The MacNeil/Lehrer Report; Reverse Discrimination

ROBERT MacNEIL: Good evening. It`s become fashionable for white males who find jobs and promotions increasingly going to women and minorities to charge reverse discrimination. That charge and a rash of law suits have hampered the government`s efforts to enforce anti-discrimination laws through voluntary affirmative action programs. Some employers feel caught between the law and the potential lawsuit in implementing affirmative action. To alleviate employers` anxieties the Equal Employment Opportunity Commission yesterday issued proposed guidelines aimed at reducing the threat of reverse discrimination lawsuits. These guidelines appeared just when many civil rights organizations fear that the most famous reverse discrimination complaint so far may upset all affirmative action programs. That complaint, the Bakke case now before the Supreme Court, concerns education, not employment, but it`s widely believed that its effects could spill over into employment.

Tonight, the purposes and the consequences of trying to strengthen affirmative action. Jim?

JIM LEHRER: Robin, the EEOC adopted the new proposed guidelines by a unanimous vote. Under federal rulemaking procedures the public can comment on them between now and March 1. As a result of those comments, they could be changed before going into effect sometime around mid-March. The driving force behind the guidelines is the EEOC chairperson, Eleanor Holmes Norton. Ms. Norton was New York City`s Commissioner for Human Rights before her appointment earlier this year.

Ms. Norton, in the simplest of terms, what are you attempting to accomplish with these guidelines?

ELEANOR HOLMES NORTON: Well, we believe strongly that when the government holds people accountable under the law, it ought give them as much guidance as possible in how to comply with the law. The prevailing debate on reverse discrimination, as it is called, clearly has generated confusion among employers and the general public. These guidelines are designed to help employers understand what they should do to stay within the law and to give them some assurances that if they follow the formula in the guidelines they will not in fact be liable for reverse discrimination.

LEHRER: When you say they will not be liable, they will not be liable in what way? They still could be sued by individuals who allege reverse discrimination, is that not true?

NORTON: In our system of law you can always be sued; no one can ever give you a passport out of a lawsuit. But there is a section of Title VII wherein Congress expressed the intention that those who in good faith attempted to comply with the law would not be held in liability if they depended upon a written interpretation of the commission. This commission, however, has never heretofore given an interpretation in this field, and we did so yesterday.

LEHRER: Meaning that if an individual did file a reverse discrimination suit -- to put in its simplest terms; maybe too simple for you, we`ll see in a moment -- that your guidelines, if they in fact are adopted and go into effect, could be used as a defense by an employer who was charged with reverse discrimination if that employer could prove that he was following the law and the guidelines that you laid out. Is that essentially it?

NORTON: It could be used as part of his defense if he could show that he acted reasonably pursuant to the guidelines, yes.

LEHRER: Okay. Now, you say this is designed to give assurances to employers. Why were assurances necessary? Has there been a noticeable drop recently in employers` commitment to affirmative action programs?

NORTON: I cannot say that that is yet the case, but the public debate about reverse discrimination has been destructive and needless. We do fear that if we wait until employers are afraid that -- if you will forgive the expression -- they will be damned if they do and damned if they don`t, that Congress` intention to secure voluntary compliance with the statute will be totally undermined because employers will be paralyzed and will sit there; because my own philosophy of how to implement a statute is that you encourage voluntary compliance and you give guidance up front rather than through polarizing actions and debate, we felt now was the time to move to tell employers what they ought do to comply and to give them the necessary assurances that if they did that they`d probably be in fair shape.

LEHRER: All right. You`re not saying, though, to the employers of America, both private and public, that if they do voluntarily adopt an affirmative action program, that does not give them a passport or a free trip against any possible complaints that might be filed still for discrimination under the EEOC law itself, is that right?

NORTON: That is right; we would not be empowered to do that under the statute. There are hundreds of thousands of employers out there, and without looking at each of their programs it would be impossible to say very much about those programs. But we ought give them some guidance -- some framework -- within which they would understand that if they proceeded in that way they probably would be protected against reverse discrimination lawsuits.

LEHRER: All right, thank you. Robin?

MacNEIL: Will these guidelines actually reassure business? Virgil Day is the counsel to the Equal Employment Opportunity Committee of the Business Roundtable here in New York. Mr. Day has been working in the field of equal employment for some twenty-five years. Mr. Day, will the guidelines reassure business?

VIRGIL DAY: In part, Mr. MacNeil, they`ll be very helpful. The employers welcome the constructive and fresh thinking by Eleanor Holmes Norton and the new team at the EEOC, and we are very conscious of the fact that an effort is being made to look at the real-world context of this problem. Until recently employers have felt that they were standing firmly on quicksand in this problem of how far to go in affirmative action.

MacNEIL: Could you describe the nature of that quicksand? What really bothered them?

DAY: Well, on the one hand employers who are government contractors face the possible loss of government contracts and other severe sanctions And on the other hand they face the litigation and the consequences of reverse discrimination suits.

MacNEIL: They were damned if they didn`t hire minorities and women, and they were damned if they did, you mean -- or they felt that.

DAY: Yes. Now, I think that the new guidelines are a step in the right direction, but I have to candidly say that I think the protection is very limited, for two reasons. First, there`s no protection against the private suit; and of course we`re all aware that recent opinion polls have indicated that while a very large majority of the American public support affirmative action, over eighty percent are also opposed to reverse discrimination. So the grounds for the sensitivity to reverse discrimination charges are there.

Secondly, and I believe Mrs. Norton has attempted to emphasize this in her last response, the EEOC obviously cannot validate illegal reverse discrimination; the EEOC cannot protect an employer, as I see it, against that particular charge.

MacNEIL: What would illegal reverse discrimination be, blatantly putting minorities or women -- hiring or promoting them -- over people with superior qualifications who happen to be white, is that what you mean?

DAY: Yes. Without trying to get too technical, the EEOC has consistently pointed out that Title VII of the Civil Rights law is a prohibition against discrimination of any nature, reverse discrimination, so-called, as well as other discrimination. And if it is clear that a case exists such as, for example, the Weber versus Kaiser Aluminum Company case, in which a union and an employer agreed on quotas, the courts at least at this stage have held that that`s illegal reverse discrimination.

MacNEIL: Are you saying that if a private individual suit -- let`s say a white male who felt he was a victim of reverse discrimination -if he sued, that the courts might not view the guidelines as a sufficient protection for the company that he was suing?

DAY: I think the courts will look at the facts of the individual situation. I also think that the real answer has to be found in the courts at the present time. It would be possible for the Supreme Court, for example, to adopt a rule that any remedies in the case of reverse discrimination would be prospective only.

MacNEIL: What does that mean?

DAY: Forward-looking. To permit an injunction against the continuation of the practice that was regarded as contrary to law.

MacNEIL: And no damages awarded.

DAY: And no damages. Now, I just would like to say that the business community has a great stake in having effective affirmative action programs, and supports that concept.

MacNEIL: All right, thank you. Jim?

LEHRER: All right, another view now on this general issue of affirmative action from W.H.C. Venable, a Richmond, Virginia attorney. Mr. Venable was the lawyer in a reverse discrimination suit against Virginia Commonwealth University. Mr. Venable, how do you interpret the intent of these guidelines?

W.H.C. VENABLE: With all due respect to Ms. Norton, I view the intent of the guidelines really to further what I perceive to be the consistent attitude of the EEOC, which is to buttress its attempt to enforce numerical quotas, ratios, goals and timetables. And we talk about reverse discrimination; I prefer a different name for it that I have used consistently, and that`s affirmative discrimination, as opposed to affirmative action. It seems to me that what the business community is attempting to do and what the government is attempting to do is to shift the burden of past discrimination to innocent individuals who had nothing to do with the existence of that discrimination. It`s a quick and easy way to try to remedy a wrong, but I think in the long run it does nothing more than exacerbate the situation and bring more focus onto non-merit decisions in employment.

LEHRER: What you`re saying, then, is that what these guidelines do, from your perspective, is bless discrimination against white males -- am I reading you correctly?

VENABLE: I think you are, and I think Mr. Day touched on it when he noted that the EEOC guidelines are not going to protect employers one bit from the private lawsuit, and I have a lot of sympathy for the private employer because I really do believe he`s damned if he does and damned if he doesn`t. But the simple fact is that fair is fair; and I think the Supreme Court recently this summer, in the Teamsters` case called T.I.M.E. versus U.S., spelled out what they have in mind, and that is that where you have an actual discriminatee, someone who`s actually been discriminated against, and you put them in a position above or what would apparently be above someone else, that`s not really giving them a preference, that`s putting them in their rightful place. But if they`re not actual discriminatees you`re not going to go out and penalize directly the innocent party who is also in the employment sector.

I don`t think it`s fashionable for white males today to bring these suits. I think what has happened is, whose ox is being gored? As long as the white male liberal in this country wasn`t feeling the direct discrimination, affirmative action was a very nice thing for them to consider, but now the shoe is on the other foot. I don`t think it`s fashionable, I think it`s just realistic.

LEHRER: Do you think that the effect of these guidelines is actually going to be more reverse discrimination suits rather than less?

VENABLE: Yes, I do, because I think the smaller employer who is not on a consistent basis advised by counsel is going to grab onto these guidelines as a way out. And what it`s going to do is create more serious reverse discrimination, and it`s going to ...

LEHRER: In what way? Explain that.

VENABLE.: Well, employers today are wary of taking voluntary compliance actions on quotas and types of hiring and preferential treatment. The guidelines give a patina, a gloss of approvability that really isn`t there; and I think it`s almost a fraud on the small employer, and he`s going to go out and enter into some types of preferential treatment and he`s going to turn around and find himself in court, and I think that the courts have been relatively consistent that where you have an innocent party who is being held back because of some affirmative discrimination they`re going to redress that wrong.

LEHRER: All right. Thank you, Mr. Venable. Robin?

MacNEIL: Yes, let`s get another view from an organization that`s been deeply involved in this field for many years. Jack Greenberg is the Director-Counsel of the NAACP Legal Defense Fund. Over the years the Fund has been involved in many affirmative action and reverse discrimination cases. First of all, Mr. Greenberg, were these guidelines really needed?

JACK GREENBERG: Well, I think they will be very useful. The law until now has been that if an employer has engaged in racial discrimination, then he may undertake affirmative action ratios, numerical goals, timetables and so forth, things that Mr. Venable and others have called by the dirty name "reverse discrimination," in order to remedy the wrongs that he has committed. Now, if an employer wanted to engage in affirmative action, he would either have to be held guilty in a lawsuit of having discriminated or he would have to confess that he had discriminated. Well, he wouldn`t want to do that, that would be a stigma and he would open himself up to suits by blacks. If he didn`t confess that he discriminated or hadn`t been held guilty of discrimination, then he would open himself up to a suit by whites. And so the guidelines here have very sensibly pointed out that you don`t have to confess to having discriminated, you merely have to conclude that there is a reasonable likelihood you might be held guilty of discrimination, which still leaves open a defense if someone were to sue you but gives you a reasonable basis upon which to proceed. So the guideline is sensible and should allay the fears that employers might have.

MacNEIL: Do you think they will in any way stop white males from charging reverse discrimination?

GREENBERG: Well, I don`t think at first they will, but if they`re upheld by the courts it`s going to be rather pointless to bring suits in those situations, so I think they will then have that effect, sure.

MacNEIL: Mr. Day said the courts would decide on the facts, not on the guidelines.

GREENBERG: Well, all cases depend upon the facts but the courts, I think, will have to decide whether or not it is within the power of EEOC to make this kind of an interpretation. I think it probably is, though I don`t want to speak for the courts, obviously.

MacNEIL: Will the guidelines result in the hiring and promotion of more minorities and women?

GREENBERG: I think where employers have had their anxieties allayed, they will now go ahead and do it. We would get calls, for example a fire department would call us and say, "Look, we`d like to have an affirmative action program. How can we be certain we`re not going to be sued?" And one bit of advice we would give is say, "Well, if you come out and say look, we`ve been guilty of discrimination in the past and now we want to correct it, you will fairly well immunize yourself." And they would say, "Well, politically we just can`t say that." Now they won`t have to say that; all they`ll have to say is, "Well, there`s a reasonable likelihood we`ll be the victims of a successful suit." That`s a rather different thing to say.

MacNEIL: So what do you think the effect on business will be? Will it be reassuring to business? You said if business was reassured.

GREENBERG: I think it will be reassuring if and when they`re finally upheld, and I would imagine they will be upheld.

MacNEIL: Let me ask you this: do you think this is an attempt to, in a sense, end-run any Supreme Court decision in the Bakke case, although not immediately related to employment, which might threaten affirmative action programs?

GREENBERG: I don`t think so. I think the EEOC is sensible enough and is advised by good enough lawyers to know you can`t end-run the Supreme Court. But what is happening here is that...

MacNEIL: I meant end-run in the sense of discounting, as they say on Wall Street.

GREENBERG: Well, the law is a dialogue among the courts and the legislature and the executive branch and the community and so forth, and this is another voice in that dialogue. I think it will be a positive contribution to a healthy resolution of these kinds of issues.

MacNEIL: Thank you. Jim?

LEHRER: Ms. Norton, back to you with one of the comments that Mr. Venable made, that he feels that this is going to result in more reverse discrimination cases being filed rather than less.

NORTON: Quite the opposite, we think -- for this reason: the guidelines are just that; they are, for the first time, rather specific guidance to employers all over the country as to how they might in fact avoid problems of reverse discrimination and problems of discrimination. And I agree with Mr. Venable, there`s really only one -- and I don`t think there`s reverse discrimination and affirmative discrimination, there`s only discrimination. If you discriminate against a white male, that`s discrimination. If you discriminate against a black male, that`s discrimination. So we`re all talking about the same phenomenon.

What these guidelines do is to point out that if you follow a process -- and for the small employer, Mr. Venable, this will be important, because it describes that process -- it says, go through a self-audit.

If that self-audit reveals that you may be in violation of the law, then go through a process similar to that under a federal executive order.

A small employer can get himself a copy of an affirmative action plan and can see what kinds of plans have survived under the executive order. He can then pattern himself after that. One of the things he`s likely to do, it seems to me, is to avoid discriminating against white males if he does that, because he will be relying on documents that for the most part do not do that. If on the other hand he did not have the guidance we are attempting to give in these guidelines, he might go out and use some other guidance, such as a plan he may have heard some other employer is using, without knowing if that`s a good plan or not. So we think that precisely because employers need to have some notion of what the zone of reasonableness is, that they now have that.

LEHRER: Mr. Venable?

VENABLE: The problem with that whole line of thinking is that in the Weber case and in the Cramer case, both of the employment cases going up right now, is that both of those employers were working within EEOC guidelines and affirmative action plans.

NORTON: Not EEOC guidelines. They were office of Contract Compliance.

VENABLE: Excuse me.

LEHRER: These are two cases that are still in appeal.

NORTON: The EEOC had nothing to do with those cases.

VENABLE: The Office of Contract Compliance, which bears a great deal of similarity to the guidelines that have been spelled out specifically yesterday. And in both cases the courts have said that the executive side of government cannot contravene and contradict the expressed intent of Congress, and that is that there shall be no discrimination and no preference under Title VII; and based on that, the courts have ruled in Weber and in Cramer that the affirmative action plans in compliance with the executive orders are in violation of the law, and have enjoined those plans, both at Kaiser and at Virginia Commonwealth University. So all you`re doing is adding another layer, and that`s why I say I think it`s going to be very misleading to the businessman.

LEHRER: Let`s ask Mr. Day about that. Mr. Day, what do you think on a practical level? Do you think this is actually going to increase the number of reverse discrimination cases rather than reduce them?

DAY: I have no way of assessing that, but I think that Mrs. Norton has stressed a very fundamental foundation of the problem, and that is it is important to have affirmative action programs that are meaningful; and while I believe candidly that this will have only a very limited effect in that direction, I think it should be supported because of this. I think that the American public fails to realize that some rather spectacular results have been achieved through the intelligent application of affirmative action theory and practice throughout industry. The problem that we face is we don`t know the limits and the legal consequences, and because of this I think that the Supreme Court is going to have to give us the running rules.

LEHRER: Do you agree with Mr. Venable that these guidelines in effect are a blessing to American business or other employers to discriminate against white males?

DAY: Well, I`m not sure how I should answer this, but you know the definition of an optimist is a fellow who believes that halitosis is better than no breath at all...

(General laughter.)

DAY: ...and I think that there are other actions that Mrs. Norton at EEOC has taken, even one today, I understand, that will be even more helpful on this front in terms of the new uniform guidelines and selection procedures. But I think it is possible, and it should be supported, to attempt to harmonize affirmative action with the requirements of law on reverse discrimination.

LEHRER: Mr. Greenberg, how do you respond to Mr. Venable`s basic argument that this kind of thing amounts to discriminating against an innocent party, somebody who was not really involved in the past discrimination?

GREENBERG: Well, a selection procedure -- the word "discriminate" has this pejorative ring to it -- a selection procedure selects one person and doesn`t select another, and we select people for employment and for schools and for various kinds of positions on the basis of many standards. I think it`s entirely appropriate that one of those standards should be social justice; and social justice I think requires that American minorities -- blacks and others who have so long been excluded from employment and from the more desirable things in life -- should be given opportunities now from which they have been kept. And so I think that that is one facet of a selection procedure that is entirely appropriate.

NORTON: Jim, I`d just like to say that I think that white males in particular are in much greater danger if government stands mute in this debate. I think it`s fairly much of a shame that ever since the DeFunis case, that some may remember from five or six years ago...

LEHRER: I don`t, so tell me quickly what it was.

NORTON: It was another celebrated reverse discrimination case in academia, much like the Bakke case. There`s an obligation of government to step in when there is that kind of polarizing confusion in the society and try to offer some guidance. White males, it seems to me, stand now before employers who don`t have a lot of guidance as between what they should do if reverse discrimination cases are on the horizon as opposed to cases by minorities and women. With some guidance that tells them what to do and guidance that, I think Mr. Day has indicated, is not the most radical variety, not only do minorities and females stand to profit, but I think white males will find that employers are more careful about how they go about affirmative action, because the commission has said you must do so reasonably and you must follow these kinds of steps; and if you follow these kinds of steps, then you are probably safe. Many are not following those kinds of steps now, and thus

I think that there is a zone of protection here for white males as well that just simply ought be recognized.

MacNEIL: Because I`m as confused as I think many members of the public are about this, we have a couple of minutes, I`d just like to hear in the simplest terms, starting with you, Mr. Venable, when is affirmative action not reverse discrimination? Can you put that in terms I can understand?

VENABLE: (Laughing.) If I could, I would probably be the most wealthy lawyer in the country. That`s the unanswered question that you have before you. It`s my opinion, and the opinion of the most recent decisions, that affirmative action at the threshold selection process is not legal. While I am in great sympathy with Mr. Greenberg`s position that social justice should be a criteria, the law simply says it is not a criteria, you cannot prefer one over the other, the selection process should be on merit and racially, sexually, religiously blind. And affirmative action has to come in training, creating the pool of applicants, selecting the pool of applicants; and then once you have a representative pool, selecting on the basis of merit, and that`s what I think our society is all about.

MacNEIL: Ms. Norton, do you agree that that`s when affirmative action is not reverse discrimination?

NORTON: Affirmative action is all about increasing the pool, using recruitment techniques so that employers do not continue to go about doing what they`ve been doing for the last several generations, and that`s giving a preference to the white male. By opening the pool for selection so that those included within it are also black and brown and Asian and female, then he may choose the most qualified. As it is, for jobs above the lowest levels, most employers have a pool consisting almost entirely of white males.

MacNEIL: Thank you very much indeed, Ms. Norton and Mr. Venable in Washington. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: Thank you both here. That`s all for tonight. Jim Lehrer and I will be back tomorrow night. I`m Robert MacNeil. Good night.