William Bradford Reynolds, chief of the Justice Department's civil rights division, has been in a running battle with civil- rights advocates over the legitimacy of "goals and timetables" in minority hiring.
The advocates of numbers--to set targets for correcting racial and sexual imbalances in the work place and to measure how well those targets are being met--say Reynolds stubbornly refuses to see the difference between goals, which they advocate, and quotas, which he opposes.
Reynolds says he's misunderstood. He's right. I've just spent a long lunch with him during which he laid out his view, and I still don't understand him.
He begins by espousing a view that might well keynote a meeting of the Leadership Conference on Civil Rights.
"I don't have any problem looking statistically at a work force and drawing inferences from what that statistical picture shows," he says. He goes on to say that if the numbers are suggestive of race or gender discrimination, and the employer or agency has no satisfactory alternative explanation, "then the presumption of liability would remain unrebutted, and you would have a violation--even without specific complainants coming forward."
And what would follow from that presumption?
"You'd have to put in place a remedy."
Which, of course, is what the civil-rights establishment has been calling for. So what is the fighting about?
"My resistance," he explains, "is aimed only at saying that we would require the employer to bring a certain number of blacks or women into that work force. I would require, instead, the mandate that you end discrimination now and that you engage in affirmative-action recruitment efforts in order to assure that minorities and women are being recruited in vigorous fashion to come into that work force. But I would not presume that there is a cer- tain number that has to be hit in order to say that you have satisfied your obligation."
The distinction strikes me as more theoretical than real. Reynolds' opponents would expect that fairness in hiring would result in certain, quantifiable hiring results, based on the availability of qualified prospects, and that failure to meet those numbers would be evidence of discrimination--rebuttable by showing that factors other than discrimination resulted in the imbalance. Reynolds would do the same thing, except that the triggering ratio would exist entirely in his own head. An employer would know that he had violated Reynolds' unspoken guidelines only when he was called in to explain his sorry numbers.
But isn't a goal or target still a goal or target, whether it is clearly enunciated in advance or only deduced from the actions of the Justice Department?
Says Reynolds: "Whether you do it overtly or covertly, people who are going to be driven by a certain number are going to compromise the legitimate criteria that should be the thing that determines who gets the job."
So there it is: an employer faced with an order to increase the number of women and minorities in his work force will hire unqualified people just to keep the feds off his back, while the same employer, having deduced from Reynolds' practices just what numbers are unacceptable, will: do what?
No doubt some employers faced with pressure of either sort will hire unqualified anybodies just to avoid trouble. But wouldn't most employers under the gun to increase their female and minority hiring look for the best women and minorities they could find? What would be the point of doing otherwise?
Reynolds won't be moved. He finds it perfectly reasonable to require an employer to change his recruitment practices and his hiring criteria, and to change them again and again if they fail to affect his hiring pattern. But he won't mandate the pattern. That's quotas, he says, and he's not having any.