Vol. 5, No. 5 May, 1995) pp. 147-150
ANTIDISCRIMINATION LAW AND MINORITY EMPLOYMENT: RECRUITMENT
PRACTICES AND REGULATORY CONSTRAINTS by Farrell Bloch. Chicago:
University of Chicago Press, 1994. 148 pp. Cloth $19.95.
Reviewed by Paul Burstein, Department of Sociology, University of
Washington
When Congress enacted the Civil Rights Act of 1964, the
unemployment rate for black men and women was double that for
whites. Much of this difference, proponents of the Act argued,
was the result of discrimination by employers, unions, and
employment agencies. By prohibiting such discrimination, Title
VII of the Act was to win access for blacks to jobs formerly
closed to them -- it would reduce black unemployment and enable
them to move along with whites on the road to economic success.
More than thirty years later, after the development of new,
sweeping definitions of discrimination, the expenditure of
hundreds of millions of dollars to enforce Title VII and other
equal employment opportunity (EEO) laws and regulations, and
victory by black workers in thousands of employment
discrimination cases, the unemployment rate for black men and
women is -- double that for whites.
It is this conundrum which motivates Farrell Bloch's book. Why
has EEO law (including, for our purposes, executive orders and
regulations) proven to be so ineffectual? Why have the hopes of
those who fought so long and so hard for Title VII not been
fulfilled?
Bloch proposes four reasons. First, although the federal
government apparently has the power to get employers it monitors
closely -- large employers and federal contractors -- to hire
more blacks, the blacks they recruit are apparently those who
would be employed anyway, at smaller firms and firms without
federal contracts. The latter apparently do NOT make up for their
loss of black employees by hiring from among the black
unemployed. Net result: no gain in total black employment.
Second, Bloch claims, the EEO laws may actually discourage
employers from hiring blacks. Although the laws prohibit
discrimination both in hiring and on the job, applicants are much
less likely than employees to file discrimination lawsuits. For
employers, therefore, it may make sense to avoid hiring
potentially litigious applicants in the first place.
Third, much hiring is done through word-of-mouth recruitment.
With proportionately more whites and Asians than blacks in a
position to hire (because they control most firms), such
recruitment disadvantages blacks; yet it is difficult to see how
the EEO laws can prevent people from using their personal
contacts to find work. Finally, Bloch argues, some criteria
employers use to screen applicants exclude blacks
disproportionately often -- an example is having a criminal
record.
All of these arguments have been made before, but it is not
Bloch's goal to be original. Instead, he wants to (1) summarize
what is known about the impact of EEO law for a "diverse
audience, including students, human resources professionals, and
attorneys"
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as well as social scientists (p. 5); (2) place particular
emphasis on how recruitment practices affect racial differences
in unemployment; and (3) propose more effective ways of reducing
black unemployment.
Bloch's summary of others' work on the impact of EEO law would in
fact be useful for its intended audience; it is wide-ranging,
accurate and easy to comprehend. Nevertheless, it is problematic
in at least two important ways not necessarily obvious to its
intended audience.
First is Bloch's attempt to focus on unemployment rather than on
earnings or access to occupations. There are good reasons to be
concerned about black-white differences in unemployment; the
unemployed not only have lower incomes than the employed, but
they are also less attached to major institutions, less likely to
form stable families, and less likely to contribute to community
life in constructive ways. Nevertheless, most work on the impact
of EEO law rightly focuses on how it affects earnings or access
to occupations; most adults are employed, and it is how well they
are doing which is most important for assessing group progress.
As it turns out, Bloch is partially saved by his own
inconsistency. He says his focus is unemployment, but he actually
summarizes work on earnings and access to occupations as well.
Bloch's readers will thus learn more than he promises.
Unfortunately, they may also come away with a somewhat confused
impression of work on EEO law because of Bloch's failure to
distinguish carefully between its impact on unemployment, on
earnings, and on access to occupations.
The second way in which the summary is problematic lies in its
treatment of theory and evidence. Bloch presents his argument
rather informally, mixing economic theory, legal analysis,
summaries of others' empirical work, U.S. government statistics,
and anecdotes about particular EEO cases. Such informality
arguably makes sense, given the intended audience. Yet such
informality may -- and in this case, does -- have a price. Much
of what Bloch says about the apparent weakness of EEO law rests
on economic theory: for example, how employers wishing to avoid
being sued have incentives not to hire blacks, or why employers
find it especially efficient to recruit employees through
word-of-mouth, to the detriment of blacks. Only the most careful
and methodologically sophisticated reader is likely to notice how
little hard evidence there is to support the theoretical
arguments. Most of what Bloch says will seem plausible, or even
convincing, to those inclined to accept the economic arguments on
which it rests. But those who would like to know whether it is
really true that employers resist hiring blacks because they
believe that reduces their exposure to litigation, will not find
the evidence in Bloch's book.
To be fair, the evidence is not in Bloch's book because it is
simply not available anywhere. At times, Bloch acknowledges that
his conclusion that EEO law has had little impact could be
undermined by evidence not yet available -- evidence showing, for
example, that the impact of EEO law has been underestimated
because it has been offset by the loss of manufacturing jobs,
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the impact of inner-city crime and other factors. He fails,
however, to point out how little evidence there is for many of
the points in his theoretical argument; it would be very easy for
the reader to come away from his book thinking we understand far
more about black unemployment or earnings than we actually do.
Bloch's book also reflects another weakness of others' work on
EEO law: like many of the economists whose work he cites, he
claims to be writing about MINORITIES, but really focuses almost
entirely on MINORITY MEN. He shows that black women as well as
men suffer from much higher unemployment rates than whites, but
fails to note that their earnings and access to occupations have
improved more rapidly than black men's, almost certainly due in
part to EEO law. Indeed, black women's earnings approach those of
white women, and some social scientists have argued that although
black women continue to suffer from sex discrimination, they are
harmed relatively little by race discrimination in the labor
market.
Bloch's (and others') neglect of black women is objectionable not
only in principle, but because it affects the credibility of his
argument as well. Bloch attributes the apparent failure of EEO
law in part to blacks' isolation from jobs and recruitment
networks, and in part to the incentives EEO law inadvertently
gives employers to avoid hiring members of protected groups. His
logic should apply to black women as well as men, yet they do not
seemed to be harmed to the same extent. The book would be more
convincing if it considered not only why EEO law is likely to be
ineffective, but also why it may be less ineffective for some
groups than for others.
Bloch's policy proposals are for the most part quite conventional
among economists: he argues that employment opportunities for
blacks would be improved by full employment, reducing or
eliminating the minimum wage and occupational licensing
requirements, reducing taxes, expanding particular kinds of
job-training programs, reducing inner-city crime, and encouraging
the growth of black-owned businesses. His own, new proposal calls
for making it easier to disseminate information about jobs and
job applicants through interactive telephone communication of the
sort people use to get information about their bank accounts.
Overall, Bloch's book is useful in two ways. First, he
effectively summarizes much of what we know about the impact of
EEO law. Second, he argues convincingly that social and economic
processes beyond the reach of EEO law -- particularly informal
recruitment to jobs, the development of entrepreneurship in
minorities communities, and the disintegration of inner cities --
work strongly to the disadvantage of blacks. Nevertheless, those
wanting a sophisticated and non-technical introduction to EEO law
and its consequences would still find it especially worthwhile to
read Alfred Blumrosen's MODERN LAW (University of Wisconsin
Press, 1993) and the well-known exchange between James Smith and
Finis Welch on one side and John Donohue III and James Heckman on
the other ("Black Economic Progress After Myrdal,"
Page 150 follows:
JOURNAL OF ECONOMIC LITERATURE 27 [1989]:519-54, and
"Continuous versus Episodic Change: The Impact of Civil
Rights Policy on the Economic Status of Blacks," JOURNAL OF
ECONOMIC LITERATURE 29 [1991]:1603-43).