A woman is succeeded in a job by a man, and he is paid more than she was. He is then succeeded by another woman, and the pay goes down again. Is that a violation of the Equal Pay Act? In more or less these circumstances, eight U.S. circuit courts of appeals have said yes. Jeffrey Zuckerman, President Reagan's nominee to be general counsel to the Equal Employment Opportunity Commission, says no. For a violation to occur, in his view, the man and woman would have to be working at the same job at the same time.
Should Zuckerman be confirmed? The Senate Labor and Human Resources Committee is now deciding. The nomination presents a difficult choice, a classic of its kind. The position involved is powerful enough -- the general counsel is the government's chief equal employment opportunity enforcement officer -- but it is also obscure; it is not the sort that normally provokes a confirmation fight. The nominee has an enviable professional record. He went from Yale Law School to a large New York law firm, then to the Justice Department as special assistant to the head of the antitrust division in the first Reagan term. At the start of the second term he shifted to EEOC, a new field for him, as chief of staff to the chairman, Clarence Thomas.
Considerable opposition has developed to Zuckerman. Though it violates the elaborate ritual of confirmation to say so, it is plain that this has to do not with his probity or professional credentials but with his views. Civil rights groups and groups that speak for the elderly have decided, on the strength of his record as chief of staff, that Zuckerman has no enthusiasm for enforcement of the equal employment opportunity laws -- on the contrary, that wherever given a choice between enforcing and not, sometimes even where there is no choice, he almost invariably leans toward not. They see him as a clever but deliberate misreader of the law, a man who would always seek out excuses not to act. To an extraordinary degree for a job at this level, these groups have lined up against him. Hungry for victory, perhaps sensing one, they have piled on. The sympathetic committee -- all its Democrats are liberals, several of its Republicans liberal-to-moderates -- has bent with the pressure.
But it is not just a show of muscle that is occurring here. Nor is the only issue, as Zuckerman's defenders would like it thought, that he opposes preferential treatment -- quotas, goals, timetables, call it what you like -- to overcome the residue of past discrimination. He is not under attack for that. What his critics think is simpler than that: that Zuckerman doesn't really care a lot about discrimination in employment, and that he mocks the law.
The equal pay issue -- do they have to hold the jobs at the same time? -- is a case in point. He says that with so many appeals courts and the commission itself lined up against him, he would enforce the law. The question that his critics raise is: how vigorously? The question occurs because of where he stands on other such points of law -- small in themselves, a pattern in the aggregate. An employer has to lay people off and wants to lay objecting older workers off first, on the seemingly reasonable grounds that they have retirement benefits to fall back on. Can he do it? The commission and three courts of appeals have read the Age Discrimination in Employment Act to say no. Zuckerman thinks the answer should be yes, and pointed out (correctly) at his first hearing that appelate decisions are only binding inside the circuits where issued.
There are other examples. Are they disqualifying? The tradition, the comity in matters such as these is that, absent some compelling reason to the contrary, a president is entitled to his nominees -- that otherwise chaos ensues, that the confirmation process should not be used to go back through and try to undo the last election. But the last election wasn't about these issues. The EEOC general counsel is not an ordinary government lawyer. On the contrary: his job is to help decide who does and doesn't get help from the government in the field that finally seals it all -- access to jobs. Zuckerman's instincts would appear to be to grant such help sparingly. That's the question for the senators. Is that the kind of nominee they want for such a job?