The Leadership Conference on Civil and Human Rights

Volume 4 Number 2

SPECIAL REPORT:

SUPREME COURT DECISIONS DO GRAVE DAMAGE TO EQUAL EMPLOYMENT OPPORTUNITY LAW

Editor's Note: Over the past twenty-five years since enactment of the Civil Rights Act of 1964, the Congress, in writing guarantees of fair employment, and the Supreme Court, in interpreting those guarantees, have shown an awareness of the importance and difficulty of their task.

They have recognized that employment practices that had long operated to exclude or limit the opportunities of minorities, women, disabled people or older workers were often deeply entrenched and that substantial change in those practices was required to translate paper guarantees into practical benefits. Accordingly, the Supreme Court and the lower federal courts interpreted the laws not in a formalistic or constricted fashion but in a way that would give effect to their broad objective of bringing minorities and other intended beneficiaries into the economic mainstream.

In the key case in 1971, Griggs v. Duke Power Company, Chief Justice Warren Burger, speaking for a unanimous Court, invalidated employee screening devices that operated as "built-in headwinds" for minority groups and required employers to substitute practices which would include minorities and still serve business needs. Since that time employers have made significant changes in their hiring practices and as a result, minorities and women have made important gains in fields such as law enforcement, construction work, production and white collar jobs in large companies.

Now, suddenly, with new justices appointed by President Reagan, the Court has changed course drastically. In a series of decisions the Court has constructed "built-in headwinds" of its own, relaxing the duties of employers, making it far more difficult for minorities and women to prove violations of the civil rights laws and even opening the way for fair employment settlement agreements to be attacked long after they have gone into effect. While the decisions were couched in dry technical language, they have a real human impact. For example, the Court:

1 told a black woman employee that under an 1866 civil rights statute an employer could not refuse to hire her for racial reasons but was free thereafter to harass her and even hound her from her job because of her race;

2 told a group of minority employees that it was not enough to prove that an Alaska cannery hired whites for well-paid skilled jobs, minorities for low wage unskilled jobs, and segregated employees by race in dormitories and mess halls. To prevail, the employees had also to prove that the employer did not have legitimate business reasons for the challenged practices;

3 told black firefighters in Birmingham that they could not be secure in their hard-won efforts to overcome past discrimination because their agreement could be challenged at any time by aggrieved white firefighters despite the fact that the agreement had already survived several court attacks by other white firefighters;

4 told an elderly, ill, displaced homemaker in Ohio that the State of Ohio could discriminate against her on the basis of age in providing pension benefits unless she proved that the discrimination was also a subterfuge for discrimination in non-fringe benefits.

There is an air of unreality about the Court's opinions. In cases earlier in the 1980s involving affirmative action, the Court often struggled to balance the interests of white workers with settled interests or expectations against those of minorities seeking opportunities that had been denied them. But in the current cases there is no identification of the interests to be served in constructing new hurdles for minorities and women.

In earlier cases, the Court took into account, explicitly or implicitly, the larger purposes that Congress wished to serve in enacting fair employment laws. In these opinions the Court's majority seems oblivious to the consequences of its actions. It does not appear aware of the f act that by the year 2000, 85 of 100 new entrants into the workforce will be minorities and women and that many experts believe that the economic wellbeing of the nation depends on equipping these new entrants with skills and opportunity. Nor does the Court's majority seem aware or concerned about the disruption and racial tension that may result from reversing previous interpretations of the law and impairing the ability of parties to enter into binding settlement agreements.

Indeed, the opinions frequently seem to be chapters in an ideological crusade, with the majority reaching out to decide questions no one has raised. Some observers have likened the majority's performance to that of the group of Supreme Court Justices in the early 1930s who for a time thwarted federal and state efforts to deal with the harsh economic consequences of the depression.

In the wake of the June blizzard of civil rights decisions, it seems inevitable that there will be a major legislative debate over efforts to reconstruct the fair employment laws. Much of the debate will be over matters that are technical and obscure to the great majority of citizens. If, however, the outcome is to be constructive it will be important for legislators and all others concerned to keep in mind what the Court's majority apparently forgot that the laws are designed to serve important national purposes and that their application has an indelible impact on human lives.

William L. Taylor

Senior Editor