In Texas Department of Human Affairs v. Burdine, the Court most recently stated: The Court's procedural rule harbors a substantive error. Title 7 prohibits all discrimination in employment based upon race, sex, and national origin. The broad, overriding interest and trustworthy workmanship assured through fair and neutral employment and personnel decisions. Title 7, however, does not demand that an employer give preferential treatment to minorities or women. The statute was not intended to diminish traditional management prerogatives. It does not require the employer to restructure his employment practices to maximize the number of minorities and women hired. The employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. Thank you for listening to my views. I have a number of questions for you. However, because I need to leave shortly, and I would like to hear the last two witnesses, I am going to put your full statement and the memorandum you mentioned in the record, and submit questions to you in writing. Senator Thurmond has reserved the right to submit questions to all witnesses here today as well. I am interested however in your discussing one issue in particular. I understand that you have proposed a number of alternatives to affirmative action programs and policies. I would like you to elaborate on how they might work and whether they are likely to create employment opportunities for minority group members as an alternative to direct policies of racial preference. As you know, we have experienced a great deal of controversy on this issue. I have to admit that there are attractive emotional arguments on both sides. However, I do not believe that a good constitutional or public argument exists in favor of affirmative action. I have a very difficult time perceiving how our society and country benefit from affirmative action programs particularly as interpreted by the EEOC, the OFCCP, the OCR and such. I would appreciate your giving some consideration to these questions. Thank you. You have put a lot of work into your outstanding prepared statement, and it has been very helpful today. I might add that your statement is one of the best we have received, in my opinion, because you have discussed the law thoroughly. You expressed your position as well as offered a number of constructive suggestions that I deeply appreciate. Thank you so much. Mr. WARNER. Thank you. [The prepared statement of Mr. Warner and additional material follow:] 84-280 0-83-33 I. PREPARED STATEMENT OF MICHAEL A. WARNER, ESQ. INTRODUCTION Mr. Chairman: I very much appreciate the opportunity to present my views on the subject of affirmative action and equal protection before this Subcommittee, particularly because my views come, I believe, from a somewhat different perspective than many of the other witnesses who have appeared before you. I have been in the private practice of law for over 15 years and during the last 12 years I have actively represented employers in labor and personnel matters, with a heavy emphasis on employment discrimination. Not only has this given me the opportunity to observe most immediately and specifically the development of the law and enforcement trends in this most controversial area, but it has also allowed me to observe 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. Indeed, because my practice brings me into immediate and continual contact with line management decision makers and employees who experience the direct effect of these laws on a daily basis, my thinking on nondiscrimination and affirmative action tends to be from a more practical and empirical-oriented perspective. 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 the academicians who have appeared before you. In so doing, I hope I can pursuade you to share my increasing disenchantment with the practical value of the numerical and statistical presumptions which are the staple of the sociologists and economists who have debated the issues before you. At the risk of overgeneralization, I will attempt to summarize my overall conclusions with respect to the issue of "affirmative action" at the outset: (1) Employers should expect nothing less than vigorous enforcement of the anti-discrimination laws, but this enforcement must be rational and realistic if it is to be truly effective and creditable. (2) The awarding of relief to specifically identified victims of proven discrimination in the form of absolute rights to future vacancies is fully consistent with the anti-discrimination laws. While such awards might be characterized as quotas, they may and should be recognized as permissible legal remedies to place the victims of an employer's discrimination into their "rightful place" positions they would have held "but for" the employer's discrimination. - the (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 (i.e., the definition of "affirmative action" as used in these hearings) is, in my opinion, not only wrong legally, constitutionally and morally, but is of minimal practical utility and the adverse consequences flowing from such quota and preferentially-based decision making more than cancel out any benefits which may be derived. (4) While "affirmative action" has in recent years come to be defined solely as a process of race and sex based preferential decision making without regard to merit, the original purpose of affirmative action - to take affirmative is a valid and impor tant concept which should not be submerged under the now accepted practice to define affirmative action solely in the context of quotas and preferences. II. THE HISTORY OF QUOTAS AND PREFERENCES IN A. Quotas And Preferences As A Symptom Of Misguided Enforcement Choices It is imperative to recognize at the outset 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. But invariably these findings are made by failing to even consider the many factors other than employer discrimination which may explain the statistical disparity. Although the Supreme Court has warned the lower courts of the potential danger of an undue reliance on statistics, the enforcement agencies have paid little attention to these warnings and many courts, taking their cue from the enforcement agencies, continue to find discrimination based on statistical presumptions which are contrary to traditional legal notions on the reliability of statistics and which overlook direct evidence contrary to the statistical inference relied upon. At the same time, rigid and unrealistic rules and guidelines have been established which unnecessarily undercut an employer's ability to rely upon traditional merit selection criteria in order to determine the most qualified applicants. The result is to put a premium on achieving statistical parity at all costs. Employment managers, in order to perfect their "bottom line" numbers, are pressured to abandon merit selection in favor of random selection or preferential selection based upon race, ethnic and sex quotas. In sum, therefore, in focusing on the issue of "affirmative action," one must first focus on the manner in which the nondiscrimination laws have come to be enforced against employers. Without reform in the enforcement of these laws, I do not see any realistic possibility that the increasing trend towards the routine use of race and sex preferences, to the detriment of merit selection, can be halted. B. The Rise Of Statistical Analysis In The Enforcement Of Title VII In analyzing how we reached this state of enforcement, it should be recognized that Congress, in passing Title VII of the Civil Rights Act in 1964, 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. For example, Section 703(j) of Title VII (42 U.S.C. $ 2000e-2(j)) expressly states that "[n]othing contained in this title shall be interpreted to require any employer to grant ... |