The Leadership Conference on Civil and Human Rights

Volume 8 no. 1

"So it seems an employer, especially today, can be 'damned if he or she does or damned if he or she doesn't.' If the employer chooses to use 'affirmative action' race-based or gender-based employment to diversify the workforce, the employer may be s ued under charges of 'reverse discrimination.' On the other hand, if the employer spends millions of dollars for so-called objective merit-based tests for hiring or promotions (as the City of Chicago did recently when it attempted to measure merit promot ions for police and firemen), the 'numbers' may still show disparate impacts racially, thus still subjecting the employer to charges of discrimination. On the other hand, if the employer tries to hire outside the test results in an effort to get better ' numbers,' the employer will be again subject to charges of discrimination from those who had high scores on the tests but were passed over in favor of employees with lower scores. That too was Chicago's fate."

The first witness before the subcommittee was Deval Patrick, Assistant Attorney General for Civil Rights, U.S. Department of Justice (DOJ). Mr. Patrick noted that the President has charged the DOJ to review the federal government's affirmative action pro grams as part of the Administration's broad-based assessment of affirmative action. Since this review is in process, Patrick focused his testimony on the state of the law and the limits the Supreme Court has imposed on affirmative action remedies.

Patrick emphasized two fundamental points: first, the Clinton Administration is committed to the goal of expanding opportunity for all Americans and second, discrimination on the basis of race, ethnicity, and gender persists in this country: "not jus t the effects of past discrimination, but current, real-life, pernicious discrimination of the here and now." Mr. Patrick offered examples of the discrimination that continues to torment our society:

"White officers in a city police department in Florida admitted that the police department threw applications from blacks in the trash can, did not hire a black applicant for 30 years and routinely (including the Chief of Police himself) used racial epithets. "In a Louisiana corrections center, the policy of not hiring women was unusually blatant. The minimum passing score on the required written examination was 90 for men, but 105 for women. In fact, one woman scored 100 on the exam in April 1987, but was disqualified, while a year later, a male applicant scored a 79 and was hired despite the fact that he had a prior arrest and did not have the required high school diploma."

Mr. Patrick also addressed a pending lay-off case that has received considerable media attention, United States v. Board of Educ. of the Township of Piscataway Nos. 94-5090, 94-5112 (3rd Cir), in which the DOJ has argued before the court that the B oard of Education did not break the law in choosing to retain a black teacher and lay off a white teacher during a reduction in force. He noted that before considering race, the School Board had considered the teachers' seniority, evaluations, involvemen t in extracurricular activities and qualifications and training. It was only after concluding that the two teachers were equal in all relevant aspects that the Board of Education took its voluntary affirmative action plan into consideration and rather th an flipping a coin decided to keep the black teacher as she was the only black member of the Business Department faculty.

In summarizing what the Courts have said with respect to affirmative action remedies, Mr. Patrick noted that lawful affirmative action includes "a range of activities, from recruiting and special outreach to goals and timetables. Quotas-meaning numer ical straightjackets that disregard merit-are unlawful period. By contrast, the Department of Justice has supported affirmative action plans which do not compromise valid qualifications, and which are flexible, realistic, reviewable and fair. Generally, this means we have defended the legality of affirmative action plans where (1) race, national origin or gender is one among several factors considered, (2) relevant and valid job or educational qualifications are not compromised, (3) numbers used, if any , are genuine goals...(4) timetables for achieving the goals are reasonable...(5) rights of non-beneficiaries are respected."

He concluded by urging Congress not to get "so caught up in the passion and rhetoric swirling around the issue of affirmative action that...[the Members] lose sight of the work remaining to fully integrate this remarkable society. It is the responsi bility of each of us to work toward lowering the barriers that continue to deprive our nation of the talents and contributions of so many women and minorities."

Following Mr. Patrick's testimony, the subcommittee heard from a panel that included a member of the University of California Board of Regents, Ward Connerly; Linda Chavez, President, Center for Equal Opportunity; Dr. Glenn Loury, Professor, Department of Economics at Boston University; Terry Eastland, Fellow, Ethics and Public Policy Center; and Theodore Shaw, Associate Director-Counsel, NAACP Legal Defense and Education Fund, Inc.

Dr. Loury testified that although there remain "profoundly troubling racial differences in economic advantage which warrant the attention of this Committee and of all Americans...these problems cannot be mitigated by affirmative action policies." ; He opined that: "As a close student of the socio-economic trends affecting minority groups in this country, it is my opinion that the long-term interests of minorities in this society will be helped, not harmed, by a rational reassessment and refo rm of current preferential policies."

The Subcommittee held a second hearing on May 2 with Chairman Fawell once again highlighting his concerns that in an effort to comply with the very laws prohibiting racial and gender discrimination, employers may resort to hiring or promotion practices th at are based on discriminatory criteria. This concern for "reverse discrimination" provided the theme for the entire hearing. Testifying first was Barbara Brown, an attorney with Paul, Hastings, Janofsky, & Walker. Ms. Brown offered a detailed review of the law on affirmative action, noting that in its rulings on the issue, the Supreme Court has treated separately public an d private employers. Public employers may implement race and gender conscious policies only if the affirmative action program can survive strict scrutiny by the courts. It must be a remedy for discrimination; the program is narrowly tailored to remedy a specific problem; and the program is temporary and is reviewed regularly.

Ms. Brown contended that there is greater leniency for private employers, who must meet a four-part test for race and/or gender conscious policies. There must be manifest underrepresentation; the affirmative action must focus only on the jobs where under representation exists; affirmative action cannot unnecessarily trample the interests of other employees; and affirmative action must be temporary and reviewed regularly.

Also testifying at this hearing was John J. Sweeney, International President of the Service Employees International Union, who expressed the opinion that recent attacks on affirmative action reflect the great sense of economic insecurity and fear many Ame ricans are feeling. He stated:

"Workers of every background, color and ethnicity are being rendered more insecure and are seeing their standard of living decline. They are worried about their children's future. Working people are suffering because the kinds of public services up on which they and their families depend-schools, public safety, public hospitals, and so on-are deteriorating. Corporate downsizing and government cutbacks are spreading fear and insecurity across the face of the nation. We must not allow affirmative ac tion to become a scapegoat for economic problems caused by capital flight, corporate restructuring and government policies."

A second House body, the House Judiciary Subcommittee on the Constitution, began hearings on affirmative action on April 3. Chairman Charles Canady (R-FL) opened the hearings by noting his concern that affirmative action is leading to group preferences a nd asserting that when Congress originally passed the nation's civil rights legislation, "its goal was to ensure that race would not be a source of advantage or disadvantage for anyone." Since that time, however, "the law has deviated from this principle of neutrality and nondiscrimination into a system of counting citizens by race or gender and doling out advantages and disadvantages accordingly," Canady asserted.

Testifying before the subcommittee, Bill Taylor of the Citizens' Commission on Civil Rights, noted the short length of time this country has promoted the concept of equality of opportunity:

"It has only been in the last four decades that it has become national policy and that we have engaged in an effort to find fair and effective ways to end and remedy the discriminatory practices that extended over a period of two centuries. While we have made great gains during this period, the lives of hundreds of thousands of people remain untouched by civil rights laws and policies, and children are being born today who have little hope of having a fair and equal opportunity to lead productive an d successful lives."

Mr. Taylor then observed that affirmative action has worked, is still necessary and is not unfair to others. He pointed out that African-American representation has increased in virtually every industry as a result of affirmative action. Despite these s ignificant advances, Mr. Taylor observed, affirmative action is still needed because women and minorities still face barriers in seeking employment, education and jobs. Mr. Taylor cited the over 91,000 complaints filed at the Equal Employment Opportunity Commission, the Federal Glass Ceiling Commission Report, the employment testing studies conducted by the Urban Institute and the Fair Employment Council of Greater Washington that have documented the discrimination still encountered by minority job seeke rs, and the racial disparities in poverty, unemployment, and income that the Citizen's Commission has documented in its reports. Finally, Mr. Taylor asserted that affirmative action is not unfair to others as the courts have gone to great lengths to bala nce competing interests in shaping affirmative action remedies.

Testifying on the second panel before the Judiciary subcommittee, Anne Bryant, Executive Director of the American Association of University Women, tried to confront directly the racial politics that too often dominate the current affirmative action debate . In addition to noting how affirmative action benefits women and minorities, Ms. Bryant explained how affirmative action benefits society and families. She testified:

"The expansion of women into traditionally male dominated fields has benefited society by increasing the breadth of those professions. For example, the advancement of women in medical science fields has resulted in increased attention to women's hea lth issues such as breast cancer. The increase in the number of women physicians has created a far more diverse pool from which patients can choose. Increased recruitment and training of women police officers, prosecutors, judges and court personnel hav e led to an improvement in the handling of domestic violence and sexual assault cases."

With respect to the benefits of affirmative action for families, Ms. Bryant noted that if men wanted what was best for their working wives and daughters, they too would lend their support to affirmative action. She noted:

Forty-six percent of United States workers are women. In a time when most families depend on the earnings of both parents, and in some cases just the mother, it is imperative that all adults have the opportunity for maximum earning power to support thems elves and their children...Continuing affirmative action policies will mean that more families will be able to feed and clothe their children adequately, buy homes, send their children to college, and start small businesses.

Hearings also began in the Senate, where Sen. Bond (R.MO), Chair of the Senate Small Business Committee, held a hearing on April 4. As the MONITOR went to press, the transcript was not available. In addition to these hearings, Majority Leader Bob Dole has asked Senator Nancy Kassebaum (R-KS), Chair of the Senate Labor and Human Resources Committee, also to conduct hearings on affirmative action.

Proposed Legislation

Representative Charles Canady (R-FL) has announced that he intends to introduce legislation that would in effect eliminate federal affirmative action programs for women and minorities. According to a Leadership Conference on Civil Rights letter to member s of Congress the proposal, as outlined by Representative Canady, "would seriously undermine equal opportunity for women and minorities and would create legal chaos with respect to the enforcement of equal employment opportunity laws." The LCC R letter further states:

"One of the bill's targets will be the Executive Order 11246, which the Nixon Administration used to require federal government contractors to make good faith efforts to achieve modest goals toward inclusiveness of minority workers in their workforce s. The concept of goals and timetables was suggested by business leaders who knew that management-by-objectives is effective and produces results. The purpose of the Executive Order program, which was later expanded to include women workers, is to break down the "old boy network" and open the doors of opportunity to qualified workers who were previously excluded. The Executive order in clear and explicit language prohibits quotas. The Executive Order has been, along with the Voting Rights Ac t, one of the most successful and effective civil rights programs.

"Court-ordered affirmative action remedies for proven, intentional discrimination also appear to be wiped out by the bill. These remedies were developed by federal judges to remedy longstanding exclusionary practices by employers and unions which ha d not yielded to lesser measures. Women and minorities will be denied the only structural mechanism which works to undo intentional barriers to their employment and advancement if this proposed legislation becomes law."