The Reagan Administration and the Politics of Affirmative Action in the 1980s

With Ronald Reagan’s inauguration in 1981, the executive branch became openly hostile to affirmative action, which it dismissed as an unfair, group-based remedy to past problems. The recent high-profile but ambiguously decided Regents of the University of California v. Bakke case of 1978 had raised the public’s attention to issues of affirmative action in higher education admissions, and the Reagan administration used this momentum to attack affirmative action more generally.^{Footnote 6} In an aside in his 1979 article about the legal ramifications of Bakke, Laurence Tribe downplays the potential political ramifications of the narrow, nuanced decision in which the white plaintiff won because of problems with California’s affirmative-action plan, but racial affirmative action itself was held to be constitutional. “It is difficult to say,” Tribe writes, “whether a less ambiguous victory for race-conscious remedies would have invited backlash more than it would have emboldened reform.”^{Footnote 7} Tribe adds the caveat that his article is not about the politics of affirmative action. Tribe’s otherwise excellent article about the meaning of Bakke was dead wrong about the political effect. A backlash did follow and it was not confined to affirmative action in higher education. While the federal government had little power to craft admission policies at public universities, the area in which the Bakke decision offered the most direct precedent, some in the Reagan administration used the wedge issue to try to dismantle affirmative action in employment, where they did have somewhat more—though still comparatively little—influence.

In the 1980s, there were three principal arenas for affirmative action in federal policy, in descending order or federal executive power to shape policy: first, policies within direct federal purview, specifically the executive branch; second, federal contractors (under Title VI of the Civil Rights Act of 1964 and previous executive orders overseen by the Department of Labor’s Office for Federal Contract Compliance Programs); and third, the private sector, overseen by the EEOC under Title VII. Even though politicians and their appointees talked about the private sector the most, the private sector is where the federal government had (and still has) the least power or leverage to effect change.

A few dissenting voices could be heard within the Reagan administration, but most Reaganites averred that goals and timetables comprised a form of racial and gender discrimination that violated both the letter and spirit of the Fourteenth Amendment, Title VI and VII of the Civil Rights Act of 1964, and other constitutional and statutory civil rights law.^{Footnote 8} While many, including the president, were ambivalent regarding less controversial attempts to increase diversity short of setting goals and timetables, such as recruiting women and minority applicants, the overall tone of the administration was unmistakably hostile to affirmative action. This ideological opposition to affirmative action became more pronounced over the two-term presidency. We see this, for example, in the displacement of moderate or dissenting voices by more stridently anti-affirmative-action figures such as Edwin Meese; in public documents that articulated the anti-affirmative-action stance, most prominently a 1987 Department of Justice report that claimed that affirmative action was fundamentally unjust; and in strategies for undermining the EEOC, several of which came together in the appointment of Clarence Thomas as EEOC chairman.

Under Department of Labor regulations pursuant to Lyndon Johnson’s Executive Order 11246 and Title VI of the Civil Rights Act, federal contractors since the 1960s were required to use “affirmative action,” interpreted by the enforcing agency, Office of Federal Contract Compliance Programs (OFCCP), to mean specific goals and timetables for minority and female employment. As of 1985, Secretary of Labor William Brock oversaw the OFCCP. Brock supported this affirmative-action status quo applied to federal contractors by the OFCCP. According to New York Times financial and political analyst Kenneth Noble, Brock’s political career began “in Congress as a tart-tongued conservative who voted against the Civil Rights Act of 1964.”^{Footnote 9} Yet Brock was not an ideological Reaganite. His career to that point had included terms as a Democratic congressman and a Republican U.S. senator from Tennessee, a stint as Republican National Committee chairman under Gerald Ford and Reagan, and a brief tenure as special trade representative for Reagan. He became a Republican early in the shift of many conservative southern Democrats to the Republican Party and won reelection as a Republican senator in 1970. Nonetheless, he did not have a reputation for being antagonistic toward civil rights leaders or their agenda, including affirmative action. Although he had a lengthy record, straddling his party realignment, the meaning of that record, particularly in the area of civil rights and race relations, was ambiguous. By the time of his nomination to be secretary of labor in Reagan’s first term, he had developed a reputation as a moderate.^{Footnote 10} For example, as a senator he had backed a bill to bar lenders from racial discrimination.^{Footnote 11} As a trade negotiator, he had pursued open trade, but he consulted frequently with the AFL-CIO in a departure from his Reagan administration colleagues.^{Footnote 12} Political analysts at the time of his appointment as secretary of labor saw him as a compromise candidate who might appeal to labor and minorities. During his tenure as secretary of labor, beginning in 1985, Brock championed the equal employment requirements for federal contractors contained in Executive Order 11246, including the affirmative-action policies that had emerged pursuant to that order under the OFCCP.

Brock and his underlings would come to lock horns with more ideologically strident opponents of affirmative action, who would become more prominent in Reagan’s second term. The appointment of Edwin Meese as attorney general in 1984 signaled the administration’s determination to challenge more aggressively previous administrations’ affirmative-action policies. First as a campaign adviser and then as White House Counsel during Reagan’s first term, Meese had led the opposition to affirmative action within the administration. While Meese’s predecessor as attorney general, William French Smith, had opposed affirmative action, he was a much less vocal or focused opponent.

In a 1985 profile in the New York Times, Noble succinctly described Brock’s position in relation to Meese:

Although he thwarted Meese’s efforts to eliminate OFCCP’s authority to require goals and timetables under EO 11246, Meese continued to pursue his overt efforts to eliminate numerical goals from the rules. Joseph Cooper, director of the OFCCP under Brock, charged that the administration was limiting the OFCCP’s power when it limited its resources. Although this may have been part of the administration’s overall effort to limit spending rather than a plan to gut federal contractor affirmative action, precise motives matter little to the net result: the OFCCP and the Labor Department as a whole were undermined by the reductions of their budgets and the lack of administration support in enforcing their rules or pursuing action against federal contractors. The OFCCP rules applied to 23 million employees working for twenty thousand federal contractors at more than seventy thousand sites, but OFCCP lacked the resources to oversee even a significant fraction of these sites.^{Footnote 14} Cooper resigned in protest in January 1987, alleging that even though the stated goals of the OFCCP had not changed, Labor and the administration were only paying lip service to the mission.

As with OFCCP federal contractor affirmative-action regulations, Federal Communications Commission (FCC) licensing set-asides were the target of both a failed direct assault and a more successful circuitous assault on the effectiveness of the program in the form of budget caps on the enforcing agency and tepid support of the agency’s mission. The FCC licensing regulatory scheme was similar in practice and goals to federal contractor affirmative action. The purpose of these FCC regulations was to address a lack of diversity in broadcast content; ownership was the means to that end rather than the end itself.^{Footnote 15} Under previous Republican and Democratic administrations from the 1950s to the early 1980s, the FCC had enacted racially conscious licensing procedures to rectify the gross racial imbalance in ownership of radio and television stations in the United States. Under Reagan, the FCC sought to change regulations that promoted minority ownership of broadcast outlets, arguing (among other things) that the regulations were unconstitutional. (In 1990, the Supreme Court would uphold the contested FCC regulations.)^{Footnote 16} The administration’s failure to affect affirmative action even where it had the power to do so did not stop it from opposing it where it had less clear power to act: in the private-sector workplace. Federal contractor and broadcaster regulations affected 23 million employees, but more than four times that number—approximately one hundred million employees in the nonfederal contractor private sector—were not covered by executive regulations.^{Footnote 17} The Department of Justice under Meese did not allow its lack of leverage in this arena to muffle its voice. The Meese Justice Department articulated the administration’s blanket opposition to affirmative action in a 1987 study, “Report to the Attorney General: Redefining Discrimination: ‘Disparate Impact’ and the Institutionalization of Affirmative Action.”^{Footnote 18} Despite Attorney General Meese’s avowed hope, articulated in the preface, that the report would “generate considerable thought on a topic of great national importance, a topic about which there are several reasonable points of view,” it reflected Meese’s own condemnation of affirmative action generally and affirmative action in the area of non-federal-contractor, private-sector employment particularly.

A lack of power to influence employment practices outside federal contractors and federally regulated business did not stop the Meese Justice Department from declaiming the injustice of those practices. Meese and the administration expressed opposition to affirmative action in all its forms and in all sectors, with particular attention to its use in hiring and promotion decisions. In the “Executive Summary,” the report states, “If ‘discrimination’ is understood to mean statistically disproportionate effects alone, the result will be nothing less than the permanent institutionalization of race- and gender-conscious affirmative action.”^{Footnote 19}

Throughout, the Justice Department report questions whether affirmative action was ever really voluntary. It argues that affirmative action was becoming more prevalent because of employers’ fear of “potential Title VII liability . . . whenever their workforces are not statistically representative of the surrounding area. In response, employers now commonly engage in ‘voluntary’ race- and gender-conscious hiring practices.”^{Footnote 20} The report never delved more deeply into employer motives than repeated use of ironic quotation marks around the word “voluntary.” In a footnote on the term “voluntary,” the report cited a law review article comparing the voluntary action of employers to a confession in a criminal case resulting from torture.^{Footnote 21} The comparison is fallacious. The analogy between torture-induced confessions and forcing preferential hiring practices on employers, while irredeemably absurd, might at least be relevant if the federal government was, in violation of Title VII, Section J, and without enforcement power, forcing preferential hiring practices on employers.^{Footnote 22} Just as the state is explicitly barred from using torture, the federal government is explicitly barred from requiring preferential hiring under Title VII. More important, the federal government had no means to require affirmative action, while police have had the means to torture. Neither the report nor any sources cited in it show how the government was coercing employers to implement affirmative action.

The report assumed rather than attempted to prove that the government was forcing employers to implement affirmative action, missing an opportunity for a more nuanced discussion of how federal policy might be shaping employer practices. Like so many pundits and scholars writing on affirmative action, the report ignored employers’ roles and motives. Particularly, it ignored the possibility that employers might have their own reasons for developing a racially balanced workforce. Once the report dismissed the possibility that employers had agency in their own employment decisions, the Meese Justice Department was free to ignore employer interests in affirmative action while putatively advocating on behalf of those same employers. This divide between the Justice Department and employers became clear in the subsequent discussion of the Uniform Guidelines on Employee Selection Procedures (UGESP). The UGESP was a set of regulations proposed by EEOC in 1977 and enacted in 1978 after the agency had failed with more stringent proposed regulations. In comments filed with the agency in 1978, no major firm expressed any substantive objection to the UGESP; they only raised questions of clarification. Moreover, smaller firms were principally concerned with record-keeping burdens. They made no mention of EEOC’s parameters for whether an employment test had a disparate impact (i.e., regardless of intent, the practice resulted in statistically disproportionate selection) in their correspondence. Of those opposed to the substance of the proposed guidelines, none appears to have been employers. Further, none of the responding employers criticized the “four-fifths rule,” the section of the UGESP most likely to encourage affirmative action.^{Footnote 23} Although an employer’s correspondence to EEOC might in other cases be less than completely candid, in the context of these comments on the UGESP, there was no indication that employers were reticent. They felt quite free to criticize EEOC on a number of issues, so their silence on the four-fifths rule can be taken as tacit assent or at least indifference.

Despite employers’ indifference to the four-fifths rule, the Justice Department authors focused on that section. Reading the four-fifths rule in tandem with Griggs v. Duke Power, a 1970 Supreme Court case which had found that unnecessary business practices that resulted in a “disparate impact” could be used as evidence of discrimination,^{Footnote 24} the report concluded that reverse discrimination was an employer’s only real choice. “Federal enforcement agencies” using the “doctrine” derived from the UGESP and Griggs “virtually compell[ed] employers and unions to adopt race- and gender-conscious affirmative action programs to reduce or eliminate statistical disparities in employee workforces.”^{Footnote 25} The report correctly pointed out that in subsequent cases, United States Steel v. Weber ^{Footnote 26} and Wygant v. Jackson Board of Ed.,^{Footnote 27} the Supreme Court found for a defendant/employer who had been sued by a white and/or male employee for reverse discrimination.^{Footnote 28} In upholding the employers’ affirmative-action plans, the Court said that rectifying an imbalance was justification for race- or gender-conscious affirmative action. Of the three cases, though, only Griggs bars specific actions by an employer, and none of the cases requires an employer to do anything, including implementing affirmative action. Weber and Wygant (and subsequently Johnson) allow, but do not require, employers to use affirmative action. Based on these three cases that the authors of the report chose to highlight, it would seem that it was not employers but white employees who the authors wanted to protect. Further, the employees had their employers, not government regulators, to blame.

The report then implied that the cost of affirmative action to private-sector employers was billions of dollars in lost productivity, without actually analyzing costs and benefits, thus again ignoring the interests of the very private-sector employers whom the report purported to defend. The report invoked cost-benefit analysis (sans actual analysis) in the none-too-subtly titled section, “An Engine of Discrimination: The Moral and Economic Toll.”^{Footnote 29} The report implied that affirmative action was a drag on the private-sector economy, but it made no clear case, relying instead on an argument with the specious assumption that qualifications are measurable. After repeating the moral argument (affirmative action reifies race and gender), the authors dedicated a little over one page of the 158-page report to economic impact, glossing over the key and subtle issues of the “minimally” versus “most” qualified and the measurability of individual productivity in a complex system. The authors instead suggested that the use of “employee screening devices,” that is, employments tests, would improve firms’ productivity: “Various studies have established that the optimal use of employee screening devices has significant implications for productivity, and that the productivity savings from the use of such screening devices can be in the billions of dollars for an employer the size of the federal government.”^{Footnote 30} This passage indicates that the authors probably understood yet chose to diminish the daunting problems in attempting to understand and quantify productivity.^{Footnote 31}

The report describes the benefits of an “optimal use” of screening tests as having “significant implications” for productivity. Yet the link between testing and productivity was (and remains) not as clear as the report suggests. The first problem with tests, as arose in the Griggs case and as the UGESP attempted to rectify, was that employers often failed to use tests optimally for productivity. Rather, tests were used as an easy step in screening many applicants quickly. Further, private-sector test usage declined initially in reaction to Griggs but increased again after enactment of the UGESP.^{Footnote 32} Thus, these assertions that testing provided discreet advantages that affirmative action did not, that testing and affirmative action were exclusive, and the underlying assertion that the private sector wanted testing exclusively and that the government wanted affirmative action exclusively were all unfounded.

The report also noted that the savings could be in the billions of dollars for an employer the size of the federal government as a result of increased productivity and reducing the need for interviews. There was no employer the size of the federal government, though, other than the federal government itself. Moreover, there are differences other than size between the federal government and private employers, such as the government’s insulation from market forces.

While opponents of affirmative action in the Reagan Justice Department were mistaken in their analysis, proponents of affirmative action remained just as far from the crux of the issue. Those defending affirmative action often ignored affirmative action’s more controversial manifestations. Affirmative-action supporter and Reagan critic Fletcher A. Blanchard wrote an illustrative article; published in 1988, this work appeared in a volume co-edited by Blanchard almost simultaneously with the Justice Department report.^{Footnote 33} Defending affirmative action in the face of the backlash, Blanchard used most of his article to rehash the moral argument for affirmative action and then spent three pages discussing affirmative action in general, with no analysis of who implemented affirmative action or who it affected. This kind of analysis rendered socially conscious supporters of affirmative action as irrelevant as their equally moralistic opponents. By focusing on social justifications, Blanchard simply ignored the private sector’s motivations in implementing affirmative action.

In its effort to eliminate affirmative action in the private-sector workplace, consistent with the Report to the Attorney General, the Reagan administration targeted EEOC. The Reagan administration’s EEOC strategy consisted of three efforts: cut EEOC’s budget; convince federal judges that disparate impact, EEOC’s primary legal tool, was not acceptable evidence; and change EEOC from within by the appointment of commissioners opposed to its mission. The administration was modestly successful in undermining the agency, but it failed completely to curtail affirmative action because its presumption that EEOC was the source of private-sector affirmative action was wrong.

As with many of its budget battles, the administration did not get all the reductions it sought. The administration succeeded in holding the line on EEOC budgetary growth but little else.^{Footnote 34} Since EEOC was already woefully underfunded, this ensured that despite former EEOC chairman Eleanor Holmes Norton’s streamlining of the agency’s claims-processing procedure under Jimmy Carter, EEOC was effectively unable to oversee employers and process the hundreds of thousands of claims it was receiving annually. However, because most claims that made it to trial or settlement were already being pursued by private claimants rather than EEOC, this did not significantly change conditions for employers. In other words, EEOC was already far from the most important factor in shaping employer conduct through legal action, so weakening EEOC further made little difference.^{Footnote 35}

Meanwhile, the Justice Department attempted to limit if not eliminate the use of disparate impact evidence first allowed by the Supreme Court in the preceding decade in the Griggs case, but it was thwarted by a federal judiciary reluctant to alter the law in any significant way.^{Footnote 36} Reagan’s Justice Department and Solicitor General supported defendants repeatedly as amici curiae (“friends of the court” who are not parties in the claim). In that role, executive branch lawyers sought to reduce previously recognized parameters for a cause of action and to limit plaintiffs’ use of disparate impact theory and other evidence that went beyond clear discriminatory intent in Title VII cases. Meanwhile, as discussed further below, even the EEOC under Reagan-appointed chairman Clarence Thomas did not abandon the tool of disparate impact theory in pursuing claims of employment discrimination on behalf of individual plaintiffs. Thus, while the executive branch was working to limit plaintiffs’ recourse to disparate impact evidence, a semi-independent commission of the executive branch was using that very evidence on behalf of plaintiffs.

The third part of the administration’s plan to eliminate private-sector affirmative action was Reagan’s nomination of conservatives to key positions at the EEOC. The administration’s three approaches were not exclusive. Indeed, they came together in the person of conservative, African American, Republican Clarence Thomas, who was intended to oversee the implementation of Reagan’s anti-affirmative-action agenda. Thomas would find during his two terms as chairman of EEOC, though, that EEOC never was the only or most important party desirous of quota hiring. Even if employers did not have their own reasons for seeking diversity, as long as either EEOC or private plaintiffs sought to use the court system to deter discrimination in hiring, employers would have an incentive to implement hiring quotas as a defense.

By the standards of the Reagan administration, Thomas was not a particularly controversial nominee at the time of his 1982 nomination, although he said he was an opponent of “aggressive” affirmative action. Opponents and supporters alike believed Thomas’s tenure would possibly mean the end of affirmative action in private business. Nonetheless, in the context of the broad challenges to the civil rights agenda under Reagan, Thomas’s 1982 nomination seemed a welcome compromise to many observers.^{Footnote 37} At his first EEOC nomination hearing, Thomas provided little hope that he would be a forceful advocate of affirmative action, but neither did he express unequivocal opposition to it.^{Footnote 38} In his prepared statement at his Senate nomination hearings, Thomas did not clearly state his precise position on the issue that could have clarified his stance on affirmative action: the use by plaintiffs of disparate impact evidence.^{Footnote 39} While the Supreme Court had allowed the use of such evidence, Thomas could have announced his intention not to have EEOC use disparate impact theory in pursuit of claims of discrimination. Instead, Thomas indicated that he was aware that a disparate impact might continue long after disparate treatment had stopped, and that the impact itself should be addressed:

In this statement, Thomas expressed awareness of the durability of disparate impact while avoiding any commitment to using disparate impact evidence.

The Senators questioning Thomas did not push the point either. For example, the Republican chairman of the committee, Orrin G. Hatch of Utah, did not ask Thomas how the use of disparate impact evidence might encourage employers to use affirmative action. Rather, he based his questions on the mistaken assumption that EEOC had previously required hiring by quotas, and then he sought to find out if that nonexistent practice would continue. Hatch prefaced his questions with references to President Reagan’s attorney general and assistant attorney general for the Civil Rights Division, both of whom had made policy statements indicating a departure from the alleged practice of requiring quota hiring.^{Footnote 41} Hatch asked Thomas, “As Chairman, what approach will you take?”^{Footnote 42} Thomas answered that he opposed quotas but understood the need for goals and timetables in light of “innate racism,” a meaningless answer to a meaningless question.

Democratic Senators seemed equally unaware of how EEOC operated, and Thomas did not use the hearings to clarify the parameters within which the agency functioned. Senator Thomas Eagleton, Democrat from Missouri, quoted and sought Thomas’s response to this definition of affirmative action articulated by outgoing Carter-appointed chairman Eleanor Holmes Norton:

In his response, Thomas again did not address the mistaken underlying assumption that the employer was forced by EEOC to eliminate preferences and would have to use affirmative action to rectify imbalances. Instead, he avoided the question, saying that while there may be disparity, the disparity “may occur long before the employment level.”^{Footnote 44} He did not commit on the issue of resolving “numerical disparity” (i.e., disparate impact) in his responses.

The misunderstanding persisted. The familiar pattern reemerged four years later, at Thomas’s 1986 nomination hearings for a second term as EEOC chair. In his questions to Thomas, Senator Paul Simon, Democrat from Illinois, referred to a previous statement in which Thomas had said, “I do not support the use of goals and timetables. I do not think as a practical matter that they work.”^{Footnote 45} Simon asked Thomas if that was still his position. Thomas evaded Simon’s inquiry by responding, “We must continue to develop a systemic program that focuses on discernible patterns and practices of discrimination and effectively eliminate them from the workplace.”^{Footnote 46} Thus, at both the 1982 and 1986 nomination hearings, Thomas and his interlocutors focused on whether EEOC should require affirmative action, a power they did not have, rather than what EEOC actually could do.

While Thomas’s lack of clarity on the disparate impact issue and ambivalence about the use of quotas to remedy a racial or gender imbalance emerged at the nomination hearings, he was nonetheless unequivocal about his support for Title VII and his opposition to discriminatory employment practices. He openly stated that he considered every case of discrimination morally and legally wrong. Indeed, Thomas was “incensed” that the rapid charge system under his predecessor, Norton, had led to the dismissal of cases with possible merit in the name of streamlining the process and reducing the claims backlog. In response, Thomas effectively took EEOC back to the pre-Norton era of investigating individual charges of discrimination.^{Footnote 47} The real irony is that as Thomas led EEOC to shift the emphasis back to individual claims of discrimination and away from Norton’s systemic focus, the EEOC had to gather and use disparate impact evidence. His deputy Michael Middleton and EEOC general council Peggy Mastroianni pursued disparate impact cases with vigor and, according to both, with his blessing. For example, Mastroianni used disparate impact evidence in EEOC’s action against J. C. Penney in 1988 and against General Telephone of Northwest in 1989, among many other cases that EEOC brought against employers based on a disparate impact during Thomas’s tenure.^{Footnote 48} The only message an employer could take from that policy was that a measurably diverse workforce was the best evidence against a Title VII charge. Thus, Thomas’s EEOC gave employers who had already embarked on affirmative-action practices no reason to change course and some encouragement to those considering affirmative action.

Yet Thomas’s own rhetoric, viewed in isolation from his actions at the helm of the EEOC, would suggest a different story. As EEOC chairman, Thomas echoed the administration line that affirmative action was discriminatory, the government was to blame, and the government should end it. In an op-ed piece appearing in USA Today near the end of his first term, he explained his vision for the agency by saying what he believed was wrong with EEOC before his term: “The government encouraged and required employers to institute the very practices that sponsors of the civil rights law had observed ‘are themselves discriminatory.’ Equally ironic is the willing acceptance of these practices by corporate executives who, if personally affected by them would undoubtedly object.”^{Footnote 49} With this bold rhetorical stand rejecting affirmative action, Thomas sacrificed nothing; he merely alienated the civil rights groups who already opposed him. When Thomas was nominated for a second term as EEOC chairman in 1986, unsurprisingly no civil rights groups appeared at the hearing to support his reappointment.^{Footnote 50} This freed him to claim the moral high ground alongside the sponsors of the civil rights law by blaming the former EEOC that had “required” employers to implement affirmative action and the corporate executives who then willingly accepted these “discriminatory” practices. The problem with Thomas’s bold rhetoric is that it mischaracterizes both the erratic record of EEOC before 1982 and the nuanced, ongoing relationship between EEOC and employers that continued throughout the 1980s. EEOC did not—and indeed, could not—require private-sector employers to do anything.

Despite public commitments to see the practice ended, affirmative action in all its forms survived the Reagan presidency. Reagan and his political allies effectively used the popular backlash against affirmative action to win elections throughout the 1980s, but Reagan’s policy had limited effect and the administration was far from unified in its commitment. Affirmative action, while dealt some limited setbacks, was essentially unchanged in the American regulatory system. The Justice Department and Solicitor General failed to undo affirmative action in the courts in the FCC cases or even in executive orders. The already-weak EEOC was effectively removed from the workplace as its budget withered, but disparate impact theory was neither ignored by EEOC nor abolished in the courts as Meese and like-minded Reagan administration officials had hoped. Although EEOC’s regulatory framework for private-sector, nonfederal contractor affirmative action was little more than guidelines and suggestions, it was not significantly weakened by eight years of the Reagan revolution, leaving affirmative action firmly in the hands of employers—where it was, in fact, becoming more entrenched.

Embracing Diversity: Human Resources During the Backlash

While the Reagan administration and the conservative backlash represented one plausible but ultimately ineffectual threat to private-sector affirmative action, the more serious threats were developments in human resources thinking. In the 1970s and early 1980s, a transition to a rational model of human resources management within private-sector firms had nicely accommodated the adoption of affirmative-action practices (albeit rarely under the guise of this particular label). Subsequent challenges to these human resource management principles in the late 1980s and 1990s thus posed a genuine if subtle threat to the continued use and expansion of affirmative action in private-sector employment. Yet the threat did not materialize because, at the same time, many private-sector employers became convinced of the legal and economic benefits of a diverse workforce and saw affirmative-action policies as an effective way of reaping these advantages.

While the supporters and opponents of affirmative action were fighting in the political arena, private-sector employers took little notice. Rather, employers were focused on rationalizing hiring procedures. Most large American firms had rationalized production, design, accounting, marketing, and financing by the early twentieth century. Although rationalization of personnel lagged behind these other areas, by the 1970s human resources management (HRM) had long since become the norm in American business with the promise of eliminating or reducing bias and guesswork.^{Footnote 51} The study of human resources planning, a tenet of the larger “Total Quality Management” trend, became ensconced in the business academy and press in the 1980s. Its adherents believed that productivity could be maximized by applying to hiring and promotion procedures the same rationalized management techniques that had been so successful in design and production. The increasing role of human resources studies in business schools made the rationalized systems even more prevalent in the business sector. While the term “affirmative action” seemed to have fallen into disfavor with the rise of human resources management, the practice remained, grew, and evolved in large part because it dovetailed well with the new human resource management principles.

A good example is Rosabeth Moss Kanter’s 1983 book, The Change Masters: Innovation and Entrepreneurship in the American Corporation. In it, Kanter described her version of HRM as a rationalized, transparent, and objective system dictating how personnel decisions should be made.^{Footnote 52} According to Kanter, if the system was properly implemented, a job or promotion candidate should know his or her standing with the employer and where improvement could be made. The judgment of the supervisor would be just one factor among other more objective performance standards.^{Footnote 53} She highlighted cases of HRM implementation in the 1970s at center firms such as General Motors. In a system such as this, affirmative action (or “diversity standards,” as was the more popular term in the business community in the 1980s and beyond) could be considered a factor as well.

Yet even as Kanter was writing, rival human resources scholars were presenting alternatives to the HRM system. Elmer H. Burack’s Creative Human Resources Planning and Applications: A Strategic Approach was typical of the academic human resources literature that challenged objective systems like Kanter’s HRM in the 1980s and 1990s.^{Footnote 54} Burack recognized the limitations of rationalization and was critical of the approach only a decade after rationalization had revolutionized human resources. His approach offered new language and thinking about the role of line managers and threatened affirmative action by offering to empower lower-level managers and to remove the rationalized strictures that had fostered the growth of affirmative action to that point. If rationalized systems like HRM had facilitated the rise of affirmative action, then changes to that rationalized system along the lines recommended by Burack might threaten to undermine affirmative action as well. But a closer examination of works like Burack’s book and the environment in which employers read it (and to which they applied it) reveals that while it represented a potential threat to affirmative action, in the end works like this generally buttressed the practice.

Burack advocated a transition to a more flexible approach in management, a transition that he said was already occurring by the end of the 1980s. He described this transition in the human resources management of American firms by first describing the approach taken before the transition. He described the HRM status quo as the “rational managerial model”:

Although Burack was describing a managerial philosophy applicable to any circumstance, and nowhere mentioned affirmative action, he could just as easily have been describing the adoption of goals and timetables that line supervisors and bottom-level managers were encouraged to meet in hiring and promotion decisions. Once upper management saw lack of diversity as a problem and linked promotions and bonuses for middle management to meeting goals and timetables as the solution, affirmative-action practices were inevitable. The question presented by Burack’s reflective approach was: If line managers were given power to make hiring decisions based on their instincts, would that mean a return to the cronyism that preceded the rationalized human resources approach that had taken that power out of managers’ hands?

To analyze this transition and answer the question raised by Burack’s approach, we must consider first what the business community was moving toward and then whether it was making a real transition, as Burack claimed. Burack described the new model, which he called “reflection in action,” as “an art form which was more adaptive and action oriented. . . . Each [manager] had to draw from a broad repertoire of knowledge and experience which was then tailored to the situation they faced. This dynamic managerial process called for more inductive and reflective thinking.”^{Footnote 56} If the more formulaic rational model’s focus on problem and solution led to affirmative action, then this reflective model of Burack’s opened the door to personal bias and discrimination on the part of a reflective manager relying on his or her own “repertoire.”

Yet affirmative action survived this latest and most serious challenge. While the language of reflective management was a cultural phenomenon sweeping the American workplace in the 1980s, at least in managerial rhetoric, “diversity” was also becoming ingrained in the explicit value system of the emerging corporate culture as also reflected in the managerial rhetoric. Setting aside the question of whether the line manager was ever as empowered in areas outside demographic counting, as Burack’s reflective model anticipated, firms clung to and expanded affirmative action as part of the rhetoric of “diversity.”

To understand how an emphasis on diversity withstood the potential threat that Burack’s empowered manager represented, we must understand the power of 1980s corporate culture to shape the actions of those doing the hiring, even in the absence of externally devised goals and timetables. A rhetorical consensus emerged in American corporate culture in the 1980s, emphasizing the importance and value of “diversity” though not the importance and value of “affirmative actions,” and certainly there was no explicit embrace of “quotas.” This consensus could be found in the business press, business conferences, business publicity, and in the business academy. In other words, business people were telling themselves to be diverse, telling the world they were diverse, and being told by experts how to be diverse. Employers learned the language of inclusion and diversity. More important, they learned the costs and benefits of affirmative action based on experience, specifically that the costs were negligible and the benefits, although rather small, were still of some consequence. They did not usually cite good public relations as a benefit, but the act of touting other benefits is itself a form of public relations, aimed at several different audiences—customers, shareholders, subordinates, and activists. By the end of the 1980s, this shift was mostly complete.

In 1991, The Conference Board, an organization representing corporations interested in social issues since 1916, held a symposium in Chicago that demonstrated the ubiquity of the rhetoric of diversity among corporate leaders. At the symposium, CEOs, other senior executives, and business scholars discussed diversity. They had little disagreement over values or objectives. The contributors agreed that diversity was good, but they were rarely specific about which policies would lead to increased diversity and appeared loathe to say anything controversial. Moreover, they expressed the belief that diversity was only going to increase in the American workplace. The only apparent disagreement was over the means to attaining diversity, and even that disagreement was spurious. Speakers believed in policies that lead to affirmative action more than others, or so they averred. This was a straw-man argument; no one at the symposium expressed opposition to affirmative-action practices, although the term itself was not popular.

At the same symposium, Delores Wolf, former vice president of personnel resources at American Airlines, wrote that diversity was inevitable and that “the manager who recognizes and relishes change and capitalizes on new ideas that stem from such variety will be a formidable force in the future.”^{Footnote 57} Wayne E. Heiden, chairman and CEO of Allstate Insurance, disparaged “affirmative action” compared to “diversity,” writing, “It’s obvious to us [Allstate] that managing diversity is not just a work force issue; it is a business issue. Affirmative action is a work force issue; managing diversity is a competitive issue. It’s a competitive and a business issue because it touches both customers and employees.” Neither Wolf nor Heiden said specifically why it was advantageous or what, if anything, their companies did to encourage diversity or explain the difference between “diversity” and “affirmative action.”^{Footnote 58}

In the session’s final presentation, “Making Sure Diversity Works at U.S. West,” Richard D. McCormick, president and CEO of U.S. West, was more specific about how to increase diversity^{Footnote 59} He faced the straw man squarely and vanquished his foe, the ominous “many CEOs.” He spoke of his exploits: “Many CEOs have told me that the key to the entire diversity issue is to just hire people without regard to race or sex or place of national origin, and the cream will rise to the top. . . . I’m one CEO who thinks they’re wrong—that diversity doesn’t triumph by just opening the doors on the ground floor. Work force discrimination is alive and well and insidious. Sometimes it’s intentional and sometimes unintentional.”^{Footnote 60} While this declaration was patently self-serving, McCormick may have touched upon a potential problem that served as the motivation for both federal regulators and private employers alike to seek the sanctuary of quotas. If discrimination was both pervasive and invidious, hidden even from those who unwittingly discriminated, then affirmative action may have been the only, or at least the most effective, bar to discrimination. Having identified the problem, McCormick went on to describe, in still-vague terms, the nature of the problem and how to solve it: “The Labor Department’s study on the ‘glass ceiling’ pointed out three unintentional methods of work force discrimination: word-of-mouth recruiting, lack of access to management development training for women and minorities, and the failure of executives and top management to really promote the advancement of women and minorities. I’m convinced that this last point is the key: concerted, continuous effort by top management. The tone has to be set by the CEO, by words and actions.”^{Footnote 61} With this, McCormick placed the CEO in the driver’s seat.

McCormick described just how a CEO could affect the practices within a firm without resorting to written policy. While the following is a painfully self-aggrandizing description of McCormick’s role in shaping affirmative action at a Bell subsidiary (before he was CEO of U.S. West), it shows the connection between a policy that was not overtly affirmative action and a practice that was affirmative action:

McCormick linked affirmative-action goals with financial bonuses. While McCormick made the use of the bonus here appear capricious, he nonetheless showed its potential effectiveness, even if the anonymous manager might have had a very different version of this strategy.

Like Northwestern Bell, a much smaller firm, Abbott Laboratories, used bonuses to increase the workforce participation rates of women and minorities. Ellen Walvoord (Abbott’s director of human resources from 1995 to 1999) instituted a bonus-based affirmative-action system as part of a larger human resources plan that she instituted at Abbott. Unlike McCormick at Northwestern Bell, Walvoord instituted her system as a formal policy. At Abbott, Walvoord says the involvement with EEOC was minimal and not adversarial. No EEOC representative ever met with Walvoord herself. EEOC never initiated serious action against Abbott, other than the occasional dead-end investigation of individual charges. By the early 1980s, EEOC seems to have become just another source of advice for employers in the area of race and sex discrimination.^{Footnote 63}

By the 1990s, an entire industry had grown up around advising employers in the area of human resources, including affirmative action, or as it was more popularly called by then, “diversity initiatives” or “diversity enhancement.” At Abbott, Walvoord instituted the Performance Management System during her term as head of human resources in the 1980s and 1990s. As the vastly larger GM had with the Human Resources Management System, Abbott established a system for reviewing performance at every level of the firm with knowable goals and transparent, objective standards. For supervisors and line managers, affirmative-action goals were included in their dossiers and could be weighed in determining bonuses, promotions, or disciplinary action.^{Footnote 64} Thus, diversity was simply another criterion under which a manager was evaluated with rewards for meeting objective standards.

The systems of rewards linked to diversity goals described in the AT&T Consent Decree, and by Walvoord of Abbott, and McCormick of Northwestern Bell and then U.S. West, while far from identical, share basic methods and a predictable outcome. In these cases, affirmative action followed. These hierarchical, objective systems differ significantly from the reflective system advocated by Burack. This brings us back to the question of why the reflective system, which allegedly empowered managers to make hiring decisions, did not inevitably lead to the eradication or reduction of affirmative-action practices.

To answer that question, we need to turn to a scholar who looks precisely at the place of diversity in the changing workplace. Like Burack, John Fernandez described a transition in the American workplace in the 1980s and early 1990s and saw diversity as central to the changes he observed:

These “other factors” presented the interesting questions about varied and nebulous motivations behind employer actions.^{Footnote 65}

In business literature, too, academic and industry writers consistently made the argument that diversity is good for the employer. For example, in February 1995, Peter Wright and Stephen Ferris argued that diversity helped the stock price of the employer.^{Footnote 66} Their study had a simple methodology:

They explicitly examined only affirmative action’s financial impact on the firm and not the moral or citizenship issues involved. They sought to find exactly what that financial impact was, yet, by basing outcome on stock price rather than profits, they were measuring investors’ opinions about the future rather than actual cost-effectiveness in the past. However, they dubiously surmised that if a stock price rose, then it was essentially a sign that the firm was increasing its profitability. They further surmised that the supposed increase in profitability came from the wider range of talent that diversity provided, that firms with better affirmative action had higher job satisfaction, and that these firms had better relations with customers. They also surmised that “corporations with quality affirmative action programs may be more creative, may have better problem-solving capabilities, and may find strong community and institutional support because of their cultivated diverse work forces. Thus, they may be more capable of enhancing their differentiation.”^{Footnote 68} Wright and Ferris’s list of possible reasons was speculative and they made no claim that it was more than that. In the end, they provided some plausible reasons why stock price may have risen along with diversity, though their study actually provided scant, not direct, evidence that diversity had a significant impact on a firm’s profitability.

The only evidence of diversity that Wright and Ferris used were the announcements of affirmative-action awards by the Labor Department as a positive indicator and the announcement of unfavorable judicial outcomes as a negative indicator. The authors did not suggest that either indicator accurately measured the firms’ actual diversity. Moreover, they had no way of showing that the changes in stock price correlated with these announcements were based on the contribution of a diverse workforce to the profitability of the firm or if they were based on the investors’ perceptions that diversity would reduce the risk of government sanction or unfavorable legal outcomes. Finally, stock price did not necessarily reflect actual or even potential profitability or productivity. Nonetheless, these limitations of the study did not alter the message. That message, delivered to an audience of managers, was that affirmative-action publicity is good for the stock price. That was the point after which a manager could stop reading. Whether speaking to the public or to each other, business leaders were saying the same thing. In the 1980s and 1990s, they were champions of diversity. Large private-sector firms even at times seemed to be competing with one another to be at the forefront of the “diversity” wave.

By the mid-1990s, for example, Proctor & Gamble was one of the most widely acclaimed firms in the United States for diversity.^{Footnote 69} Proctor & Gamble did not simply settle for receiving accolades for diversity. It joined organizations such as the Leadership Conference, Project Equality, and the Equal Employment Advisory Council. Proctor & Gamble went beyond membership in Project Equality. It was one of the leading voices in the organization. Edwin Artzt, CEO of Proctor & Gamble in the 1990s, said, “Regardless of what Government may do, we believe we have a moral contract with all of the women and minorities in our company. . . and no change in law or regulation would cause us to turn back the clock.”^{Footnote 70} The Department of Labor recognized Proctor & Gamble’s “corporate-wide commitment to the retention and advancement of women and minorities” and in the same study listed the firm’s affirmative-action initiatives.^{Footnote 71} The NAACP and the Leadership Conference on Civil Rights likewise recognized Proctor & Gamble’s effectiveness in maintaining a diverse workforce. These were not necessarily accurate indications of real diversity, but for present purposes the appearance of diversity was as good as actual diversity.

Artzt and Proctor & Gamble were far from exceptional in their forceful public commitment to diversity. A. Drue Jennings, president and CEO of Kansas City Power and Light, speaking to other utility executives, echoed Artzt’s message: “There are those who believe that utilities fulfill their responsibility by providing essential services to grease the wheels of society. To them, it follows that they need not do much more. To me, however, there are compelling reasons for us to help overcome the blight of discrimination in the communities that we serve. . . . Moral justification aside, prejudice is bad for business, retarding the economic growth on which utilities thrive and robbing us of profitability.” In such passages we can observe that regardless of how deep the commitment may have really been, by the late 1980s corporate America was thoroughly committed rhetorically and in stated policy to maintaining and enhancing a diverse workplace.^{Footnote 72} Whether they were following Burack’s reflective system or Kanter’s objective system, no employer was backing down in this commitment, even while many were still uncomfortable with the term “affirmative action.” These companies’ desire to be and/or appear diverse meant they would use affirmative-action practices to maintain that appearance of diversity; government regulations had little role in those decisions.