Is EEOC Backpedaling?

The U.S. Equal Employment Opportunity Commission has issued a new letter on the language appropriate for colleges to use in their job advertisements -- a topic that critics of affirmative action have been pushing higher on the EEOC agenda. The new letter does not bar colleges from indicating that they welcome female or minority applicants for positions, but the letter uses language that critics of affirmative action see as a move in their direction. And the letter specifically endorses the use of language that does not indicate a particular welcome to certain groups.

Some critics of affirmative action see the new letter as providing them with ammunition to potentially bring complaints against colleges for the way they recruit faculty members and other professionals. But defenders of affirmative action say that the critics have their facts and analysis wrong, and that colleges should go on doing what they have been doing.

At issue is a practice used by many colleges. In job announcements, many institutions state that they are equal opportunity employers or that they do not discriminate on various bases and then go on to say that they welcome applicants from particular groups. Such lines might say: "Female and minority scholars are encouraged to apply."

Proponents of including such language say that it sends a message to potential applicants who are not white men that they are wanted -- even if a department is made up largely of white men. But critics of affirmative action have been challenging such language as discriminatory. As soon as a college names some groups as being desirable, the college is effectively rigging a search, they say. The issue has come to a head with a series of letters sent by affirmative action critics to the EEOC and by a debate about the American Economic Association's policy -- since reversed -- of refusing to post such job announcements.

An EEOC letter last year suggested that such job announcements were legal. "The commission has long endorsed focused recruitment as a lawful means of guarding against barriers to employment opportunity. Because members of groups that have been historically underrepresented in a particular profession may be deterred from applying unless they are encouraged to do so, such advertisements help employers attain greater diversity among their applicants. Such diversification is not equivalent to preferential hiring. If whites or men are underrepresented in some positions, it might be appropriate to 'encourage' applications from them. For example, in some cases it may be appropriate to encourage men to apply for some positions in nursing," the 2006 letter said, largely echoing the views of colleges.

The new letter, written in April and just posted by the EEOC on its Web site, takes a different approach, responding to an inquiry from Roger Clegg, president and general counsel of the Center for Equal Opportunity, which opposes affirmative action. The new letter references last year's letter -- but with different language to describe it -- and then goes on to deal with a question from Clegg about what he sees as a better way to indicate an open environment for all applicants.

"We commented that job advertisements typically should not indicate a preference based on race, sex, or ethnicity. We noted that there are circumstances under which focused recruiting is used in order to eliminate barriers to employment opportunity and attract a more diverse applicant pool. We also noted that the legality of a particular practice cannot be assessed outside the context of particular facts that have been fully investigated," the letter said.

"Of course, there are different ways to develop a diverse applicant pool and particular circumstances will determine which methods are both lawful and efficacious. You suggested that a way for employers to signal that they welcome applications from all individuals without regard to race, color, religion, sex, or national origin, but without indicating a preference for any group, would be to use language such as the following: 'Men and women, and members of all racial and ethnic groups, are encouraged to apply.' We agree, and such a statement is lawful regardless of the surrounding circumstances, even if an employer had no need to diversify its applicant pool," the letter added.

EEOC letters such as these are not binding law, but the agency releases letters that it thinks may provide guidance to the public on the agency's thinking.

In an interview, Clegg said that the new letter had a significantly different tone and approach to policy. By saying what should not happen "typically," Clegg said, the EEOC is signaling that most ads should not reference particular racial or ethnic groups. Even where the letter notes that in some circumstances, "focused recruiting" may be appropriate, the language is much less favorable, he said. And by endorsing his language, Clegg said, the EEOC was strengthening the position of those who don't want references to some groups in job announcements.

Clegg said that while he would have preferred to see the EEOC go further, he found the latest letter to be "significant" and to indicate that the agency was sending a message to colleges that "most of the time, you shouldn't be doing this."

The Center for Equal Opportunity, which has in the past informed the U.S. Justice Department of affirmative action programs that the center believes are illegal, and which has prompted the department to go after such programs, may now be in a position to do the same on college job announcements, Clegg said.

Clegg said he had no problem -- and in fact considered it "laudable" -- for colleges to state that they will not discriminate, and to punish any employees who do so. And he said he had no problem with colleges "casting a wide net" by recruiting at historically black colleges or making sure that they move "beyond the old boy network." But he said that there is no legal justification for extending a particular invitation to members of specific groups -- but not all groups -- to apply. He said that he sees "an irony" in colleges extending such invitations right after they pledge not to discriminate.

"Most schools have not been discriminating [against female or minority applicants] for decades, but have been seeking out if not granting outright preferences to women and minorities," he said.

EEOC officials cautioned against reading too much into the letters, which are written in response to specific questions. Chris Kuczynski, assistant legal counsel at the agency, said that what is legal for a college to say "depends on a full investigation" and that the latest letter should be viewed as "a response to a particular formulation of the language and saying that this is an acceptable way to make the point." As is always the case, he said, "what is legal is a matter of particular facts and circumstances."

Defenders of affirmative action said Wednesday that they had no problem with the language Clegg proposed and that the EEOC endorsed, but that they believed it was still not only legal -- but responsible -- for colleges to note their interest in receiving applicants from members of groups that might not be well represented in certain fields or areas of responsibility.

Marshall Rose, director of the Office of Equity and Diversity at Bowling Green State University and a board member of the American Association for Affirmative Action, said that critics of affirmative action were "reaching for an issue that doesn't really exist."

There is no reason for the EEOC to be concerned about this issue, Rose said, because no one is getting hurt. "There are no issues in regard to white males or whites generally not getting employment in higher education or not showing up in application pools because of these statements," Rose said. "It's ridiculous."

Rose also said that there are important reasons for colleges to state specifically some of those that they welcome. An ad on Bowling Green's Web site, for example, states: "We are committed to a multicultural environment and strongly encourage applications from women, minorities, veterans and persons with disabilities."

"We have to go back to why it's important for us to be doing any of this," Rose said. "We have real issues of discrimination, as we look at our society and we know that there are members of our society who because of their race and gender have not been included, and that continues to be the case. Despite some good efforts over the years, we are not representative of the communities we serve and we need to reinforce to those communities that are not represented that we are welcoming places for them, that we want them here -- that's a message that ought not to be discouraged, but ought to be encouraged."

He added that such language does not hurt anyone. "It's not a promise of employment -- it's a promise that they will be fairly and equitably considered," he said. "The suggestion that somehow white males in particular are being discouraged is ludicrous."