COLUMN ONE : Tense Steps to Ending Racial Bias : The goal of eliminating job discrimination has forced tough choices. An important part of the story begins with a group of black janitors at a steam plant in North Carolina.


Then America was shaken from the long shame of its moral slumber. The year was 1964. Storms of protest battered at centuries of bigotry, and an epic civil rights bill finally emerged from Congress. There was to be an end to racial discrimination, the disgraceful crack in the Liberty Bell.

The most momentous section of the legislation was Title VII. It barred bias in employment, which was a radical notion for a racist nation. Inequality had proven no easier to uproot than slavery. A century after Emancipation, blacks most often were forced to work those jobs that were dirty, unhealthful and, if possible, invisible.

In time, Title VII--and a presidential order that soon followed--came to be popularly known by a generic catch phrase: affirmative action. It is an odd and ambiguous coupling of words, fetched from the obscure boilerplate of a 1935 statute. For a generation now it has been spoken of as both a blessing and a curse throughout the land.

Not since the Industrial Revolution has anything so changed the American workplace. Adjustments have been made to the nation's basic arithmetic: who gets what jobs and when they get them. And, with the recomputed pluses and minuses, something rueful has occurred as well: The very efforts to submerge race have pushed it toward the political surface, preserving it as an ugly fault line in American life.

That has been evident during the nasty rhetorical war over a new civil rights bill, one that only a week ago came to a historic truce. For the first time, Congress explicitly stated what it had warily avoided for 27 years: It is proper to use racial preferences to remedy the wrongs of the past.

Few Americans understand the legalistic stutter steps that have brought the nation to this crossing. From the start, Title VII sought to achieve two virtuous goals that unhappily required two contrary policies--an immediate end to racial bias and the swift leap of blacks into the economic mainstream.

The first goal assumed a sort of color blindness and the second a type of racial bookkeeping. Therein lies the paradox of affirmative action and, as politicians practice their divisive craft, increasingly the warp.

Amid the horse-trading in 1964, legislators failed to reconcile Title VII's implied contradictions. Until the last year, they have purposely shrugged the matter from their own shoulders and dumped it into other laps.

Judges and bureaucrats have become the diviners. Over tedious years of rule-making and lawyering, it is they who have chosen among affirmative action's conflicting goals and the accompanying legal theories.

By and large, the argument that has prevailed is one President Lyndon B. Johnson declared in a speech not long after the civil rights bill--his civil rights bill--had become law.

"Freedom is not enough . . . ," he said. "You do not take a person who has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'You are free to compete with all the others,' and still justly believe you have been completely fair."

In practice, this has meant a concentration on racial numbers. If there is an imbalance, it must be set right to make up for the uneven start. To remove race from hiring decisions, there must be a period of time when race is rigorously taken into account.

This has led to a set of preferences--and, in some cases, actual quotas--that favor minorities. Sears Roebuck & Co., for instance, in 1974 began its MAG Program, or Mandatory Achievement of Goals: Each store was to try to reflect its area's population of minorities and women.

Failing meant the possibility of discipline. "If (store) managers chose to ignore the affirmative action manual, they did so at their own risk," said Ray Graham, in charge of equal employment at the company from 1968 to 1980.

Managers began to troll previously untapped pools of talent. "There is rarely a single best-qualified person for any job, anyway," Graham said. Positions were occasionally kept open until capable minorities were found. Slowly, the percentages at all levels began to rise.

But there is something vital to understand about all this. Preferences have always been part of the quirky process of hiring. Usually, employers select people who seem most like themselves. Joe may hire Jim because they went to the same school. Preferences have long benefited white males--and still do.

By every measure available, from law enforcement dockets to economic surveys, discrimination against minorities is a continuing fact of the workplace. Affirmative action has merely added some counterweight to the scale, rocking the white-male boat but surely not capsizing it.

Public attitudes to these changes are deeply split. Notably, polls show that resentment of the civil rights gains for minorities is commonly higher than that for women--who were mockingly included in the 1964 act by a Southern congressman who thought it might kill the bill.

That is perhaps to be expected. Most households have wives, mothers and daughters; they do not have minorities.

The big issue now, as it was in 1964, is race in the workplace.

In the early 1960s, during the dawn of what a well-scrubbed young President called the New Frontier, America was something of a sporadic democracy, choosy about whom it favored with jobs, education and the right to vote.

Blacks were the most deprived. The mill, the store, the office, the union hall--they had their own color codes. A black could enter the white man's world through the back door and walk behind him with a broom.

Black college graduates had lower lifetime earnings, on average, than whites who had not even gone beyond grade school. About 40% of working black women did menial housework, either in white people's homes or as chambermaids.

Among 400,000 textile workers in Virginia, North Carolina and South Carolina, there was not a single black employed as a weaver, spinner or loom fixer. At the Ford Motor Co. plants in Atlanta, Memphis and Dallas, blacks were mainly used as janitors and toilet attendants.

Industries in the North were little better. In 1965, an NAACP investigation in Pittsburgh, Pa., found a pattern typical of big-city building trades: bridge and ironworkers, no blacks; carpenters, none; electricians, none; plumbers, none; roofers, none; tile setters, none.

White-collar work was a white people's sanctum. David Klein, a sales manager for the Wearever Aluminum Corp. in New York City, testified before Congress that the company's rule was to discourage all black job candidates.

If they persisted in making applications, their papers were immediately sent to "File G," something of an office joke. "Under G means garbage," Klein said, "at which time it was placed in the wastepaper basket."

History sometimes turns its powerful eye on the unlikely. In 1964, among the many under discrimination's thumb were 14 black men at Duke Power Co.'s steam station by the banks of the Dan River near Draper, N.C.

The plant's 81 white employees were supervisors, machine operators and technicians. They monitored the shiny dials and gauges that operated the massive boilers. Each job could lead to one better. The blacks, on the other hand, were all janitors, and that is what they could expect to do for life.

Trains would haul in huge loads of Appalachian coal, rolling along the tracks beside the slow, brown-green waters of the Dan. White workers would mechanically transfer the freight, adding it to the plant's coal pile that rose higher than any building in this part of the Carolina uplands.

Sometimes, dust and grime would clog the iron claws as they scooped up the lumpy fuel. The janitors were then summoned to help with the filthy work of unclogging the machinery. Only whites, however, were allowed the job title of "coal hauler," and only they earned the extra pay.

Willie Boyd was one of the blacks. Son of a sharecropper, he had dropped out of high school in 1938 after his father took ill. Someone had to help the family meet the landowner's quota of tobacco production.

Like millions of other Southern black men, Boyd later escaped the farm in the post-war boom. Factories were springing up all around the Piedmont. And with them came a demand for power--and more generating stations.

Boyd's job at Duke Power was hard, though no harder than chopping tobacco. It was a big step up for him. And it paid actual cash. Pretty soon, he had enough money to meet his bills and even to buy a few items on installment.

As the years wore on, however, something always rankled him. White men--many with no more education than he had--rose up through the ranks to become managers or supervisors, taking spots in comfortable offices with bathrooms down the hall.

Black men cleaned those toilets--ones they themselves were forbidden to use. For them, the company built a "colored" bathroom outside, across the railroad tracks, behind the coal pile.

Why can't black folks get some of the better jobs? Boyd asked his bosses. And they "would tell us we had no chance," he recalled.

Then, on July 2, 1964, the landmark bill was signed into law. A person would have had to be near dead not to hear about it, but who knew what it might mean? What had Uncle Sam ever done for Willie Boyd, anyway?

Far to the north, in a crowded set of offices in Lower Manhattan, the lawyers for the NAACP Legal Defense and Educational Fund were not inclined to wait for what Uncle Sam might do.

The new law had started something called the Equal Employment Opportunity Commission (EEOC) to investigate complaints. But the agency would toddle through a long infancy. In its first year, its caseload was more than quadruple what its administrators had planned and budgeted for. The EEOC was overwhelmed and racism had no sudden reason to fear it.

The crusade to quicken the metabolic rate of social change fell to private attorneys. The Legal Defense and Educational Fund, under Thurgood Marshall, had previously won the long battles in the courts to bring about school integration.

Marshall had gone on to a judgeship, but the fund was still at the vanguard of civil rights law. Working through "cooperating attorneys," it tried to refine those employment cases that might test the bounds of the new law.

One of the lawyers was Julius L. Chambers. From his office in Charlotte, N.C., he crisscrossed the state in a jalopy, working 18-hour days as he moved from church to union hall to NAACP meeting, cajoling and urging.

With the EEOC of little help, there was need for improvisation. Chambers drew up his own complaint forms and ran them off on an old ditto machine.

Support came to him from an informal network of volunteers. In Charlotte, it was a high school basketball coach. In Greenville, it was a minister. In Reidsville, it was Jay Griggs, the local NAACP leader.

Willie Boyd's house was near Reidsville. Whenever he saw Griggs, he would complain about Duke Power. Fill out one of these purple forms, Griggs told the janitor, but this was something caution forestalled.

Finally, Jay Griggs got tired of all the useless jawing. He said to his friend: "File your complaints or stop talking about it."

Early one March day in 1966, the two men composed a short and not entirely grammatical letter. Boyd persuaded his colleagues to sign it, then carefully handed it to the boss' secretary.

The letter read, in part: "We the employees under the Civil Rights Act of 1964 feel justified in requesting the company for promotion when vacancies occur, in the following job classifications, coal handeling, shop, storekeeper, and general plant operation."

By 10:30 that morning, J. Donald Knight, the plant manager, had called all 14 men into his office: Just what was this all about?

The blacks had selected a spokesman. Lewis Hairston was the kind of guy who was afraid of nothing, no how. "We're seeking an opportunity," he said boldly, we want a crack at some of the better jobs. The most a black could make was $1.65 an hour. The whites started at $1.81.

Knight reacted courteously, the men recall, but firmly. Company policy, he said, was that no one gets those jobs without a high school diploma. Certainly, you men can see the importance of education. Duke Power was moving into the Atomic Age, buying computers and automating every which-way. Black or white, all workers needed an education to advance.

Or, he added, you can take a test.

Test? It was the first they'd heard of it. To them this was no more fair than requiring a diploma, a rare thing for blacks in the rural Carolinas.

Many of the jobs demanded only muscle anyhow. Besides, in the whole plant only 15 whites had finished high school. No one had demanded they take a test. And yet, "they had jobs on top of us all the time," Hairston said.

Four days after the session with Knight, Boyd mailed off the workers' complaint to Washington. Before spring had ended, the black workers were meeting with two EEOC investigators late at night, crowding into the living room of one janitor's home. There was some need to be discreet.

Who knew how the company was going to react? Elsewhere in the South, a few who had filed complaints had been fired, harassed, driven from town. Companies had refused to cooperate with the EEOC or had hired lawyers to crush the complaints beneath a mountain of paper.

Duke Power, however, considered itself a progressive company. When the steam plant's managers refused to show the EEOC investigators their files, the executives in Charlotte directed them to comply--and even issued an order of their own: Integrate the locker rooms and drinking fountains and toilets.

But on the basic matter of jobs, the company would not budge. On Sept. 9, the EEOC informed Boyd that it had been unable to reach a settlement with Duke Power and that he and his fellow workers had a right to file suit.

In a measure of residual prudence, the workers put the name Willie Griggs (no relation to Jay Griggs) as the first plaintiff.

He was the youngest among them, and they figured he had the least to lose.

Law was an unfamiliar world. None of the men knew much about it, certainly not that their case--this stirred-up hive called Griggs vs. Duke Power--would skip from courtrooms in Greensboro to Richmond and then to Washington, taking five years to find its ending.

In the meantime, some of the janitors discovered what the company meant by a basic test. Boyd and Hairston took it. So did some of the whites.

Pencils in hand, they were spread around a polished wooden table in a conference room. Directions were read aloud: "This test contains 50 questions. It is unlikely that you will finish, but do your best."

To rate their fitness for such jobs as hauling coal, they were asked:

"In printing an article of 24,000 words, a printer decides to use two sizes of type. Using the larger type, a printed page contains 900 words. Using the smaller type, a page contains 1,200 words. The article is allotted 21 full pages in a magazine. How many pages must be in smaller type?"

None of the blacks passed the test. And neither did any of the whites.

Testing had become the new rage. A 12-minute, multiple-choice exam such as the Wonderlic was a quick way to determine an applicant's skills in reading and math. Companies used it to upgrade the quality of their hires.

There was another outcome, of course. Blacks were at a disadvantage. In the South, education had been considered a luxury not to be lavished on the poor--a notion that disproportionately affected minorities.

The Legal Defense and Educational Fund's lawyers did not object to tests per se. If an exam measured a specific ability to do a job, that was fine. But they also believed that many education requirements or general tests of "intelligence" were merely a handsome disguise over discrimination's nasty face--and they wanted the Griggs case to be the unmasking.

To do so, they crafted this argument: The civil rights law should measure bias by its effects, not by a company's motives. The tests were unfair because their inevitable effect was to lead to more jobs for whites than blacks.

Corporate attorneys disagreed. To them, the law's commands seemed far more simple: Treat blacks and whites the same. To do otherwise, they said, raised the dreaded notion of quotas. If employers were to be found guilty based only on effects--or unbalanced racial percentages--who would be left among the innocent?

U.S. District Judge Eugene A. Gordon heard the case in 1968. His ruling was for Duke Power. Employers are entitled to ways of improving their work force, he said. There was no proof the tests were meant to be unfair to blacks.

And, by his reckoning, race-neutrality was all the law required.

For civil rights lawyers, the early employment cases often seemed a hopeless gnarl. The law was uncertain and the companies determined. And even as they tried to work through the courts, the fight for equality had tumbled into the streets. Black anger had outpaced social justice.

As early as August, 1965, the sulfurous years of racial prejudice lit into the racial fire of Watts. Riots would then become a staple of America's long, hot summers.

Scholars increasingly began to understand what any ghetto youngster instinctively knew: Society was racist, top to bottom. The academics labeled the problem "institutional racism." It meant that bias in governments, corporations and universities was inbred and self-perpetuating.

The lawyers at the EEOC were becoming increasingly convinced of the same thing. In just a few years, its caseload had a hopeless backlog. Thousands of the complaints dealt with seniority systems. In the past, businesses commonly had segregated ladders of progression, a tall one for whites and a short one for blacks.

The civil rights law required that the climb be made together, but blacks with 30 years on the job were being forced to fall in behind whites who had just begun. "In those days, we were fumbling around for some way to help blacks catch up," said Alfred Blumrosen, one of the agency's pioneers.

The mission of fighting discrimination was going too slowly--job by job, case by case. It seemed an endless task. It was like spooning back the wind.

The EEOC, like the Legal Defense and Educational Fund, was concluding that the traditional notions of discrimination rendered the civil rights act as flimsy as a spider web and as easy to brush aside. Case law needed to shift from the logic of unequal treatment of an individual to unequal results for a group.

A watershed legal victory was needed. Inevitably, the competing theories would lock in a showdown. As time passed, one case or another would surely percolate up to the U.S. Supreme Court.

Often, landmark Supreme Court cases attract the nation's fierce glare, an intellectual arm-wrestling where people take sides. This was not so with the Griggs case in 1971. Only a few hundred lawyers understood the stakes: This could change the rules of the workplace.

In the end, the showdown resulted in a lopsided vote. There was unanimity among the eight justices who took part. The men in black robes sided with the 14 janitors.

Chief Justice Warren E. Burger wrote the opinion. He was a graduate of a little-known night law school and seemed especially disturbed at the education requirements Duke Power had applied to general laborers.

"History is filled with examples of men and women who rendered highly effective performance without the conventional badges of . . . certificates, diplomas or degrees," he said.

But he did not stop there. He laid down new rules, and those rules were to set the foundation for an entire edifice of law:

If job requirements act as "built-in head winds" against a minority group, Burger wrote, the employer had better be able to show that those standards are essential to the work; there must be a "business necessity" for the requirement to be legal.

The 1964 civil rights law was meant to "achieve equality," the opinion said. It aimed at the "consequences of employment practices" and "not simply the motivation."

As for the paradox of affirmative action, this court--these particular men at this particular time--did not seem to find any.

Once companies concentrate only on necessary job qualifications, Burger said, "race, religion, nationality and sex (will) become irrelevant."

Back in North Carolina, Chambers called Boyd to tell him of the victory. The janitor gathered his fellow workers into a few battered old cars for the drive to Charlotte to hear the news first-hand.

By then, Willie Boyd's life had already undergone some great changes. And so had Duke Power. The janitor had won his high school diploma after taking community college courses paid for, in part, by the company.

He had also won a promotion. Not all the resistance had disappeared. Boyd at one point had to hint at a new lawsuit. But, in time, he became the plant's first black supervisor, running the coal-handling department. He would manage 14 men, eight of them white.

Duke Power was looking for good supervisors.

And if they were minorities, all the better.

Times researcher Anna M. Virtue contributed to this story.

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