For more than three centuries, in one form or another, race has been both this country's deepest flaw and its cheapest shot. Every period has produced its own version of each, depending upon the quality of our leadership and the shape of events. Today, Presidential and Congressional leadership is once again being tested, but this time not on race alone but on gender and ethnicity as the country moves rapidly in becoming a multi-racial nation.
Today I want to discuss H.R. 1909 and its potential effects on affirmative action. I think that I would be most useful if I did so by bringing to bear my own experience as a former chair of the Equal Employment Opportunity Commission (EEOC) and a former chair of the New York City Commission on Human Rights. While I was at the EEOC, we developed Affirmative Action Guidelines for the purpose of helping employers avoid discriminating against some while eliminating discrimination against others. These Guidelines are attached to my testimony. Affirmative action in employment, which has been developed and ratified by the courts, is the generic model and the most instructive in discussing this subject in other areas.
The New York City law encompassed all forms of discrimination. In New York, I worked not only to remedy discrimination but, in doing so, used mechanisms that avoided racial preference, polarization, and tension among New York City's numerous and extraordinary array of racial and ethnic groups. As chair of the New York City Commission, I used strong and effective affirmative action, including goals and timetables, in a city where the major Jewish organizations are headquartered. My experience in New York is noteworthy because American Jews perhaps have been the group most victimized by invidious, exclusionary discriminatory quotas. Virtually all the Jewish groups supported my affirmative action work, including goals and timetables, and later supported my candidacy when President Carter nominated me to chair the EEOC. My experience in New York as well as the documented support of most of the major Jewish organizations supporting affirmative action in general, and goals and timetables in particular, is persuasive evidence that goals and timetables do not generally lead to quotas.
After the Supreme Court decision in Adarand Constructors, Inc. v. Pena, II 5 S.Ct. 2097 (1995), applying strict scrutiny to affirmative action remedies, it is fair to ask why anyone would come forward with the bill before you today? No one can doubt that Adarand has tied the knot as tightly as anyone in good faith could desire. That decision has caused the Clinton Administration to undertake large changes tightening all affirmative action programs. As a result, the only set-aside program (a sheltered program at the Department of Defense) has been eliminated.
To illustrate how affirmative action has been narrowed to meet even the most stringent of requirements following Adarand, one need only look at the Department of Transportation Disadvantaged Business Enterprise (DBE) regulations including use of race-neutral alternatives as a priority in meeting DBE goals; waivers of race-conscious goals altogether if good faith efforts fail to find qualified subcontractors; use of factors other than race (such as social and economic disadvantage) in determining program eligibility; periodic review of the program through the reauthorization process and graduation of DBE firms out of the program, among others.
Given the Adarand strictures imposed by the Supreme Court and the narrowing of affirmative action by the Clinton Administration, ask what possible purpose could the Canady bill serve? If anything, the catalogue of new safeguards, tight restrictions, potential liability for abuse, and an alarming new strict scrutiny standard threaten most remaining affirmative action programs and leave little room or need for Congressional action.
Today, far from being a threat, affirmative action is surrounded by a plethora of proven safeguards, challenging new Supreme Court restrictions, and administrative limitations that should lead this Committee to inquire whether the nation's antidiscrimination effort has not already been severely undermined. Without any showing that affirmative action is no longer needed or that it in fact has been significantly abused, the Canady biti disarms legitimate efforts to eliminate discrimination. What the bill leaves is a small number of benign outreach mechanisms that have almost a century of documented failure.
It was the courts that led in requiring affirmative remedies, such as numerical indicators of progress, because they found that the methods in use (such as outreach, the central feature of the Canady bill) had produced almost no progress. Today, no one who is serious about eliminating ancient and recalcitrant patterns of discrimination would return to the remedies of the 1950s, as this bill does. The 1964 Civil Rights Act, in succeeding the benign 1957 Civil Rights Act, deliberately opened the way for the modem remedies now in use. Nothing would increase the cynicism of blacks more than to be told to repair to the old remedies that kept their fathers and grandmothers in the backwaters of the labor force. Nothing would punish women and their families more than outreach techniques that allow employers to recruit women to a pool but continue to hire as before.
The careless and undocumented assertion that quotas result from goals and timetables has no basis in fact. The bill's author has not even tried to meet the burden of demonstrating the extent of abuse. He cites no statistical evidence. The usual anecdotal evidence is unpersuasive, especially when measured against the countless millions of instances of legitimate and systematic use of affirmative action in the workplace and the great strides women and minorities have made only as a result of strong affirmative action.
The same courts that are chiefly responsible for developing affirmative remedies have also built strong safeguards. The Supreme Court has required that neutral measures be considered before using race- or sex-based remedies; that remedies not be used to maintain a balance, even if layoffs immediately undo remedial hiring or promotion; that remedies be time- limited; that remedies be tightly tailored to the particular problem; that remedies be flexible; that numerical remedies reflect the number of qualified minorities and women in the applicable pool; that race or sex can be one but not the exclusive factor; that remedies not "unnecessarily trammel" on others or discharge them from their positions, even if the existing workers received their positions because of discriminatory practices; and that only good faith efforts, not actual hiring of excluded individuals, be required, even where there has been deliberate segregation.
Beyond the safeguards developed by courts are others that operate as a matter of law. For example, because goals are remedial, they automatically become illegal once the employment system is operating effectively to bring in members of the excluded groups on its own, even if the employer has not fully corrected discrimination. This stage normally is reached when a critical mass of individuals from the excluded group has been recruited, because then the system can revert to word-of-mouth recruitment. Particularly, after the system is corrected, the use of numerical remedies is itself discriminatory. For example, when Title VII of the 1964 Civil Rights Act was enacted, the majority of real estate agents were men; today the majority are women. Long before the point of complete reversal of the discrimination, affirmative action would have been inappropriate once it was clear that the veneer of discrimination had been wiped away and women were coming into the real estate profession as a matter of course. Further, goals and timetables play an important role in protecting against "reverse discrimination." An employer who engages in the appropriate outreach and makes a good faith effort to find minorities and women may cite these efforts when not finding qualified applicants.
This may be one of the reasons that business and the most effective user of affirmative action, our own Armed Forces, have successfully embraced affirmative action by including goals and timetables, as well as a more farsighted desire to do the right thing we see from business and the Services today. Business has been spared billions of dollars in litigation because goals and timetables have encouraged self-remediation, the best and most cost efficient law enforcement.
Business support of affirmative action has been largely responsible for its survival since 1980. When the Reagan administration tried to eliminate affirmative action, it was the business community and, ironically, Senator Bob Dole (who opposed affirmative action in the last Presidential campaign) who saved goals and timetables. Business had come to rely on the assessments by the Labor Department's Office of Federal Contract Compliance, which uses goals and timetables to help identify and correct exclusionary but often unintentional practices, an early warning that has saved countless amounts of money and time that would otherwise have gone into litigation. Goals have been essential to understanding whether discriminatory practices and tests are actually being eliminated. For example, if an employer is using a new test or advertising in new sources, goals that result in employees from new groups tell him that the new techniques are removing exclusionary barriers and protecting him from litigation.
Finally, let me offer perhaps the most persuasive evidence that white males are not victims of affirmative action. At the EEOC, on average, white men filed only 1.7 percent of discrimination complaints between 1987 and 1994 alone. Neither at the EEOC nor in other administrative agencies or courts have white males showed a reluctance to pursue their rights against discrimination. By comparison white men filed the great majority of age discrimination cases at EEOC -- 6,541 of 8,026 age complaints filed in 1994. The reason, of course, is that age discrimination is the most common form of discrimination white men face -- and they pursue their rights with a vengeance. They are objects of age discrimination in particular because employers often seek to eliminate experienced and management level employees because of the cost of their wages and benefits. The record on age discrimination shows that white males understand discrimination. Their record of failing to pursue other forms of discrimination, including "reverse discrimination," is compelling evidence that affirmative action has not significantly discriminated against them.
This is not the time for a bill to kill affirmative action. President Clinton is about to take the country through a much needed dialogue on racial relations. This bill invites confrontation, not dialogue, racial, ethnic and gender discord, not reconciliation. Do not pass this bill. Pass it by.
Speech from http://gos.sbc.edu/n/nortoneh.html.