Customer Preference

Some observations from the minority journalists’ Unity convention in Washington this week:

The Miami/Fort Lauderdale market is probably not the place for an Asian American journalist. Network news, for a Mexican American with a thick Spanish accent, is seemingly out of reach, say Miguel Angel Garcia, 25, and Antonieta Gonzalez, 32, who both work at Telemundo.

Traverse City, in northern Michigan, is not ideal for an African American journalist, Marquita Pool-Eckert, a CBS affiliate producer, tells Irene Warren. The women are at the Career Expo for this week’s Unity: Journalists of Color convention, the nation’s largest gathering of minority journalists. “Now, Detroit. That would be fine; you know what I mean,” says Pool-Eckert.

Warren nods. “I get you.”

Now, take out your pad and pencil; we’re about to have a short quiz: Do the comments above reveal a celebration or a complaint? Not so fast; better think about it.

On first blush those of you who answered “complaint” seem correct.

That exchange is just one example of how restrictive life in front of the camera can be. There has been plenty of progress, for sure, but turn on the television in many markets, especially the smaller ones, and what comes to mind after all these years, minority journalists say, is old-fashioned tokenism: the token African American reporter, the token Asian American reporter (Chinese? Korean? Japanese? What’s the difference?), the token Latino reporter, minus the accent.

Tokenism. That’s bad, isn’t it? Or is it?

“News executives, in hiring on-air talent, need to factor in a lot of things,” says [Sue] Kwon, 36. She’s a Korean American reporter for KPIX, a CBS affiliate in the San Francisco Bay Area.

“Who’s their audience? Who would their audience be comfortable with?”

She pauses, takes a sip of regular coffee.

“Look at it this way. You don’t see too many Asian American men in TV news because, in general, when society thinks of Asian American men, they think of . . . something else. But, really, we know that not all Asian American men are karate-chopping engineers.”

The impetus behind the great effort to “diversify” newsrooms is at bottom a kind of tokenism, a desire to give the “audience” reporters, news readers, etc., they would be “comfortable with.”

If you make customer racial preference a legitimate basis for hiring more blacks in Washington, D.C., you are not in a good position to lodge a principled complaint about the absence of blacks in Traverse City or an absence of Koreans in Kansas City.

That’s why the legislative history of the 1964 Civil Rights Act made it abundantly clear that “customer preference” is not a justification for discriminating on the basis of race, as I discussed, among other places, here. In light of current circumstances the EEOC has had to reaffirm this principle:

Narinder, a South Asian man who wears a Sikh turban, applies for a position as a cashier at XYZ Discount Goods. XYZ fears Narinder’s religious attire will make customers uncomfortable. What should XYZ do?

XYZ should not deny Narinder the job due to notions of customer preferences about religious attire. That would be unlawful. It would be the same as refusing to hire Narinder because he is a Sikh

If the “customer preference” of the customers of Fortune 500 companies provides a justification for the University of Michigan to award preferential admissions based on race in order to provide the racial mix of graduates that General Motors et. al. prefer, as Justice O’Connor and friends seemed to think, then surely a refusal by those companies to allow Jews to work on projects in Muslim countries could offend no law or principle, right?

Abandoning principle for the allure of short-term gain is a dangerous and risky business. The journalist who gets a job here based on presumed customer preferences may well be denied one there, and there, and there later on for the same now-acceptable reason.

Final (For Now) Thought:

“Customer preference” is to civil rights what the “heckler’s veto” is to free speech.

UPDATE [12 August 1:15PM]

Astute and well-informed reader Brian Fitzpatrick, a former law clerk to Justice Scalia, has just sent me an OpEd he published in the Los Angeles Times in March 2003 (three months before Gratz/Grutter were decided) on customer preference. (I don’t have a URL to link, but those with access to the LAT archives should search for “Good for GM, Bad for Racial Fairness,” which appeared on March 18, 2003. If you have Westlaw, the cite is 2003 WL 2392340.)

Some excerpts:

Racial discrimination is good for the bottom line. So says General Motors in a friend-of-the-court brief it filed last month with the U.S. Supreme Court in support of the University of Michigan’s admissions policy. The high court will hear arguments in the case April 1.

GM’s sentiments were echoed in a separate brief filed on behalf of other Fortune 500 companies. These briefs show that not only does the American business community support racial discrimination, but it is not very innovative when it comes to its justifications….

The companies argue that such discrimination against white and Asian applicants should be permitted because otherwise the number of black and Latino graduates will decline. This, GM says, would “reduce racial and ethnic diversity in the pool of employment candidates from which the nation’s businesses can draw their future leaders, impeding businesses’ own efforts to obtain the manifold benefits of diversity.”

What are the “manifold benefits” of increasing the percentage of blacks and Latinos in the workplace (and thereby reducing the percentage of whites and Asians)? According to these briefs, the principal benefit is a more robust bottom line: Businesses with racially diverse employees can more effectively sell goods to an increasingly racially diverse customer base. GM notes that minorities “wield an impressive $600 billion in annual purchasing power, a number that is increasing exponentially with expanding minority populations.”

In short, the Michigan admissions policy makes GM more profitable.

However, not only has profitability never been a legitimate defense to intentional racial discrimination, it was one of the principal arguments that Southern congressmen used in their attempt to defeat the Civil Rights Act of 1964. They argued that if white employees could sell products more effectively to white customers (and black employees more effectively to black customers), they should be allowed to take that fact into account when hiring. This was not bigotry, they contended, but simply an effort to boost the bottom line. These congressmen argued that racial discrimination should be excused whenever race is a “bona fide occupational qualification.”

Customer preference was soundly rejected in 1964 as providing permissible grounds for an exception to the commands of the Civil Rights Act, and until Grutter courts had uniformly rejected arguments about the bottom line as a justification for racial discrimination.