U.S. Anti-Bias Regulations Disrupt Lives, Workplaces : Race relations: Attempts to end job discrimination have created confusion and a white backlash.

America’s debt of conscience had become Brian Weber’s account to settle. He was no racist. And to his mind, neither was his company. But suddenly blacks were being lifted over him on the seniority list.

He was furious. The year was 1974, and Weber did not so much blame his employer, Kaiser Aluminum & Chemical Corp., as that familiar old meddler Uncle Sam. The government was pushing affirmative action as a sort of racial amends.

Weber believed in equality for blacks, but to him that meant they deserved to get in line with everyone else. Instead, the line was being rearranged by some hand that seemed to reach out for retribution across the generations.

He sued. And over the next five years, his anger would echo all the way to the U.S. Supreme Court, along the way picking up a shorthand moniker that was the grumble of a million white males: reverse discrimination.

Like Weber, the nation’s laws against bias in the workplace were in a quandary. Was the goal simply to treat all people, black and white, the same? Or was it to end the long legacy of racism by giving blacks a boost up? If the latter, could that be accomplished without discriminating against whites?

Nearly two decades later, the answers remain an elaborate twine of conflict. They involve some of the knottiest trade-offs in a century of social change. And while politicians have preferred not to discuss such matters head on, they have been at the center of the debate between Congress and the White House over a new civil rights bill.

Since it passed a landmark law in 1964, Congress has forfeited the crucial choices in the nation’s anti-discrimination efforts to others. Federal regulators--and sometimes employers themselves--have made up the fateful rules as they went along, then waited for the courts to sort out the legalities.

At Kaiser’s plant here in Gramercy, 25 miles up the Mississippi River from New Orleans, the decisions carried stakes as real as the pile in any poker game. Kernell Goudia, a black, would soon be earning $25,000 a year as a skilled craftsman. Weber wanted that job. He made only $17,000 a year as a lab technician.

The two men were friends. One of their conversations repeated itself so often it carried the unvarying cadences of a ritual chant.

Weber: “It’s not just integration now. You’re taking our jobs.”

Goudia: “That’s because of all the discrimination in the past.”

Weber: “I didn’t do the discriminating.”

Goudia: “Your father did and his father did.”

Weber: “But that’s no reason to do it to me.”

Brian F. Weber was a near perfect soldier for this battle. Son of a grocer, he had grown up not far from here in Reserve, La. Railroad tracks separated the white part of town from the black. Racism hovered as naturally in the air as the mosquitoes in the bayou.

But Weber was somehow spared the germ, or so say the blacks he worked with. They believe his lawsuit was based entirely on principle. Plain and simple, Weber felt he was getting cheated.

He had been a good student in high school. He won a statewide math contest that awarded him a scholarship to Louisiana State University. But he had plans of a more romantic nature. He was getting married. What he needed was a job.

It was 1964, and times along the river were flush. The delta had proven a lodestone for refineries and chemical plants. Weber traded up from one job to another; then he heard they were hiring at Kaiser.

The aluminum plant was an enormous beast of rust-colored smokestacks and horizontal pipes. One part of it was a chlorine-making operation, purging the chemicals from the great salt domes in the Louisiana soil. Another operation produced sugary granules of alumina powder from tons of Jamaican bauxite.

Weber and Goudia began work there in 1968, the same memorable year that Richard M. Nixon won the presidency. America was suffering a fit of domestic convulsions then, Nixon inheriting the stubborn dyspepsia of Vietnam.

There were other, less conspicuous ailments as well, including one that was upsetting businessmen and confusing bureaucrats.

It had a high-sounding name: affirmative action.

That alliterative coupling--affirmative action--was coined in the fine print of a section on unfair labor practices in the 1935 Wagner Act. The words carried a graceful, progressive lilt, but they were empty of definition.

The lawyerly aides of President John F. Kennedy resurrected the phrase in 1961. And then, in 1965, Kennedy’s successor, Lyndon B. Johnson, used it once more in a far-reaching executive order that forbade discrimination by private companies with federal contracts.

The words again went unaccompanied by explanation, which was an important omission. More than 25% of the American labor force worked for companies that were federal contractors. For decades, the government had been commanding these businesses to end bias in hiring. But there had been little in the way of change.

For the most part, Uncle Sam’s threats had been perceived as halfhearted--and that was not a faulty inference. There are certain facts of life among the mighty. Uncle Sam needed his corporate friends as much as they needed him.

One example was Lockheed Corp. In 1961, the Pentagon awarded it a $1-billion contract, ignoring the Jim Crow barriers at the company’s plant in Marietta, Ga. The work force was segregated. Blacks were given none of the skilled jobs. They could use only the bathroom marked “colored.”

The National Assn. for the Advancement of Colored People was busy amassing affidavits against such employers, then asking the government to get tough. But crackdowns were few.

Thousands of federal contractors did not employ even a single member of a minority.

Somehow the metronome of racial change had to hasten. This would occur more in ghetto streets than executive suites. Black patience was exhausted. Rioting sent a jolt into America’s psychic fuse box.

One way for the government to respond--to show its seriousness--was to lean on the contractors. Passing grades were no longer routine on compliance forms. Companies had to file plans showing affirmative action in making hires.

As President Johnson’s executive order began to take hold, the long-amorphous phrase was finally picking up meaning. At the very least, a company was to make efforts to seek out qualified minorities. Recruiters began to visit black campuses. Want ads ran in Latino newspapers.

In truth, many firms welcomed the federal intrusion. It was sound business. The more applicants, the bigger the labor pool. Costs would stay low.

Yet whatever the benefit, the rules also seemed distressingly imprecise. Businessmen like goals. If noncompliance meant jeopardizing contracts, companies wanted to know specific numbers: how many minorities to hire.

A former civil engineer, Edward Sylvester Jr., became the first director of the Office of Federal Contract Compliance (OFCC) in 1966. He recalls being hooted at by business groups when he refused to dictate actual quotas.

“If I wouldn’t tell them you need 10% of this or 10% of that, they’d start booing,” he said. “Their tone was: We’re in business to make money. Just tell us exactly what we have to do and then don’t bother us.”

But quotas were reviled. They had long been used to limit the number of blacks in jobs or Jews in universities. Mere mention of the word--even in an “affirmative” sense, as a floor and not a ceiling--seemed un-American.

Federal regulators were reluctant to use any numbers at all, and this left them with a problem. How were they to measure compliance? Without numbers, an employer could merely fulfill its obligations with promises and fibs.

In San Francisco, contractors on the Bay Area Rapid Transit project had done just that. They submitted impressive affirmative action plans only to blithely ignore them when it came time to hire.

The building trades were notorious for shutting out blacks. Membership in the union locals was often passed along from father to son. Uncle Sam was an especially unwelcome participant in such private affairs.

In St. Louis, union men had stalked off the construction site of the Gateway Arch rather than work beside a black plumber. What were the regulators to do about that? They were all too often just a toothless guard dog.

By 1968, some type of numerical standards seemed an absolute necessity. But there were two obstacles. The first was procedural: how to make the numbers pack some clout without them being actual quotas.

The second impediment was political. Nixon had won the White House, and he did not favor affirmative action. The program could have been scotched right then, but something about it appealed to the President.

Black unemployment was an appalling problem, Nixon said. And maybe this was his genuine reason. His former aide, John D. Ehrlichman, offers another explanation. He said his boss delighted in watching two Democratic stalwarts--civil rights groups and organized labor--at each other’s liberal throats.

Either way, affirmative action lived on. The Administration’s point man was Arthur A. Fletcher, a former entrepreneur. He was untroubled by racial preferences. “The issue was not about social justice, but getting an equal piece of the pie,” he recalled.

Soon, guidelines were in place. They did not use quotas, but a distant cousin crafted to be less rigid. Applying government criteria, a company would assess whether its work force made suitable use of available minorities. Then it would submit a proposal--with hiring numbers--to fix any shortcomings.

These plans required approval by the government. Regulators would then monitor progress. A company did not have to exactly meet its numbers, but it did have to demonstrate a “good faith effort.” If that effort was deemed slack, the company risked losing its contracts.

Affirmative action now had a handmaiden: goals and timetables.

Businesses and unions felt the pressure, and some did not wait for any government hammerlock. As early as 1969, Kaiser began hiring blacks and whites at a 50-50 clip into its Gramercy plant. It wanted its numbers to eventually reflect those of the surrounding area, which was 39% black.

The company had reviewed its employment practices. They made no sense. Job requirements, such as high school diplomas, often had no bearing on the work to be performed. Worse, they disproportionately kept out minorities. Inadvertently or not, the company was discriminating.

Such practices seemed immoral. And by 1971, it was becoming clear that they were illegal as well. In the case of Griggs vs. Duke Power, the U.S. Supreme Court unanimously ruled that an employer could be found guilty of discrimination even if the bias had been unintended.

As lower courts interpreted the decision, discrimination could be presumed merely on the basis of unequal racial numbers.

Big Business needed no abacus to figure out it had trouble. “I could have closed my eyes and grabbed any handful of corporations and closed them down,” said James E. Jones Jr., associate solicitor of labor under Nixon.

However much a company may have wanted to change, they were at risk until they did so--and liable for past sins. Workers were filing class-action suits. Judges were awarding huge sums of back pay.

Gender was at issue as well as race. The 1964 act included protections for women. By 1971, so did the contract compliance program.

The impact could be dizzying. Sex discrimination was blatant at American Telephone & Telegraph Co. Operators were women; linemen and supervisors were men. Eyeing the indisputable, AT&T; signed a federal consent decree in 1972.

This was a shocker to many employers, a huge tree falling in the corporate forest. “I’d get rude comments from the executives at other companies: You rolled over! Sold out! Now the government will come after us,” said Donald E. Liebers, who was AT&T;’s official in charge of equal employment.

There was a pioneering wrinkle in the decree: the “affirmative action override.” To meet its goals, the company could promote a “basically qualified” person rather than the “best qualified” or “most senior.”

White males protested that this meant a lowering of standards. And this was sometimes true. But “best qualified,” like beauty, varies with

the beholder. In most personnel offices, the “best” had always been guesswork.

Don Liebers understood this and tried to explain: “You don’t stick a thermometer into people and come up with a reading.”

Kaiser’s racial imbalances in unskilled jobs were easy to change: simply give preference to black applicants. “How else would you do it?” said Thomas Bowdle, who was the company’s director of equal employment. “Society has lots of preferences, for veterans and farmers and all the rest. This was just another.”

The solution was not so obvious for the skilled crafts, however. Those jobs--electrician, insulator, welder--required a certain mastery. Few blacks had the know-how. They had been denied training by those gatekeepers of segregation, vocational schools and local union halls.

Something different was needed. In order to meet racial goals, Kaiser decided to train its own people for the skilled positions. The aluminum company and the United Steelworkers of America worked out the details.

Here was the twist. Workers would be eligible to enter the training program based on seniority, but there would be separate seniority lists for whites and blacks. The slots would then be divided one-for-one by race. Inevitably, some blacks would skip past more senior whites.

Harry Mayfield, a union negotiator, recalls the furor when he advised his local officers in the South: “I told them about how things were changing. I told them this was the right thing to do. I told them I needed their help.

“And they told me to get ready. The KKK would be coming any minute.”

At first, Weber thought the pact was just lip service to pacify the government. The union would never permit it. Seniority was inviolate.

When he found out he was wrong, he was not only angry but full of fear. He was 28 years old. He had a wife and three kids. Smart and hard-working as he was, he knew he ought to be making more of himself. What was his future?

He had started out at Kaiser working beside the long belts that carried the bauxite. The fine dust would fill his nostrils and cover his skin. Later, he transferred to the chlorine operation, and then he bid into the lab. His job was to do routine chemical tests. The work was clean, but monotonous.

Time and again, he had suggested that Kaiser start a training program for the skilled crafts. Those jobs offered not only more pay but security too. If a craftsman was laid off, he’d have an easier time catching on elsewhere.

Now there was such a program. Goudia was picked for it. And he was not. His life--his family--seemed to be victims of a sort of racial pork barrel.

“There was a quota based on race, not class or education, just race,” he said. “Would Muhammad Ali’s son deserve a break just because he’s black?”

Weber complained to the U.S. Equal Employment Opportunity Commission, the agency created by the 1964 law to investigate discrimination. He was told they had a three-year backlog of cases, but he was given a right-to-sue letter.

He took it into the federal courthouse in New Orleans. A clerk pointed him toward Jack M. Gordon, a conservative old judge who was happening by.

Weber told his story. He also apologized. He had no lawyer, but Gordon said that was OK. He was intrigued by the case and would appoint one.

Michael Fontham was a liberal, experienced in job discrimination cases. “Here’s a thrill for you,” the judge told the attorney. “A white in a race case.”

The lawsuit made Weber a hero at the plant--its white crusader. “I was everyone’s rallying point,” he said.

Thirteen men began the first training program. Weber envied the blacks among them. They had been born at the right time, he figured. History had gone fickle on white people and done an about-face.

Of course, there was another perspective to all this. Walter Traveller was one of the blacks involved. Everything seemed so grudging to him. The men who oversaw his training sometimes sneaked away. They gave him phony instructions. “I had to suck it in,” he said. “I couldn’t be a crybaby.”

Goudia was learning repair work on the pneumatic instrumentation. His new co-workers tested his tolerance with racial slurs. He recalled that one day at lunch he had finally had his fill.

He told them: “If you think I’m a nigger, you’re not saying much about yourself because I make the same amount of money as you.”

Goudia and Weber bet a dinner on who would win in the Supreme Court. Weber had reason for confidence. He had prevailed at every level so far.

The amiable Cajun was something of a national celebrity by 1979. News photographers came one after another to take his picture by the plant gate. He would wear his hard hat with an American flag decal.

“Reverse discrimination” had eased into the vernacular. Weber was one of two men well-known for carrying its banner. The other was Allan P. Bakke, who was denied a spot in medical school at UC Davis.

The Supreme Court had issued an ambiguous opinion in the Bakke case: The university’s racial quota was illegal, and Bakke was to be admitted. On the other hand, it was OK to use race as a consideration in selecting students.

Many were now confounded about what was permissible and what was not. That made the upcoming Weber case all the more important. Besides, this one involved the workplace, not the ivory tower. This affected everyone.

Kaiser’s Tom Bowdle remembers how the tension built. Attorneys for the federal government were at first hesitant to file a supporting brief. This was not the crucible where they wanted to test the very essentials of affirmative action. The training program had made use of a quota.

Executives from other corporations phoned to complain as well. They thought Kaiser ought to be glad it had lost in the court of appeals. Let the decision stand. Someone has got to put the brakes on affirmative action.

The company persisted, though. It had wronged blacks in the past. If it was not allowed to voluntarily correct the racial imbalances in its work force, then what sense was there to the federal anti-discrimination laws?

Blacks could sue it if they didn’t. Whites could sue if they did.

At the Supreme Court, people started lining up for seats before dawn. Three rows of extra chairs had to be added to the press area. Weber sat beside Fontham’s wife, just behind the Kaiser bigwigs.

The justices gave the lawyers a rough going-over. They interrupted them, snapped at them, told them to quit using all their silly legal euphemisms. We’re here to see if the law lets an employer “discriminate against some white people,” Justice Potter Stewart pointed out bluntly.

The arguments often focused on “legislative intent.” Since the wording of the 1964 law was disputed, one way to divine Congress’ original intentions was to review the floor debates, a kind of retroactive mind-reading. This is not easy to do. Congress has two bodies and 535 heads.

The hearing lasted 100 minutes. Then came three long months of waiting. When the opinion was finally published, Fontham told his client to come to the office. “His face showed we lost,” Weber remembered. “It was stunning. My first thought was: The court sees something that I don’t.”

Actually, two justices saw it much his way. One was Chief Justice Warren E. Burger. The other was Justice William H. Rehnquist, whose stinging dissent likened his brethren to “escape artists” who had squirmed free of their judicial restraints. To him, the legislative intent was quite plain.

He quoted Sen. Hubert H. Humphrey among others. In 1964, the majority whip had assured opponents of the bill that nothing in it “will require hiring, firing or promotion of employees in order to meet a racial quota or to achieve a certain racial balance.”

But the high court majority was unpersuaded by such citations.

It instead reflected on the nation’s long and vexing history of inequality. In 1964, things were actually getting worse. Automation had robbed millions of black field hands of work. Black unemployment was 64% higher than white unemployment in 1947, the court noted; it was 124% higher in 1962.

What else could Congress have meant but the opening of opportunities?

Race-conscious hiring for that good purpose was not discrimination. If it was, the majority concluded, then a law born from earnest concern over racial injustice would ironically be a tool for preserving the vestiges of segregation.

And so there it was.

Fifteen years after the 1964 Civil Rights Act, affirmative action had both a clear working definition and a high court endorsement. It was doubtlessly among the crowning achievements of modern liberalism.

Yet at the very same time something else was happening. Liberalism had lost its stamina. Just 16 months later, its great achievements would become its heavy burdens to defend.

Ronald Reagan was elected President. The political scaffolding under affirmative action would soon begin to loosen, strut by strut.