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“You Were the Best Qualified”: Business Beyond the Backlash Against Affirmative Action

Published online by Cambridge University Press:  08 December 2014

Benton Williams*
Affiliation:
DePaul University

Abstract

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Type
Articles
Copyright
Copyright © Donald Critchlow and Cambridge University Press 2015 

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Footnotes

I would like to thank Pamela Laird, Miranda Lukatch, and Valentina Tikoff.

References

NOTES

1. Alex Castellanos, “Hands” (video). Television advertisement produced and aired in October and November 1990. http://www.pbs.org/30secondcandidate/timeline/years/1990.html (accessed 13 December 2013).

2. Jonathan Leonard, “Wage Disparities and Affirmative Action in the 1980’s,” American Economic Review 86, no 2, Papers and Proceedings of the 108th Annual Meeting of the American Economic Association (May 1996), 288–89. Leonard posits that the failure of minority wages to keep up with overall wages in the 1980s was probably the result of shifts in the American economy not related to affirmative action. These shifts include: changes in defense spending, a transition from manufacturing to service and information that, absent discriminatory intent, would still have an adverse impact on minority employment and a positive impact on female employment, which is what happened according to Leonard.

3. Jennifer, Delton, Racial Integration in Corporate America, 1940–1990 (London, 2009).Google Scholar

4. Kathryn Herr, Lois, Women, Power, and AT&T: Winning Rights in the Workplace (Boston, 2003);Google Scholar Stockford, Marjorie A., The Bellwomen: The Story of the Landmark AT&T Sex Discrimination Case (New Brunswick, 2004);Google Scholar Williams, Benton, “AT&T and the Private-Sector Origins of Private-Sector Affirmative Action,” Journal of Policy History 20, no. 4 (Autumn 2008).Google Scholar

5. Frank, Dobbin, Inventing Equal Opportunity (Princeton, 2011).Google Scholar

6. 438 U.S. 265 (1978). Harvard Law’s Laurence Tribe responded shortly after Bakke, identifying and summarizing the issues raised in that case. Tribe, Laurence H., “Perspectives on Bakke: Equal Protection, Procedural Fairness, or Structural Justice?Harvard Law Review 92, no. 4 (February 1979): 864–77.CrossRefGoogle Scholar

7. Tribe, “Perspectives on Bakke,” 865.

8. Ronald Reagan’s position on affirmative action had some limited flexibility. In response to a 1980 general-election candidate questionnaire, Reagan seemed to acknowledge the desirability of increasing participation of underrepresented groups but raised the fear that encouraging outcomes might lead to affirmative action: “I recognize the need to offer opportunity to those people to whom opportunity has been denied for a long time. But I also lived in a time when we had quota systems that denied people equal opportunity. . . . I see affirmative action becoming a kind of quota system. And I just believe that when that happens you have established the precedent for a new discrimination to take place . . . a kind of reverse discrimination. But short of that, I think we must do everything in our power to make sure that we never return to bigotry and prejudice and the denial of people’s rights.” “The Candidates on the Issues: #5 Human Welfare: Reagan,” Christian Science Monitor, 3 October 1980, Midwestern Edition. See also Anderson, Terry, “The Strange Career of Affirmative Action,” South Central Review 22, no. 2 (Summer 2005): 110–29, 121.CrossRefGoogle Scholar

9. Kenneth, Noble, “Man in the News: Experienced Politician for Labor Post,” New York Times, 21 March 1985, 22Google Scholar.

10. Noble, , “Labor Department Diplomat: William Brock 3rd: Walking a Tightrope between Business and the Unions,” New York Times, 10 August 1986, sec. 3, p. 6.Google Scholar

11. Dean, Kotlowski, Nixon’s Civil Rights (Cambridge, Mass., 2002), 295.Google Scholar

12. Noble, “Labor Department Diplomat.”

13. Ibid.

14. Noble, “Labor Dept. Aide Quits in Protest of U.S. Stance on Minority Hiring,” New York Times, 21 January 1987, 1. The Labor Department’s staff was cut from twenty-three thousand to eighteen thousand (over 20 percent) from 1980 to 1986 and its budget remained flat over the same period.

15. “Statement of Policy on Minority Ownership of Broadcasting Facilities,” 68 F. C. C. 2d 979 (1978).

16. Metro Broadcasting, Inc. v. Federal Communications Commission et al., 497 U.S. 547 (1990).

17. Bednarzik, Robert W., Hewson, Marillyn A., and Urquhart, Michael A., “The Employment Situation in 1981: New Recession Takes Its Toll,” Monthly Labor Review, Bureau of Labor Statistics, March 1982, 3.Google Scholar

18. U.S. Department of Justice, Office of Legal Policy (Washington, D.C., 1987).

19. Report to the Attorney General, i, (emphasis in original).

20. Ibid., ii.

21. Ibid., ii n. 1.

22. “Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.” 29 U.S.C. 2000(j).

23. Uniform Guidelines on Employee Selection Procedures: Comments, January–March, 1978, EEOC Library, Washington, D.C., 171-1 and 171-2. Simply, the rule stated that EEOC would consider a test that had a 20 percent disparity in outcome based on race or gender as creating a disparate impact.

24. Griggs v. Duke Power, 401 U.S. 424 (1970).

25. Report to the Attorney General, 82.

26. 443 U.S. 193 (1979).

27. 476 U.S. 267 (1986).

28. Johnson v. Transportation Commission of Santa Clara County, 480 U.S. 616 (1987), was likely announced too late for the author to use, but it would have supported the argument.

29. Report to the Attorney General, 84–86.

30. Ibid., 85. The various studies appear to have been two, by the same authors: “See generally, Schmidt, , Hunter, , McKenzie, and Muldrow, , Impact of Valid Selection Procedures on Workforce Productivity, 64 J. of Applied Psy. 609 (1979)Google Scholar”; and “See Hunter and Schmidt, Ability Tests: Economic Benefits vs. The Issue of Fairness, 21 Industrial Rel. 293, 293 (1982).” Economists have been quite skeptical of Hunter and Schmidt’s analysis, particularly their confidence in testing to directly affect productivity. The bulk of that criticism came after the “Report to the Attorney General” had been submitted. See, for example, Denison, E. F., Trends in American Economic Growth (Washington, D.C., 1985);Google Scholar and Levin, H. M., “Ability Testing for Job Selection: Are the Economic Claims Justified?” in Test Policy and the Politics of Opportunity Allocation: The Workplace and the Law, ed. Gifford, B. R. (Boston, 1989), 211–32.Google Scholar

31. Dale Heistand argues that the productive capacity of an individual employee is unknowable and that productivity can be used as a pretext for discriminatory impact. Although Hiestand identified the impossibility of quantifying potential productivity in 1974, the report’s author failed to appreciate the problem in 1980 and used productivity claims exactly as Hiestand had predicted. Hiestand, Dale L., Response to “Employment Discrimination: Some Policy Considerations,” in Discrimination in Labor Markets, ed. Ashenfelter, Orley and Rees, Albert (Princeton, 1973), 176–81.Google Scholar

32. Pedriana, Nicholas and Stryker, Robin, “The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965–1971,” American Journal of Sociology 110, no. 3 (November 2004): 709–60;Google Scholar Peterson, Donald J., “The Impact of Duke Power on Testing,” Personnel 51 (March–April 1974): 3037.Google Scholar

33. Blanchard, Fletcher A. and Crosby, Faye J., ed., Affirmative Action in Perspective (New York, 1989).CrossRefGoogle Scholar

34. Between 1981 and 1987, the nongrant budget of EEOC effectively stayed level, growing from about $119 million to $138 million. By comparison, it grew from $2.5 million to $8.6 million from 1966 (its first full year) to 1969, the last budget of the Johnson administration, and then from about $10.7 million to $53 million in six years under Nixon. Under the two Ford budgets, EEOC’s budget climbed to $66 million, then to $119 million at the end of the Carter administration. After Reagan, the budget continued to climb at similar rates. http://www.whitehouse.gov/omb/budget/fy2005/sheets/ outlays.xls (accessed 9 July 2004).

35. With passage of the 1972 Equal Employment Act, the EEOC was given the power to represent individual and class plaintiff suits based on alleged disparate treatment (42 USC §2000e-4(g)(6)). These suits and the suits brought by the private plaintiffs are more effective, according to economist Jonathan Leonard, than the systematic focus that the EEOC has taken since 1972. Leonard, Jonathan S., “Antidiscrimination or Reverse Discrimination: The Impact of Changing Demographics, Title VII, and Affirmative Action on Productivity,” Journal of Human Resources 9 (Spring 1984): 145–74.CrossRefGoogle Scholar The EEOC, though, has repeatedly said, through official documents and through its various spokespersons, that a better use of its resources is a focus on systematic discrimination or employer “pattern and practice” resulting in a disparate impact with unknowable victims. See, for example, The Story of the United States Equal Employment Opportunity Commission: Ensuring the Promise of Opportunity for 35 Years (Washington, D.C., 2000), 15. After 1972, “The Commission decided to take on large employers and institutions thought to be discrimination in a systemic manner.” In a similar vein, in her nomination hearing, future Commissioner Eleanor Holmes Norton called for “decisive action” to meet the “urgent challenges” facing the EEOC, including “backlogged individual cases that consume the agency’s energies disproportionately and the corollary effect, too little of the Commission’s time and resources engage in pattern and practice work that alone can substantially affect discrimination in America today.” From Nomination Hearing before the Committee on Human Resources, U.S. Senate, 95th Cong., 1st sess., On Eleanor Holmes Norton, of New York, To be a Member of the Equal Employment Opportunity Commission, 24 May 1977, Y4 H88: N72/977-10, 8.

36. For example, in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), Charles Fried, the solicitor general (the attorney for the president), William Bradford Reynolds, the assistant attorney general for civil rights, and employer groups wrote amicus curiae briefs in which they argued that the Court should uphold the Appeals Court’s decision to dismiss the case. The solicitor general argued that disparate treatment theory alone (rather than disparate impact) fulfilled Congress’s intention in Title VII. The solicitor general argued in the alternative that if the Court were to keep disparate impact theory, the theory should only be applied to objective practices, like tests, rather than to subjective hiring decisions, like interviews. Watson, 989. The Court rejected both arguments. In Local 93 v. City of Cleveland, 478 U.S. 501 (1986), the solicitor general filed an amicus curiae brief challenging the constitutionality and legality (under Title VII) of state and local governments’ use of affirmative-action hiring and promotion and lost. See also California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272 (1987). In this last case, both Assistant Attorney General William Bradford Reynolds (the ideological force behind Meese) and the solicitor general filed amicus briefs arguing that Title VII preempted efforts by California to broaden job protection for pregnant women. While the defendants and their U.S. government allies were able to convince William Rehnquist, Byron White, and Lewis Powell that California had no right to extend protections to its women workers, even Antonin Scalia balked at the notion that California’s power to limit employers’ rights were constrained by Title VII and joined the other justices in upholding the law.

37. An example of the ambivalent response to Thomas’s nomination can be found in a brief Washington Post editorial of 17 February 1982, in which the Post’s opinion editors acknowledge that Thomas did not mesh with the civil rights community. Presumably they are referring to the difference over disparate impact and affirmative action:

“THIS is more like it. After two appointments to civil rights positions in the administration that have evoked strong criticism, President Reagan has nominated Clarence Thomas for chairman of the Equal Employment Opportunity Commission.

“Mr. Thomas, a black conservative Republican lawyer, is now assistant secretary of education. William M. Bell, the president’s first choice for EEOC chair, offered neither the experience nor the administrative credentials that should be minimal prerequisites for the important position. The decision to withdraw his nomination is a sound one.

“Last week, there was another bad nomination—that of the Rev. B. Sam Hart to the Commission on Civil Rights. Rev. Hart’s initial comments to the press suggested that he does not begin to have the temperament or the broad compassion for all those who suffer from discrimination that are necessary in the civil rights commission post.

“The appointment of Mr. Thomas to the EEOC is a welcome break in this pattern. While many civil rights leaders would not agree with his positions on busing and affirmative action quotas—he opposes both—there is agreement that he is able and well qualified to run this agency.

“His proposed solution for racial problems in our society may not coincide with those proposed by more familiar civil rights leaders, but he knows from his own experience that there is a real problem, and he has decided in his own conscience that he wants to help resolve it.”

38. Thomas’s views on affirmative action were quoted in the Washington Post shortly after his nomination:

“I will state as a bottom line that I am tremendously in favor of equal opportunity, and I will not deny that we have suffered adverse effects from racial discrimination. I know what it is to be scorned and not be able to go to movies and parks and drink out of water fountains.

“But my point is that we have gotten into a position where we believe that prescribing proportional representation is a solution to the problems that we have, and I don’t agree with that. To the extent that a rigid quota system is affirmative action, I disagree with that.” Herbert H. Denton, Washington Post, 13 February 1982, A1.

39. Congress, Senate, Committee on Labor and Human Resources, Nomination: Clarence Thomas, of Maryland, to Be Chairman of the Equal Employment Opportunity Commission, 97th Cong., 2nd sess., 31 March 1982, 3–5.

40. Ibid., 4.

41. Ibid., 15–16.

42. Ibid., 16.

43. Ibid., 24 (emphasis in original).

44. Ibid., 25.

45. U.S. Senate, Hearings Before the Committee on Labor and Human Resources, 99th Cong., 2nd sess., on Clarence Thomas of Missouri, to be Chairman of the Equal Employment Opportunity Commission, Y4.L 11/4:S.Hrg. 99-807, 23 July 1986 (second term), 9.

46. Ibid., 11.

47. Foskett, Ken, Judging Thomas: The Life and Times of Clarence Thomas (New York, 2004), 167.Google Scholar

48. Michael Middleton, interview with author, Columbia, Missouri, May 1998; Peggy Mastroianni, interview with author, Washington, D.C., July 2004; Equal Employment Opportunity Commission v. J.C. Penney Co., 843 F.2d 249 (6th Cir. 1988); Equal Employment Opportunity Commission v. General Telephone Company of Northwest, 885 F.2d 575 (9th Cir. 1989). A cursory review (a Lexis/Nexis search) shows that EEOC used disparate impact theory at least ninety times before the federal bench between 1982 and 1989. Because these are only the cases that were reported, it is likely a small fraction of the total.

49. 15 September 1985, 8A (emphasis in original).

50. Senate Hearings on Clarence Thomas of Missouri, to be Chairman of the Equal Employment Opportunity Commission (second term), 23 July 1976, 8.

51. The rationalization of American business has been well chronicled. The great work in the field of course is Alfred D. Chandler Jr., The Visible Hand: The Managerial Revolution in American Business (Cambridge, Mass, 1977). See Bruce E. Kaufman, Managing the Human Factor: The Early Years of Human Resources Management in American Industry (Ithaca, 2008), in which Kaufman traces the emergence of HRM before the Great Depression. HRM collapsed with the rest of the economy and reemerged in its modern form after World War II.

52. While it is often impossible to effectively assess cultural influence, Kanter’s work has been among the most widely disseminated business scholarship for decades. Thirty years after its original publication, The Change Masters is in the top million best sellers on Amazon. Kanter is the author of fifteen books listed on Amazon, including Confidence: How Winning Streaks and Losing Streaks Begin and End (New York, 2006), which was in the top 75,000 as of August 2012, but has fallen precipitously since then. (http://www.amazon.com/Rosabeth-Moss-Kanter/e/B000APOA8S/ref=ntt_athr_dp_pel_1. She is an endowed professor at Harvard Business School.

53. Kanter, , The Change Masters, 326–27.Google Scholar

54. Burack, Elmer H., Creative Human Resources Planning and Applications: A Strategic Approach (Englewood Cliffs, N.J., 1988)Google Scholar. Burack joined in a long-standing scholarly partnership with Nick Mathys; the fourth edition of this influential work was published in 2001.

55. Ibid., 128.

56. Ibid., 129.

57. Delores, Wolf, “Whither the Work Force?In Diversity Is Strength: Capitalizing on the New Work Force, The Conference Board, Diamond Jubilee Symposium,New York, Fall 1991, 910Google Scholar; 9.

58. In the last of the three articles in the series, Richard McCormick writes, “Despite the risks, the rewards are great. Through diversity, we’re better listeners. If we’re better listeners to one another, we’ll probably be better listeners to customers. We make better teams because when a diverse work group gets through working out the interpersonal problems, I believe they can tackle anything. Diversity includes a variety of viewpoints, too. Our company used to be made up of a lot of engineers and financial types; but over the last 10 years we’ve hired many scientists, marketers and others, all to our benefit. Another reward is a better reflection of the marketplace. A diverse group does explore issues better than a group whose members all come from a similar background.” McCormick, “Making Sure Diversity Works at U.S. West,” 13–14; 14. Neither McCormick nor the other executives seems willing to be particularly specific about their motivation behind efforts to increase diversity. However, we consistently see that, unsurprisingly, they ascribe the motives to their own companies’ bottom line or social responsibility, but rarely if ever to the threat of government sanction. Wayne E. Heiden, “Managing Diversity: A Full-Time, Top-Down Commitment,” In Diversity Is Strength: Capitalizing on the New Work Force, 11–12; 11. He describes Allstate’s approach: “For some time now we’ve had a Diversity Action Team in place at Allstate. It’s made up of twenty managers, officers and directors of the company who represent every level of senior leadership as well as all our business units. The team is responsible for developing a strategic plan for managing diversity” (ibid.) However, he fails to give any insight into the content of this strategic plan. Heiden’s essay was the least informed by data, and when he did venture onto a factual limb, he tended to be both strikingly inaccurate and irrelevant: “We’re in the midst today of an extraordinary revolution. For much of this century, America was a homogenous culture” (ibid.). I include this not to quibble with Heiden’s ability as a historian. Rather, it is indicative of the kind of selective vision that even top-level executives have. Heiden appears here as a champion of diversity, yet he makes this outrageously ill-informed generalization about a fantasy, homogenous America in the twentieth century.

59. McCormick, “Making Sure Diversity Works at U.S. West,” 13–14.

60. Ibid., 13.

61. Ibid.

62. Ibid., 13.

63. With added responsibilities under the Age Discrimination in Employment Act, which EEOC began enforcing in 1979, and the Americans with Disabilities Act, EEOC became more focused on developing these new areas in its responsibilities in the 1980s and beyond. United States Equal Employment Opportunity Commission, The Story of the United States Equal Employment Opportunity Commission: Ensuring the Promise of Opportunity for 35 Years, 1965–2000 [Washington, D.C., 2000], 33–34, 45–51.

64. Ellen Walvoord, telephone interview with author, 27 August 2003.

65. Fernandez, John P., Making a Diverse Work Force: Regaining the Competitive Edge (Lexington, Mass., 1991), 11.Google Scholar

66. Wright, Peter and Ferris, Stephen, “Competitiveness Through Management of Diversity: Effects on Stock Price Valuation,” Academy of Management Journal 38, no. 1 (February 1995): 272–88.Google Scholar

67. Ibid., 272.

68. Ibid., 276.

69. Employment Standards Administration, Office of Federal Contract Compliance Programs, “Glass Ceiling Report: OFCCP, Glass Ceiling Initiative: Are There Cracks in the Ceiling?” Washington, D.C., Department of Labor, June 1997.

70. Edwin Artzt, “Private Sector Leadership Award Address,” Leadership Conference on Civil Rights, 3 May 1995, as quoted in “Group Preferences and the Law,” Hearings Before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, 104th Cong., 1st sess., 3 April, 1 June, and 25 October 1995, Y4 J 89/1:104/74, 333 (ellipses in the Hearings text).

71. Employment Standards Administration, Office of Federal Contract Compliance Programs, “Glass Ceiling Report,” 19 (unnumbered pages).

72. Alan Farnham and Joan Viebranz, “Holding Firm on Affirmative Action: Despite Disappointments and a Recent Supreme Court Reversal, Most Top Executives Intend to Press Their Company Programs to Recruit and Train Minorities,” Fortune magazine, 13 March 1989, 87. Farnham and Viebranz report the findings of a survey sent to the CEOs of Fortune 500 and Service 500 companies. Of the 202 respondents, 72 percent said their firm had an affirmative-action policy, either: “We have affirmative action goals but no numerical quotas,” 54 percent, or “We have specific quotas for hiring and promoting,” 18 percent.