense of hiring qualified applicants.
Disproportion is not necessarily discrimination
The California wildfires have drawn attention to the DEI policies of the Los Angeles Fire Department. In a widely shared video, Deputy Chief Kristine Larson says that when people are in an emergency, they want a person who “looks like them” to come to their assistance. She also responds to the suggestion that a female firefighter isn’t strong enough to rescue a man from a fire by saying, “He got himself in the wrong place if I have to carry him out of a fire.” Of course, these are jaw-dropping statements, especially considering that the video was officially produced by the LAFD. She, and whoever sanctioned the video, should not have a position of responsibility.
But this also points out a deeper problem. Larson, who leads LAFD’s Equity and Human Resources Bureau, has stated that DEI is her most important agenda. Thus, she has implemented policies of hiring “disproportionately” underrepresented demographic groups, especially women. This is a grave mistake. Firefighting is one of those jobs that, if given to the most qualified people, will always result in disproportionate representations. This is not unjust. Recent debates about so-called transgender women competing against actual women have illustrated the significant, unbridgeable gulf between the physiological capabilities of men and women. Careers in first-response emergency treatment and firefighting are clear analogues of that debate. Perhaps a small majority of careers and vocations will produce just disproportionate results. Firefighting and related first-response careers are among them. In these cases, disproportionate male representation is the better result for everyone.
Diversity, equity and inclusion policies are noble goals when carefully considered and reasonably implemented. Current DEI policies typically are neither. Perhaps taking these thoughts into consideration will help to advance a reasonable conversation for a better way.
