The Equal Employment Opportunity Commission yesterday rules designed to free employers who try to comply voluntarily with fair hiring standards from the fear of being sued before the agency for so-called "reverse discrimination."
Under the proposed guidelines, an employer who concluded that his employment system discriminates against minorities or women, and who then moved to correct his system with an affirmative-action program, would not be found by EEOC to be engaging in reverse discrimination.
The approach EEOC suggests would not affect the right of an individual - presumably a white male - who felt an affirmative action program discriminated against him from bringing suit in court.
EEOC tentatively approved the new guidelines on Tuesday. They are being printed in the Federal Register, and are open for public comment through March 1.
Commission head Eleanor Holmes Norton said at a press conference that the need for the new guidelines indicates "a new plateau in the development of anti-discrimination law."
Since programs to correct the effects of past discrimination are new in United States, she said, "it is inevitable that when employers begin to take action to change their employment systems, it may sometimes be misperceived as constituting 'discrimination in reverse.'
"This occasionally results in complaints filed by those who have benefited from the previous employment system," Norton said, adding that such reverse discrimination complaints raise the specter of a "chilling effect" on employers.
Holmes said the guidelines would mean that employers have a positive obligation to comply voluntarily with equal employment statutes without waiting for action by any government agency.
An employer's move to establish an affirmative-action program would not constitute an admission that his existing employment system is discriminatory, she said.
It is not clear what the overall effect of the new guidelines would be. Harvard University sociologist Nathan Glazer, author of several books and articles touching on the implications of affirmative action, said an individual who thought himself a victim of "reverse discriminaition" has alternatives to EEOC, principally the courts.
"I have to wonder if it really would be meaningful," Glazer said. "One possible adversary would be knocked out - EEOC - but there is no way of plugging all the channels."
Glazer also questioned the wisdom of allowing "an inaccessible administrative agency" to make "such a major direction of public policy."
EEOC bases its guidelines on language in the 1964 Civil Rights Act relieving from liability persons who base affirmative action measures on "any written interpretation or opinion of the commision."
A number of significant "reverse discrimination" employment cases are "wending their way throught the courts. In one that has been resolved, Daniel McAleer, a white man, was awarded compensatory damages after AT&T gave a promotion for which he was a candidate to a less qualified woman.
Perhaps the most important of the cases is that of Dr. James A. Cramer, a Virginia Commonwealth University professor who was also passed over for promotion in favor of two women. A ruling favorable to Cramer is now on appeal in the Fourth Circuit Court of Appeals.
Faced with these and other cases, Norton said, the commission decided to try to establishe "a zone of reasonables within which employers can act."