"Reaganomics" Imperil EEOC

by Loretta Feller

President Reagan's transition advisors from the Lincoln Institute, a conservative, Washington-based think tank, have submitted their recommendations for the Equal Employment Opportunity Commission (EEOC). No one knows just what impact these recommendations will have, but they do not bode well for minorities and women. Although the advisors purport to make federal regulations less burdensome for employers, a seemingly innocuous proposition, their recommendations could, if implemented, change the direction of the EEOC. The Commission's vice chairman, Daniel Leach, has said that adopting the report's philosophy of retrench'ment "'would probably set back the civil rights movement 25 or 30 years."

Under the leadership of former EEOC Chairperson Eleanor Holmes Norton, a civil rights activist and attorney who recently resigned from the Commission after 4 years, the EEOC has made substantial gains. For example, it has implemented an effective "rapid charge processing" system to clear the docket. This system, in turn, has freed agency resources to address "systemic" or companywide discrimination and to pursue more efficiently those charges with class action potential (often involving substantial back pay liability). She has also led the EEOC in a flurry of hearings and research, resulting in the publication of a number of guidelines which address such controversial issues as sexual harassment, pregnancy discrimination, comparable worth, and reproductive hazards. The guidelines present the EEOC's position on unresolved issues under Title VII of the Civil Rights Act of 1964, as amended (which prohibits discrimination in employment because of race, color, sex, national origin, and religion). They also signal the principles around which the Commission processes and possibly litigates charges of discrimination. Although the guidelines do not have the force of law, they do influence the courts in determining the intent of Congress. Furthermore, the guidelines raise public awareness around certain issues. This was particularly the case with the guidelines on sexual harassment, which, after their adoption, gave rise to a number of books and movies on the subject.

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The report by Reagan's advisors criticizes the EEOC guidelines and, although it does not say what it specifically intends to do about them, proposes to eliminate the principles under which the EEOC has pursued systemic cases and class action charges of discrimination.

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Specifically, on the issue of sexual harassment of employees, which the EEOC considers a violation of law, Reagan's advisors have this to say: "The elimination of personal slights and sexual advances which contribute to 'an intimidating, hostile or offensive working environment' is a goal impossible to reach. Expenditure of the EEOC's limited resources in pursuit of this goal is unwise." Not only do the advisors distort the issue by putting sexual harassment on the same level as personal slights (which aren't even mentioned in the guidelines), but they themselves propose to limit the EEOC's resources in spite of (or perhaps because of) the fact that the guidelines have already begun to have a positive impact. on the employment situations of a number of women. In effect, they are turning their backs on the majority of working women who have experienced some form of sexual harassment which, in many cases, has made keeping their jobs a goal impossible to reach.

The report also calls the Pregnancy Discrimination Guidelines "an outrageous distortion of congressional intent." Yet the advisors give no indication of their specific objections to the guidelines, which

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merely explain the Pregnancy Discrimination Act (an amendment to Title VII enacted in 1978). The law states simply that an employer must treat employees with disabilities arising out of pregnancy the same as employees with any other type of temporary disability (such as a broken leg br a hernia operation).

Although the EEOC has not published guidelines on the issue of "comparable worth" (which examines, for example, the incredible disparity in wage scales between predominantly female fields and predominantly male fields with relatively the same skill levels), it has held hearings to determine whether wage rates of jobs in which women and minorities have historically been segregated are likely to be depressed because those jobs are occupied by these groups. Referring to criticisms of this concept by conservative Senators Orrin Hatch and Richard Schweiker and Representative John Ashbrook, Reagan's advisors assert that the marketplace is the best source for determining the monetary worth of jobs, and that the EEOC is trying to usurp the func-

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tion of the "free market"-an assertion which ignores the reality that women are not free to compete . in the marketplace on the same basis as men. Women are too often forced to choose between accepting a low salary or no salary at all. If women had unrestricted access to the higher paying, traditionally "male" jobs, the resulting shortage of applicants for the lower paying, traditionally "female" jobs would probably drive up the pay for such work in order to attract qualified applicants. But as long as employers continue to refuse to consider women for responsible and remunerative positions, there will continue to be enough women willing to compete for what's left, keeping the wages for such work low. That kind of one-sided "free" market we can do without

The advisors also criticize the EEOC's proposed Guidelines on Employment Discrimination and Reproductive Hazards (which were actually withdrawn officially in January). These proposed guidelines were issued after a number of manufacturers began excluding women from some 20 million jobs which may involve exposure to chemicals alleged to involve reproductive hazards. Some, in an amazing display of double-think, began requiring female job applicants of childbearing age to be sterilized prior to employment to avoid damage to fetuses. These policies were developed without regard to whether exposure of the father could result in harm

to fetuses. The advisors assert that the EEOC's admonition to employers to equalize their standards would place impossible burdens on employers. Such thinking was also the basis for the old "protective laws" (such as those prohibiting women from working overtime or from heavy lifting), which kept women out of better paying jobs, or out of any jobs at all, because of unexamined assumptions about the roles and abilities of women.

In addition to targeting the EEOC's guidelines, the report is highly critical of the Commission's use of the philosophy of affirmative action; it recoils at the idea that the Commission should address discrimination as a systemic or institutionalized phenomenon and dismisses the reality that discrimination in employment exists beyond occasional, individual, overt incidents. The report ignores the fact that occupational segregation by sex is rampant, that women's share of professional and technical occupations has declined during the past three decades from 45 to 39 percent, that women are still earning 59 cents for every dollar that a man earns (less, actually, than when Title VII first became the law of the land), and that the highest unemployment rate and the lowest income level in this country rest squarely on the beleaguered backs of minority women. It also ignores the fact that the affirmative action sought by the EEOC is not preferential treatment, as the report implies, but rather is a remedy for discrimination after an investigation has found a pattern of excluding minorities or women from particular jobs.

The advisors accuse the EEOC of fostering a "new racism" by calling for "numerical equality' instead of "moral equality". The advisors do not define moral equality, or what this criterion has to do with employment qualifications in the first place. This vague talk of morality implies that women and minorities are getting jobs they don't deserve and can't handle, at the expense of white males. This assertion, once again, is not borne out by employment statistics, but the advisors attempt to justify their philosophy by suggesting that affirmative action programs actually "demean" women and minorities. They attempt to justify their mightmakes-right, blame-the-victim mentality with the following quote from Orlando Patterson's article, "The Moral Crisis of the Black American": "There can be no moral equality where there is a dependency relationship among men. There will always be a dependency relationship where the victim strives for equality by vainly seeking the assistance of his victimizer. In situations like these we can expect sympathy, even magnanimity from men, but never...the genuine respect which one equal feels for another." (Ironically, by using this quote in such a context, Reagan's advisors provide a convincing argument in favor of a revolution by women and minorities.)

Continuing with their pernicious reasoning, the advisors criticize the EEOC for urging equality of result rather than equality of opportunity. Indeed, the EEOC has stated that "any discussion of equal employment opportunity programs is meaningful only when it includes consideration of their results, or lack of results, in terms of actual numbers of jobs for minorities and women." To attack employment discrimination in any other way, the EEOC would have to discharge its attorneys and investigators and hire in their place a staff of psychics and mind readers. Yet the report insists that an employment action is not discriminatory unless there is intent to discriminate, an assertion which demonstrates the advisors' misinformation about the law and court decisions upon which the EEOC policy is based. "Intentional discrimination" ceased to function as a viable theory of discrimination shortly after the passage of Title VII. Employers stopped signing confessions when they noticed that putting up "Whites Only" and "Men Only" announcements got them into trouble. Since that time, the EEOC, as well as the

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