affirmative action and the quest for job equality

AFFIRMATIVE ACTION AND THE QUEST FOR JOB EQUALITY*

Herbert Hill

We are participating in an enormous historical irony as we celebrate the first decade of the Equal Employment Opportunity Commission. Congres- sional adoption of the Civil Rights Act of 1964, including Title VII which authorized the Commission's existence, was widely hailed as a turning point in the history of the nation. It appeared to be the most important, if delayed, legislative response to the new era of constitutional law on race ushered in by the Supreme Court exactly ten years earlier in Brown v. Board of Education.

The Civil Rights Act of 1964 was debated and eventually enacted into law during a time of turmoil and upheaval. For a brief period, a part of the white population joined with black Americans in expressing a vast outrage against the crimes of racism. During the mid-1960s, as a result of direct confrontation with the forces of segregation and discrimination, together with the emergence of a new body of constitutional law, a great hope was born--a hope that the legacy of centuries of slavery and racism would finally be abolished and that America, at long last, would become a just, decent, and compassionate society.

But that hope was not yet to be realized. In retrospect, it is evident that the high moral outburst of the 1960s was but a passing spasm. The memory of that period has already receded and diminished into a remote past, and black people, once again, are left to fight the battle alone. As we celebrate the tenth anniversary of the Equal Employment Opportunity Commission, we also participate in a memorial service for the Second American Recon- struction.

*This article is based in part on a paper delivered by Mr. Hill at the Conference on the Tenth Anniversary of the U.S. Equal Employment Opportunity Commission at the Law School of Rutgers University on November 28, 1975.

264 The Review of Black Political Economy

A major manifestation of the sharp turning away from the goal of racial equality is to be found in the shrill and paranoid attacks against affirmative action programs. The effort to eliminate the present effects of past discrimination, to right the wrongs of many generations was barely underway when it was aborted. And now, even the very modest gains made by black men and women through affirmative action are being erased, as powerful institutions turn the clock of history back to the dark and dismal days of "separate but equal."

Judging by the vast outcry, it might be assumed that the use of numerical goals and timetables to eliminate racist job patterns has become as widespread and destructive as discrimination itself. As with the much distorted subject of busing, the defenders of the racial status quo have once again succeeded in confusing the remedy with the original evil. The term "quota" like "busing" has become another code word for resistance to demands for the elimination of prevailing patterns of discrimination.

This issue is now a major national controversy and because it has become the focus of conflicting forces in current civil rights struggles, it is necessary to identify, within the limits of this paper, the leading opponents of affirmative action. The attack comes from many places, among these are the academic community and the educational bureaucracy, big business and labor unions, white ethnic organizations and, of course, the federal government itself. Although worthy of a far more extensive examination, a few examples will suffice.

The clarion call in the ideological war against affirmative action was sounded by Professor Sidney Hook in a widely quoted article that appeared on November 5, 1971 in the New York Times, followed by his articles in Freedom at Issue and other publications. Hook denounced affirmative action programs in institutions of higher learning and called upon his colleagues to resist all such demands from civil rights groups. He was soon joined by many distinguished academicians and the Committee for a Rational Alternative emerged (later known as the University Center for Rational Alternatives) followed by the Committee on Academic Non- discrimination and Integrity. These groups, using the names of some of the most prestigious figures in academia and with virtually unlimited access to the media have conducted a steady drumbeat of attack against affirmative action programs in colleges and universities. Since January 1972, for example, the pages of Commentary magazine, which described the EEOC as the "quota commission," have been repeatedly filled with self-

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righteous denunciations of affirmative action by the ideologues of the new attack upon racial equality.i

The Anti-Defamation League of B'nai B'rith and the American Jewish Congress both condemned affirmative action requirements imposed by the federal government on educational institutions and on June 20, 1972 called on the Department of Health, Education and Welfare to repudiate "preferential treatment" in federally funded programs. On August 4, 1972, the American Jewish Committee in an open letter to President Nixon urged him to "reject categorically the use of quotas and proportional representation" in civil rights programs, and on January 12, 1973 six national Jewish organizations charging "reverse discrimination" against white males sent a protest to the Department of Health, Education and Welfare urging it to "prevent or eliminate preferential treatment."2

Typical of the position of most labor unions is the resolution adopted by the AFL-CIO Building and Construction Trades Department which stated:

Racial quotas, under any guise are repugnant to all Americans. When a proposal is made to establish racial quotas as public policy, honest men must protes t . . . We prefer the free choice of free men and we are certain that the vast majority of Americans, white and nonwhite alike prefer such freedom. 3

Spokesmen for corporate enterprise issued equally sanctimonious ex- pressions of outrage and in March of 1973 Fortune magazine further distorted the issue by warning against the dangers of job quotas. Its executive editor, Daniel Seligman, wrote, "For a democratic society to systematically discriminate against 'the majority' seems quite without precedent.' ,4

Another major source of organized opposition to the mandate of affirmative action developed in litigation under Title VII, comes from the newly emerging network of groups based on the ethnic working-class population. The undeniable fact that the white worker is exploited has in the recent past been solemnly rediscovered in a variety of books and articles. But those who engage in these idealized portrayals of the white proletariat conve- niently forget that the black working-class is the most systematically discriminated against and exploited group in American society; that the victimization of Blacks has been different in kind from anything known by the white ethnics. Furthermore, the past and present deprivation experi- enced by white workers of various ethnic backgrounds cannot be accepted as justification for their intense opposition to black advancement, nor can


their violence and racism be excused on the grounds that they too have suffered.

Michael Novak, a leading spokesman for the "unmeltable ethnics," to use his term, sought recently to warrant the intransigent response of these white workers to black demands for equality by blithely explaining that current racial problems are due to "special weaknesses in the culture of American blacks.' ,5 This attempt to make the victims responsible for their condition while exonerating the actions of those who firebomb buses carrying black children and engage in other acts of racist violence is, of course, obscene but typical of the current attitude. Whatever lofty senti- ments are spouted by those who try to excuse white working-class racism, the truth about the new ethnic revivalism is revealed on the streets of Boston, Brooklyn, Louisville, and elsewhere. After all the pieties are stripped away, the real reason for the existence of these groups is made clear by their oft repeated cry "STOP THE NIGGERS."

The diverse forces united in their intense opposition to affirmative action programs deliberately distort the issue by equating affirmative action based upon numerical goals with a fiction called the "quota system" and "reverse discrimination." But there is a fundamental distinction between quotas and numerical goals. Quotas are used to exclude, while numerical goals are a means to include those workers who have been systematically excluded in the past. Quotas establish a ceiling--that is, a maximum. Numerical goals used in affirmative action establish only a minimum which can, and often should be exceeded. In short, quotas have been used as a limitation, while numerical goals represent the exact opposite.

Those who attack the use of numerical goals often argue that affirmative action programs will penalize innocent whites who are not responsible for past discriminatory practices. This argument turns on the notion of individual rights and sounds very moral and high-minded, indeed. But it ignores basic social reality. For example, black workers have not been denied jobs as individuals but as a class--no matter what their personal merits and qualifications. Women have not been denied training and jobs as individuals, but as a class regardless of their individual talent or lack of it. Correspondingly, white males as a class have benefitted from this systematic discrimination. Wherever discriminatory employment patterns exist, hiring and promotion without affirmative action perpetuates injustice.

The federal courts have recognized in Title VII litigation that employment discrimination is by its nature class discrimination. This was established in Parham v. Southwestern Bell Telephone Company, 60at is v. Crown Zellerbach Corporation, 7 and Bowe v. Colgate-Palmolive Com- pany ,s among many other cases. It was also established that relief must go

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to the entire injured class and the use of specified numerical goals can be most effective in achieving compliance with the law.

Common to most attacks upon affirmative action programs is the assumption that such approaches constitute "reverse discrimination" and that the quality of performance and work standards will be severely diminished as a result of the employment of non-whites and women. 9 The a priori assumption that no "qualified" Blacks or women exist is implicit in this argument. Also implicit is the assumption that if Blacks and women were to be employed, the allegedly high standards now in force would be diminished. But in reality, the so-called merit system operates to give preference to mediocre or incompetent whites at the expense of highly talented Blacks, as well as at the expense of mediocre and incompetent Blacks.

In Chance v. Board of Examiners 10 (in which the United Federation of Teachers, AFL-CIO, filed a brief amicus curiae against the black and Puerto Rican plaintiffs and against "infamous quota systems") a federal court ruled that New York City must stop using its traditional examinations for selecting school principals because the tests had the "effect of dis- criminating significantly and substantially against qualified black and Puerto Rican applicants." The court concluded that the procedures of the Board of Examiners, allegedly based upon the merit system, could not be justified as being reasonably related to job performance.11

A similar conclusion was reached by the Court of Appeals for the District of Columbia in two recent decisions where the court held that the District's Police Department test and the Federal Service Entrance Examination were illegal. In these cases as in so many others, so-called "merit systems" were revealed to be discriminatory systems.

To argue that the merit approach operates in the building trades, as spokesmen for organized labor frequently do, is to depart from all reason and sanity. As had been demonstrated in many lawsuits throughout the country, the worst forms of nepotism and favoritism prevail. Excerpts from two federal court decisions, one in Louisiana and the other in New York, indicate the national pattern.

In U.S. v. Local 53, Asbestos Workers, 12 in New Orleans, the United States Court of Appeals for the Fifth Circuit stated:

In pursuing its exclusionary and nepotistic policies, Local 53 engaged in a pattern and practice of discrimination on the basis of race and national origin both in membership and referrals. It was found to be Local 53's practice to refer white persons of limited experience and white journeymen of other trade unions as mechanic asbestos


workers. It was also found to be its practice to refuse to consider Negroes or Mexican-Americans for membership and to refuse to refer Negroes for employment or to accept Negroes for referral for employment. This policy and various acts of discrimination, both prior to and after the effective date of the Civil Rights Act of 1964, were admitted at trial and on this appeal.

In U . S . v . Local 46, Lathers Union, 13 in New York City, the district court found that:

There is a deep-rooted and pervasive practice in this Union of handing out jobs on the basis of union membership, kinship, friend- ship and, generally, 'pull.' The specific tactics, practices, devices and arrangements just enumerated have amounted in practical fact to varying modes of implementing this central pattern of unlawful criteria. The hirings at the site, the bypassing of the lists, the use of the hiring hall, when it was used at all, as a formality rather than as a place for legitimate and nondiscriminatory distribution of work--all reflected the basic evil of preferring Local 46 members, relatives, friends or friends of friends in job referrals. And since the membership of this Local has for so long been almost exclusively white, the result could have been forecast: the jobs, and especially the more desirable jobs, have gone disproportionately to whites rather than blacks.

Commenting on the relationship between nepotism and racial discrimination, the Court added a sharply worded statement:

Because courts may know what all the world knows, practices of nepotism and favoritism like those disclosed here could, and proba- bly should, be condemned as inevitably discriminatory . . . . the Gov- ernment has shown in case after case the preference of whites over blacks on grounds of nepotism or acquaintanceship. The officers of the Local did not merely acquiesce in this state of affairs; many, if not all, have been active participants in the pattern of favoritism and its inevitable concomitant, racial discrimination. 14

Under the guise of defending "merit systems" that in reality do not exist, the opponents of affirmative action are, in fact, attempting to main- tain unstated but traditional discriminatory practices that result in the exclusion of Blacks, women, and others from desirable, high-paying, skilled jobs. A major factor in the resistance to new legal remedies is that white male expectations, based on the systematic denial of the rights of

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minorities, have become the norm. Thus any alteration of this norm is considered "reverse discrimination."

It should be evident that what is really involved in the debate over affirmative action programs is not that Blacks and women will be given preference over white males, but that a substantial body of law now requires that discriminatory systems which operate to favor white males at the expense of women and Blacks must be eliminated.

During the past quarter of a century, the federal courts have increasingly recognized the validity of numerical goals in eliminating traditional forms of discrimination. The courts have used this approach as a remedy to end systematic discrimination in the selection of juries and it has also been utilized in legislative reapportionment litigation, and in school segregation cases.

InSwann v. Charlotte-Mecklenburg Board of Education, 15 the Supreme Court held that:

Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient and even bizarre in some situations and may impose burdens on'some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.

Significantly, the Court ruled that mathematical racial ratios could be used as "a starting point in the process of shaping a remedy."

Although the courts have repeatedly spoken on this issue, the extensive public discussion of affirmative action programs has ignored the major legal interpretations of the validity of numerical goals and timetables in civil rights enforcement efforts. In the last half of the 1960s, as a result of an emerging body of law relating to employment discrimination, new forms of implementation were developed to obtain compliance with legal requirements. Among the most important of these was the concept of numerical goals to be achieved within stated time frames. The use of numbers expressed in the form of goals and timetables to enforce the legal prohibitions against job discrimination had its origin in a Fourteenth Amendment case, Ethridge v. Rhodes, 16 initiated by the National Associa-


tion for the Advancement of Colored People, and decided on May 17, 1967 by the U.S. District Court in Columbus, Ohio.

In this case, the NAACP proposed the principle that state agencies require a contractual commitment from building contractors to employ a specific minimum number of black and other minority workers in each craft at every stage of construction. This concept, later incorporated in the Philadelphia Plan, was potentially the most effective means of achieving compliance with the law. The Philadelphia Plan, challenged in the federal courts, was a significant development in contract compliance efforts. It was to become the case that joined the issue and was most important in establishing the legality of the use of numerical goals in federal civil rights enforcement. 1 v

In response to the arguments of contractors and labor unions that the plan contained illegal racial quotas, the U.S. Court of Appeals for the Third Circuit stated, "Clearly the Philadelphia Plan is color-conscious.. . In other contexts color-consciousness has been deemed to be an appropriate remedial posture." ~8

The court further held that:

The Philadelphia Plan is valid Executive action designed to remedy the perceived evil that minority tradesmen have not been included in the labor pool in which the Federal Government has a cost and performance interest. The Fifth Amendment does not prohibit such action. 19

In this important decision, the appellate court decisively rejected the argument that government imposed goals and timetables for the employment of Blacks and other minorities was unconstitutional. On the contrary, the court specifically validated the legality of this approach where necessary and the Supreme Court let it stand by refusing to review.

In a later case involving the Illinois state government, 2~ the Seventh Circuit Court of Appeals in 1972 affirmed the use of job ratios and held that:

Numerical objectives may be the only feasible mechanism for defining with any clarity the obligation of federal contractors to move employment practices in the direction of true neutrality.

As the courts perceive it, pledges of passive non-discrimination alter nothing and there is no meaningful measure of change other than numbers. z 1

In this context, federal courts repeatedly recognized that race-conscious

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injuries require race-conscious remedies. In Norwalk CORE v. Norwalk Redevelopment Agency,22 a federal court stated:

What we have said may require classification by race. That is something which the Constitution usually forbids, not because it is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality. Where it is drawn for the purpose of achieving equality it will be allowed, and to the extent that it is necessary to avoid unequal treatment by race, it will be required. 23

In United States v. Local 38, IBEW, 24 it was held that the "anti- preferential treatment" section of Title VII does not limit the power of a court to order affirmative relief to correct the effects of past unlawful practices. According to the Court of Appeals for the Sixth Circuit, "any other interpretation would allow complete nullification of the stated purposes of the Civil Rights Act of 1964."

A similar conclusion was reached by the Court of Appeals for the Ninth Circuit in United States v. Ironworkers, Local 86.25 After the district court ordered the defendants in Seattle to comply with an affirmative action program, the labor unions denounced the court's order because it allegedly contained "racial quotas" and "racial preferences." But the circuit court rejected this argument and stated:

There can be little doubt that where a violation of Title VII is found, the court is vested with broad remedial power to remove the vestiges of past discrimination and eliminate present and assure the nonexistence of future barriers to the full employment of black worke r s . . . Without such powers, the district court would be unable to effectuate the desire of Congress to eliminate all forms of discrimination. 26

InNAACP v. Allen ,2T a federal court found that defendants had engaged in blatant discrimination. From its inception thirty-five years ago, the Alabama State Highway Patrol had systematically excluded Blacks from the force and non-whites were employed in the department only as menials and as common laborers. The court enjoined the State Highway Patrol and ordered:

One Negro trooper for each white trooper [be] hired until approxi- mately twenty-five (25) percent of the Alabama state trooper force is comprised of Negroes . . . It shall be the responsibility of the De- par tment . . , to find and hire necessary qualified black troopers.


The court further ordered that:

Eligible and promotional registers heretofore used for the purpose of hiring troopers b e . . . abrogated. . , to comply with this decree. 28

In Carter v. Gallagher, 29 a case involving the Minneapolis Fire De- partment brought under Sections 1981 and 1983 of the Civil Rights Act of 1866 the district court decreed:

That the defendants . . , give absolute preference in certification of fire fighters with the Minneapolis Fire Department to twenty (20) Black, American Indians or Spanish Sur-named American applicants who qualify for such a position.

The municipality appealed this decision and, in response, the circuit court held that "The anti-preference treatment section of the new Civil Rights Act of 1964 does not limit the power of a court to order affirmative relief to correct the effects of past unlawful practices."3~

In Assoc ia t ed Genera l Contrac tors o f Massachuse t t s , Inc. v. Altshuler, 31 a federal court validated a statewide affirmative action plan requiring building contractors to employ a specified minimum percentage of minority workers. In rather eloquent language the court explained the necessity for such approaches:

It is by now well understood, however, that our society cannot be completely color-blind in the short term if we are to have a color-blind society in the long term. After centuries of viewing through colored lenses, eyes do not quickly adjust when the lenses are removed. Discrimination has a way of perpetuating itself, albeit unintention- ally, because the resulting inequalities make new opportunities less accessible. Preferential treatment is one partial prescription to remedy our society's most intransigent and deeply rooted inequalities. 3z

On November 30, 1973, the First Circuit Court of Appeals sustained the use of "numerical objectives" in all state financed construction projects in Massachusetts and on April 22, 1974, the Supreme Court refused to review.

On the basis of these and other federal court decisions, it is evident that a substantial body of case law has established not only the permissibility, but indeed the necessity, of numerical goals and affirmative action programs to eliminate discriminatory employment patterns. But the opponents of affir-

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mative action persist in their campaign of distortion, deliberately confusing goals with the pejoratively labeled "quotas" and denouncing affirmative action as "reverse discrimination."

It must also be noted that Title VII contains an affirmative action provision, 706(g), 33 which authorizes federal courts, after a finding of unlawful employment practices, to "order such affirmative action as appropriate which may include but is not limited t o . . . the hiring of employees . . , or any other equitable relief that the court deems appropriate." Ten years of active litigation under Title VII demonstrates that the normal operation of seniority structures, of testing procedures, and of so-called "mer i t" systems usually perpetuates the discriminatory pattern. Thus, litigation under Title VII has resulted in a new judicial perception of the nature of employment discrimination and in far-reaching decisions, such as that of the Supreme Court in Griggs v. Duke Power Co. ,34 which held that it is consequences, not intent, that matters and that traditional job testing methods which result in the exclusion of Blacks and other minorities from desirable job classifications are unlawful. 35

A well-orchestrated nationwide propaganda operation, based upon systematic misrepresentation and the manipulation of racial fears among whites has succeeded in causing the federal government to retreat on these crucial issues. Administrative enforcement of affirmative action requirements contained in the comprehensive body of civil rights laws and executive orders has, for all practical purposes, ceased and the process of administrative nullification begun under President Nixon continues under President Ford. 36

The Office of Federal Contract Compliance, for example, has become functionally useless, and the less said about the Office for Civil Rights in HEW the better. The Report of the United States Commission on Civil Rights issued July 1975 sums up the matter:

Instead of imposing sanctions on contractors who do not follow the affirmative action requirements, the compliance agencies and OFCC devote substantial resources to extended conciliation, which can often stretch out over several years. 37

The Commission's Report cites many examples of:

the contract compliance program's widespread tolerance of viola- tions of the Executive Orders and its virtual failure to impose any sanctions. The message communicated to government contractors is


that there is no threat of debarment or other sanctions, and the effect is to obliterate any credibility in the program. 3s

It is within this context that we must fight to preserve the integrity of the Equal Employment Opportunity Commission. Given a national adminis- tration hostile to civil rights progress, and the heightened racism of the society, civil rights advocates must do everything possible to prevent the EEOC from going the way of other civil rights administrative agencies. The disastrous rates of unemployment among the non-white populations and the continuing patterns of job discimination make it imperative that the EEOC function as a vital and aggressive agency in carrying out the mandate of the Civil Rights Act of 1964.

Title VII is meant to operate in bad times as well as in good times, during periods of depression as well as during periods of prosperity, and we reject the argument that whites have a prior right to a job and that black people must wait until there is full employment before they too can work. Thus it may be anticipated that there will be intensified activity under Title VII and that the EEOC's burdens will increase. It is necessary to point out that the Commission's responsibility is not fulfilled by mechanically disposing of charges received. Its purpose under the Act is to eliminate racist and sexist employment patterns throughout the society.

There is every reason to believe that the current unemployment crisis will last for a decade or more. A most important aspect of the long-term economic forecast is that at the same time that the nation is expected to experience a continuing high rate of unemployment many millions of workers will remain on the job. Not everyone will be unemployed. In fact, 85 million are now working. It is clear that the pattern of unemployment is unevenly distributed with black people, as usual, hurt the most. Therefore, the fundamental question now and for the next ten years and perhaps longer will be WHO WORKS ? Industry-wide patterns of discrimination based on race and sex are a decisive factor in determining who does or does not work.

The EEOC, if it is to survive as a viable agency, must reject the pressures to retreat that are exerted upon it by other organs of the federal government, such as the Civil Service Commission, the Department of Labor, and the Department of Health, Education and Welfare, among others. These agencies have crippled civil rights enforcement in their respective jurisdictions and they have done this by rejecting the concept of affirmative action and substituting instead an abstraction called voluntary compliance. But programs based upon voluntarism, with their expressed or implied promise not

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to enforce the law, have failed to eliminate discriminatory employment practices.

Voluntary compliance programs avoid the concept that racial discrimination is illegal, that black workers and other minorities have fundamental rights which cannot be bargained away, and that the institutions which discriminate against them are required by law to change their conduct. This, of course, is the basic message delivered by the courts as a result of litigation under Title VII. Voluntary compliance and "good faith efforts" do not work in eliminating job discrimination, and years of experience have demonstrated that the piling of pledge upon pledge not to discriminate by employers and labor unions changes little or nothing.

The record of thirty years of fair employment practice laws and executive orders makes it absolutely clear that the concept of passive non- discrimination is totally inadequate and obsolete. A ritualistic policy of "nondiscrimination" in practice usually means perpetuation of the traditional discriminatory patterns or, at best, tokenism. Discrimination in employment is not the result of random acts of malevolence; it does not usually occur because of individual bigotry, but rather is the consequence of systematic institutionalized patterns that are rooted in the society. Thus sweeping measures are necessary if racial employment patterns are to be fundamentally changed and affirmative action based on numerical goals and timetables is an essential component in achieving this end.

If we are to realize the potential of Title VII, the broad application of affirmative action programs will be necessary, where performance can be measured by tangible results, not by the proliferation of self-serving statements pledging "equal opportunity," an equal opportunity that al- ways remains beyond the reach of those who are the victims of the dual racial labor system. Without affirmative action, Blacks will have to wait until the millenium to achieve equality with whites.

In the final analysis, affirmative action is an attempt at redistribution, an attempt to achieve a limited but necessary reallocation of jobs and income within the existing legal structure. It is part of a long-term civil rights strategy to make the law operate as an instrument of social change. When the law is permitted to function at its best, it fulfills its historic role of preserving public order while, at the same time, redressing collective grievances and thereby giving the institutions of society an opportunity to change without fatal trauma.

The history of the twentieth century teaches us that if those victimized by injustice are denied relief under law, then the alternative is violence; and


v i o l e n c e , w h a t e v e r i ts m o t i v a t i o n , is ce r ta in to resul t in d i sas te r . Bu t the

o p p o n e n t s o f a f f i rma t ive ac t ion are succe e d ing in nu l l i fy ing the l aw, are

c o n f i r m i n g the b e l i e f that b l a c k p e o p l e are i n d e e d p o w e r l e s s in A m e r i c a n

soc ie ty and it is ce r ta in that in the p e r s p e c t i v e o f t ime , h i s to ry wi l l j u d g e

t h e m mos t ha r sh ly .

NOTES

1. See for example, Earl Raab, "Quotas by Any Other Name," Commentary, January 1972; Paul Seabury, "HEW & the Universities," Commentary, February 1972; "The Pottinger Papers: An Exchange on Affirmative Action," Commentary, May 1972; Elliott Abrams, "The Quota Commission," Commentary, October 1972; Paul Seabury, "The Idea of Merit," Commentary, December 1972.

2. On September 15, 1972, Secretary of Labor James D. Hodgson issued a memoran- dum directing that numerical goals in the hiring of women and racial minorities by federal contractors should no longer be required by contract compliance agencies. Both the National Organization of Women and the National Association for the Advancement of Colored People denounced this action as a "retreat" and stated that "For all practical purposes, enforcement of affirmative action plans have come to a halt." Paul Delaney, "Quota Memo Held Job Rights 'Retreat ' ," New York Times, September 26, 1972.

3. "Statement of Policy on Equal Employment Opportunity," adopted by the 55th Convention of the Building and Construction Trades Department, AFL-CIO, September 22, 1969, Atlantic City, New Jersey.

4. Daniel J. Seligman, "How'Equal Opportunity'Turned Into Employment Quotas," Fortune, March 1973, p. 168.

5. Michael Novak, "Liberal Resistance to Busing," New York Times, October 16, 1975, Op-Ed page. Daniel P. Moynihan is also a leading exponent of this argument. See Daniel P. Moynihan, The Negro Family-The Case for National Action, Office of Policy Planning and Research, U.S. Department of Labor, March 1965. Moynihan, Novak and Nathan Glazer have provided much of the "theoretical" basis for the white ethnic move- ment. In addition to many local and regional groups, there is the National Center for Urban Ethnic Affairs and the Ethnic Millions Political Action Committee.

6. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir., 1970). 7. Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir., 1968), reversing, 271

F.Supp. 258 (E.D. La., 1967). 8. Bowe v. Colgate-Palmolive Co., 272 F.Supp. 332 (D.C. Ind., 1967); aff'd in part and

rev'd in part, 416 F.2d 711 (7th Cir., 1969); preliminary injunction on remand (D.C. Ind., 1970); unreported order aff'd in part and rem'd in part, 489 F.2d 896 (7th Cir., 1973).

9. Bayard Rustin, Executive Director, A. Philip Randolph Institute has stated "We a r e . . , unalterably opposed to the imposition of quotas or any other form of ratio hir ing. . . We also believe that the widespread application of quotas would unquestionably lead to a weakening of the merit principle. We recognize that what has been referred to as 'merit' often works to the unfair exclusion of certain racial and sexual groups. . . But we are determinedly opposed to a broad assault on the concept of qualifications and standards." Testimony of Bayard Rustin to the Special Subcommittee on Education, U.S. House of Representatives, Washington, D.C., September 17, 1974. Published as a pamphlet "Af- firmative Action in an Economy of Scarcity" by the A. Philip Randolph Institute, New York, n.d., pages 1-3.

10. Chance v. Board of Examiners, 51 F.R.D. 156 (S.D.N.Y. , 1970); preliminary injunction issued, 330 F.Supp. 203 (S.D.N.Y., 1971); aff'd 458 F.2d 1167 (2nd Cir., 1972); further aff'd 496 F.2d 820 (2rid Cir., 1974).

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11. The United Federation of Teachers in New York City and its parent organization, the American Federation of Teachers, AFL-CIO, have been among the most active opponents of affirmative action. Albert Shanker, president of both the New York Local and the international union, has, since 1972, repeatedly attacked equal opportunity programs requiring hiring goals in his weekly column which appears on Sunday as a paid advertise- ment of the United Federation of Teachers in Section 4 of New York Times. See for example: " A Quarrel with Quotas," July 16, 1972; "How Order Number 4 Promotes Employment Quotas," March 18, 1973; "Preferential Treatment vs. Constitutional Rights," May 13, 1973; ' 'The Quota Principle: Dangerous Arithmetic . . . . " December 9, 1973; "The Quota Mentality vs. the 14th Amendment," October 20, 1974; "Strong Voices Against Ethnic Hiring," January 12, 1975. On August 25, 1974 Shanker's space was given to Bayard Rustin who wrote "Quotas and the New 'Ethnic i ty '" and on November 10, 1974, the column was turned over to the Board of Trustees of Freedom House who denounced numerical goals and time-tables in a statement entitled "Affirmative National Leadership Toward Equal Opportunity."

12. U . S . v . Local 53, Asbestos Workers, 407 F.2d 1047 (5th Cir., 1969). 13. U.S. v. Wood, Wire and Metal Lathers International Union, Local 46, et. al., 328

F.Supp. 429 (S .D.N.Y. , 1971). 14. Ibid. 15. Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1967). 16. Ethridge v. Rhodes, 268 F.Supp. 83 (S.D. Ohio, 1967). 17. For data on the development of the Philadelphia Plan and its consequences, see

Herbert Hill, "Labor Union Control of Job Training: A Critical Analysis of Apprenticeship Outreach Programs and the Hometown Plans," Occasional Paper, Vol. 2, No. 1, Institute for Urban Affairs and Research, Howard University, 1974. See also James E. Jones, Jr., "The Bugaboo of Employment Quotas," Wisconsin Law Review, Vol. 1970, No. 2.

18. Contractors Association of Eastern Pennsylvania v. Shultz, 442 F.2d 159 (3rd Cir., 1971).

19. Ibid. 20. Southern Illinois Builders Association v. Ogilvie, Governor,,et. al., 471 F.2d 680

(7th Cir., 1972). 21. In discussing the use of "numerical objectives," Charles E. Silberman writes, " A

formal policy of non-discrimination, of employing people 'regardless of race, color, or creed,' however estimable, usually works out in practice to be a policy of employing whites o n l y . . . As soon as we agree that special measures are necessary to overcome the heritage of past discrimination, the question of numbers--of how many Negroes are to be hired in what job categories--inevitably arises. Not to use numbers as a yardstick for measuring performance is, in effect, to revert to 'tokenism.' The point is not whether there is some right number of Negroes to be employed--obviously there is not--but simply that there is no meaningful measure of change other than numbers." Crisis in Black and White, Random House, New York, 1964, p. 241.

22. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920 (2nd Cir., 1968). 23. Id at 931-932. 24. U.S .v . Local 38 (IBEW), 428 F.2d 144 (6th Cir., 1970), cert. denied, 400 U.S. 943

(1970).

25. U.S .v . Local 86 (BSOIW), 315 F.Supp. 1202 (W.D. Wash., 1970), aff'd 443 F.2d 544 (9th Cir., 1971).

26. Ibid.

27. NAACP v. ALLEN, 340 F. Supp. 703 (N.D. Ala., 1972) aff'd and rem'd, 493 F.2d 614 (5th Cir., 1974).

28. Ibid.


29. Carter v. Gallagher, 452 F. 2d 315, modified en banc, 452 F. 2d 327 (8th Cir., 1972).

30. Ibid. 31. Associated General Contractors of Mass., Inc. v. Altshuler, 361 F.Supp. 1293

(D.C. Mass., 1973) aft'd, 490 F.2d 9 (lst Cir., 1973), cert. denied, 416 U.S. 957 (1974). 32. Ibid. 33. U.S.C. 2000e-5(g) (1964) 34. Griggs v. Duke Power Co., 40l U.S. 424 (197l) 35. For discussions of the significance of Title VII litigation see George Cooper and

Richard B. Sobol, "Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion," Harvard Law Review, Vol. 82, June 1969, No. 8, pp. 1598-1679; William B. Gould, "The Emerging Law Against Racial Discrimination in Employment," Northwestern University Law Review, Vol. 64, No. 3, July-August 1969, pp. 359-386; Herbert Hill, "The New Judicial Perception of Employ- ment Discrimination: Litigation Under Title VII of the Civil Rights Act of 1964," Univer- sity of Colorado Law Review, Vol. 43, No. 3, March 1972, pp. 243-268; Alfred W. Blumrosen, "Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination," Michigan Law Review, November 1972, Vol. 71, No. 1, pp. 59-110. See also, "Twenty Years After Brown: Equality of Economic Opportunity," A Report of the United States Commission on Civil Rights, Washington, D.C., July 1975.

36. The General Accounting Office, responsible for auditing the performance of government agencies on behalf of Congress, reported in 1975 that government enforcement of orders requiring federal contractors to comply with equal employment regulations was so lax that contract compliance agencies did not even possess a list of all contractors. Furthermore, the GAO said that the pattern of non-enforcement could lead government contractors to believe that the compliance agencies did not intend to enforce the regulations against employment discrimination. "The Equal Employment Opportunity Program for Federal Nonconstruction Contractors Can Be Improved," A Report prepared for the use of the Subcommittee on Fiscal Policy of the Joint Economic Committee, Congress of the United States by the General Accounting Office, Washington, D.C., May 5, 1975. For detailed analyses of contract compliance by federal agencies, see the five reports issues by the United States Commission on Civil Rights; the Federal Civil Rights Enforcement Effort, October 1970, May 1971, November 1971, January 1973, and July 1975. See also, Herbert Hill, "Whose Law--Whose Order? The Failure of Federal Contract Compliance," in Charles V. Hamilton, ed., The Black Experience in American Politics, G.P. Putnam's Sons, New York, 1973, pp. 325-331.

37. The Federal Civil Rights Enforcement Effort--1974, U.S. Commission on Civil Rights, July, 1975, p. 342.

38. Ibid.

affirmative action and the quest for job equality

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