What the Weber Ruling Does

The Supreme Court backs job-preference programs for minorities

The question had long been unresolved, though it had deep implications for both employers and workers, as well as for U.S. society at large: Is it fair to discriminate against whites in order to help the longtime victims of discrimination, notably blacks and other disadvantaged minorities? Last week, ruling in the crucial case of United Steelworkers of America vs. Weber, the U.S. Supreme Court gave an answer. Employers can indeed choose to give special job preference to blacks without fear of being harassed by reverse-discrimination suits brought by other employees. The ruling was a strong endorsement of affirmative-action programs, one that will both protect them from legal assault and spur their expansion.

The Weber decision contrasted sharply with the Supreme Court's ruling last year in the case of Allan Bakke, the white who was denied admission to the medical school of the University of California at Davis because of a minority quota. In Bakke, the court took a muddled position on the reverse-discrimination issue: it said no to explicit quotas for minorities, at least in admissions to publicly supported universities, but it also declared that, yes, race could be a factor in choosing applicants. It did not speak at all to the issue of the fairness of affirmative action in employment.

That issue was left for the case of the "blue-collar Bakke": Brian Weber, 32, now a $20,000-a-year, white, laboratory analyst at a chemical plant in Gramercy, La. He had sued both his employer, the Kaiser Aluminum & Chemical Corp., and the Steelworkers Union in 1974, charging that he had been illegally excluded from a training program for higher paying skilled jobs, such as electrician and repairman, in which half the places were reserved for minorities. Though Weber won in two lower courts, he lost in the high court. By a 5-to-2 vote, the justices ruled that employers can indeed give blacks special preference for jobs that were traditionally all white. Whether or not it has had discriminatory job practices in the past, a company can use affirmative-action programs to remedy "manifest racial imbalance" in employment without fear of being challenged for its efforts in the courts.

Kaiser and the Steelworkers Union agreed to set up affirmative-action training programs at 15 of the company's plants in the U.S. five years ago. At that time, blacks accounted for less than 2% of the 273 skilled craftsmen at the Kaiser plant where Weber was employed, even though blacks made up 39% of the local work force. To close that gap, the company and the union decided to accept whites and blacks into the program at that plant on a 1-to-1 basis. When the program rejected Weber, he filed suit. Federal courts upheld his claim; they ruled that Title VII of the Civil Rights Act of 1964 bans any racial discrimination in employment, no matter whether the bias is against blacks or whites.

The Supreme Court's majority opinion, written by Justice William Brennan, conceded that the lower courts' rulings had followed the letter of the 1964 law, but insisted that they were not within its spirit. The primary concern of Congress was with "the plight of the Negro in our economy," Brennan wrote. It would be "ironic indeed," he said, if Title VII was used to prohibit "all voluntary, private, race-conscious efforts to abolish traditional patterns" of discrimination.

Chief Justice Warren Burger and Justice William Rehnquist dissented forcefully. (For varying reasons, Lewis Powell and John Paul Stevens did not participate in the decision.) In a biting opinion, Rehnquist argued that the legislative history of Title VII shows that "Congress meant precisely what it said." Congressional proponents of the act argued "tirelessly" during 83 days of debate that Title VII would be used neither to require nor permit quotas. Burger said that he would side with the majority if he were a Congressman, but that as a judge he had no business joining in "totally rewriting a crucial part" of the law. Said he: "Congress expressly prohibited the discrimination against Brian Weber the court approves now."

Civil rights leaders cheered the decision. Said Benjamin Hooks, executive director of the NAACP: "Had we lost this case, the cause of affirmative action would have been set back ten years." The reaction in many boardrooms was relief. Before the ruling, employers were caught in a bind. If they gave minorities a break to remedy racial imbalance in hiring, they risked suits from rejected whites like Weber. But if they had a racially imbalanced work force and did nothing about it, they risked getting sued by minorities as well as the Equal Employment Opportunity Commission (EEOC); they also stood a chance of losing their federal contracts. With Weber, they now have some guidance on what they can and cannot do.

But companies may find that Weber will bring even more pressure on them--not just from blacks--to set up affirmative-action programs. For instance, Vilma Martinez, head of the Mexican-American Legal Defense and Education Fund, says that Hispanics will see the ruling as "the means to open doors that have been closed for too long." Women's groups believe Weber may help them expand their already considerable gains. Even some white ethnic groups that feel left out in the scramble for economic opportunity, such as Poles, Italians, Ukrainians and Czechs, may interpret Weber as a challenge that they cannot afford to ignore. Warns Leonard Walentynowicz, executive director of the Polish-American Congress: "If America's job opportunities and money are to be parceled out to groups, we are a definable group, and we want our share."

Technically, the Weber decision is very narrow, in that it deals only with quotas that favor blacks. It says nothing about other minorities or women. Yet legal experts agree that in practice Weber will help not only blacks but other racial minorities, like Hispanics. It is less clear that affirmative-action programs that favor women will benefit from Weber. In discrimination cases, courts have typically been much more forthright in upholding the claims of minorities than of women. Weber is not likely to be of much use to white ethnic groups; hiring preferences that favor them would be vulnerable to reverse-discrimination suits.

Though the decision stressed the importance of employers voluntarily setting up affirmative-action programs, it is likely that the government will use Weber to push for outright quota systems for minorities. Says Stanley Kaleczyc, associate general counsel for the U.S. Chamber of Commerce: "This decision will give the EEOC more reason to press companies that have been laying back."

Brennan did not address the issue, but it is clear that the EEOC can obtain court-ordered affirmative action, including quotas, if it proves past discrimination. Most affirmative-action programs exist because employers cannot get federal contracts without them. Last week the Government said it would no longer buy from Uniroyal, charging that the company had balked at setting up an affirmative-action program for women. Uniroyal is only the 21st company to be so penalized in 15 years, but it is the biggest--with $35 million in outstanding Government contracts.

Government regulations generally require employers with 50 employees and federal contracts worth more than $50,000 to set "goals and timetables" for bringing their minority and female work force up to their percentages in the available labor pool. About 325,000 employers, with a total payroll of 30 million workers, have these programs. The goals are not supposed to be inflexible quotas, though in practice it can be hard to tell a "goal" from a "quota."

Weber does not say how far an employer can go to give preference to minorities over whites. But to be safe from Weber-type challenges, an affirmative-action program would have to avoid excluding whites altogether, deal with job categories that have traditionally been segregated, and avoid firing whites to make room for blacks. It also must be "temporary." Justice Brennan noted with approval that when the percentage of black skilled workers at the Kaiser plant approximates the percentage of blacks in the local labor force, the program will end.

The ruling will undoubtedly breed some resentment. Weber himself last week predicted that the decision will have "a negative effect on people all over the country toward blacks." Perhaps. But the ruling will also bring hope. "I've done better than my parents ever dreamed," says James Nailor, a black electrician who was one of the first to be accepted into the Kaiser training program from which Weber was barred. "The decision means my children will have a chance to do better than I will. That's the American dream."

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