I read that a former NASCAR inspector who is a black woman filed suit against NASCAR for race and sex discrimination. NASCAR, after claiming that it had not yet reviewed the suit, made this preliminary statement:
As an equal opportunity employer, NASCAR is fully committed to the spirit and letter of affirmative action law. NASCAR provides equal opportunity employment to job candidates and employees without regard to race, religion, creed, age, gender, or any other characteristic protected by law. Personnel decisions are made based on factors such as performance and adherence to corporate policy.
At first blush, that statement has all the hallmarks of a canned response to a discrimination suit. But a closer look should make you wonder why NASCAR felt compelled to refer to affirmative action.
Very strange. It's been a long while since I've taken constitutional law. But I remember enough to know that, for the most part, affirmative action statutes regulate the conduct of government agencies (e.g., the make-up of entering classes at universities or the awarding of government contracts to minority-owned businesses) and not that of private employers. To the extent that private employers adopt affirmative action policies, they do so on a voluntary basis. [Alright. I've re-read what I wrote, and I now realize that the NASCAR spokesperson so bewildered me with the reference to affirmative action that I got things all muddled here. Affirmative action consists of policies implemented by government or private entities. Law typically enters the analysis when affirmative action policies are challenged for violating the equal protection provisions of the Constitution. I cannot imagine any valid statute that would require NASCAR to put in place an affirmative action policy, so I cannot imagine any "affirmative action law" that NASCAR may have violated. It just doesn't make any sense to me why the NASCAR spokesperson mentioned affirmative action.]
My point here isn't to quibble with the failure of NASCAR's spokesperson to understand which laws govern the operation of his company. But I do wonder why he invoked the term "affirmative action" and all the inflamed passions it brings -- especially among the NASCAR faithful -- when there is little likelihood the lawsuit in question will have anything to do with affirmative action. Perhaps I'm about to do what the NASCAR spokesperson did (i.e., speculate without basis), but I wonder if the subtext of the statement is that the (black) woman should be grateful she was hired in the first place, because she wasn't really qualified?