May 7, 2018
Rule of Law

Merit must be the basis for equal opportunity

John Horak

Any Connecticut employer who has responded to a Commission on Human Rights and Opportunities (CHRO) discrimination complaint should pay attention to a California lawsuit in which former Google employee, James Damore, claims he was fired because he is a conservative white male.

I had experience with the CHRO when practicing law, and wondered what would happen if Damore lived in Connecticut and brought his complaint here?

This question is interesting not because of Damore's politics (liberal or conservative makes no difference), but because it suggests that our employment discrimination laws (dated to 1947) have now come full circle to protect everyone of any race, religion, etc., such that there is no one against whom an employer can discriminate on any basis whatsoever other than merit — what the statutes (since 1947) call a "bona fide occupational qualification or need" or "BFOQ."

If we have come full circle to protect everyone, wouldn't it make sense for the CHRO to issue regulations saying that the only basis upon which an employer can legally discriminate (make an employment decision) is merit?

The CHRO was created in 1943 by Republican Gov. Raymond Baldwin as the Inter-Racial Commission, "so that grievances of the state's African-American population might be heard." Its 1943 duties: investigate the "possibilities of affording equal opportunity of employment to all persons."

In 1947 the Fair Employment Practices Act was added to put these goals into practice, and it does so in two steps.

First, it divides the population into protected classes (the original five were race, color, religious creed, national origin, and ancestry), and unprotected classes (all others by default).

Second, it makes it unlawful to make employment decisions (to discriminate) with respect to people in protected classes on any basis other than merit.

Hence, prior to 1947, employers could say "no Irish need apply," but not afterwards because "national origin" had become protected. In 1948 employers could say," only men under 30 need apply" — a practice that became unlawful as additional protected classes were added: age (1959), sex (1967), physical disability (1973), marital status (1975), intellectual disability (1978), mental disability (1978), learning disability (1990), sexual orientation in 1991, genetic information in 1998, and gender identity or expression in 2011.

The problem is as additional protected classes were added, larger portions of the population became protected, leaving fewer people unprotected; class lines blur such that multiple people competing for the same position might all be members of one or a combination of protected classes.

Finally, as a matter of equal protection, it's hard to explain why certain people are protected except on the basis of merit, and all others are unprotected even if they are clearly the best qualified for a job.

Kudos to Gov. Baldwin for his leadership decades before the civil rights movement emerged nationally. But I do think that in 2018 we've reached the natural limits of a system that promotes equal opportunity by divisive means.

The CHRO needs a modern tool to promote equal employment opportunity, and I suggest the device it needs is right in front of us in the form of the BFOQ concept. The CHRO could use its regulations and public outreach efforts to define, elevate and promote merit as a universal principle that all of us should recognize for its common-sense logic and complete neutrality.

The same regulations could help employers establish merit standards in detail sufficient for them to follow. In the future, employee complaints to the CHRO would not be decided based on protected class membership but on whether the employer adhered to the merit standards.

John M. Horak is the director of TANGO Nonprofit Education and Consulting.

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