FEW THINGS concentrate the mind as quickly as becoming a defendant in a court case and that, we suspect, is the theory behind the lawsuit filed against the government Wednesday by Sears, Roebuck and Company. In strictly legal terms, this is an intricately constructed attack on the operations of the Equal Employment Opportunity Commission. But it is also a sweeping challenge -- breathtaking in its scope -- to the way the government has been dealing with the problem of job discrimination. But compelling the government to focus on what it has been doing about jobs for the last 40 years, Sears hopes its lawsuit will result in wide-ranging changes in both laws and policies.
The basic claim Sears makes is that it and other private employers are being required by the government to hire workers in a non-discriminatroy fashion from a work force that became unbalanced in favor of white males as a consequence of earlier government actions. Sears also claims that the laws governing job discrimination conflict, that the government itself violates with impunity the very laws it enforces against private employers, and that there is no way an employer can know what is legal or illegal because there is no coherence in government enforcement programs.
Sears, it should be noted, has been having trouble with the EEOC for years, even though it was one of the first major corporations to voluntarily establish an affirmative-action hiring program. It, like many other companies, including the one that publishes this newspaper, has sometimes despaired of being treated rationally by that agency. Perhaps because there is no forum in which serious consideration has ever been given to the EEOC's inanities, Sears has now taken on almost the whole government in a case that is a mixture of law, politics and public relations. That mixture is not new; Sears' lawyer, Charles Morgan Jr., used it when he was fighting segregation in the Deep South more than a decade ago. It is a mixture designed to change the way government thinks and acts at least as much as it is designed to win a victiory in court.
Sears has assembled an impressive bill of particulars to support its claims. Government policies in the past, particularly those involving military training and veterans benefits, have worked to give white males preference over black males and women both in learning skills and in getting jobs. Present government policies, which bar employers from discriminating against almost everyone, do not take into account the impact these earlier policies have had on the qualifications of minority and female workers now in the job market. Similarly, the racial mixture of the pool of workers from which a particular company hires is influenced by the housing patterns in areas near its location. Those patterns were created, at least in part, by government practices. Yet by relying on statistical data that ignores both housing and individual qualifications, agencies like the EEOC assume certain employers must be discriminating against female and black applicants solely because of the low percentage of such employees on their payrolls.
Sears, and many other employers, have been trying for years to impress the government with the significance of factors other than just numbers. Their inability to do so by conventional means will lead most private employers to applaud the unconventional method Sears has chosen. That should not be interpreted as a rejection by private industry of non-discriminatory hiring or affirmative action. Instead, it is a plea that the government be realistic and get its own house in order.
A government that gives priority to veterans for its own jobs, even though that priority discriminates against most blacks and women, ought to understand some of the problems of private industry -- problems that bureaucracies around this town don't understand and, so far as we can tell, don't even try to understand. At the very least this lawsuit brings these problems into sharp focus. It may well trigger a complete overhaul of all the goverment's anti-job discrimination programs before they collapse of their own bureaucratic weight or are killed off by the courts because of their internal inconsistencies.