PERSPECTIVE ON THE SUPREME COURT : Tough Response to Bias Is Individual Justice : Under ‘affirmative action,’ actual victims don’t get relief and qualified people lose job opportunties.

The availability of goals and timetables will not mean the end of employment discrimination. Goals and timetables, long a popular rallying cry among some who claim to be concerned with the right to equal employment opportunity, have become a sideshow in the war on discrimination.

During the mid- and late-1970s, the (Equal Employment Opportunity) Commission concentrated its efforts to enforce Title VII on suits that would affect large numbers of people. At that time, blatant discrimination was still prevalent. Many employers openly maintained “No Blacks/Women Need Apply” policies, and many others had moved such practices underground.

The commission, confronted with the enormity of the problem and limitations on its litigation resources, took a “bang for the buck” approach to fighting discrimination. Although Title VII guarantees individuals the right to be free of discrimination in employment, the commission did not attempt to right every wrong individually, a task for which its litigation machinery was not prepared. Instead, the commission tried to make quick statistical progress by funneling resources into challenges against the hiring practices of some of the country’s largest employers.

It was rarely possible to say which of the many rejected applicants would have been hired absent discrimination, since many of the jobs required only unskilled labor, and records of unsuccessful job applicants were incomplete. In such cases, back pay for actual victims was not an available form of relief.

Therefore, the commission would agree to settlements or would seek relief under which other members of the victims’ class were given positions as substitutes for those who would have been employed had nondiscriminatory selection criteria been used.

The commission has now entered a new stage. Many of the very large employers who once appeared to discriminate have been brought into compliance. Most of our cases involve discrimination by a particular manager or supervisor, rather than a “policy” of discrimination. As a result, the discrimination that we find today more often has a narrow impact, perhaps influencing only a few hiring decisions, and does not warrant the use of a goal that will affect a great number of subsequent hires or promotions.

This is not because goals and timetables are too “tough” a remedy. On the contrary, although group-defined numerical relief is a somewhat imaginative extension of Title VII principles, these remedies are fairly easy on employers.

The reason for this is obvious. In those cases where numerical relief is possible--where there has been a pattern or practice of discrimination affecting a large class--every identified victim has a right to “make whole” relief. Giving back pay to each actual victim can be expensive, but the cost of agreeing to hire a certain number of blacks or women is generally de minimis.

There is, in other words, an economic incentive for an employer to settle the case before it becomes necessary to identify actual victims.

It should therefore come as no surprise that large firms were falling over each other to applaud the court’s approval of affirmative action. The recent decisions will decrease the chances that employers will be forced to hire those persons actually discriminated against (who would be entitled to back pay) and will increase the probability that employers will escape fully addressing discrimination by merely hiring a certain number of blacks or women (who are not entitled to back pay).

The use of affirmative action, rather than a victim-specific form of relief, effectively allows employers to shift the cost of the remedy from themselves to the actual victims of their past discrimination, who never receive the back pay and jobs to which they are entitled, and to the qualified persons who will be deprived of an employment opportunity because someone else was given a preference under the remedial plan.

To whatever extent we do want to give preferences to compensate those who have been unfairly deprived of certain advantages, we would do so in a manner that is just. Any preferences given should be directly related to the obstacles that have been unfairly placed in those individuals’ paths, rather than on the basis of race or gender, or on other characteristics that are often poor proxies for true disadvantage.