A Giant Step Backward

With its decision this week to sharply restrict the ability of women and minority workers to obtain relief from discriminatory employment practices, the U.S. Supreme Court’s new conservative majority has demolished a perfectly sound structure of civil rights case law.

In the case at issue (Ward’s Cove Packing vs. Atonio), workers at an Alaskan salmon cannery sued their company because its employment policies had produced a situation in which lower-paying, unskilled factory jobs were filled mostly by members of minority groups, while higher-paying, skilled positions went almost exclusively to whites. The packer also maintained separate dorms and mess halls for skilled and unskilled workers.

Under the interpretation of Title VII of the Civil Rights Act of 1964 which has prevailed since the Burger Court’s unanimous landmark ruling in Griggs vs. Duke Power nearly two decades ago, the workers should have obtained relief. In that 1971 case, the court held that when the plaintiffs in such a suit produce statistical evidence that theoretically neutral personnel policies have had a discriminatory impact on women and minorities, the employer must show that the policies are dictated by “business necessity.”

In the Ward’s Cove case, however, the new court majority lifted that burden of proof from employers’ shoulders, thereby overturning 18 years of precedent and sanctioning what the four dissenting justices correctly called business practices that “resemble a plantation economy.”

As one civil rights attorney put it, this week’s ruling sounds a “death knell” for many of the most significant federal job discrimination suits. Coming as it does, on the heels of the court’s decision outlawing programs that set aside portions of public works contracts for women and minorities, this ruling demonstrates an evident intention of Chief Justice William H. Rehnquist and his colleagues Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Byron R. White to overthrow three decades of progress toward a society in which the civil rights of all Americans are equally respected.

We do not subscribe to the notion that there is something inherently wrong with judicial activism. To the contrary, it has made an indispensable contribution to the history of our system. But, as the least democratic of all our democratic institutions, the judiciary ought to undertake to lead only in the face of compelling necessity. Such a need obviously existed, when the Warren Court was forced to take the lead in enforcing a decent respect for the rights of all Americans accused of crimes. Such also was the case when the Warren and Burger Courts--to their everlasting credit--allied themselves with the courageous men and women struggling to redeem us all from the dishonor of 200 years of racial oppression.

For nearly 20 years, equal opportunity and affirmative action have been tireless engines of social progress. They have promoted decency, equity and civic harmony; they have contributed materially to this country’s moral, social and economic strength. What manifest injustice, what dire need, what broad new consensus impels the Court to cast all this away? In fact, there is none.

Along with Justice Harry A. Blackmun, who dissented in the Ward’s Cove case, we are left to wonder “whether the majority still believe that racial discrimination . . . is a problem in our society, or even remember that it ever was.”