McGARRY: FCC’s ‘Race And Gender Scorecard’ Will Lead To Hiring Discrimination

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David B. McGarry Contributor
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The third time’s the charm, according to the Federal Communications Commission (FCC).

Having twice failed to sneak inducements to racial discrimination past courts, the agency has chosen a subtler (though nearly as pernicious) ploy for pushing ideologically driven social activism.

In February, the FCC re-upped its requirement that broadcasters submit annual reports concerning their employees’ racial and sexual demographics. Congress authorized this data collection (known as Form 395-B) in 1992, but the FCC suspended it in 2001. The suspension followed two adverse rulings in which the U.S. Court of Appeals for the D.C. Circuit held that the agency, to promote racial diversity among employees, had impermissibly influenced broadcasters to adopt racially discriminatory hiring practices. 

In reviving Form 395-B, the FCC attempted to avoid the sort of regulation that fell before the D.C. Circuit. For the moment, at least, it disavows any intention to use these disclosures to influence broadcasters’ hiring. 

But the policy the FCC’s Democrats approved in February went beyond merely collecting the demographic data. It also required broadcasters to publicize those disclosures. This creates (as dissenting Republican commissioner Brendan Carr put it) a publicly available “race and gender scorecard for each and every TV and radio broadcast station in the country.” Knowing itself to be constitutionally barred from pressuring broadcasters to hire whatever number of minorities satisfies progressive sensibilities, the FCC has in effect outsourced the task to left-wing activists and journalists.

Cultural pressure and social-media pile-ons — playing on corporate insecurities — will likely achieve the same outcome as direct government coercion. As Carr noted, many who commented on the proceeding have pledged openly to employ Form 395-B disclosures to ensure adherence to left-wing racial pieties.

Carr and Commissioner Nathan Simington (another Republican dissenter) did not object to the mere collection of Form 395-B data. They noted that the FCC has the requisite statutory authority to do so. But both argued that the agency could collect the forms without publishing them — or could publish them in an anonymized or aggregated fashion and thereby guard individual companies against activist harassment. As Simington’s dissent asked, “So, as regards the publication of attributable demographic employment data: what policy good is left other than ‘name and shame’ for station owners?”

This disclosure regime will likely produce similar legal challenges to those the FCC lost a quarter century ago. 

“Responsive to [public pressures], some larger broadcasters already raise their hands and elect to disclose demographic employment data,” Simington argued. “Yet a government policy mandating such disclosure, at a minimum, implicates Fifth Amendment guardrails around incentivizing race-conscious hiring practices, precisely due to the widespread and predictable social pressure of which this Commission is, obviously, aware.”

It is unquestionable that the commission’s Democratic majority would reject assertions that their promotion of diversity promotes racial discrimination. But its good — if blinkered and naïve — intentions cannot erase the adverse consequences of its policy.

Nobody should assume that the FCC wants only to promote colorblind hiring practices. Last fall, in a proceeding on digital discrimination, FCC Democrats endorsed the so-called “disparate impact” standard, broadcasting their progressive view of American race relations. This standard defines unequal outcomes between groups as per se evidence of discrimination, disregarding the essentially infinite factors that produce demographic inequalities in broadband deployment, hiring, and other economic areas. 

To equalize inter-group disparities not caused by discrimination, many broadcasters would need to discriminate against individual applicants. Ensuring that their staffs “reflect [their] viewers, listeners, and readers” (in Democrat commissioner Geoffrey Starks’ aspirational phrasing) would in practice often require them to exercise bias in favor of applicants from supposedly under-represented groups — and to do so at everybody else’s expense. It is a simple fact that applicant pools often fail to “reflect” the demographic desires of Washington progressives.

Racial diversity is a beautiful thing and should be encouraged. Indeed, Simington’s dissent began by condemning the broadcast industry’s current dearth of it (though he doesn’t attribute this to discrimination). However, the FCC’s chosen remedy will virtually ensure many broadcasters face significant pressures to discriminate on the bases of race and sex.

Congress authorized the FCC to collect Form 395-B data. It ought not wait for courts to rebuke FCC for a third time — but make clear immediately that the agency has abused its authority.

David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.