The Tale of Title VII

While the Bakke decision does not specifically apply to jobs and promotions, that is perhaps the most tangled and controversial area of affirmative-action programs, and the lower courts have had a hard time dealing with the problem.

John F. Kennedy was the first President to call for "affirmative steps," in Executive Order 10925, issued in 1961. With that measure barring job discrimination among contractors doing business with the Federal Government, Kennedy recognized that desegregation would take more than the mere absence of overt bias among contractors. So Washington told contractors on federal projects actively to recruit minorities and encourage their promotion.

A different, broader meaning was given to affirmative action by the historic 1964 Civil Rights Act, the first significant federal effort to outlaw employment discrimination in private industry. Title VI of this law barred discrimination in federally funded universities and other programs, and Title VII barred it in jobs. Using what courts have called color-blind language, the act made it unlawful for any employer "to fail or refuse to hire or to discharge any individual or otherwise to discriminate ... because of such individual's race, color, religion, sex, or national origin."

The Senate sponsors of the Civil Rights Act insisted that it provided only for equal opportunity, not racial preference or balance. Said the late Senator Hubert Humphrey: "Title VII does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group." Added Senator Harrison A. Williams Jr.: "An employer with only white employees could continue to have only the best-qualified persons even if they were all white."

When violations of Title VII occur, federal courts are authorized to "order such affirmative action as may be appropriate," including reinstatement of employees, and back pay. In general, the doctrine has been that judicially imposed affirmative-action remedies--including racial hiring quotas--are appropriate only when employers have been found guilty of discrimination.

One of the first orders requiring minority hiring goals to remedy discrimination involved the all-white Philadelphia construction trades. In 1969 the U.S. Labor Department established the "Philadelphia Plan," which provided for goals and timetables in minority recruitment in the Philadelphia building trades. The Contractors Association of Eastern Pennsylvania sued, charging that the plan was an unconstitutional quota system and that it violated the Title VII ban on discriminatory hiring. Not so, ruled the Third Circuit Court of Appeals in 1971, upholding the President's power to attack discrimination through use of preferential remedies. "Clearly the Philadelphia Plan is color-conscious," wrote Judge John Gibbons, but to strike the scheme down under Title VII the court "would have to attribute to Congress the intention to freeze the status quo and to fore close remedial action [to] overcome existing evils."

Next, a federal district court decided in the case of Carter vs. Gallagher that the Minneapolis fire department had unlawfully excluded racial minorities: of 535 department employees, none was black, Indian or Mexican American, although blacks constituted 6.44% of the Minneapolis population. Armed with these statistics, the court ordered "absolute minority preference" in employment until an additional 20 minority members had been hired by the department. "Such a procedure does not constitute a 'quota' system," argued the Eighth Circuit Court of Appeals in its 1972 review of the case, "because as soon as the trial court's order is fully implemented, all hiring will be on a racially nondiscriminatory basis." As in similar rulings involving law-enforcement agencies in Alabama, Chicago and Mississippi, the court justified this affirmative-action remedy as a method of "eliminating the effects of past racial discriminatory practices and of making meaningful in the immediate future the constitutional guarantees against racial discrimination."

The antidiscrimination mandate of Title VII led courts to focus on the qualifications required of prospective employees. In a sweeping 1971 decision in Griggs vs. Duke AP Power Co., the Supreme Court struck down a North Carolina power company's requirements of a high school education and general aptitude tests, because these requirements screened out a disproportionate number of blacks. Title VII says that ability tests are permitted if they are not "designed, intended or used" to discriminate because of race, color, sex or national origin. As the court interpreted this requirement in Griggs, "If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."

Griggs approved guidelines issued by the federal Equal Employment Opportunity Commission requiring elaborate and expensive "validation" studies on the relevance of any hiring standards that screen out minorities or women. In keeping with those guidelines, courts have barred the use of arrest and conviction records as grounds for rejecting applicants from some jobs, because minorities from high crime areas are arrested on suspicion more frequently than whites. And they have held that employers have the burden of proving they are not discriminating when a statistical survey of their employees reveals a very low representation of minority groups and women compared with the available labor force and population.

With the support of the courts in these broad interpretations of Title VII affirmative action, the EEOC and other federal agencies have pressed employers to agree to sex and minority hiring goals "voluntarily," that is, without forcing the agencies to resort to the federal courts or withdrawals of federal funds. Employers are required only to make a good-faith effort, not to treat the goals as mandatory quotas. As the yellow booklet of EEOC guidelines warns employers, "The most important part of an affirmative-action program is its RESULTS."

This file is automatically generated by a robot program, so viewer discretion is required.