EEOC Protests Affirmative Action Changes

The need for the Reagan Administration to move more quickly to put its own people in key positions is dramatically shown by the conflict that has arisen between the Equal Employment Opportunity Commission (EEOC) and the Labor Department over the latter’s proposed new regulations concerning affirmative action.

Though far short of the changes conservatives believe necessary, the proposed new regulations issued last week would represent a decided improvement over current requirements. In particular, they would mean a great deal less paperwork for firms doing business with the federal government.

A major provisions  of the new plan, for example, would exempt employers with fewer than 250 workers or a federal contract worth less than $1 million from having to prepare written affirmative-action plans. Under the current regulations, firms with as few as 50 employees and contracts as small as $50,000 are forced to prepare such document.

Other provisions include:

  • Eliminating various work paperwork and reporting requirements, including a proposal by the Carter Administration to force employers to prepare written summaries of their affirmative-action programs.
  • Exempting employers from setting so-called “goals and timetables”—i.e., quotas—for job groups in which the employment of women and minorities is at least 80 per cent of their availability in the general work force.
  • Permitting contractors having from 250 to 499 employers to submit abbreviated affirmative-action programs.
  • Reducing from 16 to nine the number of affirmative-action steps required of construction contractors, and applying the steps, as well as “goals and timetables,” only to large construction contractors.

Secretary of Labor Raymond J. Donovan noted that raising the threshold for the written affirmative action plans would exempt nearly three-fourths of all employers from the costly paperwork burned, while continuing to protect nearly 77 per cent of the workers currently affected.

But the EEOC, which has approval rights under an Executive Order signed by former President Carter, has refused to endorse the new proposal. Unless the EEOC has a change of heart before the plan’s scheduled effective date, the disagreement will have to be resolved by the White House itself, exposing the President to harmful criticism from civil rights groups which, from a political standpoint, should have been deflected to lower levels of the government.

What is disturbing to veteran Reagan supporters is that this potentially damaging episode might well have been avoided if the Administration has been more expeditious in filing vacant EEOC slots. As it stands, there are two vacancies on the five-member commission, leaving three Carter holdovers in complete control.

President Reagan has announced the nominations of William Bell, a black Detroit conservative, to chair the commission, and of Michael Connelly, a General Motors attorney expected to be sympathetic to the concerns of business , as general counsel. Neither appointment has been submitted formally to the Senate, however, while no one has even been announced to fill the second open slot on the commission.

While action on the Bell appointment lags, Carter holdover J. Clay Smith is serving as acting chairman. Smith was described by a former member of the Reagan transition team on EEOC as “a liberal Republican afraid to cut the umbilical cord, afraid to give up government programs if it meant a loss of [bureaucratic] turf.” This source told human events that is was entirely predictable that the EEOC, under Smith’s leadership, would object to the Labor Department’s relaxation of affirmative-action guidelines, thereby causing the Administration current embarrassment.

It was equally predictable that the proposal would draw fire from civil rights groups. Spokesmen for such groups as the National Organization for Women and the Black Leadership Forum labeled the move a step backwards for equal employment opportunity.

Yet the Labor Department proposal is hardly a radical departure from the government’s affirmative-action based policies of recent years. Indeed, the U.S. Chamber of Commerce has attacked the new regulatory changes are not going far enough.

“The Department of Labor missed an excellent opportunity to achieve true reform and to place its mark on the second generation of affirmative-action programs,” aid Chamber labor law attorney John B. Brandenburg. “Our concept of affirmative action embodies the belief that the road to equal employment opportunity should not be paved with new varieties of discrimination against other groups.”

In an interview with human events, Brandenburg noted that supporters of former President Johnson’s 1965 executive order establishing the Labor Department program have often said the authority for the Johnson executive order came from Title VII of the 1964 Civil Rights Act. And it is clear from Title VII, he said, “that government imposed goals and timetables are illegal—you can’t do it.”

Both the language of Title VII and the statements of is congressional sponsors at the time of passage support Brandenburg on this point. While Title VII prohibits discrimination based on race, religion, sex, or national origin, Section 703(j) clearly states: “Nothing contained in this title shall be interpreted to require any employer…to grant preferential treatment to any individual or group because of race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by an employer.”

Sen. Hubert Humphrey (D.Minn), a leading proponent of the act, said the measure “does not require an employer to achieve any kind of racial balance in his work force….” Instead, said Humphrey, there must be an “intention to discriminate” before an employer can be considered in violation of the law. Another congressional supporter, Sen. Joseph Clark (D.-Pa.), flatly declared: “Quotas are themselves discriminatory.”

Nor did Johnson’s Executive Order call for racial or sexual balance based on goals or quotas. On the contrary, it directed that hiring and treatment of employes was to be “without regard to their race, color, religion, sex or national origin.” (Emphasis added.)

Nevertheless, the Labor Department, beginning with regulations issued in 1967, has gone well beyond the authority granted by Title VII or Johnson’s Executive Order 11246. Instead of employment “without regard” to race, or sex, the Department has insisted that employers establish “goals and timetables” in order to “utilize” women and minorities precisely with regard to their race and sex.

According to Brandenburg, the Chamber has hoped the Administration, in issuing its new regulations, would have corrected this longtime misuse of its authority. But though the 1980 GOP platform emphatically rejected the use of “ratios and numerical requirements to exclude some individuals in favor of others,” and though the President has repeatedly stressed his view that government requirements should be “color blind” the new Labor Department regulations fall far short of such fundamental reform.

Thus, while the new regulations mean less paperwork for many companies, the fact is, as Secretary Donovan’s announcement made clear, “the current definition of underutilization as having fewer women or minorities in particular job group would than would be reasonably expected by their availability” in the general work force will be maintained.

The Chamber of Commerce also had hoped for several other key changes which were not forthcoming. One such change would have eliminated the Labor Department’s practice since 1972 of pressuring companies into giving so-called “back pay” as a remedy for alleged discrimination. Brandenburg points out that the Department has no such authority under the Johnson Executive Order.

In short, though last week’s proposed reforms are a step in the right direction, much more needs to be done if the bureaucracy’s abuse of affirmative action—and particularly its unlawful insistence on quotas—is to be eliminated. The chances of further improvement will be slim, however, until the President gets his own appointees—who share his commitment to “equal treatment for all citizens”—installed at the EEOC.