Every Man for Himself

By GEORGE J. CHURCH

And every woman, as Washington tests a retreat from affirmative action

On the surface, the move seemed important but limited, the reaction utterly predictable. The Reagan Administration told companies employing some 7.5 million workers that it would no longer make them draw up detailed plans for hiring and promoting women and blacks, Hispanics and members of other minority groups. Civil rights activists denounced the step as a retreat from the Government's commitment to end race and sex discrimination. On the other hand, some employers grumbled that the Administration had not gone far enough toward its announced goals of reducing the burden of paperwork on companies doing business with Washington and ending what Ellen Shong, director of the Labor Department's Office of Contract Compliance Programs, called "mindless confrontations" between executives and bureaucrats.

In fact, the Administration went much further than either its friends or its foes realized toward an unpublicized though not exactly secret goal: a weakening of "affirmative action," the hotly disputed, quietly successful federal effort to prevent large segments of the American labor market from remaining white, male preserves.

The proposed new regulations affecting the hiring policies of companies that do business with the Government were published by the Labor Department last week in the Federal Register. They will take effect in about three months, unless modified after a 60-day period of public comment. The new rules include two important changes that were all but ignored last week in the initial public debate. One would make it far more difficult for workers who are discriminated against to collect back pay for jobs or promotions they did not get. The other provision would flatly forbid any employer with a Government contract to favor one race over another--hiring blacks, say, instead of equally qualified whites--even to atone for the effects of past discrimination. Government officials privately describe the new rules as an attempt to test how far it is politically safe for the Administration to proceed toward abandoning the current concept of affirmative action.

That deceptively bland bit of bureaucratic jargon has become a fighting slogan since Lyndon Johnson made it Government policy in an Executive Order signed in 1965. The order spelled out how the Government would enforce the prohibitions against bias in employment that had been written into the Civil Rights Act of 1964. In its mildest interpretation, affirmative action merely requires an employer to attempt to recruit women, blacks, Hispanics and others for jobs usually held by white males. But courts and previous Administrations have increasingly enforced a sterner standard: employers must set numerical goals and timetables--hiring or promoting, say, five women and five blacks or Hispanics by mid-1983 into a bookkeeping department that is now staffed by 25 white males. The Carter Administration went so far as to imply that employers might have to hire or promote women and minority-group members over white males who might have somewhat higher job qualifications.

To its advocates, affirmative action is the only way to break a vicious circle of past discrimination that has denied women, blacks and others the education, access to training and seniority they would need to qualify for desirable jobs. To opponents, affirmative action constitutes "reverse discrimination" that forces employers to hire or promote people into jobs they cannot adequately fill. Says William Bradford Reynolds, chief of the Justice Department's Civil Rights Division: "We really make a mistake to try to cure discrimination with discrimination."

What many Reagan Administration officials would like to do now is drop all numerical goals and timetables in enforcement activities. Some allies would go further and rewrite the Civil Rights Act of 1964 in order to ban affirmative action, at least in the sense of quotas and timetables. Prevailing opinion in Washington is that such efforts will get nowhere so long as the Democrats control the House. That might change if the 1982 elections bring the House as well as the Senate under Republican control.

Meanwhile, how far the Government goes in changing enforcement policies depends primarily on Ronald Reagan, who is philosophically opposed to affirmative action in the sense of numerical goals and timetables. Says one official of the Justice Department: "He wants to move forward, but he also wants to be able to disavow it if it does not work." Translation: the President may yet be dissuaded from further changes in the hiring policies required of federal contractors if the outcry against last week's moves is loud enough.

The protests so far have been vehement indeed. In Texas, Raul Castillo, chairman of the Harris County (Houston) Hispanic Caucus, said that the Administration's move will "totally obliterate any kind of gains that have been made to date" by minorities in getting better jobs. Georgia State Senator Julian Bond exclaimed that the Reagan Administration is "worse than Nixon--that's the incredible thing." Women's leaders noted that the rules coincided with the 61st anniversary of the constitutional amendment giving women the vote, an occasion that they marked with demonstrations for the Equal Rights Amendment. Said Eleanor Smeal, president of the National Organization for Women: "This Administration is showing daily how badly the ERA is needed."

The remarkable thing about such protests is that many were made seemingly without full knowledge of just how radical the published new rules really are. The provision flatly prohibiting any federal contractor from favoring one race over another in hiring, even to make up for past discrimination, understandably was not publicized by the Administration.

Some businessmen growled that the new rules did nothing to discourage awards of back pay to employees who allege that they had been denied jobs or promotions because of discrimination. In fact, sharp-eyed readers of the Federal Register spotted something that should end those grumbles: a proposal requiring that lawsuits on behalf of such workers be brought in the names of employees who allege that they were treated unfairly rather than, say, all women working for one employer. Day Piercy, executive director of Women Employed, a Chicago-based rights group, complains that "this will have a tremendously chilling effect," because employees will not want to single themselves out as complainers. She adds that if the rule had been in effect earlier, "we never could have brought the Harris Bank suit." In that case, an administrative law judge ordered a major Chicago bank to pay $12.2 million to 1,300 women and minority employees.

The rules that the Administration did publicize are striking enough. The principal one is that companies no longer have to draw up written affirmative action plans unless they have at least 250 employees and Government contracts worth $1 million a year. Formerly, the standard had been 50 employees and $50,000 in Government contracts. The employers who will be exempted constitute 75% of the 200,000 companies that now do some kind of federally paid work, but employ only about 25% of the 30 million workers on federal projects.

Another important provision: an employer who has only 80% as many women or minority employees as the Government might think "reasonable," would be excused from setting a timetable to hire the remaining 20%. To take a plausible example, a building firm of a certain size figures it should employ ten black construction laborers in Philadelphia to please the Government, given the availability of black labor in that area and the size of its total work force. If the firm actually has only eight black laborers, it need not tell the Government how soon it proposes to hire two more.

The new rules certainly should cut down on paperwork. The Administration calculates that the number of affirmative action plans that federal contractors will have to draw up every year will drop from 107,915 to 23,740. Government officials and businessmen alike hope that the new rules will end some nitpicking regulations that cannot be enforced anyway. For example, the Labor Department now requires that employers attempt to make sure that exactly 6.9% of workers on Government-financed construction jobs, including carpenters, laborers and cement finishers, be women. Says William Corrigan, president of E.W. Corrigan Construction Co. in Oak Brook, Ill.: "I don't know one female cement finisher."

No one doubts that such bureaucratic idiocies have marred the Government's attempts to end discrimination in employment. No one doubts either that the Government's efforts have increased the percentage of women and minorities in many segments of the labor force. But the Administration now seems to believe that voluntary action by business will eliminate the discrimination that remains. If it carries through with its plans, the Reagan Administration will be putting on itself a heavier burden of proof than any that it lifts from the backs of employers.

--By George J. Church. Reported by Gisela Bolte and Evan Thomas/Washington, with other U.S. bureaus

With reporting by Gisela Bolte, Evan Thomas/Washington

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