“White Guys Have No Rights. And They’d Better Shut Up If They Think They Have”

The title of this post is in quotes because it’s the title of a must-read post by University of San Diego law professor, and newest member of the U.S. Commission on Civil Rights, Gail Heriot.

In it Prof. Heriot describes the excruciating, but no doubt typical, “training course on sexual and other illegal workplace harassment” that the USD law school, complying with a requirement in California law, required her and other faculty members to endure. She summarizes what she learned under three headings:

  1. White Guys Can Be Scary.

  2. All Complaints Must be Treated Seriously. No jokes. No retaliation.
  3. Complaints Made by White Guys Don’t Count. Here Retaliation is Evidently Fine.

Read the whole thing to find out what comes under the above headings.

I confess: I was feeling quite pleased with myself as I read through the post, congratulating myself on the points I was about to score with Prof. Heriot when I shared with her my clever response to the politically correct polemical drivel presented in and by this course. And then I read her last paragraph, which punctured my balloon by making “my” point much better than I would have myself:

It occurred to me that this training course is itself a rather blatant form of racial and sexual harassment. Employees taking the course are not so subtly being told, “Do not dream of complaining about race or sex discrimination if you are white or male. Your employer will consider you to be ‘really out of line’ and your conduct ‘really offensive.’ This may have an career shortening effect.”

UPDATE [26 Dec.]

Hans Bader of the Competitive Enterprise Institute has expanded upon his excellent Comment below with a post on the CEI blog on the pitfalls of “diversity” training.

He points out, among other things, that

[m]ajor employers have paid out millions of dollars in discrimination claims because of diversity-training programs. One Fortune 500 company paid out tens of millions of dollars in response to a class-action racial discrimination suit by minority employees, which was fueled by remarks management employees made after undergoing mandatory diversity training…

Say What? (5)

  1. Hans Bader December 26, 2007 at 11:30 am | | Reply

    The training course described by Prof. Heriot seems to be giving faulty legal advice.

    White guys DO enjoy the well-established legal right not to be retaliated against when they complain about affirmative action, even though they don’t always have a right not be discriminated against by the affirmative action itself. While affirmative action itself is often legal, retaliation against those who criticize it is not.

    Here’s the text of an email I sent to the firm identified as provider of the course:

    “There appears to be faulty legal advice in one of your training courses could expose your clients to civil-rights litigation, especially retaliation claims, judging from a law professor’s recent description of your “preventing harassment” program.

    Judging from your program, as recently described by San Diego Law Professor Gail Heriot, you suggest that employee criticism of employer affirmative action programs that is perceived as “offensive” should be subject to employer investigation and possible sanctions.

    In fact, criticism of workplace affirmative action policies (even perfectly legal affirmative action policies) is protected by the anti-retaliation provisions of Title VII, Section 1981, FEHA, and other laws, see, e.g., Setser v. Novack Investment Co., 638 F.2d 1137 (8th Cir. 1981).

    And in the public sector workplace, criticism of employer affirmative action policies is protected also by the First Amendment.

    That is shown by an appeals court decision that held that a white male’s angry criticism of an employer affirmative action policy, directed at a minority beneficiary of the affirmative action policy, was protected by the First Amendment. See State Personnel Board v. California Dept. of Corrections, 59 Cal.App.4th 131 (1997).

    A Bay Area university paid $2.4 million in damages to a white male employee who was disciplined after complaining about his employer’s affirmative action policy.

    Employers might not like such complaints. The courts, however, called the employer’s hostile reaction to his complaint “unlawful retaliation.”

    Disciplining employees for criticizing affirmative-action plans is forbidden by law, since such criticism is typically believed by the employee (rightly or wrongly) to be a form of protest against violations of the civil rights laws, and such protests are protected by the civil rights’ laws’ anti-retaliation provisions.”

    One thing I didn’t address in my email was the racial and sexual harassment issue raised above.

    Biased sexual or racial harassment training programs can give rise to successful lawsuits by white male employees under the theory that the training program itself was harassing. See, e.g., Hartman v. Pena (1995).

    But that tends to require a very long, intimidating program. For example, a white male employee sued and recovered compensation for an anti-male diversity training program that lasted 3 entire days and was insulting to white males.

  2. Jack Westinghouse December 27, 2007 at 2:26 am | | Reply

    Maneuver gave Bush a conservative rights panel

    By Charlie Savage, Globe Staff | November 6, 2007

    WASHINGTON – The US Commission on Civil Rights, the nation’s 50-year-old watchdog for racism and discrimination, has become a critic of school desegregation efforts and affirmative action ever since the Bush administration used a controversial maneuver to put the agency under conservative control.

    Democrats say the move to create a conservative majority on the eight-member panel violated the spirit of a law requiring that no more than half the commission be of one party. Critics say Bush in effect installed a fifth and sixth Republican on the panel in December 2004, after two commissioners, both Republicans when appointed, reregistered as independents.

    “I don’t believe that [the law] was meant to be evaded by conveniently switching your voter registration,” said Commissioner Michael Yaki, one of the two remaining Democrats.

    In early 2007, Senate Republicans restored the 6-to-2 bloc by appointing Gail Heriot, a member of the conservative Federalist Society who opposes affirmative action.

    Heriot was an alternate delegate to the 2000 Republican National Convention and was a registered Republican until seven months before her appointment. In an interview, Heriot said her decision to reregister as an independent in August 2006, making her eligible to fill the vacancy, “had nothing to do with the commission.”

    “I have disagreements with the Republican Party,” she said. Asked to name one, she declined.

  3. John Rosenberg December 27, 2007 at 7:14 am | | Reply

    The Civil Rights Commission, for better or worse, tends to reflect the division in our society over civil rights. In its early days it was characterized by bi-partisan consensus. That’s because back then people who believed in civil rights all believed in the same principles (“without regard” colorblind neutrality) and policies (ending discrimination based on race).

    Now, of course, people who believe in civil rights believe in diametrically opposed principles and policies. Some of us, like Gail Heriot, continue to believe in “without regard” colorblind neutrality and ending discrimination based on race. Others, generally but not exclusively liberals and Democrats, believe in treating everyone “with regard” to race and distributing benefits and burdens on its basis.

    The CRC simply reflects this division. Whatever the propriety of registration changes, etc., nothing the Republicans have done since taking over the CRC begins to approach the Democratic despotism of the fiefdom lorded over by the former chairman, Mary Frances Berry, who refused to leave when her term was up — it took legal action to get her out — and while there routinely published findings, opinions, etc., in the name of the Commission without even letting the Republican members see them or comment on them before publication.

  4. CJ December 27, 2007 at 5:15 pm | | Reply

    Jack Westinghouse,

    The use of the Civil Rights Commission by its former chairwoman Mary Berry for political and ideological purposes is a well chronicled disgrace. An absolute disgrace. We’re talking entering sentitive investigations (when a black teen commits suicide and hucksters call it “a lynching”, etc.) and fueling hatred, not reducing it. Opposing affirmative action, despite what you and Globe have told yourselves, it not an illegitmate stance. Berry’s chairmanship was a disgrace, with not a word of protest from liberals.

  5. Cobra December 27, 2007 at 8:26 pm | | Reply

    John writes:

    >>>”Whatever the propriety of registration changes, etc., nothing the Republicans have done since taking over the CRC begins to approach the Democratic despotism of the fiefdom lorded over by the former chairman, Mary Frances Berry, who refused to leave when her term was up — it took legal action to get her out — and while there routinely published findings, opinions, etc., in the name of the Commission without even letting the Republican members see them or comment on them before publication.”

    Well, let’s review this for a second.

    The very FIRST MISSION of the US CRC, as stated on its website:

    >>>”To investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices.”

    http://www.usccr.gov/about/mission.htm

    Mary Frances Berry, whom you described as “despotic”, lived up to the mission statement…

    >>>”As an independent, bipartisan, factfinding agency of the Federal government, the Commission is mandated to collect, study, and publish information concerning denial of equal protection of the laws because of race, color religion, sex, age, disability, or national origin, or in the administration of justice. More directly, the Commission is charged to “investigate allegations in writing under oath or affirmation relating to deprivations – (A) because of color, race, religion, sex, age, disability, or national origin; or (B) As a result of any pattern or practice of fraud; of the right of citizens of the United States to vote and have votes counted…. The Commission reports its findings and recommendations to the President and the Congress. When the Commission on Civil Rights was established in 1957, it was given the responsibility for investigating and reporting on voting procedures and devices used by jurisdictions to discriminate against racial minorities….

    …The Commission found that the most dramatic undercount in the election was the nonexistent ballots of eligible voters, who were turned away, or wrongfully purged from the voter registration rolls by various procedures and practices. State officials failed to fulfill their duties in a manner that would prevent this disenfranchisement. A combination of restrictive statutory provisions, wide-ranging errors and inadequate and unequal resources in the election process denied countless Floridians the right to vote. The disenfranchisement of Florida’s voters fell most harshly on the shoulders of African Americans. Statewide, based upon county-level statistical estimates, African American voters were nearly ten times more likely than white voters to have their ballots rejected in Florida. On a statewide basis, while African Americans comprised about 11% of all voters in Florida in the November 2000 presidential election, African Americans cast about 54% of the ballots that were rejected in the election. Before and during the election state and county officials were aware of several key factors that ultimately contributed to the disenfranchisement of qualified voters.”

    http://rules.senate.gov/hearings/2001/062701_berry.htm

    But hey, long time readers of Discriminations know all about how Jeb Crow and his False Felon Purges, and “vote-caging” was disenfranchising African-American voters WAY back here:

    http://www.discriminations.us/2004/08/al_sharpton_speaks_for_not_jus.html

    I’ll take Berry’s standing up for the disenfranchised over somebody like Gail Heriot, whose only apparent claim to fame–despite an impressive education, appears to be sitting on the board of anti-black think-tank funded white male ascendancy campaigns (ACRI, MCRI), bashing Kwanzaa…

    http://therightcoast.blogspot.com/2003/12/on-first-day-of-kwanzaa-my-true-love.html

    …and signing her name to abominable, diabolically twisted, false rhetoric and chicanery such as this:

    >>>”Remember, the Michigan Civil Rights Initiative is about promoting racial equality and harmony. It helps level the playing field for all races in public employment and university admissions by ensuring that skin color is never held against someone when they go to apply for a job or apply to a Michigan university. When the MCRI passes, it will be a huge step forward in reducing racism and discrimination in public employment and public education.”

    http://www.michiganproposal2.org/?gclid=CMXy38CxtIgCFQsNSQodxR71zg

    Cue the rim shot and laugh track.

    But then again, what else do you expect from the Bush Administration when it comes to African-Americans?

    –Cobra

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