AFFIRMATIVE INACTION? : Programs Have Been Weakened but Not Killed by Recent Rulings

Harvard psychiatrist Alvin F. Poussaint anticipated a gloomy reception last month in New Orleans when he addressed the American Assn. of Affirmative Action a day after the U.S. Supreme Court handed down one in its recent series of rulings making it harder for minorities and women to win job discrimination suits.

“I said that they should not feel demoralized and should continue to pursue affirmative action,” Poussaint recalled telling the group of corporate and government affirmative action officers. “The courts aren’t everything. People should learn to exercise their own political and economic power.”

The group hardly needed a pep talk, however, judging from the reaction of those at the meeting.

“The fact is, affirmative action is still alive,” said Robert W. Etheridge, president of the Chicago-based association. “As long as we continue to carry out our programs well, the court decisions will not have an adverse effect. Everybody was very upbeat.”

While recent Supreme Court rulings erecting new barriers for minorities and women seeking to redress job discrimination in court have distressed some civil rights groups, many who work in the field say affirmative action plans have become so institutionalized that they are sure to live on.

“These concepts are historic now,” said Stephen A. Enna, senior vice president and personnel director for Wells Fargo Bank. “People have adapted to them and people have learned to work with them in a positive way.”

Four recent Supreme Court decisions had prompted widespread criticism from civil rights lawyers, who feared that the court’s new conservative stance would both make it more difficult for plaintiffs to bring discrimination suits and place less pressure on companies to promote affirmative action.

“The willingness to take tough action (to support affirmative action) may well be withdrawn now, by virtue of the fact that the standards have been changed by the court,” complained Eleanor Holmes Norton, a Georgetown University law professor and former chairwoman of the Equal Employment Opportunity Commission.

Barry Goldstein of the NAACP Legal Defense and Educational Fund singled out, as especially egregious, the court’s June 15 ruling that an 1866 civil rights law does not apply to cases of racial harassment or other discrimination by an employer.

“How can you have a civil rights law that doesn’t cover racial harassment?” said Goldstein. “People are seriously bothered if they are called racial slurs on the job. It almost goes without saying that that type of conduct can ruin someone’s job performance.”

The principle of affirmative action--preferential hiring and promotion plans to address past discrimination--dates back to an executive order signed by former President Lyndon B. Johnson in 1965. The order, still in effect, requires affirmative action plans for all companies that do more than $50,000 in business every year with the federal government and that have 50 or more employees.

An estimated 200,000 firms are covered by the rule, which is enforced by the Office of Federal Contract Compliance Programs. The agency reviews affirmative action plans--which can run hundreds of pages in length and require dozens of employees to compile--and determines if a company is making a “good faith” effort to increase the number of minority and women employees in various job categories.

There also are hiring and promotion quotas for companies and government agencies that have been ordered or have consented to remedy discrimination under the 1964 Civil Rights Act.

Corporate personnel officers credit both measures with helping to promote greater job opportunities for minorities and women, especially in entry-level jobs.

Government statistics show that the number of discrimination complaints filed under Title 7 of the 1964 Civil Rights Act declined to 42,657 in 1988 from a high of 53,343 in 1985. But experts note that there has been only minimal improvement in racial diversity in the upper management ranks of corporations.

From 1980 to 1987, for example, the percentage of black managers in the work force only increased to 4.9% from 4.0% and for Latinos to 2.6% from 2.2%, according to the Equal Employment Opportunity Commission.

Still, experts expect improvement because, in their view, discriminatory job policies are becoming more self-defeating than ever. By the year 2000, women, minorities and immigrants will account for 80% of the growth of the work force. And businesses that want to grow will have to rely on them as workers and customers, executives say.

What’s more, business executives who dislike surprises view compliance with affirmative action policies as a measure of legal protection against discrimination suits.

Promoting affirmative action isn’t an inexpensive proposition. Los Angeles-based Atlantic Richfield Co., for example, says it has nearly two dozen people working full time to maintain and update some 45 company affirmative action plans.

Still, the looming demographic rise of minorities and women in the workplace is altering the thinking of even those groups that have long opposed affirmative action plans, such as the Associated General Contractors of America.

Major Shift

“Given the demographic studies that seem to suggest that women and minorities will become a larger percentage of the American work force, it’s a good business decision not to change your policies now,” said Stuart Binstock, the group’s director of equal opportunity services.

The Supreme Court decisions that triggered the new affirmative action concerns addressed highly technical points of law. But taken together, the cases represent a major shift from the court’s more liberal stance of the 1960s and early 1970s, when civil rights rulings expanded the legal avenues available to minorities and women.

This year’s rightward shift on civil rights began Jan. 23, when the high court threw out a Richmond, Va., plan to set aside 30% of its public works dollars for minority-owned businesses. The court’s 6-to-3 ruling forced scores of states, cities and counties to review their minority contracting programs to make sure they weren’t arbitrary.

The change in direction became even more clear the day before Poussaint’s speech in New Orleans on June 6. By a 5-to-4 vote, the justices gave companies accused of discrimination a crucial procedural victory. They said, in Wards Cove vs. Atonio, that plaintiffs may not rely on statistics showing that they were confined to low-paying jobs but must show that employer policies intentionally discriminated against them.

Next came Martin vs. Wilkes, a case that may have the most far-reaching impact. The justices ruled that court-approved affirmative action settlements can be reopened when white male employees allege reverse discrimination.

Finally, on June 15, the Supreme Court ruled, 5-to-4, that minorities no longer can use an 1866 civil rights law to seek damages for racial harassment on the job. The decision means that civil rights plaintiffs must use Title 7 of the Civil Rights Act of 1964, a narrower statute that does not cover businesses with fewer than 15 employees and does not allow recovery of monetary damages for racial harassment.

Wrong Signal

Despite the chipping away at civil rights law, Stephen A. Bokat, a vice president at the U.S. Chamber of Commerce, said “the hue and cry from (civil rights) lawyers is unwarranted. I don’t expect to see any changes in affirmative action plans.”

Still, some fear that the court’s rightward shift on civil rights issues and the Administration’s apparent retreat on affirmative action enforcement could send the wrong signal to thousands of smaller companies that do not have affirmative action programs.

David Barclay, staff vice president of human resources development at Hughes Aircraft, said he senses that regulators are paying less attention to affirmative action, particularly at small firms. The Office of Federal Contract Compliance Programs, he noted, “has suffered some cutbacks in staff. We only get reviewed every three or four years. Years ago, it was on an annual basis, so you’d think there’s even less attention directed at smaller firms.”

Annie Blackwell, director of the agency’s division of policy planning and review, acknowledged that the agency has been hampered by staff shortages in the wake of budget cutbacks. But she said enforcement has not been affected.

She said the government has disbarred five companies from the contracting program since 1980 and that the number formally cited for less serious types of noncompliance with affirmative action rules has risen 59% to 1,779 from 1,121 in 1981.

It’s a major shift from the 1960s, when civil rights rulings expanded legal avenues available to minorities and women.