Guidelines Matter

Here is how you know guidelines matter to the people dismantling them. Where a guideline tends to disadvantage white men, it gets discouraged. Where a guideline tends to favor them, it gets defended. That is not a principle about neutrality. It is a preference about outcomes, dressed as one.

There are not two equally compelling sides to the debate on employment discrimination. One side has explicit goals oriented toward preserving an advantage; the other is trying, if clumsily, to correct one. Pretending those are symmetric positions is the first move in the trick. The second move is smaller, quieter, and the actual subject of this piece.

01

The Innocuous Change

The EEOC recently announced it would withdraw the guidelines that functioned, for 45 years, as a corporate safe harbor. The structure is worth stating precisely, because the precision is where the design lives. Section 713(b)(1) of Title VII is the statutory provision that creates a good-faith-reliance defense for employers who follow the Commission’s written guidance. The guidance itself lived in 29 C.F.R. Part 1608 and the related Compliance Manual Section 607 on affirmative action, adopted in 1979. The statute authorized a shield. The guideline was the shield. Voluntary compliance with it protected employers from “reverse discrimination” suits.

The administration did not repeal Title VII. It did not amend it, and it did not ask the Supreme Court to overturn any precedent. It withdrew the guideline. On paper, employers retain every protection the statute names. In practice, they no longer have any framework for knowing how to use it, because the document that told them how the Commission is disposed to judge a program is gone.

You do not remove the instructions for a law you intend to keep unless the goal is to make people afraid to act.

This is the method I trace in The Hollow Law. Strip the guidance that teaches employers how the EEOC reads cases, and an employer has no way of knowing whether a program meant to correct historic discrimination is safe, right up until the moment a passed-over applicant sues for “reverse discrimination.” The change looks technical. It looks innocuous. It is engineered to look that way. A repeal draws fire; a withdrawn guideline draws none. Both produce the same result: the employer who wants to do the right thing now bears all the legal risk of doing it, and the rational response to unquantifiable legal risk is to do nothing.

That is the entire point. Not to ban the corrective program, but to make attempting it feel reckless.

02

Said Aloud

You rarely get the logic stated in the open. Occasionally you do. The Associated Press reported remarks by Michael Kratsios, director of the White House Office of Science and Technology Policy, criticizing Biden-era AI policy for “promoting social divisions and redistribution in the name of equity.”

Read that phrase carefully, because it gives away the game. To object to “redistribution in the name of equity” is to concede that the current distribution is inequitable. You cannot redistribute toward fairness unless the starting point is unfair; the complaint only makes sense if the premise it denies is true. The objection is not really to the redistribution. It is to naming the inequity at all, because naming it creates an obligation to address it.

This is also why “reverse discrimination” carries the emotional charge it does. People who hold an inherited advantage tend to experience its correction as a loss, because from inside the advantage, the unearned share reads as the baseline and any move toward parity reads as something being taken. Nobody is being denied representation. What is being asked is that an over-representation stop being protected. Those are not the same grievance, but the framing depends on treating them as if they were.

This is an old move, with an old name for its target. When a group insists its own account of injustice is legitimate, that insistence gets relabeled: the group is not asserting a right, it is being “uppity” about one. The word is period costume; the function is current. Convince a population that acknowledging historic injustice is the same as being made to feel bad, and you can recast the people naming the injustice as the aggressors. The less the public understands about how the present was built, the more absurd the civil-rights account of history is made to seem. Keeping people uninformed is not a side effect of the strategy. It is the strategy.

03

The Pool Was Built

Even a rule that only looks at employment, with a deliberately blind eye to the past, is not a neutral arbiter, and its defenders know it. Consider a hypothetical that has nothing to do with any protected class on its face.

It is 1923. You post a role open only to applicants with a current or prior record of state government service. On its surface, that is not a race rule. It is an experience requirement. But recall how that particular pool was assembled. When Reconstruction collapsed, thousands of Black men who held elected and appointed office across the South did not lose elections. They were removed from city halls at gunpoint by mobs who could not accept results they did not control, while the federal troops assigned to protect those results were, almost certainly by design, never sent in the numbers or the time required.

The Compromise of 1877 ratified that removal. The disputed 1876 presidential election was settled when Hayes secured the office in exchange for withdrawing the remaining federal troops from the South. When the courts were asked to intervene, they leaned on Luther v. Borden (1849): guarantees of a republican form of government are “political questions” belonging to Congress and the presidency, not the bench. The court declined to act. Men who had taken oaths to uphold the Constitution were purged, and the branch charged with guaranteeing their government looked away.

So in 1923, when you sort resumes for prior state service, you have not written a race rule. You have inherited one. The violence that emptied the pool of Black officeholders two generations earlier now does the filtering for you, silently, through a criterion that never mentions race. The EEOC did not exist in 1923; that is not the point. The point is that a facially neutral rule applied to a violently constructed pool reproduces the violence, and calls the result merit.

Under the guidelines the Commission just withdrew, an employer who noticed that effect and tried to correct for it could be sued for the correction. The passive replication is legal. The conscious cure is the liability.

04

The Same Guideline, Reversed

Now watch the asymmetry hold in the other direction. Take employment conditioned on passing a criminal background check. Screen out records automatically, and the share of Black men filtered runs well above their share of the population, for reasons that begin long before hiring: disparities in who gets stopped, who gets cited versus warned, who can afford counsel, and who is steered toward a plea.

Those gradations in charge and sentence exist by design. Ostensibly they give prosecutors room to negotiate and officers discretion to calibrate. In practice, discretion applied unevenly against people who cannot afford good representation converts a neutral-looking threshold into a sorting mechanism. Two drivers going the same speed; one is warned, one is charged. The charge follows the second driver into every future background check, and the “neutral” screen does the rest.

Guidelines can be used for good or for ill. That is exactly why they matter: they give everyone shared context for what they can and cannot do. The tell is that the people invoking neutrality only reach for it selectively. They pull the guideline where it would help those without an inherited advantage, and keep it where it protects those with one. You cannot claim to care about neutrality while defending its use in only one direction.

This is what systemic means. Not that every actor intends harm, but that even when the system runs exactly as written, the inputs were set generations ago and the incentives now point one way. Everyone is looking at the same progression. The difference is that one side deliberately crops the timeline to a narrow recent window and says, see, all fixed. The Kratsios formulation shows they know better.

Pulling these histories from libraries and classrooms as “woke nonsense” is the same maneuver as the withdrawn guideline: make it harder to see the mechanism, and the mechanism runs unopposed. It is also the terminal expression of a particular rage, the rage of a group that has held an advantage long enough to mistake it for the natural order, now being asked, for the first time, to notice it. Make the record disappear and the demand to notice starts to look like the aggression. That inversion is the whole project, and it is exactly as consistent with Title VII, the Voting Rights Act, and the Thirteenth through Fifteenth Amendments, in letter and in spirit, as its architects need you not to examine.

“The law as written remains as it was, but courts or legislatures declare that a protection does not apply to a defined population. The text stays intact. The operative protection is abolished.”

— The Hollow Law