A Reagan administration advisory panel has urged that equal employment opportunity law and procedures to be changed so that much more evidence would be required to find a business guilty of discrimination and no business could be forced to adopt an "affirmative action" plan against its will.
The advisory unit attacked the Equal Employment Opportunity Commission for having created a new racism in America in which every individual is judged by race."
The group was led by J.A. Parker, a black and head of the Lincoln Institute, a conservative think tank that deals with black issues. Its unpublished report was sent to the then-president-elect last month.
President Reagan and his advisers have said repeatedly that they want to make federal requlations less burden-some to business. Equal employment opportunity has sometimes been suggested as one area where they might act.
Although no decisions have been announced so far, Reagan at his press conference yesterday hinted that the panel's thinking was in line with his own, declaring in answer to a question that "some affirmative action programs [are] becoming quota systems."
The Parker panel's key recommendation was that, when a firm is accused of discrimination, the accuser be required to prove to discriminate, not just that the firm has a lower percentage of minority-group employes than may be available in the local labor force.
It also recommended that EEOC's budget be cut; that it be barred for one year from issuing any new guidelines or undertaking any new lawsuits; that any new gudelines thereafter be subject to review by the Office of Management and Budget, and that EEOC be stripped of its designated role as the "lead agency" in interpreting and formulating equal employment enforcement policy within the government.
EEOC in an equally combative rebuttal obtained by The Washington Post, said the Parker report showed ignorance of the law -- in particular, disregard for Supreme Court decisions that remedial action can be ordered even where intentional discrimination hasn't been shown -- and a desire to make EEOC a political arm of the White House through OMB domination, while stripping away its independent power to protect minorities.
It said the proposed changes would cripple EEOC. More important, perhaps, it noted that few of the changes could be made by the president without congresional and court consent, since most EEOC procedures are based on congressional and court action.
The chief contention of the Parker report is that EEOC has gone beyond what Congress intended when it outlawed employment discrimination in the 1964 Civil Rights Act.
The report says Congress intended that EEOC concentrate on individual cases and equality of opportunity. Instead, it says, the agency has become concerned with "numerical equality."
The Parker report said EEOC had gone looking for firms with suspect percentages of minority-group employes, then, without any reference to intent, had come to consider such firms guilty of discrimination unless they could prove themselves innocent.
As a further abuse of power, the report asserted, the agency had come to require that such firms adopt "affirmative action" programs (never directly authorized by the law) seeking racial balance by setting quotas or quota-like targets for hiring of minorities. In some cases, it said, it even barred the business from considering an individual's past criminal record as a bar to employment. The team's conclusion: EEOC should return to merely fighting individual cases of discrimination brought by individuals.
The EEOC rebuttal, contained in several lengthy documents circulated on Capitol Hill, starts with the statement that the Parker group simply doesn't understand the law.
For one thing, the EEOC paper said, all the procedures it uses have flowed from court decisions, including some by the Supreme Court. Moreover, EEOC can't directly order an employer to undertake affirmative action, only ask a court to do so. The Supreme Court cases, it said, have established as the law:
(1) That hiring practices, tests and other qualifications may be challenged as discriminatory if their net result is to produce a labor force with disproportionately low minority-group representation while reasonably qualified minority workers are available in the area.
(2) That when such a numerical finding is made, it is to be considered prima facie evidence of discrimination even if there is no evidence that the employer actively intended to discriminate.
(3) That the employer can then rebut this evidence if he can show that his method of choosing workers was based on qualifications needed for the job (for example, lifeguard candidates must know how to swim).
(4) That in the absence of such a rebuttal, the courts may order (or EEOC suggest) affirmative action: that the employer eliminate some of its hiring tests that seem to be excluding minorities without really testing for job-needed qualities, and, further, set numerical goals and timetables for minority hiring.