Companies maintain centralized personnel departments for many reasons other than compliance. Still, it's notable that, per business historians, such departments have seen big jumps in their authority and prestige during three distinct periods in this century, and that each expansion wave has coincided with a period of increased pressure on companies by government, unions, or both. World War I, which brought huge experiments in government control of private business, likewise sparked a huge advance in personnel centralization. There followed a decentralizing reaction in the '20s after the removal of most government controls. The New Deal and World War II then brought another massive expansion: According to historian Sanford Jacoby, the share of mid-sized to large firms with formal personnel departments rose from 34 percent in 1929 to 81 percent by the end of the 1950s. And a third big wave has come with the new employment law.
An entire corps of "diversity professionals" has by now sprung up in larger organizations. Federal regulations, it may be noted, do not leave this process to chance. Contract compliance regulations covering virtually all the nation's largest companies require them to name equal employment opportunity/affirmative action (EEO/AA) officers and vest in them a long list of functions, including many they might otherwise not have chosen to unite in a single officer. Among them: investigating employee complaints; designing "systems that will...indicate need for remedial action"; developing goals, timetables, and "policy statements" on group hiring; providing "interpersonal relations awareness and EEO compliance training and other staff development"; and providing "[c]areer counseling for all employees." They must also be given access to line management, the regulations specify.
These rules go far beyond any plausible concern with ensuring compliance. They appear more like an effort to install a beachhead of EEO culture within each company and guarantee it substantial turf by annexing such functions as career counseling. Surveys indicate that EEO staffs are apt to differ to some extent from the executives around them--for example, they appear to view numerical hiring goals more favorably. On the other hand, they are still hired by and answerable to their employers, which means they're more likely to feel torn by conflicting expectations than they are to live up to the hopes of outside grievance organizers.
Still, widely held views of the EEO function encourage these officers to depart in some rather dramatic ways from prevailing norms of organizational loyalty. Seattle attorney Patricia Rose has written that an EEO officer commonly may, along with investigating an employee complaint impartially, offer the complainant "emotional support and counseling....If her mediation and informal resolution efforts fail, the EEO officer routinely helps the aggrieved employee file a complaint with a government enforcement agency." The EEOC has even taken the view in court that giving "aid and comfort" to the employer's legal adversaries is part and parcel of an EEO officer's job, for which the company must not retaliate.
Whether from sincere belief or to improve what lawyers call the atmospherics on future suits, many employers make a big show of enthusiastic support for the new law's spirit as well as letter. A "history of progressive attitudes regarding the advancement of women" makes it easier to prevail as a defendant, observes an Ohio State Law Journal writer. Most large companies have ventured into not only compliance and anti-harassment training but more elaborate diversity sessions designed to instill correct attitudes in workers and underline for all to see that the company is really smitten with the new law in the full beauty of its spirit and not just dragging itself into compliance with the crabbed letter. These training sessions commonly feature the trappings of a law-driven effort, such as mandatory attendance and checkoffs so the company can later document that everyone was there.
Other managers--or sometimes managers at the same firms--at some point simply give up trying to comply, reasoning that they can't keep from being sued anyway and may as well run a rational business. Not many bosses refrain from word-of-mouth hiring until they get a validation study, or pay the slightest heed to the rules against criminal-record discrimination, or make sure to advertise in the minority press if they are in the want ads of the big city daily. The "dirty little secret" of job interviewers, a Wall Street Journal reporter breathlessly announced, is that lots of them knowingly violate the law on forbidden inquiries and the like. Headhunter searches specifying female candidates are on the rise, though blatantly unlawful. Age bias law, though it keeps producing big verdicts for complainants in court, is among the most routinely ignored parts of the law, especially in hiring. Ad agencies, entertainment companies, and other trend-chasers make few bones about preferring young staffs. A 1995 New York Times account credits NBC's dominance in network programming to its success in reaching 18-to-34-year-olds, the "viewers most sought after by advertisers," and depicts NBC's strategy as one of hiring programming executives in that age bracket, including a 31-year-old and two 29-year-olds. "They're the right age." No one is quoted saying that this is the employment-law equivalent of boasting in a Customs inspection line what a good living one makes as a smuggler.
Short of deliberate violation, there's subterfuge. Thus managers learn how to elicit information without asking, or raise their eyebrows just so when asked about an employee. Where restrained from firing they also learn the knack, familiar in civil service settings, of making subordinates' lives unpleasant enough that they think of leaving voluntarily.
Most business managers yearn for legal safe harbors. They wish to know, as Washington, D.C., lawyer James DeLong has put it, "that their organizations are in compliance, not that they are out of compliance but that the agency probably will not treat the matter seriously." Our legal system denies them that chance, and its denial is effectively deliberate. As programmers might put it: It's not a bug, it's a feature. The ACLU, campaigning to overturn the employment-at-will principle, has called for the content of good cause in dismissal not to be specified in legislation, but to be left up to shifting judicial discretion. Sexual-harassment-law advocates have consistently preferred keeping the law "fluid," keeping employers guessing as to what is permitted, to codifying by statute what is required. ADA advocates successfully fought off any set definition, however high, on how much "reasonable accommodation" would be enough.
If we gave employers any definite safe harbor, after all, some of them might reach it. And then, for advocates and lawyers and enforcement agencies, a train of unwelcome consequences would follow. They might feel their moral high ground beginning to slip away, along with the practical leverage--in the form of threats to call down the law--that goes with it. It would not be so easy to depict the enemy as a bunch of scofflaws or to list the unmet promises, stretching out unending to the horizon, on which the existing law has still not delivered. The rest of us might cease feeling guilty and turn our attention to other deserving issues, causes, and groups, and even the most burningly felt need of identity politics might recede to the status of just one more private dispute among many, rather than a legal right being denied.
Many a hands-on manager has been tempted to cry out to the heavens in frustration: Do they really expect us to comply with all these laws? To which the appropriate answer is a question in turn: Whatever made you think they did?
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