Thursday, November 12, 2015

Eugene Volokh on LGBT supplier diversity

Eugene Volokh
Photo credit: New York Times
Eugene Volokh is a rational, right-of-center libertarian leaning law professor at UCLA who writes a column for the Washington Post along with similarly minded legal academics. While I sometimes disagree with Volokh I usually agree with him on free speech issues and I almost always learn something by reading his column.

Sadly, that was not the case yesterday when he wrote “Affirmative action preferences for gay-, lesbian-, bisexual-, and transgender-owned contractors in Massachusetts.”

To suggest that supplier diversity is affirmative action is possibly misleading since affirmative action usually refers to employment or education. Nevertheless, it is true that, following California's lead, Massachusetts governor Charlie Baker issued an executive order including LGBT citizens in the state's supplier diversity program. What seems to irk Mr. Volokh the most is the question:
How will anyone know whether a business owner is bisexual? Do you have to say that you’ve had sex with members of the same sex? What if you just say that you’re attracted to members of the same sex? Or is the state relying on the assumption that non-bisexuals would be reluctant to label themselves bisexual, even when that helps them get valuable contracts, for fear that the label will come out to their friends (or to other prospective business partners who discriminate against bisexuals rather than in favor of them)?
My guess is that Volokh is opposed to supplier diversity programs on principle but let's deal with the question that he asks.

First some background. Almost all state, municipal, corporate and organizational supplier diversity programs rely upon SBA rule 8a to define who is socially disadvantaged. Many entities rely upon the National Minority Supplier Development Council to tell them who qualifies. NMSDC relies upon federal law regarding who is a minority. I have written about this before in connection with Major League Baseball's supplier diversity program.

And who does qualify under federal law as a socially disadvantaged minority?
  • Black Americans
  • Hispanic Americans
  • Native Americans
  • Asian Pacific Americans
  • Subcontinent Asian American
The question that Volokh should be asking is what an Asian Pacific American (for example) is more socially disadvantaged than, say, a transgender citizen? Mr. Volokh might not like supplier diversity. However, if we are going to have it then LGBT Americans should be included as an issue of fairness.

Aside from deliberately excluding LGBT Americans, ambitions were historically stifled for closeted gays. For decades corporate America favored married executives. People were expected to be active in corporate social functions with a spouse. It is only in the last ten to fifteen years that gays could come out of the closet and still be successful. Twenty years ago Tim Cook's ascendancy was unheard of. It will still be some time before transgender citizens have a fair shot at success.

Corporate success is often a prerequisite for success as a business owner. Aside from having learned a skill that could be transformed into an enterprise, the experience forms social and business relationships that are important in the future. Those relationships open doors to finance, promotion and alliances. It's hard to say that LGBT Americans have not been socially disadvantaged when it comes to career development and then entrepreneurship.

So how do we know if a business owner is really bisexual? How do we know that someone is really a Subcontinent Asian American? The SBA offers guidance:
In the absence of evidence to the contrary, an individual applicant is presumed socially disadvantaged if:
  1. Holds him or herself out to be a member of a presumed group 
  2. Is currently identified by others as a member of a presumed group
It's not all that complicated after all Mr. Volokh.

No comments:

Post a Comment

Please be civil and do NOT link to anti-gay sites!

Note: Only a member of this blog may post a comment.