Part A

The Problem: Discrimination

Making choices is an essential part of everyday life for individuals and organizations. These choices are shaped in part by social structures that set standards and influence conduct in such areas as education, employment, housing, and government. When these choices limit the opportunities available to people because of their race, sex, or national origin, the problem of discrimination arises.

Historically, discrimination against minorities and women was not only accepted, but was also governmentally required. The doctrine of white supremacy, used to support the institution of slavery, was so much a part of American custom and policy that the Supreme Court of the United States in 1857 approvingly concluded that both the North and the South regarded slaves "as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect." White supremacy survived the passage of the Civil War amendments

Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 408 (1857).

* For a concise summary of this history that refers to numerous other sources, see U.S., Commission on Civil Rights, Civil Rights: A National, Not a Special Interest (1981), pp. 1-33; Twenty Years After Brown (1975), pp. 4-29; Freedom to the Free: Century of Emancipation 1863-1963 (1963).

• The discriminatory conditions experienced by these minority groups have been documented in the following publications by the U.S. Commission on Civil Rights: Indian Tribes: A Continuing Quest for Survival (1981); The Navajo Nation: An American Colony (1975), The Southwest Indian Report (1973); Success of Asian Americans: Fact or Fiction? (1980); The Forgotten Minority: Asian Americans in New York City (New York State Advisory Committee, 1977); Stranger in One's Land (1970); Toward Quality Education for Mexican Americans (1974); Puerto Ricans in the Continental United States: An Uncertain Future (1976).

to the Constitution and continued to dominate legal and social institutions in the North as well as the South to disadvantage not only blacks, but other racial and ethnic groups as well—American Indians, Alaskan Natives, Asian and Pacific Islanders, and Hispanics.3

While minorities were suffering from white supremacy, women were suffering from male supremacy. Mr. Justice Brennan has summed up the legal disabilities imposed on women this way:

[T]hroughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children."

In 1873 a member of the Supreme Court proclaimed: "Man is, or should be, woman's protector and defender. The natural and proper timidity and • Frontiero v. Richardson, 411 U.S. 677, 685 (1973), citing Leo Kanowitz, Women and the Law: The Unfinished Revolution (Albuquerque: University of New Mexico Press, 1969), pp. 5-6, and Gunnar Myrdal, An American Dilemma (20th Anniversary ed., 1962), p. 1073. Justice Brennan wrote the opinion of the Court, joined by Justices Douglas, White, and Marshall. Justice Stewart concurred in the judgment. Justice Powell, joined by Chief Justice Burger and Justice Blackmun, wrote a separate concurring opinion. Justice Rehnquist dissented. See also H.M. Hacker, "Women as a Minority Group," Social Forces, vol. 30 (1951), pp. 60-69; W. Chafe, Women and Equality: Changing Patterns in American Culture (New York: Oxford University Press, 1977).

delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life."'" Such romantic paternalism has alternated with fixed notions of male superiority to deny women in law and in practice the most fundamental of rights, including the right to vote, which was not granted until 1920; the Equal Rights Amendment has yet to be ratified."

⚫ Bradwell v. State, 83 U.S. (16 Wall) 130, 141 (1873) (Bradley, J., concurring), quoted in Frontiero v. Richardson, 411 U.S 677, 684 (1973).

U.S., Const. amend. XIX.

'See U.S., Commission on Civil Rights, The Equal Rights Amendment: Guaranteeing Equal Rights for Women Under the Constitution (1981); Statement on the Equal Rights Amendment (1978).

• Public opinion polls reveal that the expression of prejudiced attitudes toward blacks and women have continued to decline, particularly in the last decade, although such prejudice persists in a significant percentage of the public. A 1978 Gallup poll showed a decline in the expression of prejudice in issues related to housing and politics. Between 1965 and 1978, the number of whites who said they would move out of their neighborhoods if blacks moved in declined from 35 percent to 16 percent. Between 1969 and 1978, the number of whites who said they would vote for a qualified black Presidential candidate of their own party increased from 67 to 77 percent. Gallup Poll. Aug. 27, 1978. Another poll found that betweeen 1971 and 1978 a declining number of whites said they believed blacks to be inferior (from 22 percent to 15 percent) or of less native intelligence than whites (from 37 percent to 25 percent). Poll by Louis Harris and Associates for the National Conference on Christians and Jews, Newsweek, Feb. 26, 1979, p. 48.

Although blacks continue to see racial prejudice as an important cause of many of their social and economic problems, whites are now less often seen as standing in the way of black progress compared to a decade ago. In 1969 a, Newsweek poll found a plurality of blacks (46 percent) feeling that most whites wanted to keep them down. The February 1981 Newsweek poll showed fewer (32 percent) supporting this view. Gallup Poll Watch, May 18, 1981.

With regard to women, the findings are ambiguous. A recent Gallup poll shows public support for the Equal Rights Amendment at a new high with 63 percent of Americans who have heard or read about the ERA favoring it and 32 percent opposed. In surveys conducted regularly by the Gallup Poll since 1975, support for the ERA had never exceeded 58 percent. Gallup Poll, Aug. 9, 1981. Another poll conducted by the Roper Organization showed a decline in support for the ERA (from 55 percent of women and 68 percent of men in 1975 to 51 percent of women and 52 percent of men in 1980). However, the same poll indicated that support for efforts to strengthen the status of women had increased (from 40 percent of women and 44 percent of men in 1970 to 60 percent of women and 64 percent of men in 1980). Virginia Slims American Women's Opinion Poll (Roper Organization, 1980).

• The Commission has issued a report evaluating the Nation's progress toward equality by systematically comparing the social conditions of the minority and female population to those of the white male population, Social Indicators of Equality for Minorities and Women (1978). Separately analyzed by sex were statistics on American Indians and Alaskan Natives, blacks, Mexican Ameri

Although beliefs and practices based on white and male supremacy linger, public attitudes toward civil rights have improved noticeably. The blatant racial and sexual discrimination that originated in our often forgotten past, however, continues to affect the present. A steady flow of data reveals persistent and widespread gaps throughout society between the status of white males and various minority groups and women. Because they occur so often and in so

cans, Japanese Americans, Chinese Americans, Filipino Americans, Puerto Ricans, and the majority population. According to the report, minorities and women are less likely to have completed as many years of high school or have a high school or college education than white males. If not undereducated, they tend to be educationally overqualified for the work they do and earn less than comparably educated white males. As of 1976, among those persons 25-29 years of age, 34 of every 100 white males were college educated, while only 11 out of every 100 minorities were college educated. Ibid., p. 26.

Women and minorities are more likely to be unemployed, to have less prestigious occupations than white men, and to be concentrated in different occupations. From 1970 to 1976, when unemployment rates were rising for all groups, the disparity between minority and female rates and the majority male rate generally increased; blacks, Mexican Americans, and Puerto Ricans of both sexes moved from having approximately twice the unemployment of majority males in 1970 to nearly three times the majority male rate in 1976. Ibid., p. 29. In 1976, 47.8 percent of black male teenagers, 51.3 percent of black female teenagers, and 55.2 percent of Puerto Rican male teenagers were unemployed, compared to 15.0 percent unemployment among majority male teenagers. Ibid., p. 32. Occupational segregation is also intense: One-third of the jobs held by minority men and two-thirds to three-fourths of the jobs held by women in 1976 would have to be changed to match the occupational patterns of white males. Ibid., p. 45.

Minorities and women have less per capita household income and a greater likelihood of being in poverty. "The indicator values for median household per capita income for 1959, 1969, and 1975 show that most minority and female-headed households have only half the income that is available to majority households." Ibid., p. 65. Relative to the income of white males, the incomes available to Mexican Americans and Puerto Ricans in 1975 were the same as or less than they were in 1965 and 1970. In addition, minorityheaded families, regardless of the sex of the family head, are twice as likely to be in poverty as majority-headed families, and minority female-headed families are over five times as likely to be in poverty as majority-headed families. Ibid., pp. 65-66. Finally, minority and female-headed households are more likely to be located in central cities than in the suburbs where majorityheaded households are located. Between 1960 and 1970 most minority households were only about one-half to two-thirds as likely as white households to be situated outside a central city. Minorities and women are less likely to be homeowners, more likely to live in overcrowded conditions, and more likely to spend more than a quarter of their family income on rent. American Indian, Alaskan Native, black, Chinese American, Filipino American, and Puerto Rican rental households were all more than two, with Mexican American households almost six, times as likely to be overcrowded as white households in 1970. In 1976 minority and female-headed households were, at best, two-thirds as likely to be owner occupied as majority-headed households. Ibid., pp. 75, 84-85.

many places, such statistically observable inequalities are strong evidence of a systematic denial of equal opportunities. Those inequalities result from a complex interaction of attitudes and actions of individuals, organizations, and the network of social structures that makes up our society.

Individual Discrimination

The most common understanding of discrimination rests at the level of prejudiced individual attitudes and behavior. Although open and intentional prejudice persists, individual discriminatory conduct is often hidden and sometimes unintentional.10 Some of the following are examples of deliberately discriminatory actions by consciously prejudiced individuals. Some are examples of unintentionally discriminatory actions taken by persons who may not believe themselves to be prejudiced, but whose decisions continue to be guided by deeply ingrained discriminatory customs.

· Personnel officers whose stereotyped beliefs about women and minorities justify hiring them for low level and low paying jobs exclusively, regardless of their potential experience or qualifications for higher level jobs."1

Hiring officials, historically white males, who rely on "word-of-mouth" recruiting among their

10 See.e.g., R.K. Merton, "Discrimination and the American Creed," in R.K. Merton, Sociological Ambivalence and Other Essays (New York: The Free Press, 1976), pp. 189-216. In this essay on racism, published for the first time more than 30 years ago, Merton presented a typology which introduced the idea that discriminatory actions are not always directly related to individual attitudes of prejudice. Merton's typology consisted of the following: Type I-the unprejudiced nondiscriminator; Type IIthe unprejudiced discriminator; Type III-the prejudiced nondiscriminator; Type IV-the prejudiced discriminator. In the present context, Type II is crucial in its observation that discrimination is often practiced by persons who are not themselves prejudiced, but who respond to, or do not oppose, the actions of those who discriminate because of prejudiced attitudes (Type IV). See also D.C. Reitzes, "Prejudice and Discrimination: A Study in Contradictions," in Racial and Ethnic Relations, ed. H.M. Hughes (Boston: Allyn and Bacon, 1970), pp. 56-65. "See R.M. Kanter and B.A. Stein, "Making a Life at the Bottom," in Life in Organizations, Workplaces as People Experience Them, ed. R.M. Kanter and B.A. Stein (New York: Basic Books, 1976), pp. 176-90; also, L.K. Howe, "Retail Sales Worker," ibid., pp. 248-51; also, R.M. Kanter, Men and Women of the Corporation (New York: Basic Books, 1977).

12 See M.S. Granovetter, Getting A Job: A Study of Contract and Careers (Cambridge: Harvard University Press, 1974), pp. 6-11; also, A.W. Blumrosen, Black Employment and the Law (New Brunswick, N.J.: Rutgers University Press, 1971), pp. 232-34. See also EEOC v. Detroit Edison Co., 515 F.2d 301, 313 (6th Cir. 1975), vacated on other grounds, 431 U.S. 951 (1977) (practice of relying on referrals by a predominantly white work force rather than seeking out new employees in the marketplace for jobs was

found to be discriminatory); EEOC v. Ford Motor Co., 645 F.2d 183, 198 (4th Cir. 1981) (a policy of favoring job applicants who were friends of current workers, where current work force was exclusively male, plus statistical data showing bias in hiring practices, established discrimination under Title VII).

13 See U.S., Equal Employment Opportunity Commission (EEOC), "Guideliness on Discrimination Because of Sex," 29 C.F.R. §1604.4 (1979); L. Farley, Sexual Shakedown: The Sexual Harassment of Women on the Job (New York: McGraw Hill, 1978), pp. 92-96, 176–79; C.A. Mackinnon, Sexual Harassment of Working Women (New Haven: Yale University Press, 1979), pp. 25-55.

14 See R. Rosenthal and L.F. Jacobson, "Teacher Expectations for the Disadvantaged," Scientific American, 1968 (b), pp. 218, 219-23; also, D. Bar Tal, "Interactions of Teachers and Pupils," in New Approaches to Social Problems, ed. I.H. Frieze, D. Bar Tal, and J.S. Carrol (San Francisco: Jossey Bass, 1979), pp. 337-58; also, U.S., Commission on Civil Rights, Teachers and Students, Report V: Mexican American Education Study, Differences in Teacher Interaction With Mexican American and Anglo Students (1973), pp. 22-23.

15 Ibid.

U.S., Department of Housing and Urban Development, Measuring Racial Discrimination in American Housing Markets: The Housing Market Practices Survey (1979); D.M. Pearce, "Gatekeepers and Home Seekers: Institutional Patterns in Racial Steering," in Social Problems, vol. 26 (1979), pp. 325-42; "Benign Steering and Benign Quotas: The Validity of Race Conscious Government Policies to Promote Residential Integration," Harvard Law Review, vol. 93 (1980), pp. 938, 944.

therefore move out of their neighborhoods if minorities do move in."7

• Parole officials who assume minority offenders are more dangerous or more unreliable than white offenders and consequently more frequently deny parole to minorities than to whites convicted of equally serious crimes. 18

These contemporary examples of discrimination need not be motivated by conscious prejudice. The personnel manager is likely to deny believing that minorities and women can only perform satisfactorily in low level jobs even while acting in ways consistent with such beliefs. In some cases the minority or female applicants may not be aware that they have been discriminated against-the personnel manager may inform them that they are deficient in experience while rejecting their applications because of prejudice; the white male hiring official who recruits through his friends or white male work force excludes minorities and women who never learn of the available positions. The discriminatory results these activities cause may not even be desired. The guidance counselor may honestly believe there are no other realistic alternatives for minority and female students.

Whether conscious or not, open or hidden, desired or undesired, these acts build on and support prejudicial stereotypes, deny their victims opportunities provided to others, and perpetuate discrimination, regardless of intent.

Organizational Discrimination

Discrimination, though practiced by individuals, is often reinforced by the well-established rules, policies, and practices of organizations. These procedures may be officially approved, formal parts of 17 See M.N. Danielson, The Politics of Exclusion (New York: Columbia University Press, 1976), pp. 11-12; U.S., Commission on Civil Rights, Equal Opportunity in Suburbia (1974).

1 See L.L. Knowles and K. Prewitt, eds., Institutional Racism in America (Englewood Cliffs, N.J.: Prentice Hall, 1969) pp. 58-77. and E.D. Wright, The Politics of Punishment (New York: Harper and Row, 1973). Also, S.V. Brown, "Race and Parole Hearing Outcomes," in Discrimination in Organizations, ed. R. Alvarez and K.G. Lutterman (San Francisco: Jossey Bass, 1979), pp. 355–74. "Height and weight minimums that disproportionately exclude women without a showing of legitimate job requirement constitute unlawful sex discrimination. See Dothard v. Rawlinson, 433 U.S. 321 (1977); Bowe v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir. 1969). Minimum height requirements used in screening applicants for employment have also been held to be unlawful where such a requirement excludes a significantly higher percentage of Hispanics than other national origin groups in the labor market and no job relatedness is shown. See Smith v. City of East Cleveland, 520 F.2d 492 (6th Cir. 1975).

organizational decisionmaking, or they may be unarticulated, informal ways of doing business. Whether formal or informal, they are the organization's standard operating procedures and are carried out by individuals as just part of their day's work. Discrimination at the organizational level takes forms that are similar to those on the individual level. For example:

• Height and weight requirements that are unnecessarily geared to the physical proportions of white males without regard for the actual requirements needed to perform the job, and, therefore, exclude females and some minorities.1o

• Seniority rules, when applied to jobs historically held only by white males, that make more recently hired minorities and females more subject to layoff-the "last hired, first fired" employeeand less eligible for advancement.20

Standardized academic tests or criteria, geared to the cultural and educational norms of the 30 U.S., Commission on Civil Rights, Last Hired. First Fired (1976); Tangren v. Wackenhut Servs., Inc., 480 F. Supp. 539 (D. Nev. 1979), notice of appeal filed (9th Cir. Dec. 4, 1979).

1 U.S., Commission on Civil Rights, The Challenge Ahead. Equal Opportunity in Referral Unions (1977), pp. 84-89.

" A. Pifer, "Women Working: Toward a New Society," pp. 1334, and D. Pearce, "Women, Work and Welfare: The Feminization of Poverty," pp. 103-24, both in K.A. Fernstein, ed., Working Women and Families (Beverly Hills: Sage Publications, 1979). See also, U.S., Commission on Civil Rights, Child Care and Equal Opportunity for Women (1981), pp. 44-49. Disproportionate numbers of single-parent families are minorities. See U.S., Department of Commerce, Bureau of the Census, Families Maintained by Female Householders 1970–79 (1980), p. 5.

"See EEOC, "Guidelines on Discrimination Because of National Origin," $1606.7, 45 Fed. Reg. 85635 (1980) (to be codified in 29 C.F.R. Part 1606).

middle-class or white males, that are not relevant indicators of successful job performance."

Preferences shown by law and medical schools in the admission of children of wealthy and influential alumni, nearly all of whom are white.25 • Credit policies of banks and lending institutions that prevent the granting of mortgage monies and loans in minority neighborhoods or prevent the granting of credit to married women and others who have previously been denied the opportunity to build good credit histories in their own names. 26

Superficially "colorblind" or "gender neutral," these organizational practices have an adverse effect on minorities and women. As with individual actions, these organizational actions favor white males. Even when taken with no deliberate intent to affect minorities and women adversely, they protect and promote the status quo arising from the racism and sexism of the past. If, for example, the jobs now protected by "last hired, first fired" provisions had always been integrated, seniority would not operate to disadvantage minorities and women. If many educational systems from kindergarten through college had not historically favored white males, more minorities and women would hold advanced degrees and thereby be included among those involved in deciding what academic tests should test. If minorities had lived in the same neighborhoods as whites, there would be no minority neighborhoods to which mortgage money could be denied on the basis of their being minority neighborhoods.

Such barriers to minorities and women too often do not fulfill legitimate needs of the organization, or these needs can be met through other means that adequately further organizational interests without discriminating. Instead of excluding all women on the assumption that they are too weak or should be protected from strenuous work, the organization can * See Griggs v. Duke Power Co., 401 U.S. 424 (1971); U.S., Commission on Civil Rights, Toward Equal Educational Opportunity: Affirmative Admissions Programs at Law and Medical Schools (1978), pp. 10-12; I. Berg, Education and Jobs: The Great Training Robbery (Boston: Beacon Press, 1971), pp. 58-60.

"See U.S., Commission on Civil Rights, Toward Equal Educational Opportunity, pp. 14-15.

"See U.S., Commission on Civil Rights, Mortgage Money: Who Gets It? A Case Study in Mortgage Lending Discrimination in Hartford, Conn. (1974); J. Feagin and C.B. Feagin, Discrimination American Style, Institutional Racism and Sexism (Englewood Cliffs, NJ: Prentice Hall, 1976), pp. 78–79.

"See Club Membership Practices by Financial Institutions: Hearing Before the Committee on Banking, Housing and Urban Affairs,

implement a reasonable test that measures the strength actually needed to perform the job or, where possible, develop ways of doing the work that require less physical effort. Admissions to academic and professional schools can be decided not only on the basis of grades, standardized test scores, and the prestige of the high school or college from which the applicant graduates, but also on the basis of community service, work experience, and letters of recommendation. Lending institutions can look at the individual and his or her financial ability rather than the neighborhood or marital status of the prospective borrower.

Some practices that disadvantage minorities and women are readily accepted aspects of everyday behavior. Consider the "old boy" network in business and education built on years of friendship and social contact among white males, or the exchanges of information and corporate strategies by business acquaintances in racially or sexually exclusive private clubs paid for by the employer." These actions, all of which have a discriminatory impact on minorities and women, are not necessarily acts of conscious prejudice. Because such actions are so often considered part of the "normal" way of doing things, people have difficulty recognizing that they are part of a discriminatory process and, therefore, resist abandoning them despite the clearly discriminatory results. Consequently, many decisionmakers have difficulty considering, much less accepting, nondiscriminatory alternatives that may work just as well or better to advance legitimate organizational interests, but without systematically disadvantaging minorities and women.

This is not to suggest that all such discriminatory organizational actions are spurious or arbitrary. Many may serve the actual needs of the organization. Physical size or strength at times may be a legitimate job requirement; sick leave and insurance United States Senate, 96th Cong., 1st sess. (1979). Pursuant to President Reagan's directive, the Office of Federal Contract Compliance Programs has withdrawn a rule it earlier proposed (45 Fed. Reg. 4954, 1980) that would have made the payment or reimbursement of membership fees in a private club that accepts or rejects persons on the basis of race, color, sex, religion, or national origin a prohibited discriminatory practice if such membership enhances employment opportunities. 46 Fed. Reg. 19004 (Mar. 27, 1981). It is the position of the Labor Department, however, that the Executive order provisions prohibiting discrimination and requiring affirmative action are "adequate to prevent an employer from using such memberships to structure the conduct of its businesses in a manner which creates employment discrimination." Id.