Activists React to Affirmative Action Losses

Civil rights activists were celebrating some triumphs of their past at a gathering here last weekend when an intense Jesse Jackson strode to the podium at Spelman College chapel.

The future, he argued, is imperiled by what he calls “the shaking white hand theory--a weak, scrawny, shaking white hand” that has a job taken away by “a strong black hand.”

The image derives from a television ad showing white hands crumpling a job rejection letter because a workplace “quota” dictated that the job must go to a minority. The ad, part of North Carolina Sen. Jesse Helms’ reelection campaign, is credited by many analysts with mobilizing white voters and guaranteeing Helms’ victory over black Democrat Harvey Gantt.

The ad vividly depicts a new political reality of “blacks as scapegoats,” Jackson said. That reality was evident in the strong showing by ex-Ku Klux Klan leader David Duke in Louisiana’s U.S. Senate race, and more important, in President Bush’s veto of the 1990 Civil Rights bill, he said.

For the civil rights leaders, Jackson’s address was a call to regroup and rearm after a long period of retrenchment following the gains of the 1960s. At stake is one of the most significant results of the bloody civil rights struggle: affirmative action programs designed to overcome discrimination against hiring and promoting minorities.

“It’s time to fight back,” Jackson shouted, and the audience of about a thousand roared and clapped in a standing ovation.

The attack on affirmative action “is galvanizing and creating the greatest coming together that we’ve seen in a long time in the civil rights community,” said Rep. John Lewis (D-Ga.). The civil rights battle is “very simple” again, he said. “We know what we’re fighting against.”

But the reason their adversary is so apparent underscores the magnitude of the struggle facing the civil rights activists. From the Congress to courthouses, from polling booths to personnel offices, affirmative action has been dealt setback after setback. And now hard economic times, which make each job more precious, threaten to strip more white support from the programs that give minorities a competitive boost.

Recently, the legal attack on affirmative action has been nationwide:

--The U.S. Justice Department filed suit in federal court in Baltimore, charging that the state of Maryland discriminated against white men and violated the 1964 Civil Rights Act by setting aside four high-level jobs for women and minorities at the state lottery agency.

--The U.S. 10th Circuit Court of Appeals upheld an award of $186,000 to a white social worker who sued because the Pueblo, Colo., school district reinstated black and Latino colleagues who had less seniority than she did at the time they all were laid off from work.

--A jury in Pima County, Ariz., awarded $215,000 in damages to a white part-time worker who alleged that she was denied a full-time job with the city of Tucson because of her race.

--Four white-owned construction firms in South Florida sued in an effort to halt a county minority business enterprise program, alleging that the program discriminates against white people because it gives preference to firms owned by minorities or women as subcontractors on public projects.

The suits are based on a series of recent Supreme Court decisions rolling back provisions of the 1964 Civil Rights Act, which authorized federal courts to order employers to take action to overcome the effects of past discrimination. That action could include quotas--requirements that, for example, one minority member be hired for every white worker brought in.

In 1965, President Lyndon B. Johnson ordered large federal contractors to demonstrate progress toward diversifying their work forces. Although mandatory quotas were not part of Johnson’s executive order, they became prima facie proof that a contractor was taking steps to comply with the act.

Last year the Supreme Court set a narrow limit on the time a plaintiff has to challenge discriminatory seniority policies, while at the same time opening the door to challenges of settlements years after they have been made. Most important, the court put the burden of proof on people charging discrimination--instead of on employers.

The decisions clearly put affirmative action proponents on the defensive, a position they were already in politically because of the tie-in to quotas. While polls showed that two-thirds of whites still favored affirmative action programs, they were absolutely opposed to quotas.

“They think quotas are unfair and un-American,” said Los Angeles Times political analyst William Schneider. “It means you can work as hard as you want and be as qualified and talented as you may be, but you’re not going to get the prize in the end because it’s reserved for somebody else.”

Thus, any portrayal of affirmative action programs as “quotas” resonates with voters. Helms ran against quotas and won reelection to a fourth term with 53% of the vote. Calling for an end to affirmative action programs, Duke won 44% of the overall Louisiana vote, and he drew a majority of the white vote.

Bush used the “Q” word in vetoing the Civil Rights Act of 1990, even though the act did not specifically call for quotas. “I deeply regret having to take this action,” Bush declared in his veto message. “But when our efforts, however well-intentioned, result in quotas, equal opportunity is not advanced but thwarted.” A veto override attempt failed by one vote in the Senate.

The legislation was designed to overturn some of the recent Supreme Court rulings. It would have required an employer whose hiring and promotion standards excluded women and minorities to prove that the standards “bear a significant relationship to successful performance of the job.” The bill would have allowed victims of sexual, religious and national origin discrimination to seek compensatory and punitive damages for intentional discrimination. Victims of racial discrimination already are authorized to seek such damages.

Also, the bill would have given complaining employees as long as two years to challenge discriminatory changes in seniority plans, expanding the time from the current 300 days. And, it would have prohibited public or private employers from engaging in racial discrimination in any aspect of employment, not just making of contracts.

Such provisions could force an employer to adopt quotas, Bush contended.

As white people challenge affirmative action, black people find it more difficult to challenge discriminatory practices, according to a report by People for the American Way. It said the series of Supreme Court decisions last year “has already derailed more than 100 employment discrimination cases.”

As an example, the report cites the case of a black man in Birmingham, Ala., who worked at an equipment company. During a lunch hour, the company owner allegedly put a sandwich on the floor and used an epithet to demean him. Also, said the report, the owner, on at least two occasions, allegedly kicked the black man “for work-related errors.”

The employee was demoted, and he sued. District court found the employer guilty of discrimination and awarded the man $150,000 in damages. However, because a Supreme Court decision has narrowed job discrimination law to only guard against discrimination in the “making of contracts,” the decision was overturned on appeal. Blatant harassment “is now legal under the Supreme Court’s interpretation of civil rights law,” the report said.

These days, employers “never know who’s going to be waiting around the corner to challenge a case,” said Elliot Mincberg, legal director for People for the American Way. He said the climate has “caused a lot of instability that could be avoided if Congress corrects the problem next year.”

Ralph Neas, executive director of the Leadership Conference on Civil Rights, says his organization will be doing everything it can to persuade Congress to make the change.

The umbrella organization for 185 rights groups lobbied heavily for the vetoed legislation and will do so again, said Neas, declaring that the 50 million people represented by the groups “want to make sure that the Helmses and the Dukes of the world don’t prevail.”

Kim Gandy, secretary-treasurer of the National Organization for Women, said in order to counteract the quota scare, the legislation’s proponents “have to find some direct and less legalistic way of explaining the fairness and rightness of what we are doing.”

For example, there is strong evidence of continued difficulty for minorities in getting jobs and promotions, civil rights advocates contend.

The Equal Employment Opportunity Commission said that during fiscal year 1990, which ended in September, 89,295 job discrimination charges were filed with the agency. Of those, 47,394 were racial, and 33,092 were gender-based.

According to the U.S. Labor Department, black executives in all civilian jobs were 5.7% of the total of 14.8 million in 1989, barely up from the 5.3% in 1985. During the same period, Latino managers increased from 3.5% to 4.0%. Women fared better, rising from 35.6% to 39.8%. All of these percentages fall well below each group’s representation in the work force.

Even companies with the best reputations for affirmative action reflect the long, slow climb that minorities and women face making their way up the corporate ladder.

At the Monsanto Co., where minorities make up 15% of the 29,000-person work force in U.S. operations, they are 11% of the management ranks. Women, 27% of the giant chemical manufacturer’s U.S. work force, are 22% of the managers.

“By no means are we where we want to be,” said Edward Williams, Monsanto’s director of equal opportunity affairs, “but we’re moving in the right direction.”

Randolph Hale of the National Assn. of Manufacturers, which has 13,500 member firms, said that because of tighter labor markets, employers increasingly “are going to have to turn to a diverse kind of work force,” but that “effective affirmative action in the ‘90s is going to be education and training, not litigation.”

But Robert Ethridge, president of the American Assn. for Affirmative Action, said “somebody is going to have to be kind of the traffic cop to regulate what goes on in terms of not only hiring but promotions. That is where affirmative action programs can play a very significant role.”

“It (affirmative action) is much more a management issue than an enforcement issue,” said Jan Ellis, director of public affairs at the Labor Department’s Office of Federal Contract Compliance Programs, adding that the department is “taking the lead on what we call the ‘glass ceiling initiative,’ which is not only to look at where women and minorities have entered through the door, but where they are in the pipeline.”

Civil rights activists just want the laws to mean what they meant before the Supreme Court rulings made job discrimination cases more difficult to win. That, they say, is an essential tool for preventing minorities and women from losing ground and for righting past wrongs. They vow to make passage of a new civil rights act a high priority.

“In the long run, I believe in the triumph of justice,” said Joseph Lowery, president of the Southern Christian Leadership Conference, vowing to use the ballot box, street marches and economic boycotts, if necessary, to fight for new legislation.

Staff researcher Edith Stanley contributed to this story.