THE ADMINISTRATION proposes to change
the remedies that the Justice Department will seek in cases where public employers are found to have violated the job discrimination provisions of the 1964 Civil Rights Act. These changes go to the heart of the question of where "affirmative action" ends and reverse discrimination begins.
Last week in testimony before the House subcommittee on employment opportunities--and again in a communication printed in this paper last Saturday--Assistant Attorney General William Bradford Reynolds described the new policy. Because the administration is also recommending changes in the anti-discrimination policies of other agencies--including the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance, which deal respectively with private employers and federal contractors--there has been a good deal of confusion about what the Justice Department's new policy means.
What has not changed in the department's policies is the type of suits that will be brought. State and local governments will still be subject to charges that they have indulged in a "pattern or practice" of employment discrimination. If a court finds that the charges are valid, all individuals who can show that they were affected by these practices--not just those who filed the original suit--can receive compensation, including back pay and promotions, as part of the same lawsuit. What have changed are the additional remedies that will be sought.
Under past policy, judgments frequently called for the imposition of hiring quotas until minorities constituted a certain proportion of the employer's work force. Now the department will ask only that employers make all special recruitment efforts necessary to attract a pool of applicants including minorities and women in proportion to their estimated numbers in the job-qualified population.
It is much easier to enforce a straight hiring quota than to determine whether recruitment and hiring practices are conducted in good faith. Quotas, however, amount to favoring one group over another, and since it is impossible to measure accurately the number of minority people in the pool of qualified applicants, there is always the suspicion that the quota is causing the selection of less qualified people. This demeans both the people newly hired and those of their race or sex who were hired before. For this reason the Justice Department's new policy is an improvement--if it can, by force of leadership and diligence of pursuit, be made to produce real job gains for the victims of discrimination.
This last reservation is important. It is difficult to judge the seriousness of any particular retrenchment in anti-discrimination policy simply because these policies are far more dependent for their effectiveness on the quality and tone of government leadership than on any individual practice. Whatever the excesses of past practice, it is worth noting that progress was far from impressive. Blacks and other minorities still remain undesirably concentrated in public employment, particularly those who are in administrative and managerial, jobs and will be disproportionately affected by the administration's cutbacks in government jobs and services. For this reason it is of paramount importance that the administration demonstrate--both by what it says and what it does--that it is truly committed to the achievement of a discrimination-free job market.