The Supreme Court agreed yesterday to decide whether employers with no proven history of racial discrimination can give special job preference to minority workers.
Meanwhile, the Equal Employment Opportunity Commission issued new affirmative-action guidelines intended to encourage such affirmative-action plans and protect employers from "reverse discrimination" claims.
The Supreme Court's eventual decision in its newest antidiscrimination case could have an impact more farreaching than its historic Bakke decision earlier this year because it directly involves millions of workers.
In a 5-to-4 ruling in the Bakke case, the court rejected numerical quotas used in admissions to a state-run medical school but said race is a factor that can be considered in screening applicants.
This left doubt over how far private employers can go in setting up affirmative-action plans that attempt to correct racial imbalances by giving preference to minority workers, especially when there is no proven history of racial bias by the employer.
The case taken under review by the court yesterday could answer that question.
It arises out of a claim by Brian F. Weber, a white worker at a Kaiser Aluminum & Chemical Co. plant in Gramercy, La., that he was a victim of "reverse discrimination" because he was rejected for an in-plant craft training program that called for at least 50 percent black and female participants.
A U.S. District Court in New Orleans and the 5th U.S. Circuit Court of Appeals ruled that the program, jointly administered by Kaiser and the United Steelworkers of America in all company plants, was illegal because Kaiser had no proven or admitted history of discrimination at the plant.
The Justice Department, acting for itself and the EEOC, had asked the Supreme Court to send the case back to the lower courts for further review.
Sources indicated the government wanted the Supreme Court to consider first a job-related case involving proven discrimination, believing that if that case was won it would then be easier to prevail in a Kaiser-type situation of unproven bias.
The government agreed with the steelworkers and civil rights groups, however, that the 5th Circuit Court's ruling in the Kaiser case poses a threat to job-expansion programs for minorities.
"We believe that this ruling is incorrect," said lawyers for the government. "Moreover, if permitted to stand, the decision of the court of appeals can be expected to chill voluntary affirmative-action programs not only in the 5th Circuit but throughout the country."
Civil rights groups have characterized the case as crucial to the future of on-the-job efforts to overcome the effects of past discrimination, saying in a brief filed with the court that the 5th Circuit decision "endangers the future of all... affirmative-action plans."
In Gramercy, Weber said he is confident he will win. "It's been almost four years since the suit was filed," he told the Associated Press, "and I didn't expect to get near this status. I would have been satisfied to have it resolved at any time over this last four years, but I guess it's too important to be settled this early."
In their appeal, both Kaiser and the steelworkers are asking the court to rule that provisions of the Civil Rights Act banning racial discrimination on the job do not bar voluntary affirmative-action programs.
Roughly 15 percent of Kaiser's work force in Gramercy is black, with only 2 percent holding the prized craft jobs. Kaiser has attributed the disparity to historical discrimination, not to any action on its part, and said racially preferential practices are needed now to end the exclusion of minorities from jobs traditionally held by whites.
Justice John Paul Stevens disqualified himself from participating in the case, as he did in two other unrelated cases involving Kaiser. Stevens offered no explanation, and he disclosed no Kaiser holdings at his Senate confirmation hearings.
Stevens' action raises the possibility of a 4-to-4 split, especially in light of the court's sharp split in the Bakke case. A 4-to-4 split would leave the 5th Circuit Court's ruling in effect in that circuit, which covers Louisiana, Alabama, Florida, Georgia, Mississippi and Texas. It would not set a precedent for other circuits.
The Equal Employment Opportunity Commission's issuance of affirmative-action guidelines was not timed to coinicide with the court's action but reflected months of effort to bring them into line with previous court decisions, including Bakke, and public comments on guidelines that were proposed earlier.
"The guidelines issued today make clear that employers have a legal obligation to comply with the law voluntarily without waiting for a government agency or others to commence enforcement action," said Eleanor Holmes Norton, head of the EEOC. "In light of this obligation, the guidelines provide protection from liability to the greatest extent possible to employers who take appropriate voluntary affirmative action."
The guidelines, approved unanimously by the commission, provide that:
Employers and unions are "obligated and encouraged to eliminate barriers to equal opportunity" without being forced by the government to do so.
Employers will be acting lawfully if they conduct a "self-analysis" of their employment system, have a "reasonable basis" for an affirmative-action program and prescribe "reasonable" solutions.
Goals and timetables may be adopted so long as they are "reasonable."
The legality of affirmative-action plans "does not depend upon an admission or proof that there was an actual violation of the law," only on a "reasonable basis for concluding that action is appropriate" -- an attempt, according to Norton, to avoid Kaisertype suits in the future.