Discrimination and the Constitution legislation and one or more stronger tests to other legislation. There is no reason why the Court may not use various judicial tests. So long as the application of the tests is not geared to the racial identity of individuals, the use of multiple tests involves no racial double-standard. However, the use of the Brennan-White approach will produce outcomes not dissimilar to those produced by the use of a double-standard. That is, it will tend to treat discrimination against whites less harshly than it has treated past discrimination against blacks. This does not reflect, however, the use of a double-standard; it simply reflects that as a matter of fact past discrimination against blacks has been stigmatizing, demeaning, and motivated by racial antipathy, while as a matter of fact recent discrimination against whites has not. Powell's strictures against the double-standard interpretation of equal protection do not tell against the Brennan-White thesis. CONCLUSIONS I suggested that the Brennan-White approach to the use of race is more promising than Powell's. This may be a mistake. It may be that the same results gotten from the Brennan-White approach can be gotten from the proper application of the compelling state interest test. Or, it may be that the proper application of the Brennan-White test should condemn racial schemes like the one at Davis, just as the compelling state interest standard would. What makes this so speculative is that neither approach is articulated with enough precision to generate deductive consequences. As a result, it is far from obvious what conclusions should be drawn on either approach. To think that things have been made clearer by speaking of "important interests" and "substantial connections" rather than "compelling interests" and "necessary connections" is to be mesmerized by word-play. We can, at least in the context of The Reverse Discrimination Controversy Bakke, see that Brennan's group is willing to view "benign" racial classifications with more tolerance than "malign❞ ones. We may presume that Powell does not view the two uses of race as on par, but he nevertheless appears to be more hostile toward even "good" uses of race than the Brennan group. This much, of course, is obvious from the opinions in the case. I believe that we can say very little more about the exact differences between the standards they used in their opinions. This much, I think, can be said. The Court's past decisions on equal protection do not constrain it to reject a multiple approach to race like that suggested by the Brennan-White thesis. There is much to be said for avoiding a rigid or clumsy standard of review in dealing with racial policies because the factors that make one use of race an affront to equality may not be present in another use. Clearly the moral quality of racial preferences designed to help minorities victimized by past discrimination is different from the moral quality of racial preferences designed to oppress them. There is room in the Court's opinions to take an approach to racial classifications which reflects this moral difference. There is, in its doctrine, room for the Court to approve a program like the one which excluded Brian Weber or the one which excluded Allan Bakke. As a matter of fact, the Court did not approve of the program at the Medical School at Davis. The Bakke decision, however, cannot be considered the last word about the constitutionality of racial preferences. In that decision, only five justices examined the constitutional question, and four of them were disposed to approve the Medical School's use of race (Brennan, White, Marshall, and Blackmun). The other four justices (Stevens, Burger, Stewart, and Rehnquist) found the Medical School program illegal under Title VI of the Civil Rights Act of 1964. Thus, the constitutional disapproval of the California program rested on the singular judgment of Justice Powell. I am a lawyer for a large federal agency, which I'll call the Department of X in order to protect the innocent, namely me. In the course of my work I review cases before the agency's Office of Civil Rights, which exists to fight discrimination against DOX employees. Recently I received a letter from an attorney representing an employee who claimed he was the victim of age discrimination. What were the grounds? His supervisor had called him "oldfashioned." That, I am sorry to say, is not just a comic anecdote. A high percentage of the complaints filed with our OCR are completely ridiculous. Yet each one activates an expensive, ponderous, lawsuit-like procedure that can treat even the most mundane water-cooler spat like Brown v. Board of Education. And the source of these complaints is intriguing. Of the 120 discrimination complaints pending against DOX, 40 were filed by OCR employees against the management of OCR itself. To put that in perspective, DOX as a whole has about 10,000 employees. Its OCR has about 30 employees. So 33 percent of the discrimination complaints are being filed by less than half of one percent of the agency's employees. Nell Minow is a lawyer for a federal agency. . LLUSTRATIONS BY MILIAN TOULTER Is the OCR, by some supreme irony, a hotbed of the very discriminatory practices it was designed to stamp out? No. It seems, rather, a hotbed of the self-centered absurdity that is government at its worst, and I suspect things aren't much different at the OCRS in other agencies. Nowadays almost every major federal agency has an OCR. These offices were formed beginning in the 1960s, and their mission was an honorable one-to combat the evil of discrimination. Discrimination once made it extremely difficult for minority men, and women of all races, to get equal treatment and equal career opportunities within the federal government. The situation is better now, but discrimination still holds back deserving employees in some cases. The situation is better, in part, because agency OCRs are available to act on complaints. But when real and serious instances of prejudice come up, they must wait in line behind the frivolous complaints so often generated by the OCRS themselves. The disproportionate number of OCR employee complaints is caused, I think, by three factors. First, OCRs have traditionally been a dumping ground for incompetent or difficult employees. This is in keeping with the expansion-team theory of federal office forma 84-280 0-83-65 tion. Most new offices are staffed largely by civil servants from existing offices. Naturally managers of existing offices do not want to give up their best people; on the other hand, they are dying to get rid of their nincompoops and malcontents, since under civil service rules such people can rarely be fired. So federal managers hand over their worst workers when a new agency or office is being created. In the case of the OCRs, managers also figured the antidiscrimination function would be so remote from the main mission of the agency that employees banished there couldn't screw up anything too important. As a result. DOX's OCR has a high number of employees who have beaten the agency in lawsuits of one kind or another (particularly anti-discrimination suits). forcing the government to provide them with high-level positions whether merited or not. This doesn't mean everyone in DOX's OCR is either ill-tempered or incompetent. Obviously not. But the percentage of undesirable employees is dangerously high. The second reason OCR is the source of so many discrimination complaints is that it is under such pressure to set a good affirmativeaction example, it sometimes places unqualified minority people in leadership positions. Thus we have an office loaded with unqualified, litigious employees led by executives of doubtful qualifications, a deadly combination in light of the third factor: OCR employees, who administer the discrimination-complaints process. know better than anyone else how easy it is to manipulate the system. At the risk of setting loose an avalanche of new complaints, let me describe some of the discrimination allegations employees at DOX have filed recently. Because these complaints are treated confidentially (unless they go to full courtroom trial). I cannot give real names. They are, I assure you, not composites. • A man I'll call Tucker filed eight complaints in less than six months. One of them contained 17 separate allegations claiming discriminatory acts against him. One alleged act of discrimination was that, after Tucker admittedly disobeyed his supervisor's express instructions, she came into his office and criticized him for it. • Tucker also filed a complaint about a conference all 12 members of his office attended. the purpose of which was to help them learn to work together better. As part of the program, all participants were asked to write statements about each other, without identifying the author or the subject of the statement. During an THE WASHINGTON MONTHLY JUNE 198' encounter-type session, the statements were read aloud. One statement was "This person speaks another language in the office." Although the statement could have referred to at least three people in the room-including the one Tucker believed wrote it -Tucker decided it discriminated against him and filed a complaint. • Tucker brought another complaint because someone told him that someone said (yes, thirdperson information) that he (Tucker) would have a fit" if a new employee were assigned to work with him. Tucker had filed numerous complaints in the past when people were assigned to work with him. A woman I'll call Hammond brought a complaint claiming she had been discriminated against because her supervisor denied her permission to take a course at government expense. Her supervisor pointed out that the course was not sufficiently related to her current responsibilities, but was directly related-in fact was a prerequisite for a new career Hammond had announced she was going to pursue after her retirement at the end of the year. • A man I'll call Rogers applied for a position requiring certain college-level coursework. The personnel office rated him unqualified because he had received three Ds in the courses. It is DOX policy not to recognize coursework in which Ds are received. As it happened, even if Rogers had passed the courses he still would not have met the minimum requisite coursework. Nevertheless he claimed the "unqualified" rating resulted from racial discrimination. • Another man filed a complaint alleging that two pages of shorthand notes from the desk of his supervisor's secretary said something bad about him. He refused to explain how he came into possession of the notes. When translated from shorthand the notes made no reference to him at all. • Another woman brought not just a personal complaint but a class-action complaint over DOX's policy of giving points to job applicants with Ph.D.s. She claimed that because young people were more likely to go to graduate school than old people, giving points for Ph.D.s constituted age discrimination. Your Decade in Court Many of these complaints (and those of Lancaster, the complaint-filing champ described in the sidebar) were brought by high-level (GS13 and above) employees of the OCR. These are people whose entire jobs revolve around a clear understanding of what discrimination is (and who are paid very well-$32,000 and more--for their efforts). Either these people are so far from understanding the fundamentals of their own profession that they simply do not know what a legitimate discrimination complaint looks like, or they are filing complaints for some other reason. Before we speculate as to what that reason may be, let's look at the complaint process. The rules governing discrimination complaints were developed by the Equal Employment Opportunity Commission, an independent federal agency, and apply to all OCRs. Let's say that Bayshore, an Aleutian male, applies for a promotion and is turned down. He believes it was because of his race. Bayshore must first discuss the matter with an Equal Employment Opportunity counselor. Counselors are DOX employees (not from the OCR) who perform this function in addition to their other duties. At an informal session, the counselor will try to resolve the complaint, meeting with Bayshore's supervisor if necessary. If the complaint cannot be resolved informally, the counselor notifies the OCR, and Bayshore files a formal complaint. Federal regulations specifically prohibit the counselor from attempting to dissuade someone from filing a complaint, no matter how frivolous. The formal process begins with the filing of a simple form, which allows Bayshore to check off the grounds on which he alleges discrimination. OCR reviews the complaint to make sure it complies with procedural rules. Then an OCR investigator is assigned to the case. The investigator interviews Bayshore, anyone Bayshore mentions in connection with his story, and anyone else who might have something to add. A file is prepared that includes the investigator's report, affidavits from those interviewed, evidence supplied by Bayshore or the witnesses, and other relevant documents. In Bayshore's case, such documents would include a breakdown by race and sex of the promotions in his office during the past year. This file is turned over to Bayshore and an adjudicator, another OCR official. The adjudicator meets with Bayshore (and, if he has one, Bayshore's attorney) to see if there is any possibility of a settlement. If not, the adjudicator makes up his mind as to the rights and wrongs of the case, gets the approval of his supervisor and the signature of the OCR director, and sends his decision to Bayshore. Sound reasonable? That's just the beginning, not the end, of the process. If the adjudicator finds that no discrimination occurred, he must notify Bayshore of a right to a hearing before an examiner of the larger Equal Employment Opportunity Commission. This is a full-scale administrative hearing-with lawyers, witnesses on the stand, and a court reporter taking it all down. In this hearing the EEOC examiner goes over exactly the same material that has been reviewed by the investigator, adjudicator, supervisor, and OCR director, all of whom found that no discrimination occurred. The EEOC examiner prepares a "proposed decision," which is sent to the Secretary of X himself for review. The Secretary of X may approve, amend or reverse the examiner's decision. Now, the secretary of a major agency has more important things to do than review proposed findings about how some GS-13's feelings were hurt at a transactional analysis session. Besides, it usually takes so long to get to this point-often years that the events complained about happened during a previous administration when some other secretary was in charge. So what happens? The proposed decision is sent right back to the OCR, the office whose original determination is being reviewed. Let's say the EEOC examiner proposed a finding of no discrimination. Of course that was OCR's position in the first place. Appeals proceed up the ladder only when each rung is a finding of no discrimination, since if discrimination is found the complainant wins and the process stops. So the office is likely to recommend concurrence. But Bayshore isn't finished yet. He has the right to have the EEOC review the Secretary of X's decision based on the recommendations of the OCR, based on the EEOC examiner's proposed findings, based on a review of the OCR adjudicator's decision, based on the OCR investigator's report, based on affidavits, and based on evidence supplied by the witnesses. In all these there is almost certain to be some irregularity. And if even these avenues fail, Bayshore can go to court. Needless to say, all this takes time. For example, one DOX complaint filed in 1978 finally went to a hearing in March 1981. Remember, that's just the second stage. Completing the rest of the process could easily take another three years, and years more if the complaint goes to court. One drawback of alleging age discrimination is that you may be in a nursing home by the time your case is decided. What offenses do all these reviewers look for? Well, the Supreme Court is still grappling with a |