way of dealing with this problem of institutional discrimination.

We will certainly consider very carefully the ideas that have been presented to us this morning and the ideas that will be presented to us the rest of the day and tomorrow before we issue a final statement, but you certainly have made a very real contribution for thinking, and we are grateful to each one of you. Thank you very, very much.

The hearing is in recess until 2:00 o'clock.

Assessments of Affirmative Action in the

from an Enforcement Perspective CHAIRMAN FLEMMING. First of all, I want to welcome our three panelists for the afternoon and tell them how much we appreciate their being with us and being willing to give up some time as we try to think through a very difficult issue.

Mr. Hartog from our General Counsel's Office has had a great deal of responsibility for working on this statement with the staff and with the Commissioners and developing the plans for these meetings. He will introduce the members of the panel and, after you make these presentations, we will just engage in dialogue.

MR. HARTOG. Thank you, Chairman Flemming. Our panelists this afternoon are Mr. Lawrence Z. Lorber, who is an attorney with the law firm of Breed, Abbott and Morgan in Washington, D.C.; Mr. Weldon Rougeau, former Director of the Office of Federal Contract Compliance Programs for the Department of Labor; and Ms. Eleanor HolmesNorton, former Chair of the Equal Employment Opportunity Commission. All of our panelists this afternoon have extensive experience from within the Federal Government and from without with respect to the Federal civil rights enforcement effort. They have been asked to draw upon these years of firsthand involvement with the Federal civil rights enforcement effort, and with affirmative action, to comment on the Commission's proposed statement.

As is standard Commission procedure, in a consultation each panelist will be given a maximum of 15 minutes to deliver an oral presentation. All our panelists are prepared or have prepared comments on the proposed statement, and these comments will be made part of the record of this proceeding. We will proceed in the order given on the agenda.

Mr. Lawrence Z. Lorber is a partner with the law firm of Breed, Abbot and Morgan in Washington, D.C., specializing in labor and administrative law.

Prior to joining the law firm, Mr. Lorber was Deputy Assistant Secretary of Labor and Director of the Office of Federal Contract Compliance Programs. As Director, he had responsibility for enforcing Executive Order 11246, governing the equal employment opportunity and affirmative action requirements for Federal contractors. Mr. Lorber has spoken extensively and published several articles on equal employment opportunity and on various regulatory issues. Mr. Lorber received the A.B. degree from Brooklyn College and the J.D. degree from the University of Maryland Law School.

Statement of Lawrence Z. Lorber, Partner, Breed, Abbot and Morgan

MR. LORBER. Thank you, Mr. Hartog. Mr. Chairman Flemming and the rest of the Commissioners, the question of the continued viability of affirmative action as an appropriate goal of government enforcement action has been addressed by the Commission on Civil Rights in its proposed statement. While the statement apparently was drafted to reflect the current state of the law of affirmative action, it can only be considered as a retort to a perceived retrenchment of public concern about the continuing problems of discrimination and a diminution of the proactive Federal response which has evolved over the past 15 years. Because of this fear, based not on any official or announced policy change but upon a misconception of the actual impact of the government's efforts, the Commission has adopted as its analytical model a thesis which will not only diminish support for affirmative action, but will hinder the increasing voluntary response to the problem of job creation and integration of the work force. While the draft statement represents an extensive discussion of the historical societal problem of inhibitions to full and equal opportunities for women and minorities in this country, it avoids discussing the implications of its conclusions in the United States job market of the 1980s and ignores the bureaucratic and judicial realities in the adaptation of the broad public policy known as affirmative action.

As we enter the third decade of official Federal involvement in the process of employment as it relates to equal opportunity, what is perhaps most striking is the adoption of code words or phrases which any dialogue on equal opportunity now seems to require. Thus, we are reminded by this Commis

sion that it vigorously opposes "invidious quotas whose purpose is to exclude identifiable groups from opportunities," while at the same time assured that the Commission maintains its "unwavering support for affirmative action plans." And those who might hold a viewpoint incompatible with the Commission make the particular effort to reaffirm their own commitment to equal opportunity but abhor quotas and other manifestations of government policy generally considered under the present-day perception of affirmative action.

I believe it might assist the public debate for each side to couch its points in the rhetoric of each other. Does this Commission actually believe that the reality of affirmative action as mandated by regulation and agency edict does not result on occasion at least in the invidious quotas it proclaims as unwarranted? Or do those who would acknowledge a government policy on equal opportunity deny the use of remedial actions, including preferential assistance for individuals or groups who have actually suffered discrimination? The answer to both questions must be no.

Rather than create a strained justification for the simple continuance of present policy, the Commission might assist in the development of government enforcement policy by attempting to redefine for the new decade a rational definition of affirmative action so that the debate could focus on substance and not revolve endlessly within a morass of meaningless nomenclature. Unfortunately, the draft statement does not define with any specificity or analysis the term or concept "affirmative action." And in the context of the analytical framework underlying the draft statement, such a statement would be difficult to fashion.

The predicate for this draft statement is that the unquestionable statistical reality of underrepresentation in the work force is derived from a past history of pervasive societal, structural, or individual employer discrimination so that affirmative action and the current bureaucratic and regulatory superstructure built around the term is a necessary response. In this context, and under the analytical model set forth in the draft statement, remedial affirmative action is probably an appropriate response. Whether or not the remedial effort would include preferences for individuals who might share common membership with the defined group of discrimanatees but not common identity as an individual who personally suffered discrimination is a continuing question. But

I do not believe this to be the main question of public concern today. Nor would I accept the proposition that all statistical underrepresentation is derived from past or present employer discrimination.

It would seem incumbent, therefore, to address not only the definition of affirmative action but also that of employment discrimination. I believe it important to note that at various stages of societal activity, there are key points at which intentional exclusionary practices will have ramifications beyond the immediate effects. Thus, denial of equal opportunity in education, either directly by segregated school admission policies or otherwise (for example, by unbalanced funding of school systems), might result in a group of persons sharing common racial or gender characteristics less able to productively participate in our economic system.

Assuming that their relative abilities are fairly measured, how should the "recompense" for their "harm" be determined, and who should be made to bear that cost? Is it an appropriate governmental response to require employers, who use the end product of the educational system, to compensate for its deficiencies? So too, restrictive housing policies or inadequate community facilities which hinder the ability of certain racial, ethnic, or physically handicapped individuals to commute to employment opportunities or live within areas of natural recruitment ought not to be used to compel employers to stretch their own recruitment beyond reason in order counteract these non-employmentrelated conditions.

However, where it can be shown that employment policies create inequities, where standards are set at an arbitrary level not to reflect appropriate employment needs but to exclude individuals from consideration, or where an employer arbitrarily excludes a geographic area from recruitment activity because it contains certain minority or ethnic groups, such policies must be considered discrimination and remedied accordingly: a remedy for the group members discriminated against and required of the employer who discriminated-an appropriate "problem-remedy" approach.

But the Commission statement and the pattern of government activity have gone beyond these exclusionary policies to encompass a host of activities under the heading of discrimination. We now find an unbelievably complex series of regulations and guidelines, purporting to define protected or prohi

bited activities, compliance with which determines the equal employment status of an employer. For example, the government has promulgated a document known as the Uniform Guidelines on Employee Selection, which one circuit court has stated is impossible to comply with and which could prevent any employer from using objective selection procedures. Is this the discrimination Congress intended. to prevent?

The courts and the agencies have expanded their analyses of employment practices to the point where complex statistical inquiry must be made utilizing computer-assisted regression analysis, standard deviation determinations, or econometric models to determine whether an employer unfairly denied. employment opportunities. Is this labyrinth of expert opinion a true reflection of congressional attempts to assure equal employment opportunity?

Yet, it is against this background of administrative action, judicial reaction, and general bureaucratic expansion that an affirmative action policy is suggested. I would submit that such an analysis includes intellectual bootstrapping and bureaucratic creativity which is unsupported by statutory history. However, even should such an analysis continue, is it necessary or even appropriate to base an affirmative action policy on such a foundation? The answer must be negative.

In couching the discussion in terms of discrimination, the Commission risks a reaction against affirmative action which should raise alarm. In one respect, positing a situation whereby every employer is deemed to bear individual liability for societal or structural problems for which the employer had only the most nebulous responsibility or is merely in a reactive mode because of its size or local employment impact forces the employer into a defensive posture. Under this analysis, any employer which opts to take affirmative action is placed in the untenable position of admitting to a liability for prior or present discrimination, whether or not the employer had any responsibility for the problem. Does the Commission anticipate that such an analysis will encourage affirmative action? It is my belief that the analysis would discourage affirmative action.

Basing so much of its position on the proposition that affirmative action is merely a remedy for past discrimination, the Commission also risks the viability of the concept as the very definition of discrimination is redefined. The hallmark of the Commission's analysis is that presumptions of individual

employer wrongdoing, discrimination, can be gleaned from sophisticated statistical imbalances.

Yet, the development of the law seems to be backing away from this type of analysis. It now seems possible to defend against a charge of discrimination by showing a rational reason for the employment decision, without the almost impossible task of proving that discrimination did not enter the decisionmaking process.

With this rationalization of the burden of proof in discrimination, cannot employers absolve themselves from any affirmative action efforts by examining their own employment process and documenting rational reasons for the current employment picture? At this point, and under the Commission's thesis, their obligations would end.

The other critical flaw in the Commission's analysis is the lack of definition of affirmative action. Aside from the nebulous code that the term has become, what does the Commission intend when it requires employers to take affirmative action?

In this regard, the Commission seems to adopt as its definition the regulatory scheme which has evolved over the past decade. In particular, the Commission seems to have adopted the methodology developed by the Office of Federal Contract Compliance in its enforcement of the Executive order requiring affirmative action of government contractors. Thus, it is appropriate that some attention be given to the experience of that agency as a model for the application of affirmative action as an enforcement model.

The evolution of the OFCCP into a major government enforcement agency has occurred with a minimum of review either by the Congress or indeed by the program administrataors. Whether by design or otherwise, the OFCCP has largely exerted a great deal of effort in obliterating the distinction between affirmative action and nondiscrimination, choosing to focus all its efforts on finding employers "guilty" of discrimination and attempting to levy substantial backpay judgments. In my view, such a singleminded focus significantly distorts that agency's mission and tends to transform the affirmative action obligation into the very "invidious quota❞ this Commission opposes so directly.

In focusing on discrimination, the OFCCP ignores the expressed intent of Congress which decided to keep the Executive order authority separate from the EEOC. In particular, Senator Saxbe, the chief proponent of separate authority noted:

The Executive order program should not be confused with the judicial remedies for proven discrimination which unfurl on a limited and expensive case by case basis. Rather, affirmative action means that all government contractors must develop programs to insure that all share equally in the jobs generated by the Federal Government's spending. Proof of overt discrimination is not required.

The rationale for the Senator's distinction becomes apparent on closer analysis. Affirmative action as a prospective activity of employers was conceived of as a means of focusing attention on the need to bring into the work force persons who previously were left out for whatever reason. The concept evolved at a time when the economy was experiencing an increase in jobs and when the jobs. being filled did not initially require a great deal of skill or knowledge on the part of the new employees. The pie to be divided was an expanding one.

Very much like the type of plan approved by the Supreme Court in the Weber decision, the initial affirmative action efforts or plans were individually designed to the specific employment situation of employers. The government viewed its function as assisting in the process of job creation. However, that effort was quickly transformed into a complex regulatory scheme whereby voluntary, ad hoc systems were converted into inexorable regulations, the adherence to which determined not only whether an employer violated its affirmative action obligation, but also whether the same employer was guilty of discrimination.

At a time when the nature of employment in this country was dramatically changing, from a large number of semiskilled jobs to a smaller number of technically complex functions, the government adopted methodologies of measuring availability nonreflective of necessary skills requirements. Is it affirmative action to require employers to hire the unskilled or lesser skilled? It is "invidious" discrimination to deny employment to the better skilled because of their race or sex? These are questions which must be addressed.

Also, the dramatic increase in the size of the regulatory work force caused some of these developments. When 1,400 compliance officers are charged with measuring "affirmative action" and told to find guilty employers, it quickly becomes the norm to measure the employers' progress against a fixed target. The goal becomes a quota.

Perhaps a rethinking of the administrative framework of affirmative action will address some of these

problems. Results-oriented programs should be encouraged. Incentives for employers who create new opportunities should be explored. Prospective actions are a fair subject for government action, particularly when government funds are involved.

But the measures themselves must be realistic and attainable. A goal for an individual employer based upon availability data which accurately reflects the job needs and skill requirements of employees and the work force pool can be a positive tool. A goal based upon unrepresentative data, or based upon a denial of legitimate employment needs, becomes a divisive and potentially discriminatory quota.

A continuation of an adversary relationship between the government and employers, where progress is measured in backpay rather than new jobs, cannot serve the purpose of affirmative action. Therefore, a formal reordering of priorities might be quite helpful. Rather than tying affirmative action to determinations of discrimination, as the Commission does in its report and the agencies in their activities and regulations, a separation of the two concepts might be in order, allowing one arm of government the flexibility to work with employers in innovational job creation, while the other focuses on the discrete, narrow question of whether an individual or an identifiable group suffered a harm from an individual employer which must be remedied. Whether that remedy would include a preference for employment would be left to individual case-bycase determinations. I believe in this way the ideal of employment opportunities would be furthered.

Affirmative action is an expression of the highest ideals of our society. It bespeaks a commitment to open up opportunities for persons who, for whatever reason, do not participate in every aspect of our work force. But it must recognize the heterogeneous nature of our society and the increasingly complex nature of our work requirements. Ignoring these factors does not assist the process of equality. So, too, we must avoid labeling individuals or organizations with the appellation of discriminator. The need to find blame does not comport with the need to find jobs. I simply do not believe that the vast majority of employers in 1981 will choose to disregard qualified individuals because of their sex or race. It makes no business sense and will result in significant liability.

For those that do, a fair and vigorous application of the law will remedy those actions. But for the majority of employers who attempt to increase participation, who indeed accept in principle the use

of numerical measures as one means of judging progress, the government can be a partner in progress and not an adversary.

The draft statement of the Commission will not assist this effort. It is grounded in a time when there were no government efforts, when the laws we accept so readily now were first being drafted, and it ignores the developments of the past 15 years. Perhaps most directly, it ignores the actual realities of regulation and enforcement and, in so doing, provides little assistance for those who believe affirmative action is an appropriate subject of public activity.

Thank you.

MR. HARTOG. Thank you, Mr. Lorber.

Weldon J. Rougeau is former Director of the Office of Federal Contract Compliance Programs of the U.S. Department of Labor. He was appointed to this position in 1977 and served until 1981. In this capacity, he was responsible for the implementation of Executive order 11246, as amended, requiring businesses that contract with the Federal Government to agree as a condition of their contract not to discriminate and to take affirmative action. He was formerly field director of the voter education project of the Southern Regional Council in Atlanta, Georgia, and field secretary for the Congress of Racial Equality in Louisiana, Florida, and Georgia. Mr. Rougeau holds a bachelor of science degree in sociology from Loyola University in Chicago and a law degree from Harvard Law School, where he was a Felix Frankfurter scholar.

Statement of Weldon J. Rougeau, Former Director, Office of Federal Contract Compliance Programs

MR. ROUGEAU. Thank you, Mr. Hartog. Chairman Flemming and members of the Commission, thank you for inviting me to share with you some of my thoughts about your statement on affirmative action in the 1980s.

I believe the Commission on Civil Rights is to be commended for its excellent proposed statement, Affirmative Action in the 1980s: Dismantling the Process of Discrimination. The statement provides useful definitions of discrimination, reviews the state of affirmative action law, and provides what I believe is a constructive approach to the uses of affirmative action measures to undo the process of discrimination in a more lasting way than has previously been attempted.

The Commission's statement comes at a time when the concept of affirmative action is staggering from public denunciation of its usefulness in redressing the rights of those who have suffered from the ill effects of systematic, enduring doses of discrimination. These premeditated criticisms of affirmative action have caused the public to misunderstand the concept and, if we are to believe the public opinion polls, to fear its use in the Nation's attempts to expiate the sins of the Founding Fathers and their progeny.

As a result of the calculated attacks on affirmative action, the public has come to perceive the concept as something synonymous with unwarranted "preferential treatment," "reverse discrimination," and "quotas." These code words, with their inherently threatening connotations, have not allowed for a favorable climate within which to consider affirmative action, to nurture it, and to provide for its use as a creative means of eliminating the debilitating effects of discrimination against blacks, in particular, against women, Hispanics, and other nonwhite minorities. One should not be surprised.

The furor over a misperceived notion of affirmative action has put the victims of discrimination on the defensive, to justify, as it were, why affirmative measures are needed to stop the bleeding, now that the stabbing has ceased. Perhaps the Commission's statement, if adopted as proposed, will help to further the public's understanding of affirmative action and guide American society towards a meaningful dismantling of the process of discrimination. Perhaps.

The Commission has defined individual, organizational, and structural discrimination in ways which should facilitate a better understanding of how affirmative measures can help produce equal opportunity in the light of previous conditions of inequality. If these definitions of discrimination are embraced by American decisionmakers, then perhaps the ensuing awareness of discrimination's many forms and effects can be used to tailor specific measures to overcome the residual inequality that still plagues minorities and women.

The "problem-remedy" approach to the application of affirmative action can be a good one if adopted by employers, college and university officials, and others. Using the four categories of evidence of discrimination, it should be possible to define one's problems with particularity and tailor a corrective program accordingly.