A couple months ago there was a little political and media uproar, which has slowly simmered down, over what I am going to coin "Box-Checking Gate". The story involves revelations and allegations concerning how and when and for what purpose US Senate candidate and Harvard Law professor Elizabeth Warren claimed to be Native American. Warren claims that her great-great grandmother was Cherokee, which (if true) would make her 1/32 Native American or 96% white. One issue raised is whether Warren's initial positions at the University of Pennsylvania Law School and Harvard Law School and her ultimate appointment as a tenured professor at Harvard in 1993 were influenced by her self-identification as Native American. Another issue being raised is whether the law schools' identification of Warren as a minority woman meant that they appeared to have a more diverse staff than they did.
Conservative news source Breitbart.com makes its indictment of Warren here and the Christian Science Monitor gives a more Warren-favorable take here.
As always, I am not going to put my two cents into this political issue. But the issue is after all an employment issue and the controversy brings my one-track mind back to labor and employment law. In terms of employment law, my takeaway from "Box-Checking Gate" is to reflect on just how seldom the issue arises.
Resume fraud in general is a recurrent issue. For instance, there was nothing terribly unique about similarly timed revelations that Yahoo CEO Scott Thompson had fudged his online bio to include a computer science degree rather than his actual degree in accounting. But while Thompson's story sounded familiar to me, I can only recall one similar story of an employee's eyebrow raising claims of minority status being used against them. The one story, perhaps coincidentally, also involves a claim to Native American heritage: the former controversial University of Colorado Ethnic Studies professor Ward Churchill. Like Warren, if Churchill had not placed himself in the center of intense media scrutiny, his claims would never have been investigated.
In both Warren's and Churchill's cases, responses from faculty have been that ethnicity did not factor into the hiring decision or the decision to offer Warren tenure. But that strikes me a lot like the early responses from the baseball world when the tip of the steroid iceberg was being discovered. The response you often heard was "steroids don't help them play better anyway." Like the baseball response, the point the deans are making is, "Even if they did lie about being a minority, it wouldn't have helped them anyway." Whether Warren's and Churchill's self-identifications helped them in those particular hires/promotions requires fact specific inquiry. But in general, there is no question that being a member of a minority group gives an applicant an advantage in a hiring pool in many employment settings. The only question is how much of an advantage.
Affirmative action programs are in place at city, county, state and federal government employers and employers who contract with the government. Many, many companies contract with the federal government.
But beyond government contractors, many employers, whether out of a sense of moral responsibility or in response to litigation or potential litigation, have affirmative action programs. For instance according to the Breitbar article above, at the time Elizabeth Warren was appointed tenure, Harvard Law was under pressure to diversify, specifically to employ women of color. What this all means is that in many employment situations, a candidate for a position can boost his prospects significantly if he claims minority status. Exactly how much a candidate's minority status boosts an applicant's prospects, I have no idea.
But regardless of what exactly the boost is, there is obviously a potential gain for would be falsifiers. As the old proverb goes, "Opportunity makes the thief." One would expect that with the opportunity for gain by falsification, there would be a fair number of falsifiers. And yet, stories such as Warren's and Churchill's are extraordinarily rare. So either no one is falsifying or no one is checking. Or both.
Regarding the latter, it would seem that no one is checking. Look for example at this Department of Labor Q&A on reporting requirements for government contractors:
What is the correct procedure for a contractor to obtain the ethnic information of its employees and applicants?
...Self-identification is the most reliable method and preferred method for compiling information about a person's gender, race and ethnicity. Contractors are strongly encouraged to rely on employee self-identification to obtain this information....
...May an employer override an individual's self-identification of race, gender or ethnicity based on the employer's visual observation?
No. OFCCP's policy is that deference should be given to an individual's self-identification and it should not be questioned or overridden by an employer based on the employer's visual observation.
So if Employers have an obligation not to check the integrity of employees' self-identification, are there any checks at all in this system?
The prospect of being accused of fraud might act as a check against false self-identification. But consider the nine elements of common law fraud:
- A representation
- Its materiality
- Its falsity
- The speaker's knowledge of the falsity
- The speaker's intent that the representation be acted upon by the plaintiff
- Ignorance of the falsity
- Reliance on the falsity
- Right to rely on the falsity
- Consequential damages suffered by the plaintiff
The first element is clear one is clear: the box is checked. By number 2, though we are already in dispute because we don't really know how significant the representation is in the application. But the third element is where the case gets slippery.
What does it mean to be a minority? That question requires one to look at each box. There are three basic categories that will put one into a minority status that could result in a preference: 1.) Native American, 2.) African American and 3.) Hispanic.
What does it mean to be Native American? Here is a definition from an EEOC report glossary:
American Indian/Alaskan Native - All persons having origins in any of the original peoples of North and South America (including Central America), and who maintain cultural identification through tribal affiliation or community recognition.
So, the origins part of this definition is pretty loose. A person might claim to have "origins in any of the original peoples" if his grandfather told him that his great-great grandfather was a Native American.
Looking at Element 3 of fraud, some might want to argue that if the only claim to being Native American is a grandfather's assertions about something he was told by his grandfather, you have a double hearsay problem and it can't be proven. But, interestingly enough, the Federal Rules of Evidence address an exception to this at 803, Exception 19:
(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
So, what a person's grandfather told him might hold up, at least for the first half of the definition. But the second half of the definition "and who maintain cultural identification through tribal affiliation or community recognition" is trickier. The big question here is does "tribal affiliation" refer to a tribe's acceptance of the person as a member or quasi-member or is the box-checker's point of view what matters, as in "I feel affiliated to that tribe." Presumably, a person is only affiliated with a tribe or recognized by a community if a tribe/community says so.
The definition of who is Black is similar to who is a Native American without the affiliation part.
Black (Not of Hispanic Origin) - All persons having origins in any of the Black racial groups of Africa.
By this definition, so long as a box-checker has one identifiable black fore-barer or can otherwise prove that origins in any of the black racial groups of Africa, you have not misrepresented yourself as black. So, if your family lore is that your great-great grandmother was black, you can claim to be black. What if you don't know of any black ancestors, but you do a DNA test and that shows that some distant ancestor of yours was black? That seems like you have shown some claim to black origins. Here is an article by Thomas Chatterton Williams, Black as We Wish to Be, discussing his struggles with thinking about whether his children and grandchildren should identify as black.
Finally, there is Hispanic. The EEOC glossary defines Hispanic this way:
Hispanic or Latino - All persons of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race
Looking at the first part of the definition, there are questions as to some exceptions - for instance, there are German-descended and German speaking Mennonites in Mexico. Also, there are plenty of non-Hispanic Americans from the States who migrate to Puerto Rico. If a non-Hispanic couple moves to Puerto Rico do they become Hispanic by virtue of living in an Hispanic majority culture? If they have a child in Puerto Rico but then emmigrate back to New York, is the child Hispanic because he has an origin in Puerto Rico? Are their children Hispanic if they have an origin in Puerto Rico? Looking at "South or Central America" one has to wonder about inhabitants (and British Citizens) of the Falkland Islands. They are South American, but are they Hispanic? The US Census Bureau answers these types of questions with its definition, which is essentially: you are Hispanic if you think you are Hispanic.
These definitions are so loose that it would be very hard to prove that someone actually did not belong in the box they checked themselves into. Under this loose definition, even English-descended people from states like California, Texas, and Florida--which are former members of the Spanish Empire and have continuing high Spanish cultural legacy--could have some, if dubious, claim that their state is a "Spanish culture," and they are therefore Hispanic. But even if you could prove that the box was wrongly checked, you would still need to prove the rest of the elements.
Going to the Element 4, "knowingly", a box-checker who got it wrong could argue that they misunderstood the definition or that they relied on bad facts. Elements 5-8 would also be difficult to prove, but even more so for Element 9, consequential damages for plaintiff. Who suffers consequential damages when an applicant checks a false box? The most obviously damaged person would be applicants who did not get the job. But how often are they in a position to find out what happened?
In short, fraud actions seem like an unlikely vehicle to act as a major curb to false box-checking.
Even without serious checks, I doubt that falsifications are rampant and would like to believe that they are rare. Although there is an opportunity, most people choose to do the right thing. Nonetheless, it would be interesting to find out if there are any figures on this and if anyone knows a good source, please shoot me an email or drop a comment.