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African-Americans face prejudice — but not much discrimination

It's time for someone to say it aloud. As a member of the Maryland Commission on Civil Rights for more than a decade and its chairman for much of that time, I'm willing to take the risk of being misunderstood.

African-Americans are no longer the principal targets of discrimination. Notice I said "discrimination," not prejudice. In the universe of laws to enforce equal opportunity, discrimination is easy to allege but difficult to prove. And prejudice doesn't exactly matter.

Corporate America and a good many small organizations have learned how to fire employees without violating anti-discrimination statutes. Workers may know in their bones that they're being dismissed because of their race, ethnicity, gender, sexual preferences or membership in any other of the classes protected by law. But unless the bosses have left an incriminating trail, they can always dismiss an employee by claiming he (or she) can't do the job, can't get along with other employees, is absent too frequently or doesn't show up on time, as well as dozens of other reasons that might be a legitimate basis for dismissal if true.

I'm not arguing that prejudice is declining, although I think it is. Forgetting the laws for a moment, I believe most Americans are learning to live, willingly or not, in a multi-dimensional, multi-cultural society. Many employers, large and small, have discovered that good workers come in all shapes and sizes, male and female, gay and straight, of different races and ethnicities, handicapped or not. Human resource managers have learned, been instructed and required by law to ignore categories once considered disqualifying.

Long before I joined MCCR, I witnessed, as a consultant to major corporations, the beginning of the transformation. As the era of "affirmative action" began, big companies began hiring minorities for a variety of reasons. But for a decade more or less, the immediate supervisors of affirmative action hires often believed they were getting inferior help, not because it was good personnel policy, but because it was "politically correct."

Gradually, attitudes changed. African-American employees turned out to be no less capable and no less motivated than whites. Young women were good for more than looking beautiful and making coffee. When disabled workers were accommodated, it turned out that they could perform very well. (That fact hadn't gotten through our thick skulls when Franklin D. Roosevelt was president.) Gays, straights and transgender individuals did their jobs without indulging their sexual preferences in the workplace.

I'm not arguing that the time of Martin Luther King Jr.'s "I have a dream" has arrived. I continue to believe that prejudice against African-Americans persists, that many employers (particularly in small shops) would rather not hire Latinos, that somewhere close to half the American population is ill-disposed toward gays and a much larger proportion actively despises transgender individuals. I doubt that most personnel managers are happy to see disabled applicants.

But, while many complainants seem not to understand it, enforcing anti-discrimination law is different from eradicating prejudice. Our agency's investigators must find evidence to prove that discrimination has occurred. They can't enforce suspicions.

I see a lot of outraged letters from complainants whose allegations have been set aside for lack of evidence. On occasion, I conclude that very likely the complainant was the victim of discrimination. But I have very, very rarely concluded that the investigator may have made a mistake. "Very likely" doesn't cut it. I may sympathize with the complainant. However, my sympathy or the sympathy of our investigators carries no weight in a legal proceeding.

Wider understanding of the law on the part of employers and apartment owners has resulted in a diminishing number of successful complaints of racial discrimination and an increasing number of successful complaints about discrimination against handicapped individuals. Offices and public accommodations like restaurants either are or they are not accessible to people in wheel chairs. Computers are equipped with voice recognition systems for blind employees or they're not.

And discrimination does not necessarily imply prejudice. To take just one telling example, Ocean City, whose main road runs north and south for miles and miles just a block or two from the Atlantic, was required by a consent agreement, along the state's highway administration, to install curb cuts in sidewalks at every single intersection to allow access for people in wheel chairs. And when the utility companies, in a monumentally stupid act, erected poles in the middle of the curb cuts, the city and the state had to do the job all over again.

In that instance, I think I can say definitively that prejudice against disabled individuals was not a factor. But discrimination was. And that made all the difference.

I hope that our commission is, in fact, contributing to the decline in prejudice. We are trying to do so. In the meantime, however, our duty is to enforce the law. And prejudice by itself just isn't actionable.

Norman Gelman is chairman of the Maryland Commission on Civil Rights. His email is The views expressed are his own.

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