A great deal of attention has been directed lately to the efforts of the Department of Health, Education, and Welfare, and especially its Office for Civil Rights, to force universities and other institutions which depend on federal contracts to follow quota systems in their hiring practices.¹ Very little attention, however, has so far been paid to another federal agency, the Equal Employment Opportunity Commission (EEOC), which has—despite all its protestations to the contrary—been furthering the same tendency. Yet the EEOC, established under the Civil Rights Act of 1964 to enforce the provision in Title VII prohibiting discrimination in employment against any individual because of his “race, color, religion, sex, or national origin,” has just this year been given additional powers, and may soon rival HEW for leadership in the movement to replace a commitment to equal opportunity with federally-enforced quota systems.

Before passage of the Equal Opportunity Act of 1972 the EEOC had only the power to study and make recommendations; now it can bring suit in federal court against any employer it deems to be guilty of discrimination. Previously its area of responsibility was limited to corporations and labor unions; now, under the new legislation, its area of jurisdiction has been expanded to include the 4 million employees of state and local governments. To the Commission and its supporters, these new powers and responsibilities represent a major gain in the fight against employment discrimination. But a close examination of the Commission’s seven years of activity reveals that its increased powers represent, instead, a step forward for those who believe that quotas are the only or the most desirable way of bringing an end to discrimination in America.

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I

The EEOC enters a case when an employee files a complaint of some sort against his employer. In any state with a creditable Fair Employment Practices Commission, the EEOC must defer to this local body. Most of the cases so deferred return to the EEOC, the state commissions having failed to settle the disputes. The EEOC then investigates and eventually makes its finding that reasonable cause does or does not exist to believe that Title VII has been violated. If not, the charge is dismissed, leaving the charging party with the decision as to whether to go into court on his own. If reasonable cause is found, the EEOC will attempt to resolve the dispute by conciliation. If conciliation efforts fail, the 1972 Act now gives the EEOC the right to bring suit in the federal district courts. That it intends to exercise this right to the full is clear from the fact that it began filing such suits very soon after the Act was passed.

The EEOC gets three different sorts of cases: cases in which the employer is discriminating intentionally; cases in which the employer’s past discriminatory practices are carried forward by ostensibly neutral practices in the present; and cases in which an ostensibly neutral employment practice results in a work force containing a smaller percentage of minorities than does the general population.

The easy cases are those in which intentional discrimination is the issue. Here everyone understands that what has allegedly been done is illegal, though proving that it has actually been done may be difficult. Some of the most important cases in this area have involved labor unions, and the courts in many cities have followed the EEOC in finding that, especially in the construction trades, many locals were simply refusing to admit blacks. In other cases, a single foreman or plant manager was found to be discriminating, even though his superiors were opposed to such action. But the EEOC early established the proposition that “The mere announcement of a policy against racial discrimination is not sufficient when management has reason to believe that racial discrimination is occurring. Management must take steps to insure that the policy is observed at all levels.” The Commission has also been quick to dismiss the thin excuses for bias often offered. For example, when one foreman defended his refusal to hire blacks for skilled-jobs with the observation that they have thick hands and lack dexterity, his reasoning failed to impress the EEOC investigators.

With regard to the second group of cases, those in which the effects of past discrimination are being carried forward either in recruitment or in promotion, the EEOC has taken the view that practices fair in form but discriminatory in effect are barred by Title VII. Concerning recruitment, the Commission stated in a 1969 case: “We believe that where, as here, an employer has excluded minorities from employment in the past because of race, there cannot be the equal employment opportunity mandated by Title VII unless the employer makes reasonable efforts to advise the Negro community that his practices have changed and that minority applicants will be considered on an equal basis.” Thus, an employer whose work force is all white due to past discrimination may not rely solely on referral of new applicants by present employees, and may not give preference to new applicants who are relatives of present employees.

So too with seniority. A labor-union hiring hall, for example, will generally not be permitted to assign members to jobs in order of seniority when its own past discriminatory practices have prevented blacks from acquiring that seniority. As one federal district court stated in a Title VII case: “. . . Congress did not intend to freeze an entire generation of Negro employees into discriminatory patterns that existed before the Act.”

Some controversy has been provoked by this second group of cases, but not nearly so much as the third group, in which a formally fair employment practice is called discriminatory by the EEOC only because it results in a work force containing a smaller percentage of minorities or women than does the surrounding population. It is these cases which have led to charges that the EEOC is instituting a quota system, insisting not on equal opportunity but on proportional representation, and is thereby itself violating the law. For Section 703 (j) of Title VII states that:

Nothing contained in this title shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the 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 . . . in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

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II

In any discrimination case, there are two possible sorts of evidence, direct and statistical. In cases of intentional discrimination, one may hope to find both sorts of evidence. In voting-rights cases, for example, the United States would often present both individual accounts of intimidation and figures showing that in an area whose population was one-third or one-half black, not a single black was registered to vote. The federal courts came to accept such evidence, feeling, as the 10th Circuit Court of Appeals said in 1970, that “In racial discrimination cases, statistics often demonstrate more than the testimony of witnesses, and they should be given proper effect by the courts.”

In cases involving past discrimination, similarly, both direct and statistical evidence is provided. Here the trick is to prove through direct evidence that intentional discrimination did in fact occur in the past and to use the statistics showing underrepresentation to prove that the employer’s past violations have yet to be remedied in the present.

Obviously, when no intentional discrimination has ever occurred, the situation is greatly altered. Here a single fact becomes the basis of the case: there is a greater proportion of minority groups or women in the local population than is included in the employer’s work force. Yet from this fact alone no violation of law can be proved. First of all, it may be that the underrepresented groups do not want the job. Thus Judge Charles Wyzanski of the U.S. District Court in Boston found in Castro v. Beecher that blacks were not represented on the police force of that city in proportion to their numbers in the local population not because they were being kept out by discrimination but “because of hostility to the calling and because, if qualified to be policemen, blacks have more rewarding and otherwise attractive offers for other positions.” Usually, however, an employer on whose work force the minorities in question are underrepresented will claim that they are not qualified for the job, and it is this claim the EEOC will most often dispute. The battle is customarily, then, over what constitutes a reasonable job qualification.

As a result of the Supreme Court’s 1971 decision in Griggs v. Duke Power the legal limits of this battlefield are no longer vague. This case concerned a company which required that standardized general-intelligence tests be taken as a condition of employment or promotion. Black employees, who scored lower than whites on the tests, argued that the tests discriminated by race (in that their low scores resulted from the poor educations they had been given due to their race), and were not a reasonable job requirement (in that low scores on such tests had never been shown to be predictive of poor performance in any particular job). The Supreme Court ruled in favor of the employees, holding that:

What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. . . . If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.

The Griggs decision represents an endorsement of a whole series of EEOC findings and federal court decisions. The net effect of these is to put an employer on the defensive when his work force is not representative of the local community, and to make him demonstrate that his job qualifications are related to job performance when they can be shown to have a discriminatory result either against minorities or against women.

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III

The salutary effects of the EEOC’s work, and of the work of other federal agencies in the same field, have been considerable. Few would care to argue that without federal pressure the progress thus far made toward equal opportunity in employment would have been possible. It is desirable, then, that the EEOC put employers on the defensive when their work forces show an underrepresentation of women or minorities. Given the persistence of widespread discrimination in our society, and the frequent misuse of the principle of qualifications, employers may justly be burdened with the need to explain; and given the depth of our commitment as a society to root out discrimination, it is also desirable that those charged with enforcing this commitment should be zealous in their work.

However, when statistical underrepresentation of minorities rather than intentional discrimination is at issue, an excess of zeal can and often does lead to policies which are themselves against the law. This, indeed, is what seems to have happened with the EEOC, whose policies are for all practical purposes making it impossible for an employer to insist on any but the most simplistically-conceived job qualifications.

For example, the Commission’s “Guidelines on Employee Selection Procedures,” which concern the use of written tests, are so complex that—instead of insuring that tests will be used fairly rather than as an arbitrary means of excluding certain groups—they virtually insure that testing will be done away with altogether. Analyzing these Guidelines, the Harvard Law Review concluded in a 1971 article that they “appear designed to scare employers away from any objective standards which have a differential impact on minority groups, because, applied strictly, the testing requirements are impossible for many employers to follow.”

On the issue of job-relatedness and the relevance of the applicant’s background, the EEOC’s position has a similar effect. Thus EEOC decisions, showing a skepticism about the value of education worthy of Ivan Illich or the late Paul Goodman, have barred any educational requirements (such as a high-school diploma) unless they can be shown to be related in the most literal sense to the job in question. In line with this policy, the only EEOC decision in the past several years approving any educational standard was one confirming that a grocery cashier may be required to know arithmetic. It is worth noting that while the Supreme Court in Griggs asked only that employment requirements be “related to job performance,” the Commission will not allow an educational requirement without proof of its “overriding business necessity.”

On another matter in the area of a job applicant’s background, the matter of criminal convictions, the Commission has also taken a position whose effect is to prohibit an employer from insisting on what would seem to be a reasonable standard of qualification. In Gregory v. Litton Systems, a federal district court in California held that an applicant with a record of fourteen arrests and no convictions could not be denied a job on that basis alone. Since “[t]here is no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees,” the exclusion of arrestees is not “related to job performance.” The court here was clearly reasonable in forbidding consideration of arrest records. Arrests without convictions prove nothing about an individual’s conduct and the fact that blacks show many more arrests without convictions than do whites reflects less on blacks than it does on the police. Not content with this, however, the EEOC seems ready to decree that not even a criminal conviction may disqualify a person from employment. In its view Title VII “makes it unlawful to discharge or refuse to employ a minority-group person because of a conviction record unless the particular circumstance of each case [e.g. the time, nature, and number of convictions and the employee’s immediate past-employment record] indicates that employment of that particular person for a particular job is manifestly inconsistent with the safe and efficient operation of that job.” Commission staff members have admitted that a record of convictions for larceny might well be a bar to employment in a bank, but anything less (or more, like murder or rape) might well not be “job-related” in the simplistic sense in which the Commission uses the term.

In short, the EEOC not only holds that a statistical underrepresentation of minorities in any work force or job category in itself constitutes evidence of discrimination; it also holds that discrimination is being practiced whenever an employer insists on any intellectual or moral qualification which cannot in the most literal terms be related to a given job.

Judge Wyzanski, in the Boston case mentioned above, found that the written exam for joining the Boston police force was not related to job performance and was therefore unlawful. But he did approve several of the other job qualifications which had been challenged, among them the high-school diploma requirement, and he had this to say on the issue of proportional representation:

It is a fallacy to suppose that the Constitution entitles blacks to police selected like jurors as representatives of a cross-section of the community. . . . What blacks and other minorities have a right to is that public employees like policemen shall be selected by criteria that are significantly related to the job. If employees are so selected in good faith, it is from a constitutional angle wholly irrelevant that the result is that blacks get a percentage less than their percentage of the population.

Nevertheless, EEOC policies have in effect continued to push for preferential hiring to achieve proportional representation of specified minority groups in every job category. These policies are often defended as an extension of the Philadelphia Plan which calls for “affirmative action” with specific “goals” and which has been upheld in the courts. However, though active recruitment, widespread advertising, and the establishment of training programs in minority communities are indeed required by law, proportional representation and preferential treatment in hiring are not only not required but are, quite simply and unambiguously, unlawful. The Supreme Court settled this in the Griggs decision, where Chief Justice Burger, writing for the majority, declared that Title VII “does not command that any person be hired simply because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.” And the Court went on to affirm that the merit system, and not the quota system, is the law of the land: “Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant.”

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In 1970, a member of the EEOC staff told the Harvard Law Review that “The anti-preferential hiring provisions [of Title VII] are a big zero, a nothing, a nullity. They don’t mean anything at all to us.” Today, no responsible Commission spokesman would ever make such a statement for the record. But what is said for the record is, of course, beside the point. What the EEOC wants to do or what it thinks it is doing is considerably less important than the practical effects of its actions. In attacking outright and intentional discrimination, and in challenging job requirements truly unrelated to actual job performance, the Commission has done its work well and followed its mandate under the law. But in making it all but impossible for an employer to escape charges of discrimination if he attempts to hire on the basis of individual merit, and unless he follows a system of preferential treatment and proportional representation of non-whites and women, the EEOC is clearly violating the law as enunciated by Congress and as confirmed by the Supreme Court.

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¹ See “HEW & the Universities” by Paul Seabury (February)—ED.