Exceptional Proff 602

the journal of policy history , Vol. 27, No. 1, 2015. © Donald Critchlow and Cambridge University Press 2015 doi:10.1017/S0898030614000360

b enton w illiams

“You Were the Best Qualified”:

Business Beyond the Backlash Against

Affirmative Action

In the autumn of 1990, Jesse Helms, North Carolina’s white, incumbent U.S.

senator, trailed African American challenger Harvey Gantt in most polls. One

week before the election, Helms’s campaign ran a television advertisement crit-

ical of Gantt for his support of a Senate bill that would modify the Civil Rights

Act of 1964. Th e camera focused on a pair of white hands crumpling a letter

as an ominous voice-over described the frustration of being rejected for a job:

You needed that job, and you were the best qualifi ed. But they had to

give it to a minority, because of a racial quota. Is that really fair? Harvey

Gantt says it is. Gantt supports Ted Kennedy’s racial quota law that

makes the color of your skin more important than your qualifi cations.

Your vote on this issue next Tuesday:

For racial quotas—Harvey Gantt.

Against racial quotas—Jesse Helms. 1

In contrast to the fate suff ered by the fi ctional owner of the white hands,

Helms kept his job.

Helms’s ad was not an aberration; it was an apogee. Ronald Reagan’s election

in 1980 and landslide reelection in 1984 had already confi rmed the electoral

efficacy of decrying affirmative action as unfair. The repeated political

I would like to thank Pamela Laird, Miranda Lukatch, and Valentina Tikoff .

62 | “You Were the Best Qualifi ed”

victories of affi rmative action’s foes in the 1980s and 1990s had little eff ect on

the practice of private-sector employers. Th at was because in the workplace

affirmative action was not primarily a product of political policymaking.

Rather, through the 1980s and beyond, employers continued the decades-

long, slow-but-steady trend toward a more diverse workplace independent of,

and at times in opposition to, political trends. Human-resources consulting

fi rms and related experts continued suggesting ways to maximize and maintain

diversity. 2 While the Helms ad confi rms that the backlash against affi rmative

action was good politics, the backlash had little direct eff ect on private-sector

organizations where most Americans worked.

Notwithstanding the conservative tilt of politics in the 1980s and early

1990s, the evolution of private-sector affi rmative action in the period was

marked more by its continuity and expansion than disruption. During this

period the respective roles of government and private-sector employers on

affi rmative action became distinct, with the latter superseding the former in

driving actual policy. Employers moved to the forefront of affi rmative-action

implementation during the terms of Reagan and George H. W. Bush, breaking

from the political movement driven by suspicion of government generally

and vigorous rhetorical attacks on affirmative action specifically. Even as

a conservative political movement grew, private-sector affirmative action

became normal business in the 1970s and into the 1980s. More pertinent than

the momentary shifting political debate on race was the longer history of

business and race.

Historian Jennifer Delton has described how, well before the passage of

the Civil Rights Act, large manufacturers were actively seeking to increase

minority participation in their workforces. 3 Lois Kathryn Herr, Marjorie

Stockford, and I, among others, have described how a weak Equal Employment

Opportunity Commission (EEOC) and women’s rights activists convinced

and pressed rather than coerced AT&T to implement affi rmative action with

goals and timetables in 1973. 4 From then to the beginning of the 1980s, EEOC

worked in concert with large fi rms like AT&T, GM, Sears, and GE, and smaller

fi rms toward the goal of a statistically representative workforce. 5

In this article, I will juxtapose these two simultaneous and seemingly

contradictory developments of the 1980s: on one hand, the successful ideo-

logical campaign against affi rmative action waged by Ronald Reagan and his

political appointees and supporters, and on the other, the entrenchment of

affi rmative practices in the private sector. Th e seeming contradiction is partially

attributable to the federal government’s weakness in aff ecting private-sector

b enton w illiams | 63

affi rmative action—with limited power either to enforce or to dismantle pri-

vate employers’ hiring practices—and partially attributable to developments

within the private sector, especially corporate recognition of the need for

“diverse” workforces and specifi c human resource management strategies

that became prominent in the 1980s.

Understanding these seemingly contradictory developments of the 1980s

requires an examination of both the public sector, particularly the federal

government under the Reagan administration, and the private sector. While

a primary contention here is that the federal government had far less power

to determine the adoption and course of private-sector affi rmative action

than is oft en assumed, that common misapprehension was both preceded

and reaffi rmed by the administration’s vocal opposition to private-sector

affi rmative action. Th e article begins by discussing the Reagan administra-

tion and its failed, multipronged attempt to dismantle affi rmative action in

both the private sector and in areas where it had the possibility of wielding

relatively more power: in hiring by federal contractors and in enterprises

directly regulated by executive agencies like the Federal Communications

Commission. Th e next section analyzes developments within the private

sector, especially developments in human resources management theories

and practices, which dovetailed well with affi rmative-action strategies even

while eschewing the explicit reference to “affi rmative action” in favor of the

more palatable goal of promoting “diversity.”

t he r eagan a dministration and the p olitics of

a ffirmative a ction in the 1980s

With Ronald Reagan’s inauguration in 1981, the executive branch became

openly hostile to affi rmative action, which it dismissed as an unfair, group-based

remedy to past problems. Th e recent high-profi le but ambiguously decided

Regents of the University of California v. Bakke case of 1978 had raised the

public’s attention to issues of affi rmative action in higher education admis-

sions, and the Reagan administration used this momentum to attack affi rma-

tive action more generally. 6 In an aside in his 1979 article about the legal

ramifi cations of Bakke , Laurence Tribe downplays the potential political ram-

ifi cations of the narrow, nuanced decision in which the white plaintiff won

because of problems with California’s affi rmative-action plan, but racial affi r-

mative action itself was held to be constitutional. “It is diffi cult to say,” Tribe

writes, “whether a less ambiguous victory for race-conscious remedies would

have invited backlash more than it would have emboldened reform.” 7

64 | “You Were the Best Qualifi ed”

Tribe adds the caveat that his article is not about the politics of affi rmative

action. Tribe’s otherwise excellent article about the meaning of Bakke was

dead wrong about the political eff ect. A backlash did follow and it was not

confi ned to affi rmative action in higher education. While the federal govern-

ment had little power to craft admission policies at public universities, the

area in which the Bakke decision off ered the most direct precedent, some in

the Reagan administration used the wedge issue to try to dismantle affi rma-

tive action in employment, where they did have somewhat more—though

still comparatively little—infl uence.

In the 1980s, there were three principal arenas for affi rmative action in

federal policy, in descending order or federal executive power to shape policy:

fi rst, policies within direct federal purview, specifi cally the executive branch;

second, federal contractors (under Title VI of the Civil Rights Act of 1964 and

previous executive orders overseen by the Department of Labor’s Office

for Federal Contract Compliance Programs); and third, the private sector,

overseen by the EEOC under Title VII. Even though politicians and their

appointees talked about the private sector the most, the private sector is

where the federal government had (and still has) the least power or leverage

to eff ect change.

A few dissenting voices could be heard within the Reagan administra-

tion, but most Reaganites averred that goals and timetables comprised a form

of racial and gender discrimination that violated both the letter and spirit of

the Fourteenth Amendment, Title VI and VII of the Civil Rights Act of 1964,

and other constitutional and statutory civil rights law. 8 While many, including

the president, were ambivalent regarding less controversial attempts to

increase diversity short of setting goals and timetables, such as recruiting

women and minority applicants, the overall tone of the administration was

unmistakably hostile to affirmative action. This ideological opposition to

affi rmative action became more pronounced over the two-term presidency.

We see this, for example, in the displacement of moderate or dissenting voices

by more stridently anti-affirmative-action figures such as Edwin Meese;

in public documents that articulated the anti-affi rmative-action stance, most

prominently a 1987 Department of Justice report that claimed that affi rmative

action was fundamentally unjust; and in strategies for undermining the EEOC,

several of which came together in the appointment of Clarence Thomas as

EEOC chairman.

Under Department of Labor regulations pursuant to Lyndon Johnson’s

Executive Order 11246 and Title VI of the Civil Rights Act, federal contractors

since the 1960s were required to use “affi rmative action,” interpreted by the

b enton w illiams | 65

enforcing agency, Offi ce of Federal Contract Compliance Programs (OFCCP),

to mean specifi c goals and timetables for minority and female employment.

As of 1985, Secretary of Labor William Brock oversaw the OFCCP. Brock sup-

ported this affi rmative-action status quo applied to federal contractors by the

OFCCP. According to New York Times fi nancial and political analyst Kenneth

Noble, Brock’s political career began “in Congress as a tart-tongued conser-

vative who voted against the Civil Rights Act of 1964.” 9 Yet Brock was not

an ideological Reaganite. His career to that point had included terms as a

Democratic congressman and a Republican U.S. senator from Tennessee, a

stint as Republican National Committee chairman under Gerald Ford and

Reagan, and a brief tenure as special trade representative for Reagan.

He became a Republican early in the shift of many conservative southern

Democrats to the Republican Party and won reelection as a Republican sen-

ator in 1970. Nonetheless, he did not have a reputation for being antagonistic

toward civil rights leaders or their agenda, including affirmative action.

Although he had a lengthy record, straddling his party realignment, the

meaning of that record, particularly in the area of civil rights and race

relations, was ambiguous. By the time of his nomination to be secretary of

labor in Reagan’s first term, he had developed a reputation as a mod-

erate. 10 For example, as a senator he had backed a bill to bar lenders from

racial discrimination. 11 As a trade negotiator, he had pursued open trade,

but he consulted frequently with the AFL-CIO in a departure from his

Reagan administration colleagues. 12 Political analysts at the time of his

appointment as secretary of labor saw him as a compromise candidate

who might appeal to labor and minorities. During his tenure as secretary

of labor, beginning in 1985, Brock championed the equal employment

requirements for federal contractors contained in Executive Order 11246,

including the affirmative-action policies that had emerged pursuant to

that order under the OFCCP.

Brock and his underlings would come to lock horns with more ideologically

strident opponents of affi rmative action, who would become more prominent

in Reagan’s second term. The appointment of Edwin Meese as attorney

general in 1984 signaled the administration’s determination to challenge

more aggressively previous administrations’ affi rmative-action policies. First

as a campaign adviser and then as White House Counsel during Reagan’s fi rst

term, Meese had led the opposition to affi rmative action within the adminis-

tration. While Meese’s predecessor as attorney general, William French

Smith, had opposed affi rmative action, he was a much less vocal or focused

opponent.

66 | “You Were the Best Qualifi ed”

In a 1985 profile in the New York Times , Noble succinctly described

Brock’s position in relation to Meese:

He has had to steer a . . . tricky course in the area of affi rmative

action, where he has clashed with Attorney General Edwin Meese 3d.

Mr. Meese wants to rewrite a 1965 Presidential order [E.O. 11246]

requiring Federal contractors to set timetables to meet numerical

goals in hiring women and minorities. Calling such goals “quotas,”

Mr. Meese says instead that it is suffi cient to encourage the com-

panies to make special eff orts to recruit minorities. . . . Mr. Brock . . .

says he is fl exible about this, but wants the Labor Department to

retain the right to impose numerical goals if need be. 13

Although he thwarted Meese’s eff orts to eliminate OFCCP’s authority to

require goals and timetables under EO 11246, Meese continued to pursue his

overt efforts to eliminate numerical goals from the rules. Joseph Cooper,

director of the OFCCP under Brock, charged that the administration was

limiting the OFCCP’s power when it limited its resources. Although this may

have been part of the administration’s overall eff ort to limit spending rather

than a plan to gut federal contractor affi rmative action, precise motives matter

little to the net result: the OFCCP and the Labor Department as a whole were

undermined by the reductions of their budgets and the lack of administration

support in enforcing their rules or pursuing action against federal contrac-

tors. Th e OFCCP rules applied to 23 million employees working for twenty

thousand federal contractors at more than seventy thousand sites, but OFCCP

lacked the resources to oversee even a signifi cant fraction of these sites. 14

Cooper resigned in protest in January 1987, alleging that even though the

stated goals of the OFCCP had not changed, Labor and the administration

were only paying lip service to the mission.

As with OFCCP federal contractor affi rmative-action regulations, Federal

Communications Commission (FCC) licensing set-asides were the target of

both a failed direct assault and a more successful circuitous assault on the

eff ectiveness of the program in the form of budget caps on the enforcing

agency and tepid support of the agency’s mission. Th e FCC licensing regula-

tory scheme was similar in practice and goals to federal contractor affi rma-

tive action. Th e purpose of these FCC regulations was to address a lack of

diversity in broadcast content; ownership was the means to that end rather

than the end itself. 15 Under previous Republican and Democratic administrations

from the 1950s to the early 1980s, the FCC had enacted racially conscious

licensing procedures to rectify the gross racial imbalance in ownership of radio

b enton w illiams | 67

and television stations in the United States. Under Reagan, the FCC sought to

change regulations that promoted minority ownership of broadcast outlets,

arguing (among other things) that the regulations were unconstitutional.

(In 1990, the Supreme Court would uphold the contested FCC regulations.) 16

Th e administration’s failure to aff ect affi rmative action even where it had the

power to do so did not stop it from opposing it where it had less clear power

to act: in the private-sector workplace. Federal contractor and broadcaster

regulations affected 23 million employees, but more than four times that

number—approximately one hundred million employees in the nonfederal

contractor private sector—were not covered by executive regulations. 17

The Department of Justice under Meese did not allow its lack of leverage in

this arena to muffle its voice. The Meese Justice Department articulated

the administration’s blanket opposition to affi rmative action in a 1987 study,

“Report to the Attorney General: Redefining Discrimination: ‘Disparate

Impact’ and the Institutionalization of Affi rmative Action.” 18 Despite Attorney

General Meese’s avowed hope, articulated in the preface, that the report

would “generate considerable thought on a topic of great national impor-

tance, a topic about which there are several reasonable points of view,”

it refl ected Meese’s own condemnation of affi rmative action generally and

affi rmative action in the area of non-federal-contractor, private-sector employ-

ment particularly.

A lack of power to influence employment practices outside federal

contractors and federally regulated business did not stop the Meese Justice

Department from declaiming the injustice of those practices. Meese and the

administration expressed opposition to affi rmative action in all its forms and

in all sectors, with particular attention to its use in hiring and promotion

decisions. In the “Executive Summary,” the report states, “If ‘discrimination’

is understood to mean statistically disproportionate eff ects alone, the result

will be nothing less than the permanent institutionalization of race- and gender-

conscious affi rmative action.” 19

Th roughout, the Justice Department report questions whether affi rma-

tive action was ever really voluntary. It argues that affirmative action was

becoming more prevalent because of employers’ fear of “potential Title VII

liability . . . whenever their workforces are not statistically representative of

the surrounding area. In response, employers now commonly engage in

‘voluntary’ race- and gender-conscious hiring practices.” 20 Th e report never

delved more deeply into employer motives than repeated use of ironic quota-

tion marks around the word “voluntary.” In a footnote on the term “voluntary,”

the report cited a law review article comparing the voluntary action of

68 | “You Were the Best Qualifi ed”

employers to a confession in a criminal case resulting from torture. 21 Th e

comparison is fallacious. Th e analogy between torture-induced confessions

and forcing preferential hiring practices on employers, while irredeemably

absurd, might at least be relevant if the federal government was, in violation

of Title VII, Section J, and without enforcement power, forcing preferential

hiring practices on employers. 22 Just as the state is explicitly barred from

using torture, the federal government is explicitly barred from requiring pref-

erential hiring under Title VII. More important, the federal government had

no means to require affi rmative action, while police have had the means to

torture. Neither the report nor any sources cited in it show how the govern-

ment was coercing employers to implement affi rmative action.

Th e report assumed rather than attempted to prove that the government

was forcing employers to implement affi rmative action, missing an opportu-

nity for a more nuanced discussion of how federal policy might be shaping

employer practices. Like so many pundits and scholars writing on affi rmative

action, the report ignored employers’ roles and motives. Particularly, it ignored

the possibility that employers might have their own reasons for developing a

racially balanced workforce. Once the report dismissed the possibility that

employers had agency in their own employment decisions, the Meese Justice

Department was free to ignore employer interests in affi rmative action while

putatively advocating on behalf of those same employers. Th is divide between

the Justice Department and employers became clear in the subsequent

discussion of the Uniform Guidelines on Employee Selection Procedures

(UGESP). Th e UGESP was a set of regulations proposed by EEOC in 1977 and

enacted in 1978 aft er the agency had failed with more stringent proposed reg-

ulations. In comments fi led with the agency in 1978, no major fi rm expressed

any substantive objection to the UGESP; they only raised questions of clarifi -

cation. Moreover, smaller firms were principally concerned with record-

keeping burdens. Th ey made no mention of EEOC’s parameters for whether

an employment test had a disparate impact (i.e., regardless of intent, the practice

resulted in statistically disproportionate selection) in their correspondence.

Of those opposed to the substance of the proposed guidelines, none appears

to have been employers. Further, none of the responding employers criticized

the “four-fi ft hs rule,” the section of the UGESP most likely to encourage affi r-

mative action. 23 Although an employer’s correspondence to EEOC might in

other cases be less than completely candid, in the context of these comments

on the UGESP, there was no indication that employers were reticent. Th ey felt

quite free to criticize EEOC on a number of issues, so their silence on the

four-fi ft hs rule can be taken as tacit assent or at least indiff erence.

b enton w illiams | 69

Despite employers’ indiff erence to the four-fi ft hs rule, the Justice Depart-

ment authors focused on that section. Reading the four-fi ft hs rule in tandem

with Griggs v. Duke Power , a 1970 Supreme Court case which had found that

unnecessary business practices that resulted in a “disparate impact” could

be used as evidence of discrimination, 24 the report concluded that reverse

discrimination was an employer’s only real choice. “Federal enforcement

agencies” using the “doctrine” derived from the UGESP and Griggs “virtually

compell[ed] employers and unions to adopt race- and gender-conscious affi r-

mative action programs to reduce or eliminate statistical disparities in

employee workforces.” 25 Th e report correctly pointed out that in subsequent

cases, United States Steel v. Weber 26 and Wygant v. Jackson Board of Ed. , 27 the

Supreme Court found for a defendant/employer who had been sued by a

white and/or male employee for reverse discrimination. 28 In upholding the

employers’ affi rmative-action plans, the Court said that rectifying an imbalance

was justifi cation for race- or gender-conscious affi rmative action. Of the three

cases, though, only Griggs bars specifi c actions by an employer, and none of

the cases requires an employer to do anything, including implementing affi r-

mative action. Weber and Wygant (and subsequently Johnson ) allow, but do

not require, employers to use affi rmative action. Based on these three cases

that the authors of the report chose to highlight, it would seem that it was not

employers but white employees who the authors wanted to protect. Further,

the employees had their employers, not government regulators, to blame.

The report then implied that the cost of affirmative action to private-

sector employers was billions of dollars in lost productivity, without actually

analyzing costs and benefits, thus again ignoring the interests of the very

private-sector employers whom the report purported to defend. Th e report

invoked cost-benefi t analysis (sans actual analysis) in the none-too-subtly ti-

tled section, “An Engine of Discrimination: Th e Moral and Economic Toll.” 29

Th e report implied that affi rmative action was a drag on the private-sector

economy, but it made no clear case, relying instead on an argument with the

specious assumption that qualifi cations are measurable. Aft er repeating the

moral argument (affirmative action reifies race and gender), the authors

dedicated a little over one page of the 158-page report to economic impact,

glossing over the key and subtle issues of the “minimally” versus “most” qual-

ifi ed and the measurability of individual productivity in a complex system.

Th e authors instead suggested that the use of “employee screening devices,”

that is, employments tests, would improve firms’ productivity: “Various

studies have established that the optimal use of employee screening devices

has signifi cant implications for productivity, and that the productivity savings

70 | “You Were the Best Qualifi ed”

from the use of such screening devices can be in the billions of dollars for an

employer the size of the federal government.” 30 Th is passage indicates that the

authors probably understood yet chose to diminish the daunting problems in

attempting to understand and quantify productivity. 31

Th e report describes the benefi ts of an “optimal use” of screening tests as

having “signifi cant implications” for productivity. Yet the link between testing

and productivity was (and remains) not as clear as the report suggests.

The first problem with tests, as arose in the Griggs case and as the UGESP

attempted to rectify, was that employers oft en failed to use tests optimally

for productivity. Rather, tests were used as an easy step in screening many

applicants quickly. Further, private-sector test usage declined initially in

reaction to Griggs but increased again aft er enactment of the UGESP. 32

Th us, these assertions that testing provided discreet advantages that affi r-

mative action did not, that testing and affi rmative action were exclusive,

and the underlying assertion that the private sector wanted testing exclu-

sively and that the government wanted affi rmative action exclusively were all

unfounded.

Th e report also noted that the savings could be in the billions of dollars

for an employer the size of the federal government as a result of increased

productivity and reducing the need for interviews. Th ere was no employer

the size of the federal government, though, other than the federal government

itself. Moreover, there are differences other than size between the federal

government and private employers, such as the government’s insulation from

market forces.

While opponents of affi rmative action in the Reagan Justice Department

were mistaken in their analysis, proponents of affi rmative action remained

just as far from the crux of the issue. Th ose defending affi rmative action oft en

ignored affi rmative action’s more controversial manifestations. Affi rmative-

action supporter and Reagan critic Fletcher A. Blanchard wrote an illustrative

article; published in 1988, this work appeared in a volume co-edited by

Blanchard almost simultaneously with the Justice Department report. 33

Defending affi rmative action in the face of the backlash, Blanchard used most

of his article to rehash the moral argument for affi rmative action and then

spent three pages discussing affi rmative action in general, with no analysis of

who implemented affi rmative action or who it aff ected. Th is kind of analysis

rendered socially conscious supporters of affirmative action as irrelevant

as their equally moralistic opponents. By focusing on social justifications,

Blanchard simply ignored the private sector’s motivations in implementing

affi rmative action.

b enton w illiams | 7 1

In its eff ort to eliminate affi rmative action in the private-sector workplace,

consistent with the Report to the Attorney General, the Reagan administra-

tion targeted EEOC. Th e Reagan administration’s EEOC strategy consisted

of three eff orts: cut EEOC’s budget; convince federal judges that disparate

impact, EEOC’s primary legal tool, was not acceptable evidence; and change

EEOC from within by the appointment of commissioners opposed to its mis-

sion. Th e administration was modestly successful in undermining the agency,

but it failed completely to curtail affi rmative action because its presumption

that EEOC was the source of private-sector affi rmative action was wrong.

As with many of its budget battles, the administration did not get all the

reductions it sought. Th e administration succeeded in holding the line on

EEOC budgetary growth but little else. 34 Since EEOC was already woefully

underfunded, this ensured that despite former EEOC chairman Eleanor

Holmes Norton’s streamlining of the agency’s claims-processing procedure

under Jimmy Carter, EEOC was eff ectively unable to oversee employers and

process the hundreds of thousands of claims it was receiving annually. However,

because most claims that made it to trial or settlement were already being

pursued by private claimants rather than EEOC, this did not signifi cantly

change conditions for employers. In other words, EEOC was already far from

the most important factor in shaping employer conduct through legal action,

so weakening EEOC further made little diff erence. 35

Meanwhile, the Justice Department attempted to limit if not eliminate

the use of disparate impact evidence fi rst allowed by the Supreme Court in

the preceding decade in the Griggs case, but it was thwarted by a federal

judiciary reluctant to alter the law in any signifi cant way. 36 Reagan’s Justice

Department and Solicitor General supported defendants repeatedly as amici

curiae (“friends of the court” who are not parties in the claim). In that role,

executive branch lawyers sought to reduce previously recognized parameters

for a cause of action and to limit plaintiff s’ use of disparate impact theory and

other evidence that went beyond clear discriminatory intent in Title VII

cases. Meanwhile, as discussed further below, even the EEOC under Reagan-

appointed chairman Clarence Th omas did not abandon the tool of disparate

impact theory in pursuing claims of employment discrimination on behalf

of individual plaintiff s. Th us, while the executive branch was working to

limit plaintiff s’ recourse to disparate impact evidence, a semi-independent

commission of the executive branch was using that very evidence on behalf

of plaintiff s.

The third part of the administration’s plan to eliminate private-sector

affi rmative action was Reagan’s nomination of conservatives to key positions

72 | “You Were the Best Qualifi ed”

at the EEOC. The administration’s three approaches were not exclusive.

Indeed, they came together in the person of conservative, African American,

Republican Clarence Th omas, who was intended to oversee the implementa-

tion of Reagan’s anti-affi rmative-action agenda. Th omas would fi nd during

his two terms as chairman of EEOC, though, that EEOC never was the only

or most important party desirous of quota hiring. Even if employers did not

have their own reasons for seeking diversity, as long as either EEOC or pri-

vate plaintiff s sought to use the court system to deter discrimination in hiring,

employers would have an incentive to implement hiring quotas as a defense.

By the standards of the Reagan administration, Th omas was not a partic-

ularly controversial nominee at the time of his 1982 nomination, although he

said he was an opponent of “aggressive” affi rmative action. Opponents and

supporters alike believed Th omas’s tenure would possibly mean the end of

affi rmative action in private business. Nonetheless, in the context of the broad

challenges to the civil rights agenda under Reagan, Th omas’s 1982 nomina-

tion seemed a welcome compromise to many observers. 37 At his fi rst EEOC

nomination hearing, Th omas provided little hope that he would be a forceful

advocate of affi rmative action, but neither did he express unequivocal oppo-

sition to it. 38 In his prepared statement at his Senate nomination hearings,

Th omas did not clearly state his precise position on the issue that could have

clarifi ed his stance on affi rmative action: the use by plaintiff s of disparate

impact evidence. 39 While the Supreme Court had allowed the use of such

evidence, Thomas could have announced his intention not to have EEOC

use disparate impact theory in pursuit of claims of discrimination. Instead,

Th omas indicated that he was aware that a disparate impact might continue

long aft er disparate treatment had stopped, and that the impact itself should

be addressed:

Today, employment discrimination, coupled with the vestiges of

past discriminatory practices, continues to prevent many citizens

from becoming a part of the mainstream of the American economy.

Consequently, when we address instances of employment discrimi-

nation in modern employment practices, we cannot ignore years of

discrimination that certain groups suff ered because of their race,

color, sex, or religion. I believe that I will bring to the Commission

the appropriate understanding of and sensitivity to the problems of

employment discrimination in this country. 40

In this statement, Th omas expressed awareness of the durability of disparate

impact while avoiding any commitment to using disparate impact evidence.

b enton w illiams | 73

The Senators questioning Thomas did not push the point either. For

example, the Republican chairman of the committee, Orrin G. Hatch of

Utah, did not ask Th omas how the use of disparate impact evidence might

encourage employers to use affi rmative action. Rather, he based his questions

on the mistaken assumption that EEOC had previously required hiring

by quotas, and then he sought to find out if that nonexistent practice

would continue. Hatch prefaced his questions with references to President

Reagan’s attorney general and assistant attorney general for the Civil Rights

Division, both of whom had made policy statements indicating a departure

from the alleged practice of requiring quota hiring. 41 Hatch asked Th omas,

“As Chairman, what approach will you take?” 42 Th omas answered that he

opposed quotas but understood the need for goals and timetables in light of

“innate racism,” a meaningless answer to a meaningless question.

Democratic Senators seemed equally unaware of how EEOC operated,

and Th omas did not use the hearings to clarify the parameters within which

the agency functioned. Senator Th omas Eagleton, Democrat from Missouri,

quoted and sought Th omas’s response to this defi nition of affi rmative action

articulated by outgoing Carter-appointed chairman Eleanor Holmes Norton:

Affi rmative action is really a set of techniques for rectifying discrim-

ination which consist mainly of forcing personnel systems to become

more objective and to eliminate preferences built in not necessarily

viciously but because of the way society was organized. . . .

. . . if an employer has hardly any minorities and women, that

employer is going to have to recruit in a very vigorous way from the

excluded groups. And, in order to know that he is doing it and his

personnel system itself is being reformed so that it no longer reaches

for one or two kinds of people, you use goals and timetables to track

the reform of a personnel system, just like we track other things by

numbers. 43

In his response, Th omas again did not address the mistaken underlying

assumption that the employer was forced by EEOC to eliminate preferences

and would have to use affi rmative action to rectify imbalances. Instead, he

avoided the question, saying that while there may be disparity, the disparity

“may occur long before the employment level.” 44 He did not commit on the

issue of resolving “numerical disparity” (i.e., disparate impact) in his responses.

Th e misunderstanding persisted. Th e familiar pattern reemerged four

years later, at Th omas’s 1986 nomination hearings for a second term as EEOC

74 | “You Were the Best Qualifi ed”

chair. In his questions to Thomas, Senator Paul Simon, Democrat from

Illinois, referred to a previous statement in which Th omas had said, “I do not

support the use of goals and timetables. I do not think as a practical matter

that they work.” 45 Simon asked Th omas if that was still his position. Th omas

evaded Simon’s inquiry by responding, “We must continue to develop a

systemic program that focuses on discernible patterns and practices of dis-

crimination and eff ectively eliminate them from the workplace.” 46 Th us, at

both the 1982 and 1986 nomination hearings, Th omas and his interlocutors

focused on whether EEOC should require affi rmative action, a power they

did not have, rather than what EEOC actually could do.

While Th omas’s lack of clarity on the disparate impact issue and ambiva-

lence about the use of quotas to remedy a racial or gender imbalance emerged

at the nomination hearings, he was nonetheless unequivocal about his sup-

port for Title VII and his opposition to discriminatory employment practices.

He openly stated that he considered every case of discrimination morally and

legally wrong. Indeed, Th omas was “incensed” that the rapid charge system

under his predecessor, Norton, had led to the dismissal of cases with possible

merit in the name of streamlining the process and reducing the claims back-

log. In response, Th omas eff ectively took EEOC back to the pre-Norton era of

investigating individual charges of discrimination. 47 Th e real irony is that as

Th omas led EEOC to shift the emphasis back to individual claims of discrim-

ination and away from Norton’s systemic focus, the EEOC had to gather and

use disparate impact evidence. His deputy Michael Middleton and EEOC

general council Peggy Mastroianni pursued disparate impact cases with vigor

and, according to both, with his blessing. For example, Mastroianni used

disparate impact evidence in EEOC’s action against J. C. Penney in 1988 and

against General Telephone of Northwest in 1989, among many other cases

that EEOC brought against employers based on a disparate impact during

Th omas’s tenure. 48 Th e only message an employer could take from that policy

was that a measurably diverse workforce was the best evidence against a Title

VII charge. Th us, Th omas’s EEOC gave employers who had already embarked

on affi rmative-action practices no reason to change course and some encour-

agement to those considering affi rmative action.

Yet Th omas’s own rhetoric, viewed in isolation from his actions at the

helm of the EEOC, would suggest a diff erent story. As EEOC chairman, Th omas

echoed the administration line that affi rmative action was discriminatory, the

government was to blame, and the government should end it. In an op-ed

piece appearing in USA Today near the end of his fi rst term, he explained his

vision for the agency by saying what he believed was wrong with EEOC

b enton w illiams | 75

before his term: “Th e government encouraged and required employers to

institute the very practices that sponsors of the civil rights law had observed

‘are themselves discriminatory.’ Equally ironic is the willing acceptance of

these practices by corporate executives who, if personally aff ected by them

would undoubtedly object.” 49 With this bold rhetorical stand rejecting affi r-

mative action, Th omas sacrifi ced nothing; he merely alienated the civil rights

groups who already opposed him. When Th omas was nominated for a sec-

ond term as EEOC chairman in 1986, unsurprisingly no civil rights groups

appeared at the hearing to support his reappointment. 50 Th is freed him to

claim the moral high ground alongside the sponsors of the civil rights law by

blaming the former EEOC that had “required” employers to implement affi r-

mative action and the corporate executives who then willingly accepted these

“discriminatory” practices. Th e problem with Th omas’s bold rhetoric is that

it mischaracterizes both the erratic record of EEOC before 1982 and the

nuanced, ongoing relationship between EEOC and employers that continued

throughout the 1980s. EEOC did not—and indeed, could not— require private-

sector employers to do anything.

Despite public commitments to see the practice ended, affi rmative action

in all its forms survived the Reagan presidency. Reagan and his political allies

eff ectively used the popular backlash against affi rmative action to win elec-

tions throughout the 1980s, but Reagan’s policy had limited eff ect and the

administration was far from unifi ed in its commitment. Affi rmative action,

while dealt some limited setbacks, was essentially unchanged in the American

regulatory system. The Justice Department and Solicitor General failed to

undo affi rmative action in the courts in the FCC cases or even in executive

orders. Th e already-weak EEOC was eff ectively removed from the workplace

as its budget withered, but disparate impact theory was neither ignored by

EEOC nor abolished in the courts as Meese and like-minded Reagan admin-

istration offi cials had hoped. Although EEOC’s regulatory framework for

private-sector, nonfederal contractor affi rmative action was little more than

guidelines and suggestions, it was not signifi cantly weakened by eight years

of the Reagan revolution, leaving affirmative action firmly in the hands of

employers—where it was, in fact, becoming more entrenched.

e mbracing d iversity: h uman r esources d uring the

b acklash

While the Reagan administration and the conservative backlash represented one

plausible but ultimately ineff ectual threat to private-sector affi rmative action,

76 | “You Were the Best Qualifi ed”

the more serious threats were developments in human resources thinking.

In the 1970s and early 1980s, a transition to a rational model of human

resources management within private-sector fi rms had nicely accommo-

dated the adoption of affi rmative-action practices (albeit rarely under the

guise of this particular label). Subsequent challenges to these human resource

management principles in the late 1980s and 1990s thus posed a genuine

if subtle threat to the continued use and expansion of affi rmative action in

private-sector employment. Yet the threat did not materialize because, at the

same time, many private-sector employers became convinced of the legal and

economic benefi ts of a diverse workforce and saw affi rmative-action policies

as an eff ective way of reaping these advantages.

While the supporters and opponents of affi rmative action were fi ghting

in the political arena, private-sector employers took little notice. Rather,

employers were focused on rationalizing hiring procedures. Most large

American fi rms had rationalized production, design, accounting, marketing,

and fi nancing by the early twentieth century. Although rationalization of

personnel lagged behind these other areas, by the 1970s human resources

management (HRM) had long since become the norm in American business

with the promise of eliminating or reducing bias and guesswork. 51 Th e study

of human resources planning, a tenet of the larger “Total Quality Manage-

ment” trend, became ensconced in the business academy and press in the 1980s.

Its adherents believed that productivity could be maximized by applying to

hiring and promotion procedures the same rationalized management tech-

niques that had been so successful in design and production. Th e increasing

role of human resources studies in business schools made the rationalized

systems even more prevalent in the business sector. While the term “affi rmative

action” seemed to have fallen into disfavor with the rise of human resources

management, the practice remained, grew, and evolved in large part because

it dovetailed well with the new human resource management principles.

A good example is Rosabeth Moss Kanter’s 1983 book, Th e Change Masters:

Innovation and Entrepreneurship in the American Corporation . In it, Kanter

described her version of HRM as a rationalized, transparent, and objective

system dictating how personnel decisions should be made. 52 According to Kanter,

if the system was properly implemented, a job or promotion candidate should

know his or her standing with the employer and where improvement could

be made. The judgment of the supervisor would be just one factor among

other more objective performance standards. 53 She highlighted cases of HRM

implementation in the 1970s at center firms such as General Motors. In

a system such as this, affi rmative action (or “diversity standards,” as was the

b enton w illiams | 7 7

more popular term in the business community in the 1980s and beyond)

could be considered a factor as well.

Yet even as Kanter was writing, rival human resources scholars were pre-

senting alternatives to the HRM system. Elmer H. Burack’s Creative Human

Resources Planning and Applications: A Strategic Approach was typical of the

academic human resources literature that challenged objective systems like

Kanter’s HRM in the 1980s and 1990s. 54 Burack recognized the limitations of

rationalization and was critical of the approach only a decade aft er rational-

ization had revolutionized human resources. His approach off ered new language

and thinking about the role of line managers and threatened affirmative

action by offering to empower lower-level managers and to remove the

rationalized strictures that had fostered the growth of affi rmative action to

that point. If rationalized systems like HRM had facilitated the rise of affi rma-

tive action, then changes to that rationalized system along the lines recom-

mended by Burack might threaten to undermine affi rmative action as well.

But a closer examination of works like Burack’s book and the environment in

which employers read it (and to which they applied it) reveals that while it

represented a potential threat to affi rmative action, in the end works like this

generally buttressed the practice.

Burack advocated a transition to a more fl exible approach in manage-

ment, a transition that he said was already occurring by the end of the 1980s.

He described this transition in the human resources management of American

fi rms by fi rst describing the approach taken before the transition. He described

the HRM status quo as the “rational managerial model”:

Th is model placed professional or management practice largely in a

problem-solving mode. Th e individual focused on problem defi nition

and identification of alternatives (means) to achieve well-defined

ends. Models were used extensively, and bases were also provided

for making choices. Its prescription of specifi c steps for a particular

end objective (problem solution) were [ sic ] understandably appealing.

Some successes and the well-defi ned structure of this approach led to

wide-scale adoption in much managerial and professional practice. 55

Although Burack was describing a managerial philosophy applicable to

any circumstance, and nowhere mentioned affirmative action, he could

just as easily have been describing the adoption of goals and timetables

that line supervisors and bottom-level managers were encouraged to meet in

hiring and promotion decisions. Once upper management saw lack of diversity

as a problem and linked promotions and bonuses for middle management to

78 | “You Were the Best Qualifi ed”

meeting goals and timetables as the solution, affi rmative-action practices

were inevitable. Th e question presented by Burack’s refl ective approach was:

If line managers were given power to make hiring decisions based on their

instincts, would that mean a return to the cronyism that preceded the rational-

ized human resources approach that had taken that power out of managers’

hands?

To analyze this transition and answer the question raised by Burack’s

approach, we must consider fi rst what the business community was moving

toward and then whether it was making a real transition, as Burack claimed.

Burack described the new model, which he called “refl ection in action,” as “an

art form which was more adaptive and action oriented. . . . Each [manager]

had to draw from a broad repertoire of knowledge and experience which was

then tailored to the situation they faced. Th is dynamic managerial process

called for more inductive and refl ective thinking.” 56 If the more formulaic

rational model’s focus on problem and solution led to affi rmative action, then

this reflective model of Burack’s opened the door to personal bias and

discrimination on the part of a reflective manager relying on his or her

own “repertoire.”

Yet affirmative action survived this latest and most serious challenge.

While the language of refl ective management was a cultural phenomenon

sweeping the American workplace in the 1980s, at least in managerial

rhetoric, “diversity” was also becoming ingrained in the explicit value system

of the emerging corporate culture as also refl ected in the managerial rhetoric.

Setting aside the question of whether the line manager was ever as empow-

ered in areas outside demographic counting, as Burack’s reflective model

anticipated, firms clung to and expanded affirmative action as part of the

rhetoric of “diversity.”

To understand how an emphasis on diversity withstood the potential

threat that Burack’s empowered manager represented, we must understand

the power of 1980s corporate culture to shape the actions of those doing

the hiring, even in the absence of externally devised goals and timetables.

A rhetorical consensus emerged in American corporate culture in the 1980s,

emphasizing the importance and value of “diversity” though not the impor-

tance and value of “affi rmative actions,” and certainly there was no explicit

embrace of “quotas.” This consensus could be found in the business press,

business conferences, business publicity, and in the business academy.

In other words, business people were telling themselves to be diverse, telling

the world they were diverse, and being told by experts how to be diverse.

Employers learned the language of inclusion and diversity. More important,

b enton w illiams | 79

they learned the costs and benefi ts of affi rmative action based on experience,

specifi cally that the costs were negligible and the benefi ts, although rather

small, were still of some consequence. Th ey did not usually cite good public

relations as a benefi t, but the act of touting other benefi ts is itself a form of

public relations, aimed at several diff erent audiences—customers, shareholders,

subordinates, and activists. By the end of the 1980s, this shift was mostly

complete.

In 1991, Th e Conference Board, an organization representing corpora-

tions interested in social issues since 1916, held a symposium in Chicago that

demonstrated the ubiquity of the rhetoric of diversity among corporate

leaders. At the symposium, CEOs, other senior executives, and business

scholars discussed diversity. They had little disagreement over values or

objectives. Th e contributors agreed that diversity was good, but they were

rarely specifi c about which policies would lead to increased diversity and

appeared loathe to say anything controversial. Moreover, they expressed the

belief that diversity was only going to increase in the American workplace.

Th e only apparent disagreement was over the means to attaining diversity,

and even that disagreement was spurious. Speakers believed in policies that

lead to affirmative action more than others, or so they averred. This was

a straw-man argument; no one at the symposium expressed opposition to

affi rmative-action practices, although the term itself was not popular.

At the same symposium, Delores Wolf, former vice president of per-

sonnel resources at American Airlines, wrote that diversity was inevitable

and that “the manager who recognizes and relishes change and capitalizes on

new ideas that stem from such variety will be a formidable force in the

future.” 57 Wayne E. Heiden, chairman and CEO of Allstate Insurance, dispar-

aged “affi rmative action” compared to “diversity,” writing, “It’s obvious to us

[Allstate] that managing diversity is not just a work force issue; it is a business

issue. Affi rmative action is a work force issue; managing diversity is a com-

petitive issue. It’s a competitive and a business issue because it touches both

customers and employees.” Neither Wolf nor Heiden said specifically why

it was advantageous or what, if anything, their companies did to encourage

diversity or explain the difference between “diversity” and “affirmative

action.” 58

In the session’s fi nal presentation, “Making Sure Diversity Works at U.S.

West,” Richard D. McCormick, president and CEO of U.S. West, was more

specifi c about how to increase diversity 59 He faced the straw man squarely

and vanquished his foe, the ominous “many CEOs.” He spoke of his exploits:

“Many CEOs have told me that the key to the entire diversity issue is to just

80 | “You Were the Best Qualifi ed”

hire people without regard to race or sex or place of national origin, and the

cream will rise to the top. . . . I’m one CEO who thinks they’re wrong—that

diversity doesn’t triumph by just opening the doors on the ground fl oor.

Work force discrimination is alive and well and insidious. Sometimes it’s

intentional and sometimes unintentional.” 60 While this declaration was pat-

ently self-serving, McCormick may have touched upon a potential problem

that served as the motivation for both federal regulators and private employers

alike to seek the sanctuary of quotas. If discrimination was both pervasive

and invidious, hidden even from those who unwittingly discriminated, then

affirmative action may have been the only, or at least the most effective,

bar to discrimination. Having identifi ed the problem, McCormick went on to

describe, in still-vague terms, the nature of the problem and how to solve it:

“Th e Labor Department’s study on the ‘glass ceiling’ pointed out three unin-

tentional methods of work force discrimination: word-of-mouth recruiting,

lack of access to management development training for women and minor-

ities, and the failure of executives and top management to really promote the

advancement of women and minorities. I’m convinced that this last point is

the key: concerted, continuous eff ort by top management. Th e tone has to be

set by the CEO, by words and actions.” 61 With this, McCormick placed the

CEO in the driver’s seat.

McCormick described just how a CEO could aff ect the practices within a

fi rm without resorting to written policy. While the following is a painfully

self-aggrandizing description of McCormick’s role in shaping affirmative

action at a Bell subsidiary (before he was CEO of U.S. West), it shows the

connection between a policy that was not overtly affi rmative action and a

practice that was affi rmative action:

When I was CEO of Northwestern Bell, we had many years of good

work on affi rmative action and equal opportunity. We moved people

well in the corporation and saw a lot of progress in our business. Th e

specifi c terms were set by a consent decree that involved AT&T, but

the tone of our corporation was set by my predecessor, one of the

fi nest executives I’ve ever known. Most of the managers said the

right things, and had their hearts in the right places, but the old

habits lived on in our company. I recall asking one of our offi cers

why I still didn’t see any black employees in his department. He told

me that they couldn’t fi nd any. I then said that I wouldn’t fi nd his

bonus until he did. Not surprisingly, within about six months he

found two qualifi ed blacks. 62

b enton w illiams | 81

McCormick linked affirmative-action goals with financial bonuses. While

McCormick made the use of the bonus here appear capricious, he nonethe-

less showed its potential eff ectiveness, even if the anonymous manager might

have had a very diff erent version of this strategy.

Like Northwestern Bell, a much smaller fi rm, Abbott Laboratories, used

bonuses to increase the workforce participation rates of women and minor-

ities. Ellen Walvoord (Abbott’s director of human resources from 1995 to 1999)

instituted a bonus-based affi rmative-action system as part of a larger human

resources plan that she instituted at Abbott. Unlike McCormick at North-

western Bell, Walvoord instituted her system as a formal policy. At Abbott,

Walvoord says the involvement with EEOC was minimal and not adversarial.

No EEOC representative ever met with Walvoord herself. EEOC never

initiated serious action against Abbott, other than the occasional dead-end

investigation of individual charges. By the early 1980s, EEOC seems to have

become just another source of advice for employers in the area of race and sex

discrimination. 63

By the 1990s, an entire industry had grown up around advising employers

in the area of human resources, including affi rmative action, or as it was more

popularly called by then, “diversity initiatives” or “diversity enhancement.”

At Abbott, Walvoord instituted the Performance Management System during

her term as head of human resources in the 1980s and 1990s. As the vastly

larger GM had with the Human Resources Management System, Abbott

established a system for reviewing performance at every level of the fi rm with

knowable goals and transparent, objective standards. For supervisors and line

managers, affi rmative-action goals were included in their dossiers and could

be weighed in determining bonuses, promotions, or disciplinary action. 64

Th us, diversity was simply another criterion under which a manager was

evaluated with rewards for meeting objective standards.

Th e systems of rewards linked to diversity goals described in the AT&T

Consent Decree, and by Walvoord of Abbott, and McCormick of Northwestern

Bell and then U.S. West, while far from identical, share basic methods and a

predictable outcome. In these cases, affi rmative action followed. Th ese hier-

archical, objective systems differ significantly from the reflective system

advocated by Burack. Th is brings us back to the question of why the refl ective

system, which allegedly empowered managers to make hiring decisions,

did not inevitably lead to the eradication or reduction of affi rmative-action

practices.

To answer that question, we need to turn to a scholar who looks precisely

at the place of diversity in the changing workplace. Like Burack, John Fernandez

82 | “You Were the Best Qualifi ed”

described a transition in the American workplace in the 1980s and early 1990s

and saw diversity as central to the changes he observed:

Th us far we have two major changes occurring in corporate America

simultaneously: (1) the increasing diversity of the work force in

terms of race, gender, ethnicity and so on and (2) the changing

values of many employees as they relate to work and family. Th ere

are two other factors that will make the problems of dealing with a

diverse work force more diffi cult than most managers recognize: the

basic characteristic of bureaucracies, and the fact that we as human

beings are basically to varying degrees neurotic.

Th ese “other factors” presented the interesting questions about varied and

nebulous motivations behind employer actions. 65

In business literature, too, academic and industry writers consistently

made the argument that diversity is good for the employer. For example, in

February 1995, Peter Wright and Stephen Ferris argued that diversity helped

the stock price of the employer. 66 Th eir study had a simple methodology:

[Wright and Ferris] examined the impact that announcements of

U.S. Department of Labor awards for exemplary affi rmative action

programs had upon the stock returns of winning corporations and

the eff ect that announcements of damage awards from the settlement

of discrimination lawsuits had on the stock returns of corporations.

Th e results suggest that announcements of awards may be associated

with competitive advantage and that discrimination-related announce-

ments may be associated with inability to achieve such advantage. 67

They explicitly examined only affirmative action’s financial impact on the

firm and not the moral or citizenship issues involved. They sought to find

exactly what that fi nancial impact was, yet, by basing outcome on stock price

rather than profi ts, they were measuring investors’ opinions about the future

rather than actual cost-eff ectiveness in the past. However, they dubiously sur-

mised that if a stock price rose, then it was essentially a sign that the fi rm was

increasing its profi tability. Th ey further surmised that the supposed increase

in profi tability came from the wider range of talent that diversity provided,

that fi rms with better affi rmative action had higher job satisfaction, and that

these fi rms had better relations with customers. Th ey also surmised that “cor-

porations with quality affi rmative action programs may be more creative,

may have better problem-solving capabilities, and may fi nd strong commu-

nity and institutional support because of their cultivated diverse work forces.

b enton w illiams | 83

Th us, they may be more capable of enhancing their diff erentiation.” 68 Wright

and Ferris’s list of possible reasons was speculative and they made no claim

that it was more than that. In the end, they provided some plausible reasons

why stock price may have risen along with diversity, though their study actu-

ally provided scant, not direct, evidence that diversity had a signifi cant impact

on a fi rm’s profi tability.

The only evidence of diversity that Wright and Ferris used were the

announcements of affi rmative-action awards by the Labor Department as a

positive indicator and the announcement of unfavorable judicial outcomes as

a negative indicator. Th e authors did not suggest that either indicator accu-

rately measured the fi rms’ actual diversity. Moreover, they had no way of

showing that the changes in stock price correlated with these announcements

were based on the contribution of a diverse workforce to the profi tability of

the fi rm or if they were based on the investors’ perceptions that diversity

would reduce the risk of government sanction or unfavorable legal outcomes.

Finally, stock price did not necessarily refl ect actual or even potential profi t-

ability or productivity. Nonetheless, these limitations of the study did not

alter the message. Th at message, delivered to an audience of managers, was

that affirmative-action publicity is good for the stock price. That was the

point after which a manager could stop reading. Whether speaking to the

public or to each other, business leaders were saying the same thing. In

the 1980s and 1990s, they were champions of diversity. Large private-sector

fi rms even at times seemed to be competing with one another to be at the

forefront of the “diversity” wave.

By the mid-1990s, for example, Proctor & Gamble was one of the most

widely acclaimed fi rms in the United States for diversity. 69 Proctor & Gamble

did not simply settle for receiving accolades for diversity. It joined organiza-

tions such as the Leadership Conference, Project Equality, and the Equal

Employment Advisory Council. Proctor & Gamble went beyond member-

ship in Project Equality. It was one of the leading voices in the organization.

Edwin Artzt, CEO of Proctor & Gamble in the 1990s, said, “Regardless of

what Government may do, we believe we have a moral contract with all of the

women and minorities in our company. . . and no change in law or regulation

would cause us to turn back the clock.” 70 Th e Department of Labor recog-

nized Proctor & Gamble’s “corporate-wide commitment to the retention and

advancement of women and minorities” and in the same study listed the

fi rm’s affi rmative-action initiatives. 71 Th e NAACP and the Leadership Con-

ference on Civil Rights likewise recognized Proctor & Gamble’s eff ectiveness

in maintaining a diverse workforce. These were not necessarily accurate

84 | “You Were the Best Qualifi ed”

indications of real diversity, but for present purposes the appearance of diver-

sity was as good as actual diversity.

Artzt and Proctor & Gamble were far from exceptional in their forceful

public commitment to diversity. A. Drue Jennings, president and CEO of

Kansas City Power and Light, speaking to other utility executives, echoed

Artzt’s message: “Th ere are those who believe that utilities fulfi ll their respon-

sibility by providing essential services to grease the wheels of society. To

them, it follows that they need not do much more. To me, however, there are

compelling reasons for us to help overcome the blight of discrimination in

the communities that we serve. . . . Moral justifi cation aside, prejudice is bad

for business, retarding the economic growth on which utilities thrive and

robbing us of profi tability.” In such passages we can observe that regardless of

how deep the commitment may have really been, by the late 1980s corporate

America was thoroughly committed rhetorically and in stated policy to

maintaining and enhancing a diverse workplace. 72 Whether they were fol-

lowing Burack’s refl ective system or Kanter’s objective system, no employer

was backing down in this commitment, even while many were still uncom-

fortable with the term “affirmative action.” These companies’ desire to be

and/or appear diverse meant they would use affirmative-action practices

to maintain that appearance of diversity; government regulations had little

role in those decisions.

c onclusion

Republican politicians in the 1980s and 1990s, like Jesse Helms, George H. W.

Bush and Ronald Reagan, argued for small government, less regulation, and

for the rights of employers in a free market. Th ese fi gures characterized affi r-

mative action as a symptom of big government run amok. Th ey and other

opponents of affi rmative action made little serious eff ort, however, to under-

stand and change private-sector practices in order to eliminate the affi rmative-

action practices that they so vocally opposed. Th e target of their appeal was

not employers whose rights they purported to defend. Rather, the white

hands ad is just one example of their appeal to the anxieties of white male

employees—anxieties that the politicians never assuaged but repeatedly (and

oft en successfully) capitalized and campaigned upon. Meanwhile, their puta-

tive allies in the business world continued to practice affi rmative action in

hiring decisions as a regular part of doing business.

Th us, the frontal assault on affi rmative action in the 1980s foundered. In

the end the Reaganites did not even stop affi rmative action where the federal

b enton w illiams | 85

government had regulatory control, and they had no discernible eff ect on the

much larger, less regulated private sector. All Meese and company could do to

discourage affi rmative action in the private sector was to undermine EEOC

enforcement efforts by naming Clarence Thomas, a putative opponent of

affi rmative action, to the chairmanship and by cutting its budget. Both moves

failed due to Th omas’s continued use of disparate impact evidence, and the

limits of federal power, the state of the law, and, most important, the willing-

ness of employers themselves to continue applying affi rmative action.

A potentially more signifi cant threat to private-sector affi rmative action

came from within the private sector itself. Changes in management style,

encouraged by the growing and changing discipline of human resources

management, purported to empower middle management. Th is potentially

opened the door to the return of pre–human resources personnel decisions

as line supervisors and foremen once again made hiring and promotion

decisions. While the implementation of these new principles threatened to

make “irrationalities” like nepotism and cronyism more likely, other develop-

ments in the private sector eff ectively kept this in check. Th e growing emphasis

on “diversity” and widespread use of bonuses by CEOs and stockholders who

desired a diverse-looking workforce, combined with the easy measurability of

sex and race, not only ensured that affi rmative action in the private sector

would survive the Reagan years but also led to the expansion of the practice

in the very years that witnessed some of the most vociferous rhetorical

attacks on affi rmative action. Th e condemnations were undeniably eff ective

in gaining traction among key segments of the electorate, and in their rejec-

tion of the term “affi rmative action,” private-sector employers seem to have

shared this apprehension. In their workplace hiring and promotion decisions,

though, employers voted with their policies—and they did so voluntarily.

DePaul University

n o t e s

1. Alex Castellanos, “Hands” (video). Television advertisement produced and

aired in October and November 1990. http://www.pbs.org/30secondcandidate/timeline/

years/1990.html (accessed 13 December 2013).

2. Jonathan Leonard, “Wage Disparities and Affi rmative Action in the 1980’s,” American

Economic Review 86, no 2, Papers and Proceedings of the 108th Annual Meeting of the

American Economic Association (May 1996), 288–89. Leonard posits that the failure of

minority wages to keep up with overall wages in the 1980s was probably the result of shift s

86 | “You Were the Best Qualifi ed”

in the American economy not related to affi rmative action. Th ese shift s include: changes

in defense spending, a transition from manufacturing to service and information that,

absent discriminatory intent, would still have an adverse impact on minority employ-

ment and a positive impact on female employment, which is what happened according

to Leonard.

3. Jennifer Delton, Racial Integration in Corporate America, 1940–1990 (London,

2009).

4. Lois Kathryn Herr, Women, Power, and AT&T: Winning Rights in the Workplac e

(Boston, 2003); Marjorie A. Stockford, Th e Bellwomen: Th e Story of the Landmark AT&T

Sex Discrimination Case (New Brunswick, 2004); Benton Williams , “ AT&T and the

Private-Sector Origins of Private-Sector Affi rmative Action ,” Journal of Policy History 20 ,

no. 4 (Autumn 2008 ).

5. Frank Dobbin, Inventing Equal Opportunity (Princeton, 2011).

6. 438 U.S. 265 (1978). Harvard Law’s Laurence Tribe responded shortly aft er Bakke,

identifying and summarizing the issues raised in that case. Laurence H. Tribe , “ Perspectives

on Bakke: Equal Protection, Procedural Fairness, or Structural Justice? ” Harvard Law

Review 92 , no. 4 (February 1979 ): 864 –77.

7. Tribe, “Perspectives on Bakke,” 865.

8. Ronald Reagan’s position on affi rmative action had some limited fl exibility. In

response to a 1980 general-election candidate questionnaire, Reagan seemed to acknowledge

the desirability of increasing participation of underrepresented groups but raised the fear

that encouraging outcomes might lead to affi rmative action: “I recognize the need to off er

opportunity to those people to whom opportunity has been denied for a long time. But

I also lived in a time when we had quota systems that denied people equal opportunity. . . .

I see affi rmative action becoming a kind of quota system. And I just believe that when

that happens you have established the precedent for a new discrimination to take place . . .

a kind of reverse discrimination. But short of that, I think we must do everything in our

power to make sure that we never return to bigotry and prejudice and the denial of peo-

ple’s rights.” “Th e Candidates on the Issues: #5 Human Welfare: Reagan,” Christian Science

Monitor , 3 October 1980, Midwestern Edition. See also Terry Anderson , “ Th e Strange

Career of Affi rmative Action ,” South Central Review 22 , no. 2 (Summer 2005 ): 110 –29, 121.

9. Kenneth Noble, “Man in the News: Experienced Politician for Labor Post,”

New York Times , 21 March 1985, 22.

10. Noble, “Labor Department Diplomat: William Brock 3rd: Walking a Tightrope

between Business and the Unions,” New York Times , 10 August 1986, sec. 3, p. 6.

11. Dean Kotlowski, Nixon’s Civil Rights (Cambridge, Mass., 2002), 295.

12. Noble, “Labor Department Diplomat.”

13. Ibid.

14. Noble, “Labor Dept. Aide Quits in Protest of U.S. Stance on Minority Hiring,”

New York Times , 21 January 1987, 1. Th e Labor Department’s staff was cut from twenty-

three thousand to eighteen thousand (over 20 percent) from 1980 to 1986 and its budget

remained fl at over the same period.

15. “Statement of Policy on Minority Ownership of Broadcasting Facilities,” 68 F. C. C.

2d 979 (1978).

16. Metro Broadcasting, Inc. v. Federal Communications Commission et al ., 497 U.S.

547 (1990).

b enton w illiams | 87

17. Robert W. Bednarzik, Marillyn A. Hewson, and Michael A. Urquhart, “The

Employment Situation in 1981: New Recession Takes Its Toll,” Monthly Labor Review ,

Bureau of Labor Statistics, March 1982, 3.

18. U.S. Department of Justice, Offi ce of Legal Policy (Washington, D.C., 1987).

19. Report to the Attorney General , i, (emphasis in original).

20. Ibid., ii.

21. Ibid., ii n. 1.

22. “Nothing contained in this subchapter shall be interpreted to require any

employer, employment agency, labor organization, or joint labor-management committee

subject to this subchapter to grant preferential treatment to any individual or to any group

because of the race, color, religion, sex, or national origin of such individual or group on

account of an imbalance which may exist with respect to the total number or percentage

of persons of any race, color, religion, sex, or national origin employed by any

employer, referred or classified for employment by any employment agency or labor

organization, admitted to membership or classifi ed by any labor organization, or admitted

to, or employed in, any apprenticeship or other training program, in comparison with the

total number or percentage of persons of such race, color, religion, sex, or national origin

in any community, State, section, or other area, or in the available work force in any com-

munity, State, section, or other area.” 29 U.S.C. 2000(j).

23. Uniform Guidelines on Employee Selection Procedures: Comments, January–

March, 1978, EEOC Library, Washington, D.C., 171-1 and 171-2. Simply, the rule stated that

EEOC would consider a test that had a 20 percent disparity in outcome based on race or

gender as creating a disparate impact.

24. Griggs v. Duke Power , 401 U.S. 424 (1970).

25. Report to the Attorney General , 82.

26. 443 U.S. 193 (1979).

27. 476 U.S. 267 (1986).

28. Johnson v. Transportation Commission of Santa Clara County, 480 U.S. 616 (1987),

was likely announced too late for the author to use, but it would have supported the

argument.

29. Report to the Attorney General , 84–86.

30. Ibid., 85. Th e various studies appear to have been two, by the same authors: “ See

generally, Schmidt, Hunter, McKenzie and Muldrow, Impact of Valid Selection Procedures

on Workforce Productivity , 64 J. of Applied Psy . 609 (1979)”; and “See Hunter and Schmidt,

Ability Tests: Economic Benefi ts vs. Th e Issue of Fairness, 21 Industrial Rel. 293, 293 (1982).”

Economists have been quite skeptical of Hunter and Schmidt’s analysis, particularly their

confi dence in testing to directly aff ect productivity. Th e bulk of that criticism came aft er

the “Report to the Attorney General” had been submitted. See, for example, E. F. Denison,

Trends in American Economic Growth (Washington, D.C., 1985); and H. M. Levin, “Ability

Testing for Job Selection: Are the Economic Claims Justifi ed?” in Test Policy and the Politics

of Opportunity Allocation: Th e Workplace and the Law, ed. B. R. Giff ord (Boston, 1989),

211–32.

31. Dale Heistand argues that the productive capacity of an individual employee is

unknowable and that productivity can be used as a pretext for discriminatory impact.

Although Hiestand identified the impossibility of quantifying potential productivity in

1974, the report’s author failed to appreciate the problem in 1980 and used productivity

88 | “You Were the Best Qualifi ed”

claims exactly as Hiestand had predicted. Dale L. Hiestand, Response to “Employment

Discrimination: Some Policy Considerations,” in Discrimination in Labor Markets , ed.

Orley Ashenfelter and Albert Rees (Princeton, 1973), 176–81.

32. Nicholas Pedriana and Robin Stryker , “ The Strength of a Weak Agency:

Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity,

1965–1971 ,” American Journal of Sociology 110 , no. 3 (November 2004 ): 709 –60; Donald J.

Peterson , “ Th e Impact of Duke Power on Testing ,” Personnel 51 (March–April 1974 ): 30 – 37 .

33. Fletcher A. Blanchard and Faye J. Crosby , ed., Affi rmative Action in Perspective

( New York , 1989 ).

34. Between 1981 and 1987, the nongrant budget of EEOC effectively stayed level,

growing from about $119 million to $138 million. By comparison, it grew from $2.5 million

to $8.6 million from 1966 (its fi rst full year) to 1969, the last budget of the Johnson admin-

istration, and then from about $10.7 million to $53 million in six years under Nixon. Under

the two Ford budgets, EEOC’s budget climbed to $66 million, then to $119 million at the

end of the Carter administration. Aft er Reagan, the budget continued to climb at similar

rates. http://www.whitehouse.gov/omb/budget/fy2005/sheets/ outlays.xls (accessed 9 July

2004).

35. With passage of the 1972 Equal Employment Act, the EEOC was given the power

to represent individual and class plaintiff suits based on alleged disparate treatment

(42 USC §2000e-4(g)(6)). Th ese suits and the suits brought by the private plaintiff s are

more eff ective, according to economist Jonathan Leonard, than the systematic focus that

the EEOC has taken since 1972. Jonathan S. Leonard , “ Antidiscrimination or Reverse

Discrimination: The Impact of Changing Demographics, Title VII, and Affirmative

Action on Productivity ,” Journal of Human Resources 9 (Spring 1984 ): 145 –74. Th e EEOC,

though, has repeatedly said, through offi cial documents and through its various spokes-

persons, that a better use of its resources is a focus on systematic discrimination or employer

“pattern and practice” resulting in a disparate impact with unknowable victims. See,

for example, Th e Story of the United States Equal Employment Opportunity Commission:

Ensuring the Promise of Opportunity for 35 Years (Washington, D.C., 2000), 15. Aft er 1972,

“Th e Commission decided to take on large employers and institutions thought to be dis-

crimination in a systemic manner.” In a similar vein, in her nomination hearing, future

Commissioner Eleanor Holmes Norton called for “decisive action” to meet the “urgent

challenges” facing the EEOC, including “backlogged individual cases that consume the

agency’s energies disproportionately and the corollary eff ect, too little of the Commission’s

time and resources engage in pattern and practice work that alone can substantially

aff ect discrimination in America today.” From Nomination Hearing before the Committee

on Human Resources, U.S. Senate, 95th Cong., 1st sess., On Eleanor Holmes Norton, of

New York, To be a Member of the Equal Employment Opportunity Commission, 24 May

1977, Y4 H88: N72/977-10, 8.

36. For example, in Watson v. Fort Worth Bank & Trust , 487 U.S. 977 (1988), Charles

Fried, the solicitor general (the attorney for the president), William Bradford Reynolds, the

assistant attorney general for civil rights, and employer groups wrote amicus curiae briefs

in which they argued that the Court should uphold the Appeals Court’s decision to dismiss

the case. Th e solicitor general argued that disparate treatment theory alone (rather than

disparate impact) fulfi lled Congress’s intention in Title VII. Th e solicitor general argued

in the alternative that if the Court were to keep disparate impact theory, the theory should

b enton w illiams | 89

only be applied to objective practices, like tests, rather than to subjective hiring decisions,

like interviews. Watson , 989. Th e Court rejected both arguments. In Local 93 v. City of

Cleveland , 478 U.S. 501 (1986), the solicitor general fi led an amicus curiae brief challenging

the constitutionality and legality (under Title VII) of state and local governments’ use of

affi rmative-action hiring and promotion and lost. See also California Federal Savings &

Loan Assn. v. Guerra , 479 U.S. 272 (1987). In this last case, both Assistant Attorney General

William Bradford Reynolds (the ideological force behind Meese) and the solicitor general

fi led amicus briefs arguing that Title VII preempted eff orts by California to broaden job

protection for pregnant women. While the defendants and their U.S. government allies

were able to convince William Rehnquist, Byron White, and Lewis Powell that California

had no right to extend protections to its women workers, even Antonin Scalia balked at the

notion that California’s power to limit employers’ rights were constrained by Title VII and

joined the other justices in upholding the law.

37. An example of the ambivalent response to Th omas’s nomination can be found in

a brief Washington Post editorial of 17 February 1982, in which the Post ’s opinion editors

acknowledge that Th omas did not mesh with the civil rights community. Presumably they

are referring to the diff erence over disparate impact and affi rmative action:

“THIS is more like it. Aft er two appointments to civil rights positions in the

administration that have evoked strong criticism, President Reagan has nom-

inated Clarence Th omas for chairman of the Equal Employment Opportunity

Commission.

“Mr. Th omas , a black conservative Republican lawyer, is now assistant sec-

retary of education. William M. Bell, the president’s fi rst choice for EEOC chair,

off ered neither the experience nor the administrative credentials that should be

minimal prerequisites for the important position. Th e decision to withdraw his

nomination is a sound one.

“Last week, there was another bad nomination—that of the Rev. B. Sam

Hart to the Commission on Civil Rights. Rev. Hart’s initial comments to the

press suggested that he does not begin to have the temperament or the broad

compassion for all those who suff er from discrimination that are necessary in

the civil rights commission post.

“Th e appointment of Mr. Th omas to the EEOC is a welcome break in this

pattern. While many civil rights leaders would not agree with his positions on

busing and affi rmative action quotas—he opposes both—there is agreement

that he is able and well qualifi ed to run this agency.

“His proposed solution for racial problems in our society may not coincide

with those proposed by more familiar civil rights leaders, but he knows from

his own experience that there is a real problem, and he has decided in his own

conscience that he wants to help resolve it.”

38. Th omas’s views on affi rmative action were quoted in the Washington Post shortly

aft er his nomination:

“I will state as a bottom line that I am tremendously in favor of equal opportu-

nity, and I will not deny that we have suff ered adverse eff ects from racial dis-

crimination. I know what it is to be scorned and not be able to go to movies and

parks and drink out of water fountains.

90 | “You Were the Best Qualifi ed”

“But my point is that we have gotten into a position where we believe that

prescribing proportional representation is a solution to the problems that we

have, and I don’t agree with that. To the extent that a rigid quota system is

affi rmative action, I disagree with that.” Herbert H. Denton, Washington Post ,

13 February 1982, A1.

39. Congress, Senate, Committee on Labor and Human Resources, Nomination:

Clarence Thomas, of Maryland, to Be Chairman of the Equal Employment Opportunity

Commission , 97th Cong., 2nd sess., 31 March 1982, 3–5.

40. Ibid., 4.

41. Ibid., 15–16.

42. Ibid., 16.

43. Ibid., 24 (emphasis in original).

44. Ibid., 25.

45. U.S. Senate, Hearings Before the Committee on Labor and Human Resources,

99th Cong., 2nd sess., on Clarence Thomas of Missouri, to be Chairman of the Equal

Employment Opportunity Commission, Y4.L 11/4:S.Hrg. 99-807, 23 July 1986 (second

term), 9.

46. Ibid., 11.

47. Ken Foskett , Judging Th omas: Th e Life and Times of Clarence Th omas ( New York ,

2004 ), 167 .

48. Michael Middleton, interview with author, Columbia, Missouri, May 1998; Peggy

Mastroianni, interview with author, Washington, D.C., July 2004; Equal Employment

Opportunity Commission v. J.C. Penney Co ., 843 F.2d 249 (6th Cir. 1988); Equal Employment

Opportunity Commission v. General Telephone Company of Northwest , 885 F.2d 575 (9th Cir.

1989). A cursory review (a Lexis/Nexis search) shows that EEOC used disparate impact

theory at least ninety times before the federal bench between 1982 and 1989. Because these

are only the cases that were reported, it is likely a small fraction of the total.

49. 15 September 1985, 8A (emphasis in original).

50. Senate Hearings on Clarence Th omas of Missouri, to be Chairman of the Equal

Employment Opportunity Commission (second term), 23 July 1976, 8.

51. Th e rationalization of American business has been well chronicled. Th e great work

in the fi eld of course is Alfred D. Chandler Jr., Th e Visible Hand: Th e Managerial Revolution

in American Business (Cambridge, Mass, 1977). See Bruce E. Kaufman, Managing the Human

Factor: Th e Early Years of Human Resources Management in American Industry (Ithaca,

2008), in which Kaufman traces the emergence of HRM before the Great Depression.

HRM collapsed with the rest of the economy and reemerged in its modern form aft er

World War II.

52. While it is oft en impossible to eff ectively assess cultural infl uence, Kanter’s work

has been among the most widely disseminated business scholarship for decades. Th irty

years aft er its original publication, Th e Change Masters is in the top million best sellers on

Amazon. Kanter is the author of fi ft een books listed on Amazon, including Confi dence:

How Winning Streaks and Losing Streaks Begin and End (New York, 2006), which was

in the top 75,000 as of August 2012, but has fallen precipitously since then. ( http://www.

amazon.com/Rosabeth-Moss-Kanter/e/B000APOA8S/ref=ntt_athr_dp_pel_1 . She is

an endowed professor at Harvard Business School.

b enton w illiams | 91

53. Kanter, Th e Change Masters, 326–27.

54. Elmer H. Burack, Creative Human Resources Planning and Applications: A Strategic

Approach (Englewood Cliff s, N.J., 1988). Burack joined in a long-standing scholarly partner-

ship with Nick Mathys; the fourth edition of this infl uential work was published in 2001.

55. Ibid., 128.

56. Ibid., 129.

57. Delores Wolf, “Whither the Work Force?” In Diversity Is Strength: Capitalizing on

the New Work Force, Th e Conference Board, Diamond Jubilee Symposium, New York, Fall

1991, 9–10; 9.

58. In the last of the three articles in the series, Richard McCormick writes, “Despite

the risks, the rewards are great. Th rough diversity, we’re better listeners. If we’re better

listeners to one another, we’ll probably be better listeners to customers. We make better

teams because when a diverse work group gets through working out the interpersonal

problems, I believe they can tackle anything. Diversity includes a variety of viewpoints,

too. Our company used to be made up of a lot of engineers and fi nancial types; but over the

last 10 years we’ve hired many scientists, marketers and others, all to our benefi t. Another

reward is a better refl ection of the marketplace. A diverse group does explore issues better

than a group whose members all come from a similar background.” McCormick, “Making

Sure Diversity Works at U.S. West,” 13–14; 14. Neither McCormick nor the other executives

seems willing to be particularly specifi c about their motivation behind eff orts to increase

diversity. However, we consistently see that, unsurprisingly, they ascribe the motives to

their own companies’ bottom line or social responsibility, but rarely if ever to the threat of

government sanction.

Wayne E. Heiden, “Managing Diversity: A Full-Time, Top-Down Commitment,” In

Diversity Is Strength: Capitalizing on the New Work Force , 11–12; 11. He describes Allstate’s

approach: “For some time now we’ve had a Diversity Action Team in place at Allstate. It’s

made up of twenty managers, offi cers and directors of the company who represent every level

of senior leadership as well as all our business units. Th e team is responsible for developing

a strategic plan for managing diversity” (ibid.) However, he fails to give any insight into the

content of this strategic plan. Heiden’s essay was the least informed by data, and when he did

venture onto a factual limb, he tended to be both strikingly inaccurate and irrelevant: “We’re

in the midst today of an extraordinary revolution. For much of this century, America was

a homogenous culture” (ibid.). I include this not to quibble with Heiden’s ability as a histo-

rian. Rather, it is indicative of the kind of selective vision that even top-level executives have.

Heiden appears here as a champion of diversity, yet he makes this outrageously ill-informed

generalization about a fantasy, homogenous America in the twentieth century.

59. McCormick, “Making Sure Diversity Works at U.S. West,” 13–14.

60. Ibid., 13.

61. Ibid.

62. Ibid., 13.

63. With added responsibilities under the Age Discrimination in Employment Act,

which EEOC began enforcing in 1979, and the Americans with Disabilities Act, EEOC

became more focused on developing these new areas in its responsibilities in the 1980s

and beyond. United States Equal Employment Opportunity Commission, The Story of

the United States Equal Employment Opportunity Commission: Ensuring the Promise of

Opportunity for 35 Years, 1965–2000 [Washington, D.C., 2000], 33–34, 45–51.

92 | “You Were the Best Qualifi ed”

64. Ellen Walvoord, telephone interview with author, 27 August 2003.

65. John P. Fernandez, Making a Diverse Work Force: Regaining the Competitive Edge

(Lexington, Mass., 1991), 11.

66. Peter Wright and Stephen Ferris , “ Competitiveness Th rough Management of

Diversity: Eff ects on Stock Price Valuation ,” Academy of Management Journal 38 , no. 1

(February 1995 ): 272 –88.

67. Ibid., 272.

68. Ibid., 276.

69. Employment Standards Administration, Offi ce of Federal Contract Compliance

Programs, “Glass Ceiling Report: OFCCP, Glass Ceiling Initiative: Are Th ere Cracks in the

Ceiling?” Washington, D.C., Department of Labor, June 1997.

70. Edwin Artzt, “Private Sector Leadership Award Address,” Leadership Conference

on Civil Rights, 3 May 1995, as quoted in “Group Preferences and the Law,” Hearings

Before the Subcommittee on the Constitution of the Committee on the Judiciary, House of

Representatives, 104th Cong., 1st sess., 3 April, 1 June, and 25 October 1995, Y4 J 89/1:104/74,

333 (ellipses in the Hearings text).

71. Employment Standards Administration, Offi ce of Federal Contract Compliance

Programs, “Glass Ceiling Report,” 19 (unnumbered pages).

72. Alan Farnham and Joan Viebranz, “Holding Firm on Affi rmative Action: Despite

Disappointments and a Recent Supreme Court Reversal, Most Top Executives Intend

to Press Th eir Company Programs to Recruit and Train Minorities,” Fortune magazine ,

13 March 1989, 87. Farnham and Viebranz report the fi ndings of a survey sent to the CEOs

of Fortune 500 and Service 500 companies. Of the 202 respondents, 72 percent said their

fi rm had an affi rmative-action policy, either: “We have affi rmative action goals but no

numerical quotas,” 54 percent, or “We have specifi c quotas for hiring and promoting,”

18 percent.

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