The Supreme Court’s three major, 5-4 discrimination rulings this month seem to reflect an unarticulated notion that the most serious problems of civil-rights law facing America today are the legal harassment of employers and the oppression of white males.
Justice Byron White’s choice of words in his June 5 opinion for the 5-4 majority in Wards Cove Packing Co. v. Atonio was suggestive. While blandly acknowledging the "unfortunate" problem of discrimination against non- whites in our society, he lamented the "host of evils" caused by legal rules that spur employers to adopt quota systems and discriminate in favor of minorities.
Our legal and political systems have, in fact, spawned enough "reverse discrimination" and enough groundless discrimination suits by minorities and women against innocent employers to justify some concern and perhaps some corrective action on the Court’s part. The refusal of many liberals to acknowledge that these problems exist helps explain the shrillness of their attacks on the Court’s good faith.
In this sense, the Court’s new conservative majority may have been seeking to move the law in a healthy direction. But they have moved it way too far.
Legal rules are such crude instruments for affecting human conduct that those aimed at foreclosing the possibility of reverse discrimination will, inevitably, also have the effect of denying redress to many victims of the more pervasive discrimination that still confronts minorities and women.
In groping for the right balance, the new majority seems to proceed from a skewed perspective: that discrimination against white males has become a problem of the same magnitude as the discrimination, present and past, that has denied to millions of blacks any real opportunity to participate fully in American life.
Casting aside the accumulated wisdom of its own precedents, the Court, in its zeal to protect employers and white males, has unwisely tipped the litigation scales too far against minorities and women.
Last Thursday, in Patterson v. McLean Credit Union, the Court gave lip service to precedent by backing off from its gratuitous decision last year to consider overruling a major 1976 decision, Runyon v. McCrary.
But the conservative majority gave an unduly crabbed interpretation to Runyon and to an 1866 civil-rights statute. Runyon had construed the statute to reach racial discrimination in the making and enforcing of private contracts, including employment contracts. But Patterson held the law inapplicable to racial harassment by employers of employees after the initial employment contract has been made. While plausible as a matter of technical statutory interpretation, this ruling seems animated by the unstated premise that it is less important to provide victims of the most egregious racial harassment with strong legal remedies than it is to insulate employers from groundless suits.
In Atonio, Justice White’s opinion implicitly overruled key aspects of Griggs v. Duke Power Co., a landmark employment-discrimination ruling issued for a unanimous Court by then Chief Justice Warren Burger in 1971.
Griggs had opened the door for job-discrimination suits under Title VII of the 1964 Civil Rights Act based not on intentional discrimination but on statistically based proof of the "disparate impact" of selection criteria that effectively exclude minorities from particular job categories. Evidence of disparate impact shifted to the employer-defendant the burden of proving the "business necessity" for the challenged selection criteria.
Griggs was designed to spur employers not only to purge their procedures of subtle racial bias, but also to make affirmative efforts to employ minority workers who can do the job even if they are less qualified, as measured by written tests and other traditional selection criteria, than white competitors.
Implicit in the latter objective was a requirement that employers engage in a carefully limited amount of reverse discrimination to overcome the legacy of a racist past.
Some lower courts, civil-rights advocates, and others have carried the logic of Griggs to extremes, seeking to drive employers toward quota systems by discrediting all selection criteria that do not result in racial proportionality.
The Supreme Court, understandably concerned about such excesses, overreacted.
The Court did not content itself with restoring the delicate balance struck by Griggs or with clarifying that employers need not dilute job-related selection criteria to achieve racial proportionality at all costs. Quite gratuitously, it appended, with almost no discussion, a major holding that "the burden of persuasion … remains with the disparate-impact plaintiff" throughout the case.
Suggesting disingenuously that this had been the law all along, White brushed aside the fact that employers will ordinarily be in a far better position to prove business necessity or lack thereof than their employees.
White also sprinkled language throughout his opinion making it harder for disparate-impact plaintiffs to prove their cases. His apparent objective was to squeeze out of the law the affirmative-action obligations that Griggs implicitly imposed on employers.
While the Court was manipulating legal abstractions to protect employers and white males, the Atonio plaintiffs-non-white cannery workers in Alaska who filed suit 15 years ago-continued to await some sort of legal redress for what had been done to them. The conditions that prompted their suit, likened by the dissenters to "a plantation economy," included restriction to the lowest-paying jobs in a racially stratified work force and racially segregated barracks and mess halls. Some of their claims are still alive on remand, but no remedy is in sight.
The Court also showed special solicitude for the interests of white males last Monday in Martin v. Wilks by inviting endless litigation challenging affirmative-action consent decrees on which minority and women plaintiffs have settled with cities and other employers. Rejecting the rule embraced by the vast majority of federal appellate courts, the Court held that non-parties to such decrees can always challenge them in subsequent reverse-discrimination suits, no matter how repetitive the litigation.
Some good may come of these decisions if they prompt Congress to engage in a careful re-examination of the hard issues raised by job-discrimination suits and affirmative action and to clarify its intent with new legislation.
How much deliberate job discrimination against minorities and women still goes on in this country? How much discrimination in the form of subconscious stereotyping? How much reverse discrimination? How often are complaints of discrimination made where none exists?
How much of the gross underrepresentation of blacks in the best jobs reflects current discrimination as opposed to the disabilities-lack of education, skills, and work habits-that are themselves the legacy of a racist past? How much affirmative action to overcome this racist legacy can we have before it produces more reverse discrimination than we can tolerate?
Nobody really knows the answers to these questions, and the battle lines are so hardened that few on either side deal honestly with them. Congressional hearings could shed some light.
Sensible dialogue will not be furthered, however, by strident attacks, like the assertion last week by the Rev. Joseph Lowery, president of the Southern Christian Leadership Conference, that the Court is attempting "to hide racism under a cloak of legalism."
Nor will it be furthered by the pretense of many liberals that we can have affirmative action without reverse discrimination.
Nor will it be furthered by the pretense of many conservatives that an altogether "colorblind" approach can produce anything but a mockery of real equality of opportunity.