Writing Assignment

464

CHAPTER

12

Keynote: Social Equity Through Social Insurance 464

What Is Social Equity? 469

Mandating Social Equity 469 The New Public Administration 470

The Challenge of Equality 471

Racism 471 The Bitter Heritage of Slavery 472 From Reconstruction to Second

Reconstruction 473

Equal Employment Opportunity 474

Origins of Affirmative Action 475 The Case for Affirmative Action 477 The Case Against Affirmative Action 479 Representative Bureaucracy 479 Reverse Discrimination 480

Justifying Diversity 481 The Ongoing Role of Race in Public

Administration 484

Nonracial Discrimination 485

Sex Discrimination 485 Sexual Harassment 486 Pregnancy Discrimination 488 Age Discrimination 489 Disabilities Discrimination 489 Sexual Orientation Discrimination 491

Public Administration and

Social Equity 492

Going the Extra Mile 492 Inspiring Social Equity 493

A Case Study: Brown Reverses Plessy’s Doctrine 493

CHAPTER OUTLINE

Social Equity

KEYNOTE: Social Equity Through Social Insurance

An anonymous Washington wit once observed that the federal government is basi- cally just a large insurance company with a defense business on the side. While seemingly outrageous on the surface, this comment becomes more and more reasonable if its implications are closely examined. The reality is that most—far more than half—of the federal budget goes to insurance programs: Social Secu- rity, Medicare, Medicaid, welfare, and food stamps are the most obvious. But the federal government also runs insurance programs for banks (Federal Deposit Insurance Corporation), for pensions (Pension Benefit Guaranty Corporation), and for home mortgages (Department of Housing and Urban Development), among others. In terms of money, these programs represent more than 60 percent of the federal government. Defense—that business on the side—accounts for only 20 percent.

So how did the federal government evolve into the world’s largest insurance business? The answer lies in the historical development of the American welfare

465Keynote: Social Equity through Social Insurance

state. The problem the welfare state was created to ameliorate was elegantly posed by Anatole France in his 1894 novel The Red Lily: “The law, in its majestic equal- ity, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread” (France, 1894). Thus social equity in terms of political and civil rights is inadequate if not accompanied by minimal economic rights. This other side of the equity coin, often summed up in one word—welfare—has a long lineage.

Some biblical scholars contend that the commandment “Thou shalt not kill” contained the essence of a welfare program. After all, if a wandering desert tribe did not help those members in need (the ill, the old, the widowed and orphaned), they would surely die. Thus we can conclude that the social provision of welfare services has always been mandated from above—sometimes high above.

Economic security has often been an elusive goal. During the Middle Ages merchants and craft workers, any group with a common business intent, might form guilds or mutual aid societies. While primarily created to regulate prices and employment standards, they also offered welfare benefits to members in times of poverty or illness. Beginning in the sixteenth century, friendly societies, the fore- runners of fraternal organizations, emerged. They would grow rapidly during the Industrial Revolution and would often evolve into modern craft unions. They allowed members to provide for their own welfare by paying into funds for life insurance, burial expenses, and other forms of assistance in times of need. Many of these organizations still thrive in the United States and are well known: the Free Masons, the Odd Fellows, the Benevolent and Protective Order of Elks, and the Loyal Order of Moose.

The rapid industrialization of the late nineteenth century transformed the con- cept of the worker. They were viewed less and less as human beings and more and more as factors of production. Like any other nonhuman resource, the laborer was increasingly a specialized “cog” in the manufacturing process. Workers also felt threatened by massive immigration from Europe, which assured a ready sup- ply of “hands” to take their place. Finally, increasing urbanization made workers almost completely dependent on their wages—the proportion of factory workers who could “retreat” to a family farm continued to dwindle.

When the problem of what to do with displaced workers and their families grew too much for traditional charity to handle, the state stepped in. The English Poor Law of 1601 was the first systematic codification of English ideas about the responsibility of the state to provide for the welfare of its citizens. It provided pub- lic funds to pay for relief. It distinguished between the “deserving” and the “unde- serving” poor. Relief was local and community controlled. Almshouses and poor farms were also established. This essential structure was the tradition the English settlers brought with them when they colonized North America.

The first colonial poor laws featured local taxation to support the destitute, distinguished between the “worthy” and the “unworthy” poor, and had relief as a local responsibility. This tradition continued until well after the American Civil War. It was up to local officials to decide who was worthy of support and how that support would be provided. Relief was made as unpleasant as possible in order to “discourage” dependency. Those receiving relief could lose their personal property as well as the right to vote.

Industrial

Revolution

A very general term that refers to a society’s change from an agrarian to an industrial economy. The Industrial Revolution of the Western world is considered to have begun in England in the eighteenth century.

Craft unions

Labor organizations that restrict membership to skilled workers (such as plumbers, carpenters, electricians, etc.) as opposed to industrial unions that seek to organize all workers in an industry.

Factors of

production

The resources used to produce goods and services. There are three traditional factors: land, labor, and capital. Recently, management (or entrepreneurship) and technology have come to be considered as factors as well.

466 Social EquityC H A P T E R 1 2

Four important demographic changes happened in America, beginning in the mid-1880s, that rendered the traditional systems of economic security increasingly unworkable:

1. The Industrial Revolution transformed the majority of working people from self-employed agricultural workers into wage earners working for large, impersonal organizations. In an agricultural society, personal prosperity was linked to one’s labor. Anyone willing to work hard enough could usually provide at least a bare subsistence for themselves and their family. But when one’s income is primarily from wages, one’s economic security can be threatened by factors outside one’s control—such as recessions, layoffs, failed businesses, and so on.

2. Urbanization increased along with the shift from an agricultural to an industrial society. Americans moved from farms and small rural communities to large cities; that’s where the industrial jobs were. In 1890, only 28 percent of the population lived in cities. By 1930 this percentage had exactly doubled, to 56 percent.

3. This trend toward urbanization contributed to the disappearance of the extended family and the concomitant rise of the nuclear family. Today we tend to assume that “the family” consists of parents and children—the so-called nuclear family. For most of human history, we lived in “extended families” that included children, parents, grandparents, and other relatives. The advantage of the extended family was that when a family member became too old or infirm to work, the other family members assumed responsibility for the individual’s support. But when the able-bodied left the farms to seek employment in the cities (or other countries), the parents or grandparents usually stayed behind.

4. Finally, thanks primarily to better health care, modern sanitation, and effective public health programs, Americans began to live significantly longer. In the three decades from 1900 to 1930, average life spans increased by 10 years. The result was a rapid growth in the number of older citizens from 3 million in 1900 to 7.8 million by 1935.

Philosophy Doctrine

Deserving poor to be minimally helped

The state has a responsibility to aid the poor and infirm

Local government sponsored workhouses,

poor farms, and relief

Policy

FIGURE 12.1

The social insurance approach to welfare

467Keynote: Social Equity through Social Insurance

The net result of this complex set of demographic and social changes was that America was older, more urban, more industrial, and had fewer of its people living on farms in extended families. The traditional strategies for the provision of economic security were becoming increasingly fragile—and with the Great Depres- sion, they would be overwhelmed.

There were, generally speaking, three basic approaches to the Great Depression that began in 1929:

1. Do nothing because nothing needed to be done. The current problem was just another dip in the inevitable boom-and-bust economic cycle. Prosperity would eventually be just around the corner—just as it always had been. Nevertheless, the problem remained that prosperity was taking too long to turn the corner.

2. Rely on “volunteerism” or private charity. Traditional charitable good works were widespread in a nation with a large churchgoing population. But the problem was too huge for a nation that had lost half its total wealth by the end of the first three years of the Depression. Six years after the Depression began, President Franklin D. Roosevelt would say in his second inaugural address, “I see one-third of a nation ill-housed, ill-clad, and ill-nourished.” The nation was simply too ill for the “pill” of charity to make it better.

3. Expand welfare programs. Even before the Depression hit, the states had been forced to deal with the problems of economic security in a wage-based, industrial economy. Workers’ compensation programs had been established by most states. Once the Depression hit, all levels of government responded with expanded relief and public works programs. The main strategy for providing economic security to the elderly, in the face of the demographic changes just discussed, was to provide various forms of old-age “pensions.” These were welfare programs, eligibility for which was based on financial need. By 1934, most states had such “pension” plans. However, these plans were so restrictive in eligibility and so minimal in payments that they were almost wholly inadequate to the task.

The essential problem with these three approaches was that the Depression just continued. While the New Deal of President Franklin D. Roosevelt fought the Depression traditionally with massive relief and public works programs, it also sought to change the debate on how to deal with economic insecurity. A long- term permanent program of social insurance, already widespread in Europe, would become the alternative to the current patchwork of ad hoc solutions.

Social insurance, as conceived by President Roosevelt, would address the per- manent problem of economic security for the elderly by creating a work-related, contributory system in which workers would provide for their own future eco- nomic security through taxes paid while employed. Thus it was an alternative both to reliance on welfare and to radical changes in our capitalist system. In the context of its time, it can be seen as a conservative, yet activist, response to the challenges of the Depression. State-sponsored efforts to provide for economic

Workers’

compensation

Industrial accident insurance designed to provide cash benefi ts and medical care for a worker injured on the job and monetary payments to survivors for a worker killed on the job. This was the fi rst form of social insurance to develop widely in the United States. Workers’ compensation was fi rst developed in Germany and Great Britain in the 1880s. By 1920, all but a handful of states had laws encouraging workers’ compensation in private industry.

468 Social EquityC H A P T E R 1 2

security would come to be seen as the practical alternative to the siren calls of those who preached socialism.

Social insurance has been the pragmatic answer to a variety of widespread problems—from disability and death to old age or unemployment. It is immedi- ately obvious to think of death, disability, or unemployment as conditions that led to a loss of income and that can be ameliorated by a pooling of risk. It may be strange at first to think of old age or retirement in this same way. But social insur- ance looks at retirement much as it looks at death: a loss of income has occurred because of a cessation of work. Social insurance seeks to solve the eternal problem of economic security by pooling the assets (the insurance contributions) from a large social group and providing income to those members whose economic secu- rity is being immediately threatened.

As President Franklin D. Roosevelt signed into law the Social Security Act on August 14, 1935, he stated, “We can never insure one hundred percent of the pop- ulation against one hundred percent of the hazards and vicissitudes of life, but we have tried to frame a law which will give some measure of protection to the aver- age citizen and to his family against the loss of a job and against poverty-ridden old age.”

Nevertheless, the Social Security Act did not quite achieve all the aspirations its supporters had hoped by way of providing a “comprehensive package of protec- tion” against the “hazards and vicissitudes of life.” Certain features of that package, notably disability coverage and medical benefits, would have to wait until 1954 and 1965, respectively. But it did provide a wide range of programs. In addition to the program we immediately think of as Social Security (old-age pensions), it included unemployment insurance and aid to dependent children. But this was just the beginning. The act would be amended time and again to become the foundation of the American welfare state.

For Discussion: Why does social equity necessarily have two faces—civil rights and economic rights? Why has the American welfare state evolved as a pragmatic, not an ideological, solution to the pressing problem of social equity?

Philosophy Doctrine Policy

Welfare benefits available as a matter

of right

The state has a responsibility to aid the poor and infirm

State-mandated or state-managed insurance

for unemployment, disability, old age, etc.

FIGURE 12.2

The traditional doctrine of welfare

469What Is Social Equity?

WHAT IS SOCIAL EQUITY?

Social equity is fairness in the delivery of public services; it is egalitarianism in action—the principle that each citizen, regardless of economic resources or per- sonal traits, deserves and has a right to be given equal treatment by the political system. Even though the United States has not lived up to this ideal, and has not provided equality to all its men and women throughout its history, it has never- theless been constantly moving in that direction. Political theorist Jean-Jacques Rousseau warned in The Social Contract (1762), “It is precisely because the force of circumstances tends always to destroy equality that the force of legislation must always tend to maintain it” (Rousseau, 1762, p. 47). The United States has a long tradition of using legislation to mitigate the “force of circumstances” that so often inhibits equality. For example, in the early nineteenth century, free public schools made education gradually available to all classes. In 1862 the Homestead Act made it possible for any citizen to own 160 acres of public land if he or she would live on it for five years. The Civil War of 1861–1865 can be viewed alternatively as conflict over the nature of intergovernmental relations or a moral crusade to bring “equality” to those in bondage. The twentieth century witnessed an outpouring of legislation that gave new rights to workers, women, and minorities. This has gone so far that social equity, in addition to efficiency, is now a major criterion for eval- uating the desirability of any public policy or program.

Government organizations have a special obligation to be fair—to pursue social equity both with their employees and the public—because they represent the citizenry. This is in distinct contrast to business organizations, which represent private interests such as stockholders. It is often asserted that corporations have a social responsibility, that they have a moral and ethical duty to contribute to soci- ety’s well-being—obligations far beyond just seeking a profit in a legal manner. But others, such as economist Milton Friedman, argued that the resolution of social problems is the task of governments, not businesses, and that managers who spend money to alleviate social problems act irresponsibly.

Mandating Social Equity

There’s a long tradition of government forcing private organizations to better treat their employees. Better treatment was inhibited by social Darwinism, Charles Darwin’s (1809–1882) concept of biological evolution applied by others to the development of human social organization and economic policy. American social Darwinism applied Darwin’s concepts of “natural selection” and “survival of the fittest” to society in general. Thus practices such as child labor, the employment of children in a manner detrimental to their health and social development, were justi- fied. Efforts by the labor movement and social reformers to prevent the exploitation of children in the workplace date back well into the nineteenth century. As early as 1842, Connecticut and Massachusetts legislated a maximum 10-hour workday for children. In 1848, Pennsylvania established a minimum working age of 12 years for factory jobs. But it would be 20 more years before any state had inspectors to enforce child labor laws. And it would not be until the late 1930s that federal laws would outlaw child labor (mainly through the Fair Labor Standards Act of 1938).

470 Social EquityC H A P T E R 1 2

The practice was so entrenched that earlier federal attempts to outlaw child labor were construed by the Supreme Court as being unconstitutional infringements on the power of the states to regulate conditions in the workplace. So achieving social equity for children was an uphill battle that lasted more than a century because, in large measure, of the social Darwinist belief that the “fit” children would survive and that this was all part of a normal process of “natural selection.”

Child labor is just one example of how government regulation has been used to further social equity. The whole thrust of the labor and women’s movements that began in the nineteenth century and the post-World War II civil rights move- ment was to obtain legislation that would equalize the employment and social prospects of unions, women, and minority group members. The fine-tuning of those public policies is an ongoing process. The Supreme Court cases discussed in the Appendix deal with sexual harassment, a variant of sexual discrimination. While it is impossible to predict future cases, it seems certain that the Court will be ruling on the subject well into this century. The quest for social equity is never- ending. While legislation seeks to cope with gross abuses, the subtleties are left to the courts.

The New Public Administration

By the late 1960s, serious questions were being raised concerning the state of the discipline and profession of public administration. Dwight Waldo, having noted that public administration was “in a time of revolution,” called a conference of younger academics in public administration, through the auspices of his position as editor-in-chief of Public Administration Review and with funds from the Maxwell School of Syracuse University. Held in 1968 at Syracuse University’s Minnowbrook conference site, the event produced papers that were edited by Frank Marini, then managing editor of Public Administration Review, and published in 1971 under the title Toward a New Public Administration: The Minnowbrook Perspective. The goal of the meeting was to identify what was relevant about public administra- tion and how the discipline had to change to meet the challenges of the 1970s. H. George Frederickson, a professor at the University of Kansas, contributed a paper, “Toward a New Public Administration,” which called for social equity in the performance and delivery of public services.

Frederickson’s new public administration called for a proactive administrator with a burning desire for social equity to replace the traditional, impersonal, neu- tral, bureaucrat. While this call was heeded by few, it was discussed by many. The basic problem with the new public administration’s call for social equity was that it was also a call for insubordination—something that is not lightly tolerated in bureaucracies. Victor Thompson immediately attacked the new public administra- tion movement in his aptly titled Without Sympathy or Enthusiasm as an effort by left-wing radicals to “steal the popular sovereignty.”

Thompson need not have worried. All these “radicals” did was talk—and write. From the 1970s to the present day, and still led by Frederickson, they have produced an endless stream of conference papers and scholarly articles urging pub- lic administrators to show a greater sensitivity to the forces of change, the needs of clients, and the problem of social equity in service delivery. This has had a positive

471The Challenge of Equality

effect in that now the ethical and equitable treatment of citizens by administrators is at the forefront of concerns in public agencies. Reinforced by changing public attitudes, the reinventing-government movement, and civil rights laws, the new public administration has triumphed after a quarter century. Now it is unthinkable (as well as illegal), for example, to deny someone welfare benefits because of his or her race or a job opportunity because of his or her sex. Social equity today does not have to be so much fought for by young radicals as administrated by managers of all ages.

THE CHALLENGE OF EQUALITY

Equality is an American ideal. In 1776 the Declaration of Independence proclaimed that “all men are created equal, that they are endowed by their Creator with certain unalienable rights.” These are rights derived from natural law, which all people have and which cannot be taken away or transferred. Yet the Declaration as well as the subsequent Constitution denied these rights to a large group of residents. Because the Constitution was initially oblivious to the plight of African-Americans, Supreme Court Associate Justice Thurgood Marshall pointedly rejected the view that Americans should celebrate the Constitution as the source of all that is good in the nation. On the contrary, he said of the founders that “the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional gov- ernment, and its respect for individual freedoms and human rights, we hold as fundamental today” (Marshall, 1987, p. 1338). Marshall’s harsh rhetoric notwith- standing, all discussions of equality in the United States must begin with the issue of race.

Racism

Race can be defined as a large group of people with common characteristics pre- sumed to be transmitted genetically. Which characteristics are properly included has been a subject of debate. They range from physical characteristics that are immediately observable, such as color of hair, skin, and eyes, to the subtler aspects of emotions and aptitudes. Some races even have genetic susceptibility to certain diseases or physical disorders. Rational people of all races are often uncomfortable talking about race. There is a depth of feeling about past injustices that is danger- ous to bring to the surface in polite conversation. Yet no subject is more important in administering the public affairs of a multiracial society. The issues must be faced and discussed even if they cannot be immediately resolved.

Up to the middle of the twentieth century, race was used as a way of distin- guishing among national groups. This practice is traceable to eighteenth-century distinctions among people according to language. It became a method of attempt- ing to define a hierarchy of races, with the so-called Anglo-Saxons at the top and others arranged along supposedly developmental lines. In recent times, in Amer- ican political language, race has come to designate issues or attitudes concerning citizens of African origin. Other minority groups are called ethnics. Originally, the term applied only to European ethnics. The term is now more likely to refer

472 Social EquityC H A P T E R 1 2

to the new ethnics, both those who have long been here and those who are more recent arrivals—for example, the Hispanics and the Vietnamese. Technically, every American except for white Anglo-Saxon Protestants is a member of an ethnic group. And now that they are in the minority, many of them have begun to claim that they are an ethnic group, too. A politician may be said to be practicing ethnic politics when he tells his Irish constituents of his support for a united Ireland, his Jewish constituents of his support for a strong state of Israel, and his Hispanic constituents of his strong support for bilingual education. Ethnic politics does not have to be substantive; sometimes it is nothing more than a “photo opportu- nity” of the politician eating ethnic food or attending an ethnic cultural festival or wedding.

A racist can be defined as any person or organization that either consciously or unconsciously practices racial discrimination against a person on the basis of race (or ethnicity) or supports the supremacy of one race over others. The most notorious of American racist groups has been the Ku Klux Klan (KKK). But anyone who is insensitive to the feelings of racial minorities and uses racially demeaning language or diction out of genuine ignorance may also be considered racist. Such people might deny they are racist; however, offended minority groups might still perceive them to be so. This is especially true with what is known as stealth racism— racist acts readily apparent to African-Americans but virtually invisible to whites. Well-to-do middle-class nonwhites are routinely kept under greater surveillance at shopping places, find it difficult to get taxis, are automatically presumed to be dangerous, and are given unequal service in restaurants and airports. Such lack of respect, such affronts to honor, are difficult to deal with by legislation. The Civil Rights Act of 1964 mandated equal access to expensive hotels and restaurants. But it still hurts when an African-American guest dressed in a tuxedo is mistaken for a waiter or the valet parking attendant. That’s stealth racism.

What distinguishes African-Americans from other ethnic Americans is not so much their color—many other groups are nonwhite—but their ancestors, who came to the United States not as the “huddled masses yearning to breathe free,” as is engraved on the pedestal of the Statue of Liberty, but as slaves. And slavery has uniquely affected the African-American experience to the present day.

The Bitter Heritage of Slavery

Slavery, which began in colonial times, was addressed, albeit obliquely, in various parts of the Constitution. Article I, Section 2, stated that slaves are to be counted for purposes of congressional appointments as “three-fifths” of a person. Article I, Section 9, stated that Congress could not pass any law banning the importation of slaves until 1808 (which it did). Article IV, Section 2, said that persons “held in service”—meaning runaway slaves—who escaped had to be returned. This was upheld by the Dred Scott v. Sandford decision of the Supreme Court.

This was the second case in which the US Supreme Court declared an act of the Congress (the Missouri Compromise) to be unconstitutional (the first was Marbury v. Madison in 1803). Dred Scott (1795–1858) was a slave who was taken to a free state in the North. The question before the Court was whether residence in a free state was sufficient basis for declaring Scott a free man. The Supreme Court in a

Discrimination

Bigotry in practice; intolerance toward those who are of different races or have different religious beliefs.

Ku Klux Klan

(KKK)

The most infamous US terrorist organization; a racist white supremacist group established in the South following the Civil War. The KKK has a long history of intimidation, beatings, and murders of black people, as well as other racial and religious minorities. Early in the twentieth century, the KKK had considerable political power; it dominated politics in a dozen states. Today, the KKK has only the slightest infl uence; it has traveled from the mainstream to the lunatic fringe.

473The Challenge of Equality

7-to-2 ruling said no. The chief justice, Roger Brook Taney, wrote in the Court’s opinion, “The right of property in a slave is distinctly and expressly affirmed in the Constitution.” While it helped to further entrench the Court’s right to judicial review, the Court’s holdings—that black people could not become citizens and that the United States could not prohibit slavery in unsettled territories—did much to make the Civil War inevitable, especially because the decision made a legislative solution to the slavery issue virtually impossible.

Abraham Lincoln was, even before he became president, the most eloquent spokesman against slavery. He told the Illinois Republican State Convention on June 16, 1858, “‘A house divided against itself cannot stand’ [the Bible, Mark 3:25]. I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing, or all the other.” He was right.

In September 1862, President Abraham Lincoln, acting as commander in chief during a time of war, issued the Emancipation Proclamation, which became effec- tive on January 1, 1863. The proclamation declared that all people held in slavery “are, and henceforth shall be, free; and the executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom.” The Thirteenth Amendment was passed in 1865 to quell the controversy over the constitutionality of the Emancipation Proclamation and to settle the issue of slavery in the United States forever.

The history of slavery in the United States is still relevant today because it is the underlying basis for African-American claims for special treatment. Some argue that reparations are due and point to the Civil Liberties Act of 1988. This law authorized the payment of $20,000 to all living Japanese Americans who were interned by the US government during World War II. The act authorized a total of $1.25 billion in reparations payments. Of the 120,000 Japanese Americans who were interned, about 70,000 were still alive when the act was passed. But these payments to Japanese Americans went to the still-living victims. There are no direct victims of slavery still living. There is not much sympathy for reparation for slavery when most Americans are not descendants of slave owners but descendants of peo- ple who came to the United States after the Civil War—often with little more than the clothes on their backs. Still, the unfinished business of mitigating the heritage of slavery led to the second reconstruction.

From Reconstruction to Second Reconstruction

While the Thirteenth, Fourteenth, and Fifteenth Amendments attempted to settle the issues of slavery and civil rights, the issue of the former slaves remained. After Reconstruction many states enacted Jim Crow laws, which effectively made African- Americans second-class citizens.

This second-class status was supported by the Supreme Court in the separate but equal doctrine. In Plessy v. Ferguson (1896), the Court held that segregated railroad facilities for African-Americans, facilities that were considered equal in quality to those provided for whites, did not violate the equal protection clause of the Fourteenth Amendment.

Jim Crow

A name given to any law requiring the segregation of the races. All such statutes are now unconstitutional. But prior to the Civil Rights Act of 1964, many southern states had laws requiring separate drinking fountains, separate rest rooms, separate sections of theaters, and so on.

Reconstruction

The post–Civil War period when the South was divided into military districts and the states that were formerly part of the Confederacy were brought back into the Union. The offi cial end of Reconstruction was 1876, when the last federal troops were withdrawn.

Second-class

citizen

A person who does not have all of the civil rights of other citizens. Historically, African- Americans were called, and because of segregation and discrimination often considered themselves to be, second-class citizens. But since the civil rights movement and the new laws that fl owed from it, there can be no second-class citizens in the United States. Nevertheless, the phrase is still used in various contexts.

474 Social EquityC H A P T E R 1 2

More than half a century later in 1954, the Court overturned the Plessy deci- sion and nullified this doctrine when it asserted that separate was “inherently unequal” (see the discussion of Brown v. Board of Education of Topeka, Kansas in the Case Study).

This decision, one of the most significant in the century, helped create the envi- ronment that would lead to the second reconstruction: the civil rights movement and legislation of the 1960s. The first reconstruction, immediately after the Civil War, gave African-Americans their freedom from slavery. But the laws as enforced and customs as practiced did not allow for the full rights of citizens. That came in the 1960s, when public sentiment was aroused and legal action was taken to ensure equal rights for all Americans.

The problem with the second reconstruction, with its outpouring of equal employment opportunity and civil rights legislation, was that the government for- mally got into the business of examining people’s blood lines. Official race catego- ries were established by the Equal Employment Opportunity Commission (EEOC), which had been created by the Civil Rights Act of 1964. The South once had mis- cegenation laws, declared unconstitutional in Loving v. Virginia (1967). Miscege- nation laws meant that if one of your ancestors was African, you could not marry someone whose ancestors were all European. Now, in a reversal of fortune, if one of your ancestors is African, you are entitled, under affirmative action provisions of equal opportunity laws, to preferential treatment in employment.

The Supreme Court has also recognized additional race categories that are pro- tected by the federal civil rights laws. In Shaare Tefila Congregation v. Cobb (1987), it held that Jews could bring charges of racial discrimination against defendants who were also considered Caucasian. And in Saint Francis College v. Al-Khazraji (1987), it held that someone of Arabian ancestry was protected from racial discrim- ination under the various civil rights statutes.

In addition to employment advantages, recognized minority group members have been granted set-asides—government purchasing and contracting provisions that set aside or allocate a certain percentage of business for minority-owned or female-owned companies. The use of set-asides was upheld by the Supreme Court in Fullilove v. Klutznick and Metro Broadcasting v. FCC but restricted in City of Richmond v. J. A. Croson and Adarand Constructors v. Pena .

EQUAL EMPLOYMENT OPPORTUNITY

Equal employment opportunity (EEO) is a concept fraught with political, cul- tural, and emotional overtones. Generally, it applies to a set of employment pro- cedures and practices that effectively prevent any individual from being adversely excluded from employment opportunities on the basis of race, color, sex, reli- gion, age, national origin, or other factors that cannot lawfully be considered in employing people. While the ideal of EEO is an employment system devoid of both intentional and unintentional discrimination, achieving this ideal may be a political impossibility because of the problem of definition. One person’s equal opportunity may be another’s institutional racism or institutional sexism. Because of this problem of definition, only the courts have been able to say if, when, and where EEO exists.

475Equal Employment Opportunity

Nevertheless, it must always be remembered that EEO laws and programs were created to remedy very real problems of bigotry and sexism—problems that are still with us today. The word that summarizes workplace intolerance toward those who are different is discrimination. In employment, this is the failure to treat equals equally. Whether deliberate or unintentional, any action that has the effect of limiting employment and advancement opportunities because of an individual’s sex, race, color, age, national origin, religion, physical handicap, or other irrelevant criteria, is discrimination—and illegal.

Origins of Affirmative Action

It was not until the Kennedy administration that EEO became a central aspect of public personnel administration. Between 1961 and 1965, the civil rights move- ment reached the pinnacle of its political importance and became a dominant national issue. Indeed, it was a sign of the times when Kennedy declared, “I have dedicated my administration to the cause of equal opportunity in employment by the government.” His Executive Order 10925 of March 6, 1961, for the first time required that “affirmative action” be used to implement the policy of nondiscrimi- nation in employment by the federal government and its contractors.

Affirmative action first meant the removal of “artificial barriers” to the employ- ment of women and minority group members. Special efforts were made to bring more members of minority groups into the federal service. These included recruitment drives at high schools and colleges heavily attended by minorities. Agencies were encouraged to provide better training opportunities for minority group members.

The Kennedy program was carried forward and expanded by the Johnson administration. The Civil Rights Act of 1964 declared that “it shall be the policy

BOX 12.1 Race and Ethnic Identifications Approved by the US Equal Employment Opportunity Commission

Hispanic or Latino—A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.

White (Not Hispanic or Latino)—A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.

Black or African-American (Not Hispanic or Latino)—A person having origins in any of the black racial groups of Africa.

Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino)—A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands.

Asian (Not Hispanic or Latino)—A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.

American Indian or Alaska Native (Not Hispanic or Latino)—A person having origins in any of the original peoples of North and South America (including Central America), and who maintain tribal affiliation or community attachment.

476 Social EquityC H A P T E R 1 2

of the United States to ensure equal employment opportunities for Federal employ- ees.” It also created the Equal Employment Opportunity Commission (EEOC) to combat discrimination in the private sphere. The coordination of all equal employ- ment activities for federal employees was assigned to the Civil Service Commission.

The continuing rationale for government-sanctioned affirmative action pro- grams was provided by President Lyndon Johnson in a June 4, 1965, speech at Howard University: “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with the others’ and still justly believe you have been completely fair.”

President Franklin D. Roosevelt signing the Social Security Act on August 14, 1935. Standing behind him is Frances Perkins (1880–1965), his Secretary of Labor who as the chair of the Committee on Economic Security recommended that the federal government get massively involved with social insurance. She was the primary drafter of and lobbyist for the new act and more than earned her place behind the president as he signed it. This was an especially difficult day for her because as she was leaving her office to attend the ceremony, she got a phone call from New York City informing her that her husband, confined to a hospital because of chronic mental illness, had wandered away and was missing. So as soon as the signing ceremony ended, she boarded a train to New York and spent several hours searching the streets of the city before finding him. Despite her personal problems she remained as Secretary of Labor, the first female cabinet member in American history, from 1933 to 1945.

Source: Corbis

477Equal Employment Opportunity

The next major development in the evolution of the EEO program came in 1969, when President Nixon issued an executive order requiring agency heads to “establish and maintain an affirmative program of equal employment opportu- nity.” It was also during the Nixon administration, when the federal courts associ- ated affirmative action with specific goals and timetables for minority hiring, that the term was altered to include compensatory opportunities for hitherto disadvan- taged groups.

The Equal Employment Opportunity Act of 1972 solidified the Civil Service Commission’s authority in this area and placed the program on a solid statutory basis for the first time. It reaffirmed the traditional policy of nondiscrimination and empowered the commission to enforce its provisions “through appropriate remedies, including reinstatement or hiring of employees with or without back pay . . . and issuing such rules, regulations, orders, and instructions as it deems necessary and appropriate.” It also made the commission responsible for the annual review and approval of agency EEO plans and for evaluating agency EEO activities. The act also brought state and local governments under the federal EEO umbrella for the first time. The EEOC, hitherto primarily concerned with the private sector, was given equal authority over the nonfederal public sector. In 1979, as part of the overall federal civil service reforms then taking place the enforcement aspects of the federal EEO program were transferred to the EEOC. So after starting out with enforcement authority over just the private sector in 1964, the EEOC by 1979 had been given responsibility for enforcing equal employment opportunity at all levels of government as well.

The Case for Affirmative Action

The case for affirmative action, for special efforts to recruit and advance minorities and women in employment, has always been based on statistics. The Bureau of the Census prepares a report showing the earnings impacts of educational attainment. As would be expected, levels of education have been increasing in the United States. In the 1940s about 25 percent of the American population had at least a high school degree, but by 2011, this had risen to 85 percent and nearly 30 percent had a bachelor’s degree. While the value of a bachelor’s degree may not be what it was 20 years ago, there is little doubt of the strong correlation between education and earnings. Higher education results in better paying jobs and an increased likelihood of fulltime employment.

But the payoffs of education are not the same for everyone. According to the Bureau of the Census, white college graduate males earned about $72,000 in 2006. But black and Hispanic males with the same education earned 30 percent less. Even among high school graduates, black men earned 25 percent less than whites. In a 2011 report, the census reported the following differences in terms of work-life earnings:

White Males: $2.85 mil Females: $2.02 mil Asian Males: $2.44 mil Females: $2.06 mil Black Males: $2.11 mil Females: $1.85 mil Hispanic Males: $2.08 mil Females: $1.71 mil

478 Social EquityC H A P T E R 1 2

Little wonder that income levels in the United States persist in showing gaps between races and gender. Furthermore, these economic disparities in income carry over into rates of home ownership. In 2002, the national rate for home ownership was 68 percent, but for blacks it was 48 percent (up from 42 percent in 1990). In 2015, home ownership rates have declined to 64 percent nationally, but remain at 72 percent for whites, but only 42 percent for blacks, while Hispanics now are at 47 percent.

These disparities exist because of continuing patterns of discrimination that are easily traced back to the days of slavery. The only way to overcome and get beyond the adverse impact of systemic discrimination is to implement a vigorous affirmative action program. To repeal affirmative action and force minorities to compete on the proverbial “level playing field” would only perpetuate the existing patterns of discrimination.

Affirmative action offers advantages that go beyond its immediate beneficia- ries. As civil rights activist Roger Wilkins wrote, “Racist and sexist whites who are not able to accept the full humanity of other people are themselves badly damaged—morally stunted—people” (Wilkins, 1995). They, too, are victims of racism and sexism—even if it is their own. Affirmative action programs that bring them into contact with a more diverse group of associates will help liberate them from their own ignorance. They can go from being “morally stunted” to morally elevated.

And the same that can be said of people can be said of organizations. The less damaged they are by racism and sexism, the more productive they will be. This is the effect of diversity management—directing the work of a racially and cultur- ally heterogeneous group of employees to bring a more varied set of perspectives to organizational problems. This variety can translate into greater productivity. Concerns for diversity that started as part of EEO programs are now less a mat- ter of social equity than organizational survival. The simple demographic fact

TABLE 12.1

Median Weekly Earnings by Race and Gender, 2011–2015

Men Women

2011 2015 2011 2015

All Races $825 $895 $689 $726

16 to 24 years $510 $450

25 years and over $947 $761

White $850 $920 $705 $743

Black $673 $680 $592 $615

Hispanic $586 $631 $524 $566

Asian $972 $1129 $748 $877

Source: US Bureau of the Census and Bureau of Labor Statistics, Annual Demographic Survey (2011); (2015). http://www.bls.gov/news.release/pdf/wkyeng.pdf. And http://www.bls.gov/cps/cpsaat37.pdf

479Equal Employment Opportunity

is that whites will be a continuously decreasing part of the national workforce. For large organizations, the future can be summed up in three words: “Diversify or die!”

The Case Against Affirmative Action

The case against affirmative action can be stated very simply: It is unfair. It negates Dr. Martin Luther King’s “dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” Well-meaning opponents of affirmative action (as opposed to lunatic fringe racists) favor equal employment opportunity. They hold that race or sexual discrimination is wrong no matter who does it. Racial and sexual prefer- ences in hiring women, black people, or other ethnic minorities are not only inher- ently discriminatory, but they are also in violation of the Civil Rights Act of 1964, which prohibits discrimination against anybody—even whites.

Despite its best intentions, affirmative action programs have had the effect of stigmatizing minority workers as those who got their jobs not because of their intrinsic merit but because of pressure to fill a formal or informal quota. Thus such programs damage both the self-confidence and self-image of their beneficia- ries while creating resentment among those denied such employment opportunities. Minorities who advocate affirmative action are essentially saying, critics charge, that they cannot compete on merit.

Finally, opponents of affirmative action argue that if compensatory benefits are to be provided, they should be based on class, not race. Why should a child from a black professional family making more than $100,000 a year be given special educational and employment opportunities when there is greater need for such opportunities in the case of a child from a poor white family with an income close to the national median? Besides, class-based preferences could gain the widespread political support that affirmative action now seems to lack.

Representative Bureaucracy

In 1944 J. Donald Kingsley, coauthor of the first full-scale text on public personnel administration, had published his historical analysis, Representative Bureaucracy: An Interpretation of the British Civil Service. In 1967 Samuel Krislov, a constitu- tional law scholar, expanded on Kingsley’s concept of a governing bureaucracy made up of representative elements from the population being ruled. In The Negro in Federal Employment, Krislov examined the advantages of “representation in the sense of personification” (Krislov, 1967) and thereby gave a name to the goal for the movement for the fullest expression of civil rights in government employment— representative bureaucracy .

In a subsequent work in 1974, entitled Representative Bureaucracy, Krislov explored the issues of merit systems, personnel selection, and social equity. Krislov asked more directly, how could any bureaucracy have legitimacy and public cred- ibility if it did not represent all sectors of its society? So, thanks in large part to Krislov, the term representative bureaucracy grew to mean that all social groups have a right to participation in their governing institutions. In recent years, the

480 Social EquityC H A P T E R 1 2

concept has developed a normative overlay—that all social groups should occupy bureaucratic positions in proportion to their numbers in the general popula- tion. Today, representative bureaucracy is commonly used as a shorthand phrase for the ultimate goal of equal employment opportunity and affirmative action programs.

Reverse Discrimination

Reverse discrimination is a practice generally understood to mean discrimination against white males in conjunction with preferential treatment for women and minorities. The practice had no legal standing in civil rights laws. Indeed, Section 703(j) of Title VII of the Civil Rights Act of 1964 holds that nothing in the title shall be interpreted to permit any employer to “grant preferential treatment to any individual or group on the basis of race, color, religion, sex, or national origin.” Yet affirmative action programs necessarily put some white males at a disadvantage that they would not have otherwise had. Reverse discrimination is usually most keenly perceived when affirmative action policies conflict with older policies of granting preferments on the basis of seniority, test scores, and so on.

The practice of reverse discrimination was finally given legal standing when the US Supreme Court, in Johnson v. Santa Clara County (1987), upheld an affir- mative action plan that promoted a woman ahead of an objectively more qualified man. Critics contended that this turned Title VII’s requirement that there be no “preferential treatment” upside down because for the first time the Court sanc- tioned and gave legal standing to reverse discrimination. This was not illegal sex discrimination because Paul Johnson was not actually harmed. The Court reasoned that he “had no absolute entitlement to the road dispatcher position. Seven of the applicants were classified as qualified and eligible, and the Agency Director was authorized to promote any of the seven. Thus, the denial of the promotion unsettled no legitimate firmly rooted expectation on the part of [Johnson].” While Johnson was denied a promotion, he remained employed with the same salary and seniority, and he remained eligible for other promotions.

Race has always been a hot issue in American politics. But affirmative action policies were tolerated, if not actually supported, by most of the public until a sea change in public opinion began to occur in 1990. That was the year that Republi- can Senator Jesse Helms of North Carolina, running for reelection against Harvey Gantt, the black mayor of Charlotte, used a notorious television commercial in the last week of the campaign. Over a pair of white hands crumpling a job rejection let- ter, a voice announced, “You needed that job, and you were the best qualified, but it had to go to a minority because of a racial quota.” Helms, who was well behind in the polls, then won reelection.

Affirmative action is a wedge issue—it drives people apart. Since the 1980s, the Republicans have been quite astute in using the wedge. They branded the Demo- cratic Party the champion of special privileges for minorities. This wedge deserves much of the credit for driving traditionally Democratic blue-collar voters into the political arms of the Republicans.

Today, the public has mixed views about affirmative action. In 2009, as Barack Obama was being inaugurated, polls indicated that affirmative action

481Equal Employment Opportunity

had lost the support of whites. According to a 2009 Quinnipiac University poll, 64 percent of whites opposed it. More recent surveys by Pew and the media found that 53 percent of the public supported affirmative action programs in hiring, promoting and college admissions, compared to 38 percent opposed, in that poll. There was a strong racial split. Three-quarters of African-Americans favored affirmative action programs, compared with 46 percent of whites. When asked the reason for their support, those in favor cited (63 percent) affirma- tive action increased diversity while 24 percent said it was to make up for past discrimination.

It may also be that some are opposed to reverse discrimination (which to many is just another term for affirmative action). True, opposition to affirmative action is a credo of racism. But many who oppose it are not racists; they simply believe that the present EEO program does not further equality, that it will ultimately be found to be unconstitutional, and that while it was once needed to jump-start black Americans into the economic mainstream, it now—on the whole—does more harm than good.

But in the area of education, there is more support for affirmative action than opposition. The Pew survey found Americans agreeing roughly two-to-one (63 percent to 30 percent) that affirmative action programs designed to increase the number of black and minority students on college campuses are a “good thing.” That level of support was unchanged from a previous survey in 2003.

And again, underneath those overall numbers is a racial and partisan divide.  Fifty five percent of whites (still a majority) support affirmative action programs on campus, but that compares with 84 percent of blacks who believe they are a good thing and 80 percent of Hispanics. It is the use of affirmative action programs in college admissions that has led to numerous court challenges and voter passed propositions (and even court challenges undermining those laws) designed to ban the use of racial preferences in education.

Justifying Diversity

The legal rationale for affirmative action—in effect, reverse discrimination—was to provide a remedy for past practices of discrimination. But how do you justify the continuation of such remedies when the practices they were designed to remedy were increasingly long in the past? This is the question that confronted the Supreme Court in 2003 in two cases concerning the University of Michigan.

The Court agreed that the University of Michigan Law School could con- tinue to give advantages to minority applicants for admission. But the justifica- tion for such preferences was not to remedy past practices of discrimination but to further diversify for its own sake. The majority opinion written by Justice San- dra Day O’Connor held that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” In this 5-to-4 decision, the Court asserted that “effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.” Justice Lewis F. Powell had initially advocated the diversity rationale in the 1978 Bakke decision. In this

482 Social EquityC H A P T E R 1 2

2003 case the Court endorsed Justice Powell’s “view that student body diver- sity is a compelling state interest that can justify the use of race in university admissions.”

But even in accepting that diversity is a “compelling state interest,” the Court has asserted that this interest, no matter how “compelling,” must be tem- porary because such compliance flies in the face of the Fourteenth Amendment’s requirement for equal treatment. In an unusually blatant appeal to a future Supreme Court, Justice O’Connor stated, “Race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal pro- tection principle.” She concluded, “All governmental use of race must have a logical end point.” Then she quite literally provided the end point: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today” (Majority Opinion, Grutter v. Bollinger , 2003, p. 30).

So the Court has ruled that racial preference for diversity’s sake may extend another 25 years—but did not provide explicit criteria for their termination. In an unusually scathing dissenting opinion Justice Antonin Scalia asserted that the “mystical ‘critical mass’ justification” for racial preferences “challenges even the most gullible mind.” The “critical mass” refers to the oft-asserted “fact” that sig- nificant numbers of minorities are needed in schools for everyone’s betterment. The “gullible minds” seem to include the five justices that approved O’Connor’s majority opinion. Scalia observed that the same academics who are among the strongest advocates of diversity tolerate “tribalism and racial segregation” on their own campuses, including “minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies” (Dissenting Opinion, Grutter v. Bollinger , 2003, p. 3).

In a parallel case involving the University of Michigan’s undergraduate admis- sions process, Gratz v. Bollinger, the Court held that a point system that auto- matically gave black students an overwhelming advantage in admissions was unconstitutional. Race may still be taken into account but not in such a “non- individualized, mechanical” way. This means that affirmative action/reverse dis- crimination admissions (and hiring) programs may continue as before—so long as no hard numbers that look, smell, or sound like quotas are attached to them. Justice O’Connor expected a “highly individualized, holistic review of each appli- cant’s file.” Race is just one factor among many. To those who are annoyed that race is a factor at all (because they believe the Constitution should be color-blind), the Court has said, in effect, “just wait 25 years.”

Following the rulings. Michigan voters in 2006 passed a referendum by 58 percent to 42 percent (Proposition 2) which banned the use of racial prefer- ences in response to the court’s earlier law school decision. But this new law was taken to court—and a lower court ruled that ban was unconstitutional. But the Supreme Court in 2014 upheld the ban on affirmative action in the Michigan Constitution as constitutional. Justice Anthony Kennedy wrote that “[t]here is no

483Equal Employment Opportunity

authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”

The election of Barack Obama to the White House in 2009 further stoked the argument that affirmative action was no longer necessary in the United States. After all, if an African-American could be elected to the highest office in the land, it could be assumed that the times really had changed. And during Obama’s first year in office, the Supreme Court sent a signal that it might be growing less supportive of affirmative action measures. In the case of Ricci v. DeStefano (2009), the Court struck down a New Haven, Connecticut, decision to throw out a firefighter test that promoted too few minorities. While once again avoiding answering the question regarding the ultimate constitutionality of affirmative action, the Court continued to narrow what it will consider fair in the realm of racial preferences.

The death of Supreme Court Justice Antonin G. Scalia in 2015 affected the Court’s 2016 decision in Fisher v. Texas , an affirmative action case that experts say will change the admissions processes of universities including Harvard. In 2013, the Supreme Court first heard Fisher v. Texas , a case that involves a white woman who, after being denied admission to the University of Texas at Austin, filed a lawsuit against the school alleging that the university discriminated against her because of her race. The Supreme Court initially ruled that a lower court made a procedural misstep, and eventually a circuit court ruled in favor of the University of Texas. Plaintiff Abigail N. Fisher later appealed that ruling, and the Supreme Court upheld a University’s admissions process that accounts for diversity in making its selection decisions.

Doctrine

Discrimination

Affirmative action

Color-blind society

Prior to 1960s

The Present

The Future No racial

preferences

Preferential treatment for white males

Preferential treatment for

certain minorities

Policy

FIGURE 12.3

The evolving nature of equal rights doctrine

484 Social EquityC H A P T E R 1 2

The Ongoing Role of Race in Public Administration

If the role of racial discrimination in the United States had drifted from the every- day thoughts of most Americans by 2005, the aftermath of Hurricane Katrina reminded the nation that race continues to play a major role in government and society. As New Orleans was evacuated in the days and hours before Katrina struck, images of city residents left behind to ride out the storm in the Super- dome demonstrated an obvious racial divide. Almost all of the individuals lining up outside of the mammoth sports stadium were African-Americans. While the city was attempting to protect its residents in a “shelter of last resort,” one could not help but wonder why those unable to get out of the city were overwhelm- ingly black. The absence of white faces, even in a predominantly black city, made for striking television images. In the week following Katrina’s landfall, the images grew even starker, with pictures of thousands of African-Americans suffering without food or water in the stifling Louisiana heat. These shocking photos reignited the national debate about the relationship between race and government policies. This debate is bound to have an impact on public admin- istrators charged with providing equal protection under the law to 300 million Americans.

That impact is now being challenged at yet another level following the riots in Ferguson Missouri after Michael Brown was killed by the city police in early August of 2014. Underneath the widespread and heavily publicized protest activity directed at alleged police misconduct—in the form of the Black Lives Matter move- ment which has spread to Baltimore, Chicago and other cities, the US Department of Justice’s report on Ferguson shows a troubling pattern of administrative failure. How does a public sector agency not take note of their statistical data showing that while African-Americans were 67 percent of the city’s population, they accounted for 85 percent of traffic stops, 90 percent of citations, and 93 percent of all arrests in the last three years. Even more troubling is another part of the report linking the court system and the city administration in an effort to increase city revenues for the municipal budget.

The report charges that:

Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community. Further, Ferguson’s police and municipal court practices both reflect and exacerbate existing racial bias, including racial stereotypes. Ferguson’s own data establish clear racial disparities that adversely impact African Americans. The evidence shows that discriminatory intent is part of the reason for these disparities. Over time, Ferguson’s police and municipal court practices have sown deep mistrust between parts of the community and the police department, undermining law enforcement legitimacy among African Americans in particular.

(US Department of Justice, 2015, p. 2)

485Nonracial Discrimination

Back in the 1960s when new public administration was debating its future and its values, the Watts Riots (sometime referred to as the Watts rebellion) were a major catalyst. This was a weeklong crisis in Los Angeles from August 11 to 17, 1965 of looting and arson. The LA Police Department required over 4,000 California Army National Guards to quell the riots, which resulted in 34 deaths (31 of which were at the hands of law enforcement) and over $40 million in property damage. The ultimate report at the end of course blamed the riots principally on poor economic conditions and inequality—but a subsequent review highlighted police racism.

NONRACIAL DISCRIMINATION

Equal employment opportunity has been most controversial when race is at issue. However, it is equally illegal to discriminate against someone for reasons of sex, age, disability or sexual orientation.

Sex Discrimination

Sex discrimination is any disparate or unfavorable treatment of a person in an employment situation because of his or her gender. The Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972) makes sex dis- crimination illegal in most employment, except where a bona fide occupational qualification is involved.

Sex discrimination in employment was by no means a significant concern of the civil rights advocates of the early 1960s. Its prohibition only became part of the Civil Rights Act of 1964 because of Congressman Howard “Judge” Smith (1883–1976) of Virginia. As chairman of the House Rules Committee in 1964, Smith was one of the most powerful men in Congress—and as unlikely a hero as the women’s movement will ever have. As the leader of the South’s fight against civil rights, he added one small word—sex—to prohibitions against discrimination based on race, color, religion, and national origin. He felt confident this amend- ment would make the proposed law ridiculous and cause its defeat. Smith was an “old style” bigot: to his mind, the one thing more ridiculous than equal rights for blacks was equal rights for women.

The “sex discrimination” amendment was opposed by most of the leading lib- erals in Congress. They saw it as nothing but a ploy to discourage passage of the new civil rights law. The major support for adopting the amendment came from the reactionary southern establishment of the day. There was no discussion of sex discrimination by the Senate. The momentum for a new civil rights law was so great that Smith’s addition not only failed to scuttle the bill, but also went largely unnoticed. The legal foundation for the modern women’s movement was passed with almost no debate or media attention. Once Smith and his supporters realized the true impact of what they were doing, they sought to withdraw the amendment before the final vote but the few female members of Congress stopped this by insisting that it be done by a recorded, as opposed to a voice, vote. The male mem- bers did not want to be embarrassed by voting against women, so the amendment remained in the bill.

Bona fide

occupational

qualification

A good-faith exception to EEO provisions; a job requirement that would be discriminatory and illegal were it not necessary for the performance of a particular job. For example, female sex would be a BFOQ for a wet nurse.

486 Social EquityC H A P T E R 1 2

Although the sex discrimination prohibition was included in the new civil rights law almost in secret, word quickly got out. The new law brought into being the Equal Employment Opportunity Commission to enforce its various provisions. During the first year of the new commission’s operation, more than one-third of all of the complaints it received dealt with sex discrimination in employment. Typical complaints included inadequate consideration of female applicants for promotion, “help wanted” ads for separate male- and female-labeled jobs, and higher retire- ment benefits for male workers. All these practices and more were made illegal by Title VII. Over the next four decades, Judge Smith’s unintended gift to the nation’s women became the judicial reference for countless court cases and out-of-court settlements.

Women, actually more than minorities, have thus far been the greater benefi- ciaries of affirmative action. Part of this is the rate of advancement in education. Since the 1990s women have higher rates of being in college, and more impor- tantly completing college (37 percent of women in their twenties have a BA degree compared to 30 percent for men) and they are more likely to have an advanced degree. Pew Reports in a 2012 study, “Women in Leadership”, that women earned 60 percent of all Masters’ degrees and 51 percent of all doctorates. Male advantage is primarily in two areas: MBAs, where women have only 34 percent of graduate degrees, and the STEM programs—science, technology, engineering, and math— where degrees have increased, but actual presence in the workforce is lacking. Women are making some progress in law (34 percent of all professional jobs—but only 20 percent of partners and about 25 percent of all federal and state judges). Women hold 30 percent of the physician jobs. It may well be that Silicon Valley and the Lab remain the last bastions of male dominance. While some complain of a glass ceiling that many women find difficult to break through, many others are happy to note that it is only a matter of time before it gives way to the sheer num- bers of who graduates and who is in the workforce.

Sexual Harassment

When the Civil Rights Act of 1964 prohibited sex discrimination in employment, it would not have occurred to anyone to say or imply that the new law had anything to do with sexual harassment . The phrase “sexual harassment” was not even in the language. Yet today, for all legal purposes, sex discrimination includes sexual harassment—the action of an individual in a position to control or influence the job, career, or grade of another person and who uses such power to gain sexual favors or to punish the refusal of such favors. Sexual harassment on the job varies from inappropriate sexual innuendo to coerced sexual relations.

The courts are only gradually giving us a general idea of what behavior should not be permitted on the job. Although there was universal agreement that sexual harassment was bad, there was no agreement as to where the normal give-and- take between the sexes ended and sexual harassment began. An old maxim of the common law in such situations was that “there is no harm in asking [for sex]!” But the harm was always there. Countless women left jobs rather than submit to sexual requests. Countless others, out of sheer economic necessity, continued on in humiliation and fear.

487Nonracial Discrimination

In 1980, after the lower federal courts had decided that sexual harassment was sex discrimination in a variety of cases, the EEOC issued legally binding rules that defined and prohibited sexual harassment.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when:

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;

2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Finally, in 1986, the Supreme Court issued its first ruling on sexual harassment. In Meritor Savings Bank v. Vinson, it held that “a violation of Title VII [of the Civil Rights Act of 1964] may be predicated on either of two types of sexual harassment: harassment that involves the conditioning of concrete employment benefits on sex- ual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment.” The hostile environment standard was expanded on in Harris v. Forklift Systems, discussed in the Appendix.

In 1998, the Supreme Court offered further refinements in four sexual harass- ment cases. In Oncale v. Sundowner Offshore Services, the Court held that same- sex claims of harassment are permissible. In Gebser v. Lago Vista Independent School District, the Court held that school districts are not responsible if teach- ers harassed students when the school administrators did not know about it. In Faragher v. Boca Raton, Florida, the court held that an employer could be held financially liable for harassment by a supervisor. And in Burlington Industries v. Ellerth (1998), the Court held that employers were liable for the threatening sexual advances of a supervisor even when the threats are not carried out and the harassed employee suffers no adverse effects. But even here, in an area where the courts have gone a long way to remedy the effects of discriminatory behavior in the workplace, there has been a slight pullback. In 2013 in Vance v. Ball State University , the Court limited somewhat the liability of an organization by using a narrow interpretation of the term “supervisor”, so that a person may only be considered a supervisor if he or she can take tangible action against the employee.

Despite the clearly established illegality of it, sexual harassment remains a con- tinuing problem. Over twenty years ago in 1995, the US Merit Systems Protection Board released a survey, based on a questionnaire sent to 8,000 federal employees, which found that 44 percent of women and 19 percent of men said that they had been the victims of “uninvited, unwanted sexual attention.” However, most of what was being complained about were the less severe forms of harassment—sexual teasing, jokes, and questionable remarks. A male referring to a female coworker as “honey” or “sweetie” or “doll” is not guilty of criminal sexual assault. But such verbal assaults, if perceived as inappropriate, do constitute sexual harassment, are inappropriate, and may be actionable. MSPB will be conducting another version of their survey in 2016 as part of their periodic efforts to assess the state of the public

488 Social EquityC H A P T E R 1 2

service in the federal government. It will be interesting to see whether there is more or less perception of sexual harassment in the federal workplace.

Pregnancy Discrimination

A 1978 amendment to Title VII of the Civil Rights Act of 1964 holds that discrim- ination on the basis of pregnancy, childbirth, or related medical conditions consti- tutes unlawful sex discrimination. The amendment was enacted in response to the Supreme Court’s ruling in General Electric Co. v. Gilbert (1976) that an employer’s exclusion of pregnancy-related disabilities from its comprehensive disability plan did not violate Title VII.

The amendment asserts that a written or unwritten employment policy or prac- tice that excludes from employment opportunities applicants or employees because of pregnancy, childbirth, or related medical conditions is a prima facie violation of Title VII.

While this amendment to Title VII did not require an employer to offer a spe- cific number of weeks of maternity leave, the Family and Medical Leave Act of 1993 requires employers—in both the public and private sectors—with at least 50 workers to allow up to 12 weeks of unpaid leave (for childbirth, care of spouse or parent, new adoption of child, and so on) during a 12-month period for all employees (whether male or female) employed for at least a year.

Prima facie

Latin for “at fi rst sight”; on the face of it; presumably. Said of a fact that will be considered to be true unless disproved by contrary evidence.

BOX 12.2 A New Civil Right—the Right for Women to Breastfeed Their Infants in Public

Physicians agree! Mother’s milk is best. Children will be better off—less diarrhea and fewer infections— if they are nursed by their mothers rather than given a bottle of formula by a nanny. Mothers are better off by reducing their risk of breast and ovarian cancer. So what’s the problem? Too many mothers seeking to feed their infants in the way nature intended have been hassled by people who find this natural process to be publicly offensive and possibly even in violation of public indecency laws.

The problem is cultural. Too many citizens associate the female breast with adult sex rather than with infant food. The same people who “know” that breastfeeding is best for infants, mothers, and society are uncomfortable when confronted with it in public. Nevertheless, attitudes are changing and governments are in the forefront of this revolution in nursing.

According to Newsweek (June 11, 2007), 38 states now guarantee a woman’s right to breastfeed wherever she may be. And the Breastfeeding Promotion Act was introduced in Congress in 2011. This law, if enacted, would have been an amendment to the Civil Rights Act of 1964. In 1964, when the act was passed, nobody would have thought that it would someday be applied to breastfeeding. Remember that it was the federal government with new laws and extensive public awareness campaigns that took the lead in changing attitudes about smoking. Is a similar change, nurtured by American governments at all levels, about to occur in regard to public breastfeeding?

As of 2015, within the United States, legislation permitting breastfeeding in public has been passed in 49 states but only a limited federal law applies to federal government premises.

489Nonracial Discrimination

Age Discrimination

Ageism is discrimination against those who are considered “old.” During the sec- ond presidential debate of the 1984 election, when there had been great speculation about Ronald Reagan’s ability to continue to perform as president because of his age, Reagan literally turned the election around when he said, in answer to a ques- tion about his age, “I will not make age an issue in this campaign. I am not going to exploit, for political purposes, my opponent’s youth and inexperience.” Reagan went on to defeat the much younger Walter Mondale in a landslide.

Because not everybody has the Great Communicator’s ability to turn the issue of age on its head, the Age Discrimination in Employment Act (ADEA) exists. First passed in 1967 and often amended, this law prohibits employment discrimination on the basis of age and (with certain exceptions) prohibits mandatory retirement. The law applies to all public employers, private employers of 20 or more employ- ees, employment agencies serving covered employers, and labor unions of more than 25 members.

The ADEA prohibits help-wanted advertisements that indicate preference, lim- itation, specification, or discrimination based on age. For example, terms such as “girl” and “35–55” may not be used because they indicate the exclusion of qualified applicants based on age. Many states also have age discrimination laws or provi- sions in their fair employment practices laws. Some of these laws parallel the federal law and have no upper limit in protections against age discrimination in employ- ment; others protect workers until they reach 60, 65, or 70 years of age. In 1983 the Supreme Court, in Equal Employment Opportunity Commission v. Wyoming, upheld the federal government’s 1974 extension of the ADEA to cover state and local government workers.

Disabilities Discrimination

The federal government has a long history of legislative efforts to provide employ- ment for the disabled. Disabled veterans were the first people formally given employment preference, toward the end of the Civil War. In 1919, just after World War I, employment preferences were extended to the wives of disabled veterans as well. However, it was not until the Vocational Rehabilitation Act of 1973 that federal contractors and subcontractors were required to take affirmative action to seek qualified handicapped individuals for employment. This act also provided the now accepted definition of a handicapped or disabled individual:

1. A person who has a physical or mental impairment that substantially limits one or more of such person’s major life activities.

2. A person who has a record of such an impairment. 3. A person who is regarded as having such an impairment.

A qualified handicapped individual, according to the act and with respect to employment, is one who with reasonable accommodation can perform the essential functions of a job in question.

But it was not until the passage of the Americans with Disabilities Act (ADA) of 1990 that there was a comprehensive federal law to ban discrimination against

490 Social EquityC H A P T E R 1 2

physically and mentally handicapped individuals in employment, transportation, telecommunications, and public accommodations. All employers with more than 15 workers—not just federal contractors as before—are required to accommo- date disabled employees. New buses and trains must be accessible to people in wheelchairs. Telephone companies have to provide hearing- or voice-impaired people with equipment to place and receive calls from ordinary telephones. Reno- vated or new hotels, stores, and restaurants must be wheelchair accessible. Exist- ing barriers must be removed, if that is “readily achievable.” Businesses that can demonstrate that these changes would be too costly or disruptive may be exempt from the law.

According to the ADA, “No covered entity shall discriminate against a qual- ified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Among those protected by the act are individ- uals who are in or have successfully completed rehabilitation for drug abuse or alcoholism. However, the act states that “homosexuality and bisexuality are not impairments and as such are not disabilities under this Act.” In seeking to limit the applicability of the ADA to those with traditional disabilities, the ADA also specifically excludes transvestism, pedophilia, compulsive gambling, kleptoma- nia, and pyromania.

While the US Supreme Court has not ruled that AIDS is a directly covered disability under the ADA, it has signaled the possibility that it might be. In its decision in School Board of Nassau County v. Arline (1987), the Court held that a public school teacher with the contagious disease of tuberculosis was “a handicapped individual” within the meaning of the Rehabilitation Act. There- fore, protection against employment discrimination was provided by the law. This case has been the basis for some lower court rulings that the Rehabilitation Act protects persons with AIDS from employment discrimination. In 1998 the Court offered its first substantial review of the ADA in Bragdon v. Abbott. Here it held that people with the HIV infection that leads to AIDS—people with no AIDS symptoms as yet—were protected by the ADA. While the scope of the case was limited, its tone strongly suggested that people with AIDS would also be protected.

The Equal Employment Opportunity Commission, which enforces the pro- visions of the ADA, requires that an employer may not ask about the existence, nature, or severity of a disability and may not conduct medical examinations until after it makes a conditional job offer to the applicant. This prohibition ensures that an applicant’s disability that is not obviously apparent is not considered prior to the assessment of the applicant’s non-medically related qualifications. At this pre-offer stage, employers can ask about an applicant’s ability to perform specific job-related functions. After a conditional offer is made, an employer may require medical examinations and may make disability-related inquiries if it does so for all entering employees in the job category. If an examination or inquiry screens out an individual because of disability, the exclusionary criterion must be job related—and the employer must be able to demonstrate that the essential functions of the job cannot be performed with reasonable accommodation.

491Nonracial Discrimination

Sexual Orientation Discrimination

The long history of discrimination against and hostility toward homosexuals— gay men and lesbians—has been subsiding considerably in recent decades. While sexual orientation is not protected by the federal civil rights laws, many federal agencies have internal regulations prohibiting discrimination on the basis of sexual orientation. In addition, 21 states and more than 140 local jurisdictions have laws or executive orders that forbid sexual orientation discrimination in employment. In addition, four states have laws prohibiting sexual orientation discrimination in public workplaces only.

The core problem of dealing with the civil rights of gay men and lesbians is that the activity that defined them (sexual relations with a member of the same sex) was a crime in many states. This, however, is no longer the case. In 2003 the Supreme Court in Lawrence v. Texas declared unconstitutional the Texas ban on “consensual sodomy” and in effect asserted a broad constitutional right to sexual privacy. Justice Anthony M. Kennedy in the majority opinion wrote that the case concerned “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

In an extremely strong dissenting opinion Justice Antonin Scalia said that the ruling “effectively decrees the end of all morals legislation,” and could possibly pave the way for “judicial imposition of homosexual marriage, as has recently occurred in Canada.” This case overruled a 1986 decision in which the Court upheld Georgia’s sodomy law (Bowers v. Hardwick). The 2003 decision effectively nullified sodomy laws in the 13 other states besides Texas that still had such laws. The 2003 Lawrence decision on homosexual rights has its origins in the 1965 case of Griswold v. Connecticut , which first asserted that there was a constitutional right to bedroom privacy even when the word privacy does not appear in the Constitution.

Of course, one of the most hotly debated matters related to employment dis- crimination is the official policy of the US government regarding the service of gay men and lesbians in the military. For most of the nation’s history, the armed forces wouldn’t accept homosexuals into their ranks. If a soldier was found to be gay or lesbian, he or she was discharged from the service, often in a dishonorable manner. It wasn’t until 1993 that this policy changed with a key decision on the part of Pres- ident Bill Clinton. Acting on one of his key campaign promises, Clinton ordered any homosexual or bisexual person serving in the military not to disclose his or her sexual orientation while serving in uniform. Clinton also ordered military superiors to refrain from asking a service member’s orientation in the absence of discovering them engaged in a homosexual act. Despite some strong public reaction against the policy, Clinton stuck by “don’t ask, don’t tell,” which his successor, George W. Bush, maintained during his eight years in office.

In 2008, Barack Obama campaigned on the promise that he would repeal the policy if elected. Obama not only indicated his belief that the policy was discrimi- natory in nature, but he also justified his position by pointing out the practical con- siderations of maintaining a ban on openly homosexual individuals in the armed services. In particular, he contended that the policy cost the government millions of

492 Social EquityC H A P T E R 1 2

dollars to replace troops kicked out of the military, and that it deprived the military of key personnel in such critical areas as linguistics.

By the time Obama arrived in the White House in 2009, there was growing pressure to repeal “don’t ask, don’t tell” and let gay men and lesbians serve openly in the military. Once he arrived in the White House, however, Obama was slow to repeal the policy. Instead, he announced that he would need to confer more with his Chiefs of Staff before ending the rule. His administration was even put in the awkward position of defending “don’t ask, don’t tell” when the policy was challenged in court. It appeared that Obama didn’t want to draw the same type of negative public reaction that Clinton had had to deal with during his first year in office, and thereby preserve some of his political capital to fight other fights (e.g., the economic stimulus and health care reform). Eventually, with public opin- ion overwhelmingly in support of ending “don’t ask, don’t tell,” and with support from the leaders of all the branches of the US military, Congress passed and Presi- dent Obama signed the repeal in December of 2010. The armed forces finalized the process of ending the policy during the summer of 2011 and by the fall of that year openly gay Americans could serve their country in the military.

But even more important than the end of “don’t ask, don’t tell,” was the Supreme Court’s decision in 2015 for gay rights in Obergefell v. Hodges that the Consti- tution guarantees a right to same-sex marriage. In the majority opinion, Justice Kennedy wrote “No longer may this liberty be denied. No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.” The court confirmed that with marriage everyone would have “equal dignity in the eyes of the law.”

PUBLIC ADMINISTRATION AND SOCIAL EQUITY

All public administrators have an obvious obligation to advance social equity. However, this obligation can be legitimately and honorably interpreted in several ways. First is the obligation to administer the laws they work under in a fair man- ner. It is hard to believe today that this first obligation was once controversial. Before the passage of the 1960s civil rights legislation—mainly the Civil Rights Act of 1964 and the Voting Rights Act of 1965—minorities and women were rou- tinely denied equitable treatment. For example, when the two female justices of the US Supreme Court—Sandra Day O’Connor and Ruth Bader Ginsberg—graduated from law school, neither could obtain jobs with any major law firm. Today all large employers in the public and private sector are legally obligated to provide equal employment opportunity—and legally liable if they don’t.

Going the Extra Mile

But it is one thing to simply avoid being in violation of the law; it is another matter altogether to actively seek to foster its spirit. Thus the second way of interpret- ing obligations to advance social equity is to feel bound to proactively further the cause—to seek to hire and advance a varied workforce. The attitude requires a spe- cific approach: “It is not enough to go out and find qualified minorities. You must go out, find them, and then qualify them.” This is why the US armed forces have been

493Public Administration and Social Equity

so much more successful in their affirmative action efforts than society as a whole. They bring minorities into their organizations as young recruits and nurture them as they grow—just the same as they have been doing with white males for 200 years.

This going the “extra mile” is the spirit of the new public administration. These are not two ends of a continuum, with passive attitudes toward social equity at one end and proactive attitudes at the other. These are different ways of looking at the administrative world and one’s responsibilities within it as an individual, as a citizen, and as an administrator.

Inspiring Social Equity

Still there is one other aspect to advancing social equity that is best illustrated by a story. In 1963 George C. Wallace, then governor of Alabama, dramatically stood in the doorway of the University of Alabama to prevent the entry of black stu- dents and the desegregation of the University. It was a major media event. Wallace, backed up by the Alabama National Guard, stood waiting at his designated chalk mark on the pavement wearing his TV network microphone. As was prearranged, the deputy US attorney general, Nicholas Katzenbach, backed up by 3,000 federal troops, ordered Wallace to allow a black student, Vivian Malone, to enter. After a long-winded speech about federal encroachment on states’ rights, Wallace stepped aside and Katzenbach escorted Malone to the university cafeteria.

This incident is a famous aspect of the civil rights movement. Journalist Jacob Weisberg in his In Defense of Government adds an element to this well-known story that shows government at its best. After Malone entered the cafeteria, she got her tray of food and sat alone. Almost immediately some white female students joined her. They sought to befriend her, as they would any new student. According to Weisberg, “That’s the most powerful part of the story because it is about a change that good government inspired but could not force” (Weisberg, 1996). Then as now governments can go only so far in forcing social equity. But there is no limit to the amount of inspiration it can provide to encourage people to do the right, decent, and honorable thing. This encouragement has a name. It is called moral leadership.

A CASE STUDY

Brown Reverses Plessy’s Doctrine: The Story of how Thurgood Marshall Convinced the US Supreme Court that Separate was Inherently Not Equal, Laid the Legal Foundations for the Modern Civil Rights Movement

When Barack Obama was elected President of the United States in 2008, many people and organizations were pleased to take partial credit for the advances in civil rights that led to the first African-American president. But outside of the political efforts of Martin Luther King Jr., and his associates,

(continued)

494 Social EquityC H A P T E R 1 2

one man and one institution stand out as the leading fighters who created the legal foundation of civil rights for all Americans. That man is Thurgood Marshall and that institution is the National Association for the Advancement of Colored People (NAACP). This is the story, the case of, and their greatest victory in the Supreme Court decision of Brown v. Board of Education of Topeka, Kansas that became the bedrock of further legal advances in civil rights.

In June of 1967 President Lyndon Johnson had a Supreme Court vacancy to fill. This president, who did more for the civil rights of minorities than any other in the twentieth century, had decided to appoint the first African- American to the Court. He had asked his former Attorney General, Nicholas Katzenbach, a professor at the Yale Law School, to prepare a list of possible appointees. As they reviewed the candidates they came to Thurgood Marshall (1908–1993) . Juan Williams, in his biography of Marshall, quotes the president as saying: “Marshall’s not the best—he’s not the most outstanding black lawyer in the country.” Katzenbach replied: “Mr. President, if you appoint anybody, any black to that court but Thurgood Marshall, you are insulting every black in the country. Thurgood is the black lawyer as far as blacks are concerned—I mean there can’t be any doubt about that” (Williams, 1998). Marshall, who was made a federal judge by President John F. Kennedy in 1961 and made Solicitor General by Johnson in 1964, was to be elevated once again. On June 13 President Johnson announced that Marshall was his nominee. Despite strong opposition by some senators from southern states, Marshall was confirmed by a vote of 69 to 11 and joined the Court on October 2.

But why was Marshall “ the black lawyer?” Because he had spent most of his career (1939–1961) as the director of the NAACP’s Legal Defense and Education Fund. In that role he won 29 of the 32 civil rights cases he argued before the US Supreme Court. His overall legal strategy was to bit by bit whittle down the Jim Crow laws that sanctioned the segregation then prevalent in the American south. This culminated in one of the true landmarks of Supreme Court history, the case of Brown v. Board of Education of Topeka, Kansas (1954).

The essence of the Brown decision was whether black and white children should attend the same schools. Prior to Brown the prevailing doctrine on civil rights was “separate but equal.” This meant that blacks did not suffer an infringement of their constitutional rights as citizens if they were not allowed to use the same facilities as whites—so long as “separate but equal” facilities were also provided. While this sounded fair on the surface, there were two insurmountable arguments against this doctrine. First, there was the simple reality that what was provided separately was hardly ever equal. Second, there was the inherent stigma of being treated differently. How could you

Thurgood Marshall

(1908–1993)

The civil rights lawyer who successfully argued the Brown v. Board of Education case before the Supreme Court and who in 1967 was appointed by President Lyndon B. Johnson to be the fi rst African-American member of the Supreme Court.

A CASE STUDY Continued

495Public Administration and Social Equity

be equal if you were not treated equally? There was no doubt that this made second class citizens of African-Americans.

What made this doctrine particularly insidious was the fact that it derived not just from custom and the Jim Crow laws (laws requiring racial segregation) of the South; it was famously promulgated by the US Supreme Court. In Plessy v. Ferguson (1896) the Court held that segregated railroad facilities for African-Americans, facilities that were considered equal in quality to those provided for whites, were legal. This case didn’t just happen. Homer Plessy, at the time a 30-year old shoemaker from New Orleans, volunteered to test an 1890 Louisiana law providing for “equal but separate accommodations for the white and colored races” on railroads. So on June 7, 1892, Plessy bought a first class ticket on the East Louisiana Railway. Plessy was so white looking (he only had one black great-grandparent) that he had to inform the train conductor that he was “a colored man.” As expected the conductor then asked him to transfer to the “colored” car. When Plessy refused, in one of American history’s first sit-ins, he was duly arrested for crimes “against the peace and dignity of the state.”

Four years later Plessy’s case reached the Supreme Court. His lawyers urged the Court to reject the “equal but separate” law because it violated the equal protection clause of the Fourteenth Amendment. But the Court saw no such violation. The majority opinion stated that “the object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality.” The Court felt that reasonableness was the essence of the case:

The case reduces itself to the question whether the statute of Louisiana is a reasonable regulation. . . . Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the Acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned.

The Court even denied the plaintiff’s “assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” The Plessy case was a disaster for civil rights. Instead of striking down a Jim Crow law in one state, it allowed the Supreme Court to formally sanction the doctrine. This made it easier for race based legislation to be expanded and sustained.

(continued)

496 Social EquityC H A P T E R 1 2

Plessy put the stamp of inferiority on every American of African descent. One justice saw this clearly. In his lone dissenting opinion Justice John Marshall Harlan (1833–1911), ironically a former slave owner from Kentucky, wrote: “We boast of the freedom enjoyed by our people. . . . But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of ‘equal’ accommodations for passengers in the railroad coaches will not mislead anyone, or atone for the wrong this day done.”

More than half a century later, Thurgood Marshall of the NAACP led the legal team that urged the Court to overturn the “wrong this day done” in the Plessy decision and nullify this doctrine when it asserted that separate was “inherently unequal.”

Linda Brown was a seven-year-old girl in Topeka, Kansas, when her famous case started winding its way to the high court. She lived just a few blocks from a local elementary school. But since that was for whites only, she had to attend a “colored” school on the other side of town. This required that she cross railroad tracks to then take a long bus ride. Her father, Oliver, joined a group of African-Americans who sought for three years to get Topeka to improve the “colored” schools. Finally they filed a lawsuit and Brown found his name as the first of the plaintiffs.

In Brown the Court decided that the separation of children by race and according to law in public schools “generates a feeling of inferiority as to their [the minority group’s] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Consequently, it held that “separate educational facilities are inherently unequal” and therefore violate the equal protection clause of the Fourteenth Amendment. Chief Justice Earl Warren (1891–1974), in delivering the unanimous opinion of the Court, stated that public education “is the very foundation of good citizenship.” It was so important to the nation that considerations of the original intent of the Fourteenth Amendment were less important than remedying the present situation. So the Court effectively brushed aside the question of whether the Fourteenth Amendment was ever intended to cover public education. Warren stated: “In approaching this problem we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessey v. Ferguson was written. We must consider public education in the light of its full development and present place in American life.”

Then Warren proceeded to dismantle the doctrine of separate but equal. “We come then to the question presented: does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.”

A CASE STUDY Continued

497Public Administration and Social Equity

Warren acknowledged that the Court accepted the validity of various psychologists that segregated schools damaged minority students by creating “a feeling of inferiority.” Finally he concluded that “in the field of public education the doctrine of ‘separate but equal’ has no place.”

Carved in stone on the front of the US Supreme Court building are the words “equal justice under law.” Those words epitomize the philosophic foundation of American government. Yet, they once sustained a doctrine that some citizens were less equal than others—Figure 12.4 illustrates this.

The Brown decision kept the philosophy but revised the doctrine so that a new policy of integration emerged as illustrated in Figure 12.5

The Brown decision was one of the most powerful legal precedents in American history. It made the complete desegregation of American society only a matter of time. Though the time seemed long, the march of equality was inexorable. The man at the forefront of the legal march to change the doctrine of separate but equal was Thurgood Marshall. Martin Luther King Jr., marched in the streets to demand equal rights and became the personification of the civil rights movement. But Marshall marched into federal court and, far more often than not, when he marched out, the civil rights of all Americans had been expanded. This is why by 1967 Marshall was considered “ the black lawyer” in

Philosophy Doctrine

Separate but equal

SegregationEqual justice under law

Policy

FIGURE 12.4

Schematic of the Plessy doctrine of segregation

Philosophy Doctrine

Separate is inherently not

equal IntegrationEqual justice

under law

Policy

FIGURE 12.5

Schematic of the Brown doctrine of integration

(continued)

498 Social EquityC H A P T E R 1 2

America and the obvious choice for the first black seat on the US Supreme Court. Unfortunately, Marshall has all but disappeared from American consciousness today. But Barack Obama knows that he would not be where he is today if Marshall had not gone before him to pave the legal way.

For Discussion: Why is the Brown Decision generally considered to be the legal foundation of the modern civil rights movement? Was Chief Justice Earl Warren right to delay the court’s decision until he could obtain a unanimous vote to make it more acceptable to the American public?

The victors: Thurgood Marshall (center) puts his arms around two members of his legal team (George F. C. Hayes and James Nabrit Jr.) in front of the US Supreme Court on May 17, 1954, the day the Court ruled in Brown v. Board of Education that segregation in public schools is unconstitutional. It was Nabrit who got off the best rhetorical flourish of the proceedings when he echoed George Orwell’s Animal Farm (1945) in telling the Court: “Our Constitution has no provision across it that all men are equal but that white men are more equal than others . . . we believe that we, too, are equal.” The high drama of this case was made into a TV docudrama, Separate But Equal (1991), which is readily available in video stores. Sidney Poitier portrays Marshall with scrupulous accuracy as to the facts of the case. Especially fascinating is the dramatization of the behind-the-scenes politicking, cajoling and maneuvering by Chief Justice Warren to convince all the members of the Court to join in a unanimous decision. He knew that the decision would be so controversial and difficult to implement that it needed the impetus of a united Court.

Source: Corbis.

A CASE STUDY Continued

499Summary

Is This the End of Affirmative Action?

President Barack Obama took his oath of office January 20, 2009. (the photo above is for his 2nd term in 2013) With the accession of an African American to the highest office in the land many voices said that racial discrimination is dead. After all, he received the votes of a clear majority of those who voted in the presidential election. If he could rise to such heights, then all other African Americans had similar opportunities for achievement. Not so fast, many others declare. Obama was born half black, but was raised by whites. Both of his parents earned Ph.D.s. He graduated from the best prep school in Hawaii, then from Columbia University and Harvard Law School. He had a great start in life and made the most of it. His “head start,” so to speak, was so great that early in his presidential campaign black critics complained that he wasn’t black enough, that he hadn’t truly shared the post-slavery experience of other African Americans. It’s these citizens, many argue, who still need the advantage of affirmative action to compensate for the historic discrimination they and their families suffered. Obama’s election, while a landmark event, only marginally changes the facts on the ground for most of his fellow African Americans.

SUMMARY

Social equity is fairness in the delivery of public services; it is egalitarianism in action—the principle that each citizen has a right to be given equal treatment by the political system. Government organizations have a special obligation to be fair because they represent the citizenry.

The history of slavery in the United States is still relevant today because it is the underlying basis for African-American claims for special treatment. Equal employ- ment opportunity, created to mitigate the heritage of slavery, is a concept fraught with political, cultural, and emotional overtones. Generally, it applies to employment practices that prevent any individual from being adversely excluded from employ- ment opportunities on the basis of race, color, sex, religion, age, sexual orientation or national origin. The problem with equal employment opportunity programs is that they put the government into the business of examining people’s bloodlines.

Well-meaning opponents of affirmative action (the means by which EEO is to be achieved) favor equality. They hold that racial and sexual hiring preferences are not only inherently discriminatory, but they are also in violation of the Civil Rights Act of 1964, which prohibits discrimination against anybody. Affirmative action has become a wedge issue—an issue that drives people apart. Since the 1980s, the Republicans have been quite astute in using this wedge to brand the Democratic Party the champion of special privileges for minorities.

When the Civil Rights Act of 1964 prohibited sex discrimination in employment, nobody would have said that the new law had anything to do with sexual harass- ment. Yet today, for all legal purposes, sex discrimination includes sexual harassment.

500 Social EquityC H A P T E R 1 2

Rosa Parks The statue of Rosa Parks (1913-2005) as it was unveiled in the National Statuary Hall of the U.S. Congress in 2013. Her arrest in 1955 in Montgomery, Alabama, for refusing to move to sit in the back of a public bus where Jim Crow laws then required African-Americans to sit sparked the modern civil rights movement. This event also started the civil rights leadership role of Dr. Martin Luther King, Jr., who as a young minister in town led the strike against the bus company that brought national attention to Ms. Parks and himself.

A 1978 amendment to the act holds that discrimination on the basis of pregnancy, childbirth, or related medical conditions also constitutes unlawful sex discrimination.

The federal government has a long history of legislative efforts to provide employment for the disabled. But it was not until the passage of the Americans with Disabilities Act in 1990 that there was a comprehensive federal law to ban discrimination against physically and mentally handicapped individuals in employ- ment, transportation, telecommunications, and public accommodations.

REVIEW QUESTIONS

1. Why is social equity a critically important value for public organizations? 2. What is the difference between equal employment opportunity and affirmative

action? 3. Why is a representative bureaucracy the inherent goal of all affirmative action

programs? 4. Is reverse discrimination both legal and ethical? 5. How did the Civil Rights Act of 1964 eventually make sexual harassment

illegal?

KEY CONCEPTS

Adverse impact When a selection process for a particular job or group of jobs results in the selection of members of any racial, ethnic, or gender group at a lower rate than members of other groups, that process is said to have adverse impact. Federal EEO enforcement agencies generally regard a selection rate for any group that is less than four-fifths, or 80 percent, of the rate for other groups as constituting evidence of adverse impact.

501Key Concepts

Affirmative action A term that first meant the removal of “artificial barriers” to the employ- ment of women and minority group members; now it refers to compensatory opportunities for hitherto disadvantaged groups—specific efforts to recruit, hire, and promote qualified members of disadvantaged groups for the purpose of eliminating the present effects of past discrimination. EEO plan An organization’s written plan to remedy past discrimination against, or underutilization of, women and minorities. The plan itself usually consists of a statement of goals, timetables for achieving them, and specific program efforts. Equal employment opportunity Employment practices that prevent any individual from being adversely excluded from employment opportunities on the basis of race, color, sex, religion, age, sexual orientation, national origin, or other factors that cannot lawfully be considered in employing people. Glass ceiling The unseen barrier through which an organization’s highest-level positions can be seen but not reached. Women and minorities often perceive that a “glass ceiling” prevents their advancement to the top. Goals versus quotas Goals are realistic objectives that an organization endeavors to achieve through affirmative action. Quotas, in contrast, restrict employment or development oppor- tunities to members of particular groups by establishing a required number or proportionate representation, which managers are obligated to attain, without regard to equal employment opportunity. To be meaningful, any program of goals or quotas must be associated with a specific timetable—a schedule of when the goals or quotas are to be achieved. New public administration An academic advocacy movement for social equity in the per- formance and delivery of public services originating in the late 1960s in the United States; it called for a proactive administrator with a burning desire for social equity to replace the traditional impersonal and neutral gun-for-hire bureaucrat. Reasonable accommodation Those steps needed to accommodate a handicapped employ- ee’s disability (e.g., adequate workspace for an employee confined to a wheelchair) required of an employer unless such steps would cause the employer undue hardship. Representative bureaucracy The ultimate goal of equal employment opportunity and affir- mative action programs. Reverse discrimination Discrimination against white males in conjunction with preferential treatment for women and minorities. Sexual harassment The action of an individual (either a supervisor or coworker) in a posi- tion to control or influence another’s job, career, or grade who uses such power to gain sexual favors or punish the refusal of such favors. Sexual harassment on the job varies from inappropriate sexual innuendo to coerced sexual relations. Systemic discrimination Use of employment practices (recruiting methods, selection tests, promotion policies, etc.) that have the unintended effect of excluding or limiting the employ- ment prospects of protected-class persons. Because of court interpretations of Title VII of the Civil Rights Act of 1964, all such systemic discrimination, despite its “innocence,” must be eliminated where it cannot be shown that such action would place an unreasonable burden on the employer or that such practices cannot be replaced by other practices that would not have such an adverse effect. Thomson, Victor One of the most gifted stylists in the literature of public administration. Thompson is best known for dealing deftly with bureaucratic interactions and dysfunctions. In his most influential work, Modern Organization, he reminds us that “one must not forget that clients are notoriously insensitive to the needs of bureaucrats.” Title VII That part of the Civil Rights Act of 1964 that prohibits employment discrimina- tion because of race, color, religion, sex, or national origin and created the Equal Employ- ment Opportunity Commission as its enforcement vehicle.

502 Social EquityC H A P T E R 1 2

BIBLIOGRAPHY

Armas, Genard (2003a) “Census Figures Show Economic Gains by Blacks,” Las Vegas Review-Journal (April 26).

Armas, Genard (2003b) “Earnings Potential Still Subject to Gender, Race Gaps,” Las Vegas Review-Journal (March 21).

Bishop, Peter C. and Augustus J. Jones Jr. (1993) “Implementing the Americans with Disabil- ities Act of 1990,” Public Administration Review 53 (March–April).

Boller, Harvey R. and Douglas Massengill (1992) “Public Employers’ Obligation to Reason- ably Accommodate the Disabled under the Rehabilitation and Americans with Disabili- ties Acts,” Public Personnel Management 21 (Fall).

Cose, Ellis (1993) The Rage of a Privileged Class. New York: HarperCollins. Drake, Bruce (2014) “Public strongly backs affirmative action programs on campus,” Pew

Research Center, April 22. Available online at http://www.pewresearch.org/author/ bdrake/

Fineman, Howard and Tamara Lipper (2003) “Spinning Race,” Newsweek (January 27). Fletcher, Michael A. (2003) “Changes to Title IX Considered: Proposal Would Allow Schol-

arship Limits,” Washington Post (January 24). France, Anatole (1894/2015) The Red Lily . London: Forgotten Books. Frederickson, H. George (1980) New Public Administration. University: University of Ala-

bama Press. Henry, William A. III (1994) In Defense of Elitism. New York: Doubleday. Jamieson, David and Julie O’Mara (1991) Managing Workforce 2000: Gaining the Diver-

sity Advantage. San Francisco: Jossey-Bass. Johnson Lyndon B. (1965) Speech at Howard University, June 4. Available online at http://

www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650604.asp Kennedy, John F. (1961) “Statement by the President Upon Signing Order Establishing the

President’s Committee on Equal Opportunity Employment,” March 7, in John T. Woolley and Gerhard Peters, The American Presidency Project [online], Santa Barbara, CA. Avail- able at http://www.presidency.ucsb.edu/ws/?pid=8520

King, Martin Luther (1963) “I have a Dream”: Speech for the March on Washington 1963. Accessed at https://www.archives.gov/press/exhibits/dream-speech.pdf

Kingsley, J. Donald (1944) Representative Bureaucracy: An Interpretation of the British Civil Service. Yellow Springs, OH: Antioch Press.

Klein, Joe (1995) “The End of Affirmative Action,” Newsweek (February 13). Krislov, Samuel (1967) The Negro in Federal Employment. Minneapolis: University of

Minnesota Press. Krislov, Samuel (1974) Representative Bureaucracy. Englewood Cliffs, NJ: Prentice Hall. Lincoln, Abraham (1862) Emancipation Proclamation, September 1862. Available from http://

www.archives.gov/exhibits/american_originals_iv/sections/preliminary_emancipation_ proclamation.html

Lincoln, Abraham (1858) Speech at the Illinois Republican State Convention, June 16. Avail- able from http://www.abrahamlincolnonline.org/lincoln/speeches/house.htm

Marini, Frank, ed. (1971) Toward a New Public Administration. San Francisco: Chandler. Marshall, Thurgood (1987) “The Constitution’s Bicentennial: Commemorating the Wrong

Document,” Vanderbilt Law Review 40: pp. 1337–1342. McAllister, Bill (1995) “The Problem That Won’t Go Away: A New Survey Finds Complaints

of Sexual Harassment Are Still Widespread in Federal Offices,” The Washington Post National Weekly Edition (November 20–26).

Pellicciotti, Joseph M. (1991) “Exemptions and Employer Defenses under the ADEA,” Pub- lic Personnel Management 20 (Summer).

503Bibliography

Pew Research Center (2015) “Women in Leadership,” January 14. Available from http:// www.pewsocialtrends.org/2015/01/14/women-and-leadership/

Quinnipiac University (2009) “Poll Findings on New Haven and Affirmative Action,” June 29. Available from https://www.qu.edu/news-and-events/quinnipiac-university-poll/national/ release-detail?ReleaseID=1343

Riccucci, Norma M. (2002) Managing Diversity in Public Sector Workforces. Boulder, CO: Westview.

Roosevelt, Franklin D. (1935) Statement on Signing the Social Security Act, August 14. Accessed at https://www.ssa.gov/history/fdrstmts.html#signing

Roosevelt, Franklin D. (1937) Second Inaugural Address, January 20. Accessed at http:// historymatters.gmu.edu/d/5105

Rousseau, Jean-Jacques (1762) The Social Contract. London: Penguin Classics (1947 edi- tion, New York: Hafner Press).

Schlessinger, Arthur M. Jr. (1965) A Thousand Days: John F. Kennedy in the White House. Boston: Houghton Mifflin.

Sowell, Thomas (1984) Civil Rights: Rhetoric or Reality. New York: William Morrow. Thomas, R. Roosevelt Jr. (1990) “From Affirmative Action to Affirming Diversity,” Harvard

Business Review 68 (March–April). Thompson, Mark (2009) “Dismay over Obama’s ‘Don’t Ask, Don’t Tell’ Turnabout,” Time

(June 9). Thompson, Victor A. (1961) Modern Organization. New York: Knopf. Thompson, Victor A. (1975) Without Sympathy or Enthusiasm. Tuscaloosa, AL : University

of Alabama Press. Tiffany, Julian and Robert Kominski (2011) “Education and Synthetic Work-Life Earnings

Estimates,” in American Community Survey Reports. US Census Bureau, September. Accessed at https://www.census.gov/prod/2011pubs/acs-14.pdf

United States Department of Justice Civil Rights Division (2015) Report on Ferguson Police Department, March 4. Available at https://www.justice.gov/sites/default/files/opa/ press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf

US Merit Systems Protection Board (1995) “Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges.” Available from http://www.mspb.gov/net search/viewdocs.aspx?docnumber=253661&version=253948

US Office of Personnel Management (2014) “Women in the Federal Service: A Seat at Every Table.” Available from https://www.fedview.opm.gov/2014FILES/2014_Womens_ Report.pdf

Waldo, Dwight (1968) “Public Administration in a Time of Revolution,” Public Administra- tion Review 28 (July–August).

Weisberg, Jacob (1996) In Defense of Government: The Rise and Fall of Public Trust. New York: Scribner.

Wilkins, Roger (1995) “The Case for Affirmative Action,” The Nation (March 27). Williams, John (2001). “The Clint Eastwood Verdict Makes My Day,” Business Week Online

(October 6). http://www.businessweek.com Williams, Juan (1998) Thurgood Marshall: American Revolutionary . New York: Times Books.

US Supreme Court Cases Cited in this Chapter

Adarand Constructors , Inc . v . Peña , 515 US 200 (1995) Bowers v. Hardwick , 478 US 186 (1986) Bragdon v. Abbott , 524 US 624 (1998) Brown v. Board of Education of Topeka , 347 US 483 (1954) Burlington Industries, Inc. v. Ellerth , 524 US 742 (1998)

504 Social EquityC H A P T E R 1 2

City of Richmond v. J.A. Croson & Co., 488 US 469 (1989) Dred Scott v. Sandford , 60 US 393 (1857) Equal Employment Opportunity Commission v. Wyoming, 460 US 226 (1983) Faragher v. City of Boca Raton , 524 US 775 (1998) Fisher v. University of Texas , 570 US (2013) Fullilove v. Klutznick , 448 US 448 (1980) Gebser v. Lago Vista Independent School District , 118 S. Ct. 1989 (1998) General Elec. Co. v. Gilbert, 429 US 125 (1976) Gratz v. Bollinger , 539 US 244 (2003) Griswold v. Connecticut , 381 US 479 (1965) Grutter v. Bollinger , 539 US 306 (2003) Johnson v. Transportation Agency, Santa Clara County , 480 US 616 (1987) Lawrence v. Texas , 539 US 558 (2003 ) Loving v. Virginia , 388 US 1 (1967) Meritor Savings Bank v. Vinson , 477 US 57 (1986) Metro Broadcasting, Inc. v. FCC , 497 US 547 (1990) Obergefell v. Hodges , 576 US (2015) Oncale v. Sundowner Offshore Services , 523 US 75 (1998) Plessy v. Ferguson , 163 US 537 (1896) Regents of the University of California v. Bakke , 438 US 265 (1978) Ricci v. DeStefano , 129 S. Ct. 2658 (2009) Saint Francis College v. Al-Khazraji 481 US 604 (1987) School Board of Nassau County v. Arline 480 US 273 (1987) Schuette v. Coalition to Defend Affirmative Action , 572 US (2014) Shaare Tefila Congregation v. Cobb 481 US 615 (1987) United States v. Windsor , 570 US (2013) Vance v. Ball State University , 133 S.Ct. 2434 (2013)

RECOMMENDED BOOKS

Herrick, Rebecca (2017) Minorities and Representation in American Politics . Thousand Oaks, CA: Sage. A broad ranging look at issues involving minority representation and participation in government—not just in bureaucracy but in legislatures and judiciaries.

Katznelson, Ira (2005) When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America. New York: W.W. Norton and Company. An examination of racial inequity and its relationship to government policies that are believed to benefit black people but that have actually benefited whites.

Kelloug, J. Edward (2006) Understanding Affirmative Action Politics, Discrimination, and the Search for Justice . Washington, DC: Georgetown University Press. A detailed history of affirmative action and strategies and developments in government in the United States.

Nussbaum, Martha C. (2010) From Disgust to Humanity: Sexual Orientation and Consti- tutional Law Oxford: Oxford University Press. An important work putting LBGT rights into legal and social perspective and reframing many of the issues discussed in this chapter.

Reese, Laura A. and Karen E. Lindenberg (1998) Implementing Sexual Harassment Policy: Challenges for the Public Sector Workforce. Thousand Oaks, CA: Sage. One of the first and still compelling reviews of the problems and opportunities of creating organizational policies for forestalling and dealing with sexual harassment.

Sowell, Thomas (1990) Preferential Policies: An International Perspective. New York: William Morrow. An around-the-world tour of affirmative action policies and practices.

505Appendix: Three Thousand Years of Sexual Harassment

West, Cornel (1993) Race Matters. Boston: Beacon Press. An explanation of how the intel- lectual frameworks about race used by both black and white people impede racial prog- ress and understanding.

APPENDIX: THREE THOUSAND YEARS OF

SEXUAL HARASSMENT

Joseph, the Bible tells us, was sold into slavery by his older brothers for “twenty pieces of silver” (Genesis 37:28). Taken to Egypt by a slave merchant and sold to Potiphar, the captain of Pharaoh’s guards, Joseph’s talents served his master so well that Potiphar “made him overseer over his house.”

Joseph, a natural administrator, was on the fast track, as slavery goes, until his career was derailed by an unfounded claim of sexual harassment. Potiphar’s wife “cast her eyes upon Joseph.” One day when they were alone in the house, “she caught him by his garment, saying lie with me.” Joseph immediately fled, leaving “his garment in her hand.”

Poor Joseph. He goes to work one day, and the next thing he knows he’s running away. But where to? In those days there was no Equal Employment Opportunity Commission to whom Joseph could complain about workplace sexual harassment. Besides, slaves did not have the right to complain about anything anyway—least of all a workplace free of sexual intimidation. While it is bad enough to be harassed, it is worse to be framed and jailed—which is just what happened next to Joseph. Potiphar’s wife claimed that Joseph had approached her and had run away when she cried out, leaving his garment behind as evidence. When Potiphar heard this false accusation, “his wrath was kindled.” And Joseph was put into prison.

Fortunately, this particular story of sexual harassment has a happy ending. While in prison, Joseph’s skills in long-range business forecasting came to the atten- tion of the pharaoh, who needed a dream interpreted—something about seven thin cows eating seven fat cows. Joseph’s warning of a coming famine so impressed Pharaoh that Joseph began his rise to the top of the Egyptian bureaucracy. It just goes to show that sometimes an ex-convict can be a very effective employee.

More than 3,000 years later, Joseph’s problem with sexual harassment at work arrived on the docket of the US Supreme Court. While too late to help Joseph, the Court ruled in 1986 on a similar case. In Meritor Savings Bank v. Vinson, sexual harassment that creates a hostile or abusive work environment, even without economic loss for the person being harassed, was declared illegal—because it was in violation of Title VII of the Civil Rights Act of 1964. (Title VII is that portion of the act that prohibits employment discrimination because of race, color, religion, sex, or national origin.)

This case sought to establish ways by which to judge whether or not sexual harassment exists in any given set of circumstances. Thus the Court held that Title VII is violated when the workplace is permeated with discriminatory behav- ior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment. The standard laid down by the Court is that of an objectively hostile or abusive environment—one that a reasonable person would find hostile or abusive. Whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances: the frequency of the discriminatory conduct, its severity, whether it is physically threatening or

506 Social EquityC H A P T E R 1 2

humiliating (or only an offensive utterance), and whether it unreasonably inter- feres with an employee’s work performance. The effect on an employee’s psy- chological well-being is also relevant in determining whether the environment is abusive.

But this standard was not detailed or clear enough to provide sufficient guid- ance to employers and the lower federal courts. So the Supreme Court had to expand on the 1986 standard in the 1993 case of Harris v. Forklift Systems. Teresa Harris worked as a manager at an equipment rental company for more than two years. Throughout Harris’s time of employment, the male president of Forklift Systems often insulted her because of her gender and often made her the target of unwanted sexual innuendos. For example, he said to Harris on several occasions, in the presence of other employees, “You’re a woman. What do you know?” and “We need a man as the rental manager.”

Again in front of others, he suggested that the two of them “go to the Holiday Inn to negotiate [Harris’s] raise.” He even asked Harris and other female employ- ees to get coins from his front pants pocket. When Harris complained about this conduct, the company president said he was surprised that Harris was offended, claimed he was only joking, and apologized. He also promised he would stop. Based on this assurance, Harris stayed on the job. But a few weeks later the prob- lem began anew. Harris quit, and then she sued Forklift Systems, claiming that the president’s conduct had created an abusive work environment for her because of her gender. The lower federal courts held that the situation had not created an abu- sive environment. The courts found that the comments would offend any reason- able woman but that they were not “so severe as to be expected to seriously affect [Harris’s] psychological well-being.”

The Supreme Court agreed to hear this case to resolve the conflict over just what constituted a “sexually abusive” work environment. Associate Justice Sandra Day O’Connor, in writing the majority opinion of the Court, asserted that Title VII’s protections necessarily had to “come into play before the harassing conduct leads to a nervous breakdown.” Victims do not have to prove “concrete psycholog- ical harm,” only that the offending conduct “would seriously affect a reasonable person’s psychological well-being.” Thus the new standard holds that “so long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious.” In effect, there is no need to wait for it to lead “to a nervous breakdown.” O’Connor concluded that “while psychological harm, like any other relevant factor, may be taken into account, no single factor is required” because this is not, and by its nature cannot be, “a mathematically precise test.”

The story of Joseph may be the first recorded instance of on-the-job sexual harassment. More than three millennia later, the issue is still being debated within the courts. Progress has certainly been slow. But the quest for social equity at the office seems to be finally passing into a phase of resolution.

For Discussion: How has it come about that the sex discrimination prohibition of the Civil Rights Act of 1964 has been applied to sexual harassment? What are the Supreme Court’s rulings about the minimal obligations of employers regarding sexual harassment?