Susan Shelley: DEI and the H-1B visa undermine American workers
Many Americans have never experienced a “good economy,” if a good economy is defined as one in which an individual can graduate from high school or college and find a job that pays four times the cost of housing.
At one time that was considered a rule of thumb for personal finance — 25% of an individual’s monthly income was what could prudently be spent on monthly rent or a mortgage payment.
Today that would make anyone laugh, or cry. And what’s worse, a rising number of working-age Americans have dropped out of the labor force entirely. According to the U.S. Department of Labor’s “Employment Situation Summary” released on Dec. 6, the labor participation rate in November was 62.5%, down from 66% in November 2004. The labor participation rate is the percentage of the civilian, non-institutional population, age 16 and older, currently working or looking for work.
The same report says there were 4.5 million people in this country working part-time who would have liked to work full-time, but their hours had been cut or they couldn’t find full-time jobs.
There were 1.7 million people who had been out of work for 27 weeks or more, up from 1.2 million a year earlier.
The Labor Department said the number of people “not in the labor force who currently want a job” is 5.5 million. They’re not counted as “unemployed” because they were not “actively looking for work during the four weeks preceding the survey or were unavailable to take a job.”
Another 1.6 million people were categorized as “marginally attached to the labor force” (looking for work in the last 12 months but not in the last 4 weeks) or “discouraged workers” who had completely given up because they “believed no jobs were available for them.”
This is the context for the controversy over “Diversity, Equity and Inclusion” (DEI) hiring requirements and U.S. employers’ use of H-1B visas to replace American workers with less costly foreign workers. Millions of Americans are unable to find jobs that support themselves and their families, or potential families. Regardless of education, training or experience, many job-seekers are experiencing life in America as a door slammed in their faces.
“Learn to code” was the bitter advice offered to those who lost manufacturing or natural resource extraction jobs when U.S. policies pushed that work to other countries. “Train your H-1B replacement or no severance check” was the cold directive to American tech workers years later.
The crushing of job opportunities for the American worker has been going on for so long that many people in the workforce have never known a level playing field. Adding insult to injury, the regulatory burdens on small businesses have made entrepreneurship needlessly difficult. In California, it’s a virtual suicide mission. Even working as an independent contractor has effectively been outlawed by the notorious Assembly Bill 5, signed by Gov. Gavin Newsom in 2019. President Joe Biden supported a national version of AB 5, the PRO Act, which would have extended the damage to the rest of the country.
Scarcity of economic opportunity over decades led various groups to exert pressure for DEI mandates in college admissions, hiring and contracting. The ideology peaked with President Joe Biden openly stating that he would only consider Black women for his VP pick and his first Supreme Court nomination. That sent a message that certain types of race and sex discrimination were strongly encouraged by those at the highest levels of power.
But is DEI legal? Does the Constitution allow the use of race or sex to exclude some applicants from hiring, promotion, admissions and contracting?
The historical answer is “maybe,” because the truth is that the Constitution was never amended to ban discrimination on the basis of race or sex. The nineteenth-century Congress refused to add this language, proposed by Rep. Thaddeus Stevens of Pennsylvania, to the 14th Amendment: “All laws, state or national, shall operate impartially and equally on all persons without regard to color or race.” The same Congress removed this clause from the Civil Rights Act of 1866: “there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery.”
In 1954, the U.S. Supreme Court reversed decades of precedents with its landmark decision in Brown v. Board of Education, declaring racial segregation in schools to be unconstitutional regardless of the history of the 14th Amendment or previous decisions interpreting it. “We must look instead to the effect of segregation itself on public education,” Chief Justice Earl Warren wrote in the unanimous opinion.
And that’s why it’s hard to know if discrimination on the basis of race is illegal, allowable or mandatory. If the “effect” of discrimination is the standard, then the Constitution might require or allow diversity directives. Or maybe not. It’s subjective, and it’s continuously vulnerable to changing judicial interpretations, all because a nineteenth-century Congress didn’t ban discrimination on the basis of race. Or sex, obviously. Women in 1866 were not even voters.
In 2024, amid public backlash and a changing legal landscape, many companies and universities ended their DEI programs, and that number is growing. The editor-in-chief of Campus Reform said administrators increasingly realize that DEI’s “outcomes are detrimental to education.”
The outcomes from the H-1B visa program have been detrimental to the American workers who have found themselves displaced by imported foreign labor.
All Americans deserve a genuinely free market for labor, without government distortion in any direction.
Write Susan@SusanShelley.com and follow her on X @Susan_Shelley