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April 21, 2005

sugar, shortening, lingerie, diversity

Don Herzog: April 21, 2005

Sara Lee does more than you might think.  No, I don't mean they're slipping transfats into those frozen desserts.  The cinnamon rolls are made with butter, anyway.  Nor do I mean that the corporation presides over a dizzying host of brands around the globe.  Hanes Her Way?  Chock Full o' Nuts?  Wonderbra?  Playtex?  Brylcreem?  Yup, all owned by Sara Lee.  Business gurus dedicated to core competence might wonder at the firm's boast that "Sara Lee Corporation's business is building leadership brands in core categories including packaged meats, bakery, coffee, tea, underwear, intimate apparel, body care, air care, shoe care and air fresheners."  But the market isn't that unhappy with their performance.

No, what you might not know is that Sara Lee, like many other leading corporations, has a robust diversity policy.  (No wonder Sara Lee and 64 other big businesses filed an amicus brief supporting the University of Michigan's affirmative action policies.)  The firm proudly touts the policy at their website:

    Sara Lee will be the benchmark for attracting, developing and retaining a diverse workforce and leadership team.
    We will create and sustain an inclusive environment where all people regardless of race, gender, age, ethnicity, religious beliefs, physical ability or sexual orientation are challenged to achieve their full potential.
    We will aggressively provide meaningful responsibility and development opportunities to our employees worldwide.

And Sara Lee has a Supplier Diversity Initiative.  The company head says,

    As a consumer products company, Sara Lee sees having a diverse supply base as an important business imperative.  We recognize that minority- and women-owned businesses are critical to the future of the markets we serve.  Sara Lee seeks partners who can support our efforts to maintain the high level of quality and innovation in our products. We are working to forge long-term relationships with diverse suppliers to benefit our brands, our customers and the communities in which we live.

In October 2004, Sara Lee's Chief Legal Officer drafted "A Call to Action."  It scolded law firms for their insufficient response to earlier demands for greater diversity.  The signers pledged to try to hire law firms that were more diverse — and to sever relations with those that weren't.

Toto, I have a feeling we're not eating cinnamon rolls any more.  What's going on here?  And what does it tell us about markets and politics?

One way of thinking about markets shows up in economic models and (roughly) in daily practice.  The consumer is interested solely in the price and quality of the product.  The manufacturer is interested solely in making money.  Buyer and seller cheerfully dismiss other considerations as irrelevant.  They're blind to one another's race, religion, ideology, and so on.  I guess you could smirk in condescension at how crass their interaction is, but I'd rather salute it.  What sociologists call role differentiation — right now, buyer and seller could say, we are playing market; we are not doing democratic politics, not engaging in confessional strife or for that matter ecumenical cooing; we are just ignoring all that — lets market participants meet as free and equal.

The same role differentiation shows up all over liberal societies.  Equality under the law means the state must be blind to whether you are rich or poor, straight or gay, Democrat or Republican, black or white, and so on.  "The separation of church and state," to mention an abstraction I've repeatedly said that I distrust, means in part — and this part everyone should warmly embrace that the state may not notice its citizens' religious attachments, or lack of them.  All of us get to vote, for instance, regardless of what church, synagogue, or mosque we go to, or whether we never go at all.

But this is all idealized.  When you erase the economist's blackboard sketches, you remember that market participants often do pay heed to considerations far removed from price, quality, and the like.  "Buy American."  "Don't buy nonunion grapes — UFW."  Thanks to heightened trust among the locals and hostility toward the outsiders, different markets can be locked up by particular racial or ethnic groups.  In any city, you can find out who sells umbrellas or jewelry on the street, who runs the best produce stands, and so on.

Why might Sara Lee be so enthusiastic about diversity?  They might think their consumers will reward them for it ("an important business imperative. . . . critical to the future of the markets we serve").  Or, as an economist might say, they might be indulging their own taste for diversity.  If someone clutching a dogeared copy of Milton Friedman's much reprinted column insists that the social responsibility of big business is to increase its profits, the firm might respond that their shareholders could always instruct them to stop if they don't like it.  But even that changes the name of the game from efficiency to democratic responsiveness, if with a limited franchise and some charmingly inegalitarian voting rules.  Or (shudder from some adversaries inserted here) the firm might talk about its stakeholders, not just its shareholders.  Regardless, it's hard to believe that the good folks of Sara Lee aren't within their legal rights in adopting such policies.  They're not violating Title VII or any other such law; they're just making voluntary decisions about whom to contract with.  (You might think that the Court's current jurisprudence has to mean that Title VII dictates color-blindness across the board, but as far as I know no court has gone down that road.  Yet.)  Still, we're free to disapprove of the choices they make.  We might reject diversity in this setting.  Or we might think, even if we like diversity, that there's something screwy about private firms having policies on such matters.

Does the example of Sara Lee persuade you that firms shouldn't take political stands?  But firms that don't have pro-diversity policies are doing politics, too.  What you might see as natural or unremarkable, just the ordinary pursuit of profits, is in fact tantamount to a decision that diversity doesn't matter in the workplace.  It is a perfectly defensible politics.  But it's political all the same.

What about this rule?  "Corporations should maximize their profits within the constraints of the law."  That too is perfectly defensible.  But it isn't knock-down slam-dunk obviously the right view.  Take a corporation that believes environmental regulation is too lax and has grave concerns about polluting the environment.  (No, not the kind of corporation that seizes on green causes as a pretext for gaining a competitive advantage.)  Are they obliged to ignore their own concerns?

So firms are inescapably making social policy.  That's a kind of privatization most champions of markets don't seem to have in mind.  What should we poor consumers do in response?  It's tiresome to have to think about Sara Lee's politics when you're trying to figure out whether to buy Ball Park hot dogs.  Indeed, it's tiresome to have to figure out what brands Sara Lee owns in the first place.  And of course Sara Lee's diversity policy is the tip of the iceberg.  Daily Kos had the spectacularly batty idea that people shouldn't buy from firms headquartered in red states.  And consumers intent on supporting blue firms (or, I suppose, avoiding them) can turn to this handy-dandy guide or this one — after suitably fretting about whose criteria for defining blue firms are better.  What a surreal nuisance!  So maybe we should put all this explicitly political stuff behind us and buy and sell on the basis of price and quality, period.

When you gaze longingly at those Smoky Hollow sausages, you might already think about your cholesterol.  Now you have to think about whether you want your consumer dollar to be a vote for diversity.  Or do you?

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Comments

Posted by: Josh Jasper

I think, eventualy, you get a woman who's ahd to fight her way through mysogynist b*stards, glas celings, sexual harrasment, etc... and gets to the top of a large corporation. Sometimes, when we're lucky, those women make it a point of policy to deliberatley remove the very real roadblocks they ahd to go through.

Or it could just be a man who's not an asshole.

Diversity is arguably good for buisness. If only because stuffy anal retentive straight white old men have no clue what young, hip, non white, straight people want in life. And there are a lot of us. Well, I'm white, but that's about all. And I wouldn't trust me to amrket goods to a racial minority unless I'd been close enough to tell what they want. And I haven't

Posted by: Josh Jasper | Apr 21, 2005 2:57:20 PM


Posted by: Untenured Independent

I'd be willing to go along with the idea that corporations have moral obligations to society in some vague unfocused sense, as long as it is the same unfocused sense that we all do. But if I take a bunch of money out of the grocery budget and give it to the poor, my fellow family members will bean me, and rightly so. That doesn't mean that we can't agree to set some aside, if it makes us all feel good, as long as it isn't too much.

The primary duty corporate management has is the fiduciary duty to its shareholders. If its zeal for the good takes it beyond the limits imposed by that, not only has it violated its duty, but it is going down anyway. If we want something more than such feel-good gestures from the corporate sphere, we must resort to real politics. We all know that, from Left To Right. I suspect even the corporation's PR office/firm knows that too.

However, I *strenuously* resist the claim that firms that do not engage in politics thereby engage in politics as enunciating an unjust standard: it's like saying that a Buddhist monk who does not lobby for the Democratic Party (doing so is not detached enough) is therefore a Republican. As the great philosopher Robert Anton Wilson said: those who say that if you're not part of the solution, you're part of the problem *are* the problem.

Posted by: Untenured Independent | Apr 21, 2005 3:27:38 PM


Posted by: Mona

Far be it from me to have any objections to Sara Lee adopting any hiring or firing policies it might wish. If the shareholders do not object, who am I to do so?

In my experience, including professional experience advising employers regarding personnel issues, they often become extremely skittish when needing to discipline or terminate a member of certain "protected classes." Especially when said employee has played the card, and openly stated they think they are being singled out and for being black/Hispanic/female.

Paper trails are very, very important; document EVERYTHING. And, a policy such as Sara Lee's offers good protection in any EEOC complaint or lawsuit a disgruntled employee might bring, claiming racial or gender discrimination. "Who, us? But look at our diversity program! and we filed that amicus brief, doncha know."

Posted by: Mona | Apr 21, 2005 4:16:54 PM


Posted by: Bret

So we're assuming that Sara Lee doesn't get better products and services from women and minority owned firms and/or inexpensive word of mouth marketing? I would assume, absent other evidence, that their "activism" somehow benefits the shareholders of Sara Lee.

Posted by: Bret | Apr 21, 2005 4:49:30 PM


Posted by: Literally Retarded

Hmmm, a giant corporation publicly pledging to hire the best people, regardless; and to have the best suppliers, regardless. Could it be that these nefarious market manipulators want to employ the best people, and supply the best products? Oh, those dirty so-and-so's. They are trying to give capitalism a good name. Is Karl Rove behind this?

Posted by: Literally Retarded | Apr 21, 2005 5:38:53 PM


Posted by: Don Herzog

Three quick thoughts.

1/I see behavior that looks to me like a departure from the official script and familiar economic models about profit-maximizing firms. "We will take our legal business elsewhere if you do not hire more minorities and women" does not look to me like it maximizes profits. In response, people point out scenarios on which this or that bit of Sara Lee's behavior could be profit-maximizing. Yes, it could be. But I feel like I am being told, oh, ignore the interesting facts on offer here, just take the model as a literal description of the world. (Actually, in Literally Retarded's case, I feel like s/he should try rereading what Sara Lee actually says and then comparing his/her own description of it. Or when public universities insist they want a more diverse student body and faculty, do you just smile sunnily and say, see, they're seeking the best students and faculty they can find?) Sorry, I won't do it. I'm used to thinking the world is a thornier and more interesting place than our models pretend.

2/Untenured, now surfacing as Independent, protests the thought that a corporation without a diversity policy has taken a political stand. But it has. No, it emphatically has not taken the stand that it is opposed to diversity. Attributing that view to it would be lunatic. But it has taken the stand that it is perfectly permissible to do business with no regard for diversity considerations. As I say above, that might be right, but it is still politics.

3/No one has yet said a syllable about whether as consumers we should worry about corporate policies on such matters. I'm all ears.

Posted by: Don Herzog | Apr 21, 2005 6:04:34 PM


Posted by: Mona

Well Don, you initially asked: Now you have to think about whether you want your consumer dollar to be a vote for diversity. Or do you?

I don't care. I'm not clear why you think I should. When Cracker Barrel was overtly discriminating against gay people, I boycotted it. But if Sara Lee wants to promote itself as a paragon of diversity, well, I have no strong feelings about it one way or the other.

If whatever their notion of achieving a diverse workforce is, is in execution, profitable for them, their shareholders should be happy. If not, not. But it is no skin off my nose either way, and I'll still buy the Ball Parks when they are on sale and I have coupons.

Posted by: Mona | Apr 21, 2005 6:40:01 PM


Posted by: Perseus

Clutching my dog-eared copy of Milton Friedman's work, I am concerned that the market for corporate control isn't as robust as I'd like to see it, especially for large corporations like Sarah Lee which are prone to engage in such "social responsibility" antics. The tax code's subsidizing of such behavior is also troubling.

On the consumer side, I admit I am tempted to boycott the products of the exasperating (and malodorous) French, but there is certainly an appealing consistency to behaving like a self-interested economic maximizer as a consumer and then spend more time carefully considering which charities and political causes to support.

Posted by: Perseus | Apr 21, 2005 8:42:40 PM


Posted by: D.A. Ridgely

Mr. Herzog's position is that a corporation that does not have a deliberate, politically significant policy X has an implied, politically significant policy not-X. Phrased perhaps more to Mr. Herzog's liking, it has made a deliberate, politically significant decision that X is not proper for it to be concerned about. Well, of course, at least insofar as it is trivially true that a non-decision is a sort of decision and assuming in some sort of metaphysical sense that failing to act politically is a form of political action.

Maybe there is something to that perspective in the case of large, publicly held corporations, but it would be odd to say, for example, that a family owned (incorporated) restaurant would be making social policy by failing to consider whether the four lawyer firm that handled its legal business had a diversity policy or, for that matter, that it should have one. (“Sorry son, but we already have too many Italians working in this restaurant, so we’re hiring Kwami here instead of you.”)

So, yes, in some tautological sense every action a firm undertakes which arguably had social implications is an action involving some sort of social policy, including the policy not to give a damn unless and until such action affects the firm’s profitability. So?

In the case of Sara Lee (which, contrary to their jingle, I don’t much like), it has already been pointed out that its policy might be both good PR and possibly good legal prophylaxis. The amicus brief, etc. might also be prompted by the fact that firms crave stable rules, thus balk at being regulated and also at being deregulated.

Frankly, big law firms are largely fungible, so choosing one firm over another for the stated reason that the latter isn’t ‘diverse’ enough might be politically as opposed to profit motivated, but it is probably impossible to tell. Yes, I oppose corporate officers and directors using their positions to promote political agendas that negatively affect the profitability of the company, but since they can always argue that such social policy also enhances profitability there is little point in fretting over such decisions.

Anyway, Mr. Herzog writes: No one has yet said a syllable about whether as consumers we should worry about corporate policies on such matters.

Do I as a consumer or investor care? No. Oh, sure, I don’t, for example, eat Ben & Jerry’s ice cream (though I do eat Breyers, so go figure) and I made a point once of investing in Cypress Semiconductors because of its overt corporate policy not to give a damn about anything other than profitability. At the local level I might be inclined, all other factors being equal, to throw more business to stores and restaurants, etc. whom I have reason to believe are owned by folks whose politics I like, but that’s about it. Do I believe in boycotts or buying American or such? No, of course not. Such tactics don’t work, for one thing. But, more importantly, and here I’ll be tautological, consumers who do act in that manner are merely trading economic value for more psychological value. (“Sure my Chrysler K car is a piece of crap, but at least it isn’t Japanese!”) Should people be free to make those sorts of tradeoffs? Of course. For that matter, bigots should be free to trade with whomever they wish, too.

The question isn’t really whether I should worry as a consumer but whether I should worry as a citizen. Yes, I should. Mandatory ‘voluntary’ diversity and similar inane policies are irrational, and irrational behavior should be discouraged, not encouraged.

Posted by: D.A. Ridgely | Apr 21, 2005 9:16:10 PM


Posted by: Untenured Independent

I don't deny that corporate management is capable of being moved by moral considerations. But I strongly suspect that coming to be so moved is likely the result of internalizing norms by adopting practices that are initially caused by fear of litigation. At least that's how children come to be moral, by fear (though not, typically, of litigation). I don't have a *problem* with this. It just means more norm-juggling that the managers must do. Their fiduciary duties haven't gone away (nor do I think Don has suggested as much).

If this causal hypothesis is correct, then we are still largely stuck with political process as a vehicle for these sorts of moral transformations, which was my original claim. Can consumers acting without political support bring them about? Well, that's an empirical question but I *seriously* doubt it, because price competition still exacts some toll, and influences some behavior. For example, sometimes I put the cans in recycling (which requires removing the label, washing, etc.) and sometimes I just say "screw it" and throw it away. To use Sartre's clever concept, consumers are very "serialized" and so it is somewhat difficult to sustain the sense of solidarity needed (or perhaps to discipline free-riders). Nor do I think we should *blame* the consumer who chooses not to behave in Enlightened ways--in lots of contexts, this is expecting too much cost-bearing, in terms of information seeking and loss of other goodies. This seems to me more reasonable to say the smaller and cheaper the good is. By contrast, surely SUV purchasers need to be taken out behind the woodshed, and I find that I *do* allow that to influence my behavior as a consumer. As for the *company*, well, I feel much the same way. I think it would be very unreasonable to expect a smallish upstart, trying hard to crack a behemoth dominated market, to place "people before profits" or somesuch. Though if we could somehow *ensure* it, that would help to keep the behemoths in business, wouldn't it? At least that's the case with lots of regulatory regimes: they're good for business, assuming you look at the right businesses.

Is there something I'm missing in all of this? I sense that there is Another Point that I'm too damn slow to pick up on. That market, state and community are ultimately abstractions that shield us from a messier reality? Absolutely. But very useful abstractions for various purposes nonetheless.

Posted by: Untenured Independent | Apr 21, 2005 9:40:09 PM


Posted by: DBCooper

This diversity policy might be a strategic plan based on a logical assessment of the marketplace. Women and minority owned firms are growing at a fast clip. Supplier diversification is usually a good thing. Perhaps it’s just good ol’ profit motive cloaked in social responsibility language.

Or maybe the policy was a response to ameliorate negative publicity created from something like, oh...say..., a sexual harassment lawsuit against the CEO last year?

Posted by: DBCooper | Apr 21, 2005 9:54:45 PM


Posted by: Untenured Independent

I am reminded of Kant's curious claim that there would never be a Newton of a blade of grass. Is Don trying to tell us that there will never be an Adam Smith of the human experience? And what does that mean exactly--that there are phenomena which *defy* economic explanation, or phenomena which, though supervenient upon economic phenomena, are best understood in other terms? Or both? I see deep questions lurking in all this, but I have real doubts that I've limned the *right* deep question, which may very well escape me.

Posted by: Untenured Independent | Apr 21, 2005 9:57:48 PM


Posted by: Jay Cline

3/No one has yet said a syllable about whether as consumers we should worry about corporate policies on such matters. I'm all ears.

Yes, um, No.

I didn't realize that consumers had a prescribed code of ethical buying that everyone was supposed to comply with. Or are there two codes of consumerism, one for 'us', the other for 'them'?

And companies violate their own standard code of economic modeling if they aren't concerned soley and only with profit?

Or was that merely primarily?

Seems to me somebody is deliberately stirring the pot. Or am I just being facetious?

Posted by: Jay Cline | Apr 21, 2005 10:23:17 PM


Posted by: DBCooper

Those diversity and mission statements look like boilerplate fare. They are heavily pushing responsibility and values in the business community right now to countermeasure the Enron, WorldCom, Tyco, HealthSouth fiascos that have damaged the reputation and sanctity of the profit motive. Corporations have all hired a full staff of 1000 monkeys, (outsourced, of course) to randomly type out policy platitudes. It’s both the least they could do and probably the most they will do.

When Sara Lee states “We will aggressively provide meaningful responsibility and development opportunities to our employees worldwide.” It really translates: We will require all our employees to watch a 30-minute training video filled with empty promises about job enlargement, job enrichment and empowerment.

When Sara Lee states: “Sara Lee will be the benchmark for attracting, developing and retaining a diverse workforce and leadership team.” This translates: We’re sick and tired of paying out for discrimination lawsuits.


Posted by: DBCooper | Apr 21, 2005 10:48:17 PM


Posted by: Bret

3/No one has yet said a syllable about whether as consumers we should worry about corporate policies on such matters. I'm all ears.

I'm not getting it. Should I, as a consumer, be worried if they do have socially responsible corporate policies? Or if they don't?

Posted by: Bret | Apr 21, 2005 11:02:02 PM


Posted by: Horation


Diversity in and of itself is not beneficial. The Forest Service at one point wanted an equal number of men and women represented in fire fighting positions. Unfortunately, very few women could pass the original standardized physical tests. But the Fed.s lowered the standards, or rather created two sets. And then some USFS chiefs noted when women went into some grueling burn they were often injured or unable to do the job. So they put shuffled many of these wannabe-gals into other positions. The policy makers refused to confront the obvious: in some areas, such as physical strength, men and women are not going to be equals.

I suspect it's the same with high-end technical positions : yes, corps and state and county job announcements will advertise for minorities and women (though "minority" might include caucasians in many areas of the country--as in CA where hispanic pop. is about equal to whites), yet most applicants for programming or networking jobs are men; are they obligated to put women in those jobs or lower the criteria for women apps. simply because they have been underrepresented? I think not. Really the affirmative action thing leads to gross injustices for any jobs requiring specific skills and expertise. Yet if Sara Lee wants to increase the numbers of minorities in the assembly line packing shortcakes into tin boxes I say u go grrl.

Posted by: Horation | Apr 21, 2005 11:18:30 PM


Posted by: miab

I'm also not sure what the original post was getting at, but it sure did elicit some interesting responses:

D.A.R. writes: "The question isn’t really whether I should worry as a consumer but whether I should worry as a citizen. Yes, I should. Mandatory ‘voluntary’ diversity and similar inane policies are irrational, and irrational behavior should be discouraged, not encouraged."

Now, I always thought that the libertarian position was that government should not do these things, and that private persons should not be forced or prohibited to do these things. To this, D.A.R. adds (though I recognize he speaks for himself, and not for the entire libertarian worldview), that private persons actually *should not* do these things. This I simply don't understand.

And where is it written (figuratively) that corporations should do nothing but maximize profits? D.A.R. writes: "and I made a point once of investing in Cypress Semiconductors because of its overt corporate policy not to give a damn about anything other than profitability." So, you made a financially sub-optimal investment just to make a statement that corporations should never make financialy sub-optimal decisions just to make a statement? Huh?

As for the rest -- I think Don should just give up on getting free market idolators to see that anybody or anything might ever act on anything other than a pure economic model. Like the person who says mother Teresa was not an altruist because she got personal satisfaction out of tending the sick, they will always re-define themselves out of any hole. Maybe Sara Lee is, or is not, acting out of genuine moral concern. But no matter how many examples -- including Mother Teresa, Inc. -- you bring, they will always re-interpret the actions as profit-seeking. To do otherwise would risk excommunication from the Worldwide Church of Smith.

Posted by: miab | Apr 22, 2005 12:30:23 AM


Posted by: Abad man

I never would have known the policy if not for this post. The policy bothers me a lot less, hardly at all, than the money I am sure Saa Lee pumps in to various lobbing groups in attenpts to infulence public and social policies.
As far as what not having said policy implies, it is rather uncharitable to assume if there is not a policy that the company is against diversity or even that it favors the status quo. Sort of putting words into someone's mouth. Which is bad, right?

Posted by: Abad man | Apr 22, 2005 1:49:28 AM


Posted by: Untenured Hyperborean, Antipolitical, Untimely Man

Miab:

I resemble that remark. Reread and exonerate, please.

Posted by: Untenured Hyperborean, Antipolitical, Untimely Man | Apr 22, 2005 2:35:59 AM


Posted by: Untenured Hyperborean, Antipolitical, Untimely Man

So if I ask, along with Smith, "who does this benefit?" I'm naive?
And if I don't ask, along with Lenin, "who does this benefit?" I'm still naive?

I'm beginning to feel that I've been had--in a nonquantifiable, historically specific, psychologically unique, hermeneutically interpreted, culturally rich and complex sense, of course.

Posted by: Untenured Hyperborean, Antipolitical, Untimely Man | Apr 22, 2005 2:44:37 AM


Posted by: D.A. Ridgely

miab:

I said nothing about coercing people to refrain from acting irrationally. I don't believe people should be rude, either, but it doesn't follow that I want rudeness to be illegal. There is no contradiction in desiring people to be free to indulge in acts I find distasteful, silly, etc. The purpose of a for-profit corporation is to maximize profits. When we permit these useful legal fictions to indulge in other sorts of behavior, much mischief occurs. Even more mischief occurs when we permit corporate directors and officers to use the corporations they supposedly serve for their personal agendas. Finally, I turned a nice profit on Cypress, thankyouverymuch. That I might be reluctant to own it now has more to do with how commodified the entire chip industry has become, not with whether it is a good or bad investment within its market.

Posted by: D.A. Ridgely | Apr 22, 2005 8:00:53 AM


Posted by: D.A. Ridgely

Oh, and I acknowledged in my original comment that talk of trading economic value for psychological value was tautological, miab. And for what it's worth, I think Christopher Hitchens has made a compelling and non-tautological case against Mother Teresa being considered an altruist, too.

Posted by: D.A. Ridgely | Apr 22, 2005 8:19:44 AM


Posted by: Josh Jasper

I'd also like to mention that large corporations that realy are owned by social progressives tend to follow differnt mocels. The Body shop, for instance, makes a big deal out of buying from producers like women's collectives in India at fair prices. Sadly, this was undercut by some stupid union practives in a soap factory in England, but it dosen't eliminate the fact that, for those women in that town in India, they've all of a sudden got a real income absed on a product that there is actual consumer demand for.

The "fair trade" model in coffee is supposed to be similar. I buy only fair trade for use at home, which is where I drink most of my coffee.

It's profiable. Not as profitable as the cheap, slave labor beans, but there's a market for it. I can't see how meeting that market demand needs to be discouraged in any way.

Furthermore, seeing as we're in a 'global economy', I thiinkt he government has a duty to it's citizens to actuly limit doing buisness with certain industries. Say, arms sales to Iran. But also, slave labor by children in the third world. I'm OK with my government stripping me of the right to buy blood diamonds too. Quite frankly, I wish they would.

Posted by: Josh Jasper | Apr 22, 2005 9:39:24 AM


Posted by: Rigel Konrwellration

I think the NBA and NFL ought to implement affirmative action too; imagine, comrades, co-ed bassetball and football teams, with a "proportionally representative" mix of racial diversity. The LA Rainbows!.

Posted by: Rigel Konrwellration | Apr 22, 2005 11:53:03 AM


Posted by: Mona

D. A. Ridgely writes: Mandatory ‘voluntary’ diversity and similar inane policies are irrational, and irrational behavior should be discouraged, not encouraged.

But this is wrong! In today's legal climate, it is entirely rational to adopt such policies in order to contain losses in discrimination suits or EEOC complaints. Pace to those who think inquiring cui bono is misguided or somehow a mindless adherence to His Eminence Smith, but they may not grasp the reality of how often "protected class" members try to legally extort money from an employer who either did not hire them, or who fired them.


Several times I have represented minority/female/disabled clients who had been fired or disciplined. The truth was they were "no-call, no-shows," lazy, or in one case simply an insufferable b*tch. (One exception: a woman who had been sexually harassed in the crudest and most extreme manner, and the fellow was also criminally charged and convicted.) But they had a card to play that not every disgruntled employee holds. People in general think they should be able to sue an employer for "harassment." COUNTLESS are the calls I and many lawyers get which go like this:

Me: Can I help you?

White male: Yeah, my boss is harassing me. He's a jerk and I want to sue.

Me: Is he doing so because of your race, gender or religion?

White male: No, but he yells and won't let me have every weekend off, even tho he knows I need it. And he keeps riding my butt about stupid stuff just cuz he doesn't like me. If I'm even a minute late one more time he's gonna fire me, but he likes my buddy and he's late a lot, too.

Me: Well, if he's just unreasonable in general, and not because of anything about your ethnicity or religion, and you have no "for good cause shown" employment contract, legally you have no recourse. This is a hire and fire at will state, unless a select few kinds of reasons are at play. Those don't seem to be implicated here.

White male: But it isn't right! He's such a jerk! I want to sue.

In the above scenario, if you have a member of a racial minority, someone who is disabled, or sometimes a female, there may well be money to be made. How far the lawyer will be willing to take it will depend on analyzing the employer's policies and known history. Sara Lee would, based on what Don has posted, likely be too much an uphill battle and unsure thing to take on a contingency fee basis. These are things that most lawyers in a general practice or an employment law niche well know. And it has everything to do with the market distortions created by discrimination law, and not worship at the altar of Smith's free markets.


Posted by: Mona | Apr 22, 2005 12:55:39 PM


Posted by: DJmatheso

To answer Don's question: yes. Those of us who can afford to should support social activities of which we approve. Many of us give away worn out stuff to Salvation Army when it would be less time-consuming to just throw it away. Some of us buy free-range eggs because we like to think that happier chickens imbue us with better karma, or buy local produce when possible because we like the principle. I personally still buy Texaco gasoline because they sponsored the Academic Challenge when I was in high school, and as a 15-year old nerd I appreciated the opportunity to vie for glory.

I can understand the complaint against corporations acting as if they had a social conscience--the Chairman gets to give the money to her pet cause and go accept the award, but it's not really her money she's giving away. I just don't think the costs outweigh the benefits.

It's far too easy to look for the person who benefits and say they haven't done anything worthwhile. Sure Mother Teresa liked doing what she did better than her other options, and so did Morgan when he provided market stability at the expense of his short-term profits. But I find it distressing that the implicit assumption among some seems to be "well if it's in their interest than it doesn't accomplish anything positive because those dastardly capitalists..."

It's refreshing to hear JJ's misanthropic cynicism regarding all that's white and male (I'm a guilt-free WASP myself), because at least it's more obviously addressable than several comments that reveal other implicit beliefs (I won't say "biases" because they may indeed be based on information or experience). Large law firms interchangeable? Ever worked at Jones Day's home office? How about Arnold and Porter's? Neither the aesthetic diversity (I think that's Clarence Thomas's phrase) nor the respect with which people--particularly women--are treated by policy or in practice are anywhere close.

Why shouldn't Sarah Lee reward it? I've always taken the position that legally enforced workplace diversity will become unnecessary because the market will reward it. And no, Don, I don't think that's because we can assume every trait is evenly distributed throughout every group, it's because people are so often narrow minded and like doing business with people like themselves. (discrimination at state-run institutions, on the other hand, that's just plain unconstitutional). I'm all for it.

Posted by: DJmatheso | Apr 22, 2005 1:11:22 PM


Posted by: D.A. Ridgely

Mona, I agree. But that isn't what I meant. The whole system, sexual harassment law and its racial and such counterparts included, is irrational. Are there lawyers out there to extort money from businesses regardless of the moral merits of the case? D'uh! Should one rationally comport oneself and one's firm to such lunacy so as to reduce litigation risk? Of course. And I'd have been a card carrying member of the Communist Party in the U.S.S.R., too. But I'd have known I was spouting nonsense at party rallies then, also. So, in the Orwellian spirit of the times, let me just add, "I love Big Differently-Abled Sister of Color!"

Posted by: D.A. Ridgely | Apr 22, 2005 1:18:37 PM


Posted by: D.A. Ridgely

DJmatheso:

There are, to be sure, differences among large firms from the prospective associate's point of view, and there are political differences (as you no doubt know) in that some are overstocked with Dems, others with Repubs, etc. But from the client's point of view? Does the quality of the extravagently overpriced legal services vary much? Nope.

Posted by: D.A. Ridgely | Apr 22, 2005 1:25:29 PM


Posted by: DJmatheso

D.A.:

I re-read and perhaps I misinterpreted, I initially thought you were expressing doubt about whether profit rather than ideology was the motivation, I was just trying to argue that it wasn't--I think choices between equivalent firms can be politically motivated precisely because the end product is functionally the same, but the internal culture of the firms can be quite different.

Overpriced, though? Extravagantly even? Blatant Calumny!

Posted by: DJmatheso | Apr 22, 2005 1:44:58 PM


Posted by: D.A. Ridgely

Uh huh... Care to inform the general readership what a billable hour from a senior partner at King & Spalding is fetching these days?

Posted by: D.A. Ridgely | Apr 22, 2005 1:52:01 PM


Posted by: DJmatheso

No comment, but it's worth every penny.

Isn't there an old adage about the sense of paying a bit extra for fresh oats than the ones that have passed through the horse?

Posted by: DJmatheso | Apr 22, 2005 2:02:33 PM


Posted by: Rigel Konrwellration


Oh yeah new bat theme, new bat project: should attorneys be employees of the state, sort of fancy social workers, on an hourly salary? Yup.

Posted by: Rigel Konrwellration | Apr 22, 2005 3:04:15 PM


Posted by: D.A. Ridgely

Isn't there an old adage about the sense of paying a bit extra for fresh oats than the ones that have passed through the horse?

So there is. Alas, I fear all too many clients would claim they came to their lawyers with fresh oats and wound up with a hefty bill for the end product.

Posted by: D.A. Ridgely | Apr 22, 2005 3:55:13 PM


Posted by: ppptttbbb

"Isn't there an old adage about the sense of paying a bit extra for fresh oats than the ones that have passed through the horse?"

yes, but that is often tuned on its head when discussing government subsidies. :)

Posted by: ppptttbbb | Apr 22, 2005 4:03:47 PM


Posted by: Perseus

In assessing to what extent non-economic motives play a part in Sarah Lee's policy regarding outside suppliers/law firms, does anyone know whether (or how often) large companies like Sarah Lee are sued because their outside suppliers do not adequately comply with discrimination laws?

Posted by: Perseus | Apr 22, 2005 5:18:12 PM


Posted by: Josh Jasper

DJmatheso

It's refreshing to hear JJ's misanthropic cynicism regarding all that's white and male (I'm a guilt-free WASP myself), because at least it's more obviously addressable than several comments that reveal other implicit beliefs

Huh? All I said was that straight white males aren't realy good people to make marketing decisions about unless they've done some serious research. Oh, and that there's plenty of mysoginy out there.

Are any of these things in dispute?

Posted by: Josh Jasper | Apr 22, 2005 5:37:08 PM


Posted by: Mona

should attorneys be employees of the state, sort of fancy social workers, on an hourly salary? Yup.

I assure you, this (thankfully) will never happen. The trial lawyers lobby is a bastion of the DNC, but their liberalism will fall far, far short of that, and they'd gallop of to the GOP in a heartbeat if there ever appeared to be significant Dem steam building up for such a scheme.

That said, I do think the state should fund defense attorneys and their resources to exactly the same extent as they do the law enforcement and prosecutorial offices and resources. Same quality and access to forensic facilities, investigative personnel, all of it.

Social workers, in general, are not overly bright, and their bachelor's course work is, uh, not challenging. (My daughter-in-law is an exception, as she is quite bright; there are some, to be sure. But she fully agrees there are many morons in her field.)

Socialize the practice of law, limit possible pay, and the best and brightest will fall away from it. What you'll have left would be poor harvest indeed, especially given the rigors of law school and the bar exam. Few smart folk who could make $$ with their intellectual gifts are going to go into socialized anything. Unless, of course, most everything is socialized, but I also don't see that happening.

Posted by: Mona | Apr 22, 2005 6:12:44 PM


Posted by: Rigel Konrwellration


The subtext to diversity and AA is get whitey. It's not readdressing past wrongs (if such wrongs really exist in any tangible form); it's a sentimental if not gangsta-driven agenda that isn't so much about social justice but about converting work-environments into swingin' sexy office par-tays. Any caucasian men who've worked in some companies around LA or the bay know this.

Posted by: Rigel Konrwellration | Apr 22, 2005 6:13:50 PM


Posted by: DJmatheso

JJ:
Perhaps I should stop reading quickly. I sort of read the opening as an argument that all women who get to the top do so despite hordes the atavistic males trying to drum them out of the work force--this I interpreted as a slap against men, particularly when followed by the "Or it could just be a man who's not an asshole....stuffy anal retentive straight white old men have no clue what young, hip, non white, straight people want in life." The implication I drew was that it's the rare old white man who's not an asshole, which was perhaps putting an unwarranted spin on your post.

It's true that upon further reflection you could be talking about the ability to market products...but that was not the first thing that popped into my mind (I interpreted the "want in life" comment as touching on the employer-employee relationship rather than the business of marketing, which apparently placed your post in the wrong context).

Anyway, it seemed a bit harsh and misanthropic to me, but reading comprehension isn't my strong suit today. If you're restricting it to marketing than maybe that's true.

Here's a thought, though: if your point is true than the converse is probably true, right? And since securing a major contract for any service profession (IT, accounting, law, etc.) is a sales job, does that mean that companies selling services, etc., to major companies run by stuffy old straight white men have a good reason not to hire the non-male, non-straight, and non-white? Just throwing it out there.

Posted by: DJmatheso | Apr 22, 2005 6:15:43 PM


Posted by: diogenes xc

Socialize the practice of law, limit possible pay, and the best and brightest will fall away from it. What you'll have left would be poor harvest indeed, especially given the rigors of law school and the bar exam.

Say one guy, x, memorizes ten 1000 page phone books. And another guy, y, memorizes Einstein's 100 page book covering General and Special Relativity. X took 3 years to memomize every item in the phone books. Y took 6 months to memorize Spec. and Gen Rel.. Yet they both have to take both tests: and x aces the phone book test, y fails. X fails Einstein, Y aces it. Who is more valuable to society and to the intellectual community?

That's about the difference between real, verifiable scientific knowledge (Einstein ) and the law--mere rote memorization of hundreds of more or less incidental facts (like phone books).

Posted by: diogenes xc | Apr 22, 2005 6:26:15 PM


Posted by: Mona

That's about the difference between real, verifiable scientific knowledge (Einstein ) and the law--mere rote memorization of hundreds of more or less incidental facts (like phone books).

That is so totally wrong, one hardly knows where to begin. Lawyers have to know doctrines and controlling case and statutory law, and to recognize their applicability to whatever pattern of facts is presented to them. A person with an eidetic memory but who lacks the skill to recognize when a situation fits into which of the myriad "facts" s/he has memorized, will not do well in law school and will have great difficulty with the bar exam. Practicing law entails an enormous amount of intellectual creativity.

Further, attorneys should write extremely well, and if they are litigators, be quick on their feet in an adversarial setting. Really, you could not be more mistaken.

Posted by: Mona | Apr 22, 2005 6:52:37 PM


Posted by: D.A. Ridgely

stick, it is a rare occurrence when I find myself rising to defend the legal profession, but if you think the study or practice of law requires only “mere rote memorization of hundreds of more or less incidental facts,” you must also think all it takes to be a good chemist is memorization of the periodic table and that a class or two in anatomy and a current copy of the PDR is all it takes to be a physician.

Posted by: D.A. Ridgely | Apr 22, 2005 6:57:28 PM


Posted by: D.A. Ridgely

Perseus, this is entirely a shoot-from-the-hip answer to your question, but I cannot imagine liability attaching to a company because of the conduct of its vendors and independent contractors. What I can envision happening is a savvy counsel for the plaintiff attempting to introduce evidence of a pattern of such arms-length dealings to attempt to establish bad faith on the part of the company in its own alleged noncompliance.

Posted by: D.A. Ridgely | Apr 22, 2005 7:06:20 PM


Posted by: diogenes xc


Lawyers and law students enjoy thinking themselves equal to medical students and engineers and so forth but that is far, far from the truth. Law is pretty much common sensical, informal logic-- even if done very quickly and with a suave rhetoric. Knowing how the endocrine functions on the other hand, requires a precise specific, empirical knowledge, not mere facility with aristotelian logic, or the history of more or less arbitrary rulings from the British aristocracy .

Posted by: diogenes xc | Apr 22, 2005 7:21:02 PM


Posted by: Mona

DA Ridgely writes: stick, it is a rare occurrence when...

Ah, light dawns. So that's who that is. The statements now make a certain sense.

Posted by: Mona | Apr 22, 2005 8:56:33 PM


Posted by: Perseus

Mr. Ridgely: The reason I asked the question is because of a similar case involving Walmart and its cleaning subcontractors, which were guilty of hiring illegal aliens. After Walmart shelled out $11 million in settlement fees, the company representative said: "It is a reminder to businesses everywhere that they have a duty to make sure their outside contractors are following immigration and labor laws."

http://money.cnn.com/2005/03/18/news/fortune500/wal_mart_settlement/

If this has happened in discrimination law as well, I could see the concern over such liability as a factor (in addition to "social responsibility") in motivating Sara Lee to adopt its policy.

Posted by: Perseus | Apr 22, 2005 10:03:05 PM


Posted by: D.A. Ridgely

Perseus, it's not my area of expertise (not that I really have one), but I’d be surprised if there was not evidence that Wal-Mart had actual notice of the illegal workers operating under contract. (Wal-Mart is, after all, (in)famous for sharp negotiations with its suppliers and contractors.) In any case, reading the article you linked, it sounds like a Government shakedown to me, too. Corporations routinely settle these sorts of actions, cutting their losses for fear of the consequences of a guilty verdict. Of course, consumers end up paying the tab, ultimately.

Posted by: D.A. Ridgely | Apr 22, 2005 10:16:01 PM


Posted by: Perseus

Mr. Ridgely writes: "it sounds like a Government shakedown to me, too." Do I detect a tiny bit of cynical distrust of the government's motives here? (no more than a tiny bit lest you offend DV)

Posted by: Perseus | Apr 22, 2005 10:24:24 PM


Posted by: Mona

Perseus writes: The reason I asked the question is because of a similar case involving Walmart and its cleaning subcontractors, which were guilty of hiring illegal aliens. After Walmart shelled out $11 million in settlement fees, the company representative said: "It is a reminder to businesses everywhere that they have a duty to make sure their outside contractors are following immigration and labor laws."

There are any number of ways a business can end up liable for one of its contractors. Among them, exercising too much control over the ostensible contractor will cause the law will deem the contractor to be an employee, no matter how the business and contractor might chose to characterize their relationship.

I have no idea if that is what happened here, of course.

Posted by: Mona | Apr 22, 2005 11:06:02 PM


Posted by: Mona

Just tellin' folks. Tomorrow a.m. I'm canceling my current email account, and moving. (Blech.) Will be back in a few days or weeks, after I find the time to settle on a new ISP. So if, as sometimes happens, anyone from L2R emails me I won't be ignoring you; I won't have received your email.

Posted by: Mona | Apr 22, 2005 11:15:41 PM


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