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It is truly sad to hear those who claim to be "friends" and "allies" denounce affirmative action. It is painful to witness the abandonment of the ship when salvation is possible if all hands would man their stations.

The truth of the matter is that even on the international level nations have engaged in affirmative action to achieve the goal of nationhood out of a desire and commitment to remedy historical wrongs.

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In conclusion, may I assure you that any retreat from a strong commitment from intentionality to close the gap on the part of the national government will have negative repercussions throughout the nation. Make no mistake about it, we are experiencing an unemployment crisis * * that worsens and is having and will have a disproportionate impact on minorities. We are witnessing the regurgitation of overdoses of unemployment and repression and hopelessness in many parts of the world. In America we are experiencing an assault on black life that is frightening. That assault must be met by forceful, affirmative redress of the national government and the national conscience. Hate groups (KKK, Nazi) are gaining new levels of respectability in spite of their killings and terrorizing * • * (with impunity for the most part).

They will be encouraged by a retreat from affirmative action * on the part of the national government. As a matter of fact, in the southern part of Georgia a Klansman said he was abandoning his Klan when he heard what they were going to do in Washington. He said they were not needed anymore.

Hate groups have lynched in Mobile; killed in Buffalo; shot down women on the street in Chattanooga; conducting killer training camps in Alabama, Texas, and elsewhere forced a young black lad out of school by threats and intimidation in Rome, Ga. *; killed in Utah; and gunned down citizens in North Carolina

* *

Blacks and other minorities feel deserted by the national government. Hubert Humphrey said * that "the test of government is in how it responded to the needs of those in the dawn of life-the young; those in the twilight of lifethe aged; those in the shadows of life-the weak; the handicapped the dispossessed * the oppressed How shall we meet that test today? We do not come seeking handouts, only standups We challenge our government to stand up now before a nation and world that needs your leadership a leadership that is serious about remedying inequities. Any retreat now will give aid and comfort to the enemies of justice and equity. Let us not now retreat but move forward toward that day when color will become irrelevant; when every man and woman can sit under his or her own vine and fig tree and none need be afraid; when full employment has become a reality; when men shall study war no more; when black will not be asked to get back; when brown can stick around; when the red man can get ahead, when white will behave all right, when we shall be that great nation united, shining in the sunlight of justice and equity, and whose light shines around the world inspiring peace with justice-all over God's world.

Thank you.

Senator GRASSLEY. Mr. Chairman, I would like to insert a couple of articles into the record.

We find that the FCC now has as part of its function the role of racial determinator. The FCC staff now has to spend apparently considerable time in determining whether or not applicants are Hispanic.

A second article, and these are articles in yesterday's paper, detailed latest efforts of the Federal Government to classify each of its 2.8 million employees by race.

These articles clearly bring home the sad point that our Government in many ways is no longer just concerned about protecting individuals from discrimination based on race, but it is actually involved in the very big business of being a determinator of race. I think the articles will point out that it is not very effective in determining what is the race of people.

I would like to include those in the record.

Senator HATCH. Without objection, those will be included in the record at this point.

[Articles supplied by Senator Grassley follow:]

[From the Washington Post, July 15, 1981]

SI SI, SENORS KRAMER AND LIBERMAN, SI SI

Mr. Liberman and Mr. Kramer, who just bought radio stations, have been duly found by the Federal Communications Commission to be Hispanics. That means the sellers of those two radio stations get a nice tax break because they have contributed mightily to the FCC's policy of encouraging “significant minority interest" in broadcast holdings.

Adolfo Liberman's family owns K-Love Radio Broadcasting Inc., which bought KTNQ in Los Angeles from Storer Broadcasting. Liberman, born in Poland, descended from Spanish Jews expelled from Spain in 1492, according to the FCC order. He immigrated to Mexico in 1921, and lived in Guatemala and Costa Rica before coming to the United States. The Liberman family speaks Spanish "a majority of the time," the FCC said.

Oscar Luis Kramer, meanwhile, owns 95 percent of Central Florida Spanish Broadcasting, which bought WMJK in Kissimmee, Fla., from Major Market Media Inc. Kramer was born in Cuba, as were his parents, and immigrated to the United States in 1961. He worked in Spanish-language radio in Miami before moving to Orlando, where he was active in Hispanic affairs.

An FCC policy statement says that minorities include “. . . Those of black, Hispanic surnamed, American Eskimo, Aleut, American Indian and Asiatic American extraction." The FCC, a spokesman said, followed the guidance of the Equal Employment Opportunity Commission, which refers only to "Hispanics," not "Hispanicsurnamed."

[From the Washington Post, July 15, 1981]

THE RACIAL/ETHNIC LABELING EXERCISE

(By Mike Causey)

The U.S. government is in the midst of one of the most ambitious racial/ethnic labeling exercises in history. Purpose is to figure out the race or national origin of each of the nation's 2.8 million bureaucrats without offending any of them.

To get at peoples' roots diplomatically, Unicle Sam uses localized yardsticks to measure color and nationality. Because ours is a complicated society, definitions vary from Washington to Honolulu to San Juan.

Federal workers here, in Guam and in every state but Hawaii had the option in January of picking another race or national origin if they didn't like the listing they had on file. Options ofered here and elsewhere included (A) American Indian or Alaskan Native, (B) Asian or Pacific Islander, (C) Black, not of Hispanic origin, (D) Hispanic or (E) White, not of Hispanic origin. It will be some months before the government knows its As from its Ès.

At the same time federal workers in Puerto Rico, conforming with Census Bureau guidelines, were given two choices. They could list themselves as either (1) Hispanic or (2) Not Hispanic.

The trickiest head count of all will take place this fall in Hawaii, which is, as any anthropologist will tell you, wonderfully mixed up. The 30,000 plus federal civil servants in the island paradise will have 15 different choices. They will have the same A through E options as colleagues in Washington, but also will be able to more closely identify themselves as (F) Asian Indian, (G) Chinese, (H), Filipino, (J) Guamanian, (K) Hawaiian, (L) Japanese, (M) Korean, (N) Samoan, (P) Vietnamese or (Q) All other Asian or Pacific Islanders.

Idea behind all this is to help government develop better equal employment opportunity data, it says, and to conform with Commerce Department guidelines of race/ethnicity. By law, employes may designate themselves anything they want, within the geographic choices offered. That means a blue-eyed, blond could list himself as Japanese in Hawaii or black in Washington or Wyoming. Federal supervisors have been told to counsel people who do such things, but not to change anyone's designation if his mind is made up.

In the 1960s, the government shifted from an "eyeballing" system, under which supervisors listed the race and ethnicity of employes, to a self-designation system. The results were embarrassing in a couple of places. Hundreds of State Department employes, who wouldn't know a peace pipe from a piece of pipe, said they were American Indians. It made State look awfully good in its affirmative action pro

gram, but did not do much to give an accurate picture of the makeup of the department.

The result was that many agencies and departments went back to the eyeballing method. Officials hope to have an accurate racial/ethnic head count of mainland workers, as well as those in Guam, Alaska and Puerto Rico fairly soon. Hawaii will take a little longer. Results from several places may be surprising.

Senator HATCH. Thank you, Senator Grassley.

Our next witness is Michael A. Warner, a member of the very distinguished law firm of Seyfarth, Shaw, Fairweather & Gerald

son.

As chairman of the Labor and Human Resources Committee, I have come to respect the abilities of this law firm, particularly in the area of labor and employment discrimination law.

Mr. Warner, who practices in the Chicago office of Seyfarth, has been especially active in representing employers in labor and personnel matters. He is one of the most articulate and knowledgeable practitioners in the area of employment discrimination law.

We are very happy to have you here, and we look forward to taking your testimony.

I have to slip out for just 1 minute. Go ahead with your testimony, and I will be right back.

STATEMENT OF MICHAEL A. WARNER, SEYFARTH, SHAW, FAIRWEATHER & GARALDSON, CHICAGO, ILL.

Mr. WARNER. Thank you, Mr. Chairman.

I. INTRODUCTION

I very much appreciate the opportunity to present my views before this subcommittee on the subject of affirmative action and equal protection, particularly because I believe my views come from a somewhat different perspective than many of the other witnesses who have appeared before this committee.

I have been in the private practice of law for over 15 years. During the last 12 years, I have actively represented employers in labor and personnel matters with a heavy emphasis on employment discrimination matters.

During that time, I have observed at extremely close hand the actual day-to-day effects of the enforcement of the employment discrimination laws on numerous employers of all types and sizes and in a variety of industries.

Thus, I hope I can give some practical day-to-day meaning to the moral and ethical issues which have been so ably debated by others who have appeared before this committee.

II. SUMMARY OF CONCLUSIONS

At the risk of overgeneralization, I will attempt to summarize my overall conclusions with respect to the issue of affirmative action at the outset.

No. 1, employers should expect nothing less than vigorous enforcement of the antidiscrimination laws. This enforcement must be rational and realistic if it is to be truly effective and credible.

No. 2, the awarding of relief to specifically identified victims of discrimination in the form of absolute rights to future vacanies is fully consistent with the antidiscrimination laws.

No. 3, on the other hand, to disregard relative merit and to make employment decisions by granting preferential treatment on the basis of race, sex, or other protected group status, in order to change alleged statistical imbalances in the work force, is in my opinion not only wrong legally, constitutionally, and morally but is of minimal practical utility. The adverse consequences flowing from such preferentially based decisions more than cancel out any benefits which may be derived.

No. 4, while affirmative action has in recent years come to be defined solely as a process of race and sex-based preferential decisionmaking without regard to merit, the original purpose of affirmative action-to take affirmative steps to insure equal treatment— is a valid and important concept which should not be submerged under the now accepted practice of defining affirmative action solely in the context of quotas and preferences.

III. QUOTAS AND PREFERENCES AS A SYMPTOM OF THE UNDUE
EMPHASIS ON STATISTICS IN EEU ENFORCEMENT

It is imperative to recognize that quotas and race and sex preferences are seldom the result of direct Government fiat. Rather they are a symptom of the way the nondiscrimination laws have come to be enforced.

It is now common for the enforcement agencies to rely almost exclusively on the theory that discrimination will be presumed based solely upon a finding of a statistical underrepresentation of protected group members in a particular employer's work force, as compared to the percentage of protected group members in the labor force generally.

Invariably, these findings are made by failing to even consider the many factors other than employer discrimination which may explain the statistical disparity.

In passing title 7 of the Civil Rights Act, Congress sought in the most specific words possible to prohibit reliance on the statistical parity theory, because it expressly forecasted that the inevitable effect of such an approach would be to require employers to hire on the basis of race and sex.

The Supreme Court, although accepting that statistics may be relevant circumstantial evidence in some circumstances, has also repeatedly cautioned that statistics should not be given determinative weight. They are not irrefutable, and their usefulness depends on all the surrounding facts and circumstances.

Despite these and similar warnings, however, the EEOC continues to press in title 7 cases the slogan that figures speak and courts listen and routinely issues administrative decisions based on little more than statistical presumptions of questionable validity and without any other supporting evidence.

Moreover, the trial courts often take the easiest way out and accept superficial statistical showings by the plaintiff as virtually determinative.

This unfairly shifts the entire burden to the employer to prove its innocence-often a most expensive, time-consuming, and risky proposition.

Thus the message is sent loud and clear. If an employer wants to avoid enforcement based upon a perceived statistical disparity in its numbers, it must do whatever is necessary to achieve statistical parity, even if it means employing race and sex preferences to that end.

IV. QUOTAS AND PREFERENCES AS A SYMPTOM OF UNREALISTIC AND RIGID GUIDELINES ON EMPLOYMENT SELECTION

As the result of unreasonable interpretations and unnecessarily rigid guidelines, the enforcement agencies have also set compliance standards of what they will accept as job-related selection criteria which are virtually impossible for employers to meet in most contexts and which have been heavily criticized by experts in the field. The inevitable result is to again force employers to abandon what might well be the most fair and valid selection critiera in favor of random or quota selection.

V. THE UNDUE CONCENTRATION ON NUMBERS UNDER THE
EXECUTIVE ORDER

The concentration upon numbers has become almost fanatical under Executive Order 11246 which prohibits employment discrimination and imposes affirmative action requirements on Government contractors.

The order itself cannot be reasonably interpreted as authorizing race or sex-conscious preferences. On the contrary, the order's invocation of affirmative action is specifically linked to efforts to insure nondiscrimination-not preferential treatment.

As originally conceived and implemented, affirmative action programs concentrated on affirmative steps to achieve equal treatment.

Despite this honorable beginning, however, the program has now veered off its course and turned into a numbers game of dubious effect which is open to serious constitutional challenge.

If an employer fails to meet its technical and numerical goals and timetables required by the OFCCP rules, it faces the threat of enforcement proceedings and possible debarment.

As a practical matter, few excuses satisfy most compliance officers. The pressure to hire and promote to meet the numerical objective becomes intense.

While the Government sometimes tries to draw a distinction between goals and quotas, it is not surprising that line supervisors, unsophisticated in the nuances and intricacies of the bureaucrats' jargon, have difficulty making the distinction.

Too often it is easier and safer to succumb to the Government's demands for preferential treatment than to antagonize a compliance officer and cause an expensive and protracted enforcement proceeding.

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