well as 20% in zoology, 21% in biochemistry, 13% in history and 11% in philosophy. In 1968-69, Berkeley had 163 men filling 163 positions in these disciplines. In 1960, Harvard awarded 10% of Ph.D.s in arts and sciences to women, and in 1969, 19%. Of 484 senior Harvard faculty members in 1969–70, 483 were men. . . . Unless these universities believe the degrees they give are worthless, they can only explain the under-utilization of women by saying that 1) women don't want to teach after they get the degrees or 2) that family pressures reduce ambition and output and thus justify low salaries and slow promotion rates. Ezorsky calls the rationalization of "family responsibilities" one of the most pervasive and pernicious, and gives it a name of its own: "famrat." Famrat doesn't stand up to the facts, however: 90% of women Ph.D.s are employed, primarily in lower ranking universities and at lower levels. A 1967 article in Social Problems, "The Woman Ph.D., a Recent Profile," found that married women Ph. D.s published as much or more than men Ph. D.s.

3. The order itself encourages reverse discrimination and is unfair to universitics.-The widely-held belief that the order requires reverse discrimination and permits overbearing directives to universities from the Office for Civil Rights, H.E.W. is, we believe, not the result of careful study of the order's impact, but the result of a barrage of mis-leading criticism from some of our most distinguished scholars and administrators. For example, on October 27, 1973 (p. 59) The Economist reported the following from a conference in Vienna entitled "International Council on University Emergencies":

Martin Seymour Lipset, a sociologist from Harvard, set out his argument in his report on the American scene. The state now has the whip hand over many universities in the United States, he said, because of the financial squeeze imposed by the Nixon administration. They are being asked by government departments and courts for "affirmative action": towards minority groups, defined as women, blacks, Latin Americans and American Indians.

This means hiring university staff under special quotas laid down by the Department of Health, Education and Welfare, sometimes without regard for the academic merit of the candidates.

If Professor Lipset's presentation was reported correctly, this can only be described as the grossest distortion of what Revised Order No. 4 says. There is no requirement to hire unqualified people: there is only a requirement to recruit broadly and to open up the hiring and promotion processes.

An equally misleading statement was made by President William McGill of Columbia University concerning H.E.W.'s administration of Revised Order No. 4 in a Life magazine editorial, October 8, 1971. President McGill charged that, without "prior warning", H.E.W. had informed Columbia that it was not in compliance with the order and would face a cut-off of federal funds. McGill went on to state that "There was no notice of hearing or right to appeal, no clear indication in fact of the manner in which we had failed in compliance." As the committee is probably aware, H.E.W.'s rejection of Columbia's affirmative action plan culminated two and one-half years of negotiations between the university and H.E.W.'s Office for Civil Rights. During that time Columbia had consistently refused to provide basic employment data that was fundamental to the construction of a new affirmative action policy.

Opponents of affirmative action are probably correct, however, when they reject the order on the grounds it permits universities to make sex and race relevant criteria in hiring. The question is: Is this a bad thing? The Revised Order assumes that it is desirable to have women and minorities employed by universites to the degree they are available in the appropriate disciplines. And this may mean that in cases where women and minorities have been restricted or excluded before. the order is suggesting that one's sex or race may be relevant to the candidate selection process-all other things being equal. It can thus be argued that since the regulation does not encourage blindness to sex or color, the regulation is therefore defective. While this argument, on its face, is persuasive to all concerned with even-handed justice, we would suggest that a regulation that forbade any consideration of race or sex in evaluating job candidates at this time might be analagous to the situation Anatole France had in mind when he noted that the French government, with a passion for equal justice, had forbidden both the rich and the poor from sleeping under bridges. A regulation which on its face may appear fair may actually serve to perpetuate hardship for a traditionally deprived group. We believe that until the legacy of female and minority exclusion has been dissipated, some kind of mechanism (whether it be Revised Order No. 4

or similar legislation) will be absolutely essential to assure equal justice for women and minorities on campus.

As a final comment, we would submit that if there has been improper implementation of the order, that does not mean the regulation is bad, but it may mean that there has been poor enforcement and perhaps some bad faith. We think there are remedies for poor enforcement which would not require exempting universities from the obligations of Revised Order No. 4. It would certainly be appropriate before re-constructing the civil rights obligations of universities that some attempt be made to determine what has happened on campus under the revised order. To date an impartial study of this matter has not been made. Obviously, changes in the civil rights obligations should not be made lightly. Affirmative action did not spring full blown out of a meddlesome bureaucracy but, as Virginia Willis wrote in Affirmative Action: The Unrealized Goal, “Affirmative action has its roots in the failure of attempts over three decades to establish equal employment opportunity through passive prohibition of conscious discrimination." Any attempt to replace the order must proceed in full recognition of this fact and only after data concerning the implementation of the order has been received and carefully studied.

STATEMENT ON AFFIRMATIVE ACTION FOR EQUAL EMPLOYMENT OPPORTUNITIES BY THE U.S. COMMISSION ON CIVIL RIGHTS

Since its creation in 1957, the U.S. Commission on Civil Rights has investigated and analyzed the issue of employment discrimination. This pervasive problem continues to attract considerable attention although great strides have been taken by the Federal Government to remedy it. State and local Fair Employment Practices Commissions, Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission, and Executive Order 11246, are all products of the past 15 years of attention to this situation.

If laws had changed the conditions of employment discrimination, there would be little need for subsequent action today. But the employment picture for our society indicates that the groups victimized by discriminatory employment practices still carry the burden of that wrongdoing.

Unemployment for blacks, Spanish surnamed Americans, and other minorities remains far higher than that of white America. For the past 15 years, the unemployment rate for nonwhites has been twice that for whites. The national rate in 1971 was 5.4 percent for white Americans, but 9.9 percent for blacks and other minority individuals. In 1969-70 the unemployment rates in New York City showed the following disparity: Whites in the city recorded a rate of 4.7 percent; blacks, 5.4 percent; and Puerto Ricans, 9.5 percent. Underemployment (part-time workers seeking full employment), another plague on minority job seekers, is also a real problem. A 1966 Government study found an underemployment rate of 29.1 percent in minority (black and Puerto Rican) neighborhoods of New York City.

The underemployment rates for minority Americans are not just a consequence of past discrimination. A look at youth employment rates refutes this argument. For white male adults, the unemployment rate is 4.0 percent; for white teenagers, it is 15.1 percent. However, the statistics for minority male adults show a rate of 7.2 percent; and for minority teenagers, a staggering 31.7 percent.1

In whole industries such as building construction, higher education, and government civil service, racial and ethnic minorities and women are consistently absent or found in disproportionate numbers in low wags, low status jobs.2

Income is another measure of the job discrimination suffered by minority Americans. In 1971 the median family income for whites was $10,672 compared with $6,440 for non-writes, and $7,117 (1970 figure) for Spanish surnamed Americans. The discriminatory effects on minorities is obvious when one considers that 32 percent of blacks were below the low income level (poverty line)

1 U.S. Commission on Civil Rights, Job and Civil Rights 5 (1969). U.S. Commission on Civil Rights, Demographic, Social and Economic Characteristics of New York City and the New York Metropolitan Area 10-12 (1972). U.S. Department of Labor, Bureau of Labor Statistics, The Social and Economic Status of the Black Population in the United States, 1971, 52, 53.

2 In the construction trades, new apprentices were 87 percent white, and 13 percent black. For the Federal Civil Service, of those employees above the GS-5 level, 88.5 percent are white, 8.3 percent black, and women account for 30.1 percent of all civil servants. Finally, a 1969 survey of college teaching positions showed whites with 96.3 percent of all positions. Blacks had 2.2 percent, and women accounted for 19.1 percent.

in 1971. Including Spanish surnamed Americans, Indians, and other minority groups, the figure declines slightly to 31 percent. But the number of white Americans living in poverty is only 8 percent. The receipt of public assistance is another indicator of the economic status of minority citizens. While 4 percent of the white population receives public assistance, 25 percent of the minority population receives aid. In toto, 6.4 million blacks, and other non-white persons, rely upon public assistance in order to survive.3

The mechanisms created by Title VII alone cannot handle the dimensions of the problem. In FY 1972 the EEOC received 38,840 complaints; it expects 45,000 new complaints during the next fiscal year. The growing backlog of cases is now 53,410, 43,101 of which are pending investigation. Conciliation enforcement and litigation against employment discrimination cannot receive EEOC priority in such a situation.

The benefits of a Federal contract compliance program to accompany EEOC activities are impressive. Fully one-third of the Nation's labor force is employed by companies which are Government contractors. These companies are among the Nation's largest and most prestigious business firms and institutions. The ending of discriminatory employment barriers in this sphere of the Nation's economic life would go far to redeem the pledge of nondiscrimination contained in the Civil Rights Act of 1964.

Over the last years the Nation has been witness to this shift in equal employment opportunity policy from the enacting of legislation to the implementation of nondiscrimination laws. In its wake the move has given rise to a debate concerning the parameters of affirmative action and the possible sanctioning of quota systems and reverse discrimination to achieve nondiscriminatory employment.

To offer a Commission view of this issue, the Commissioners have prepared this Position Statement for public discussion and official consideration. Part I is a survey of the present status of the law and the basis for affirmative action. Part II is a review of certain terms relevant to this area-a look at what affirmative action is, and what it is not. Part III is an effort to respond to certain questions that inevitably evolve out of such discussions. And Part IV discusses the policy considerations invoked by the affirmative action issue and proposes ultimate objectives for nondiscrimination in employment nationally.

PART I

Federal, State, and local laws prohibit employment discrimination by employers, labor unions, and others. Where discrimination has occurred, the law requires that all continuing discriminatory effects be remdied. However, intentional discrimination, such as job assignment by race, is but the tip of an iceberg. Racial and ethnic divisions in society have translated themselves into institutions which systematically deny equal employment opportunity to minority persons. Similarly, traditional and outmodel views of the role of women give rise to widespread patterns of employment discrimination on the basis of sex. Accordingly, one of the most pervasive forms of employment discrimination is "systemic discrimination" i.e., discriminatory practices-most, but not all, unintentional-built into the systems and instructions which control access to employment opportunity.

While erecting formidable and, at times, insurmountable barriers to minorities and women seeking employment, the effect of this has been to create a substantial preference for white males irrespective of their relative qualifications vis-a-vis members of the excluded groups. Viewed in this context affirmative action programs are designed not to establish preferential treatment for minorities and women. Rather, the purpose of such programs is to eliminate the institutional barriers that minorities and women now encounter in seeking employment and thereby to redress the historic imbalance favoring white males

U.S. Department of Labor, Bureau of Labor Statistics, The Social and Economic Status of the Black Population in the United States, 1971, 32-46. U.S. Department of Commerce, Bureau of the Census, Selected Characteristics of Persons and Families of Mexican, Puerto Rican and Other Spanish Origin: March, 1971.

Thus, for example, a common discriminatory has been the assignment of minority workers to certain departments of a particular business. Under Title VII of the Civil Rights Act of 1964, the Federal courts require that such employees be given special remedial rights to transfer into departments from which they previously were excluded. Papermakers and Paperworkers, Local 189 v. United States, 416 F. 2d 980, 988 (5th Cir. 1969), cert. den., 897 U.S. 919 (1970).

in the job market. The elimination of these disparities in employment opportunity is absolutely essential if the polarization with which the Nation is now afflicted is ever to be eradicated. Effectuation of affirmative action programs is, therefore, truly in the national interest.

Affirmative action programs are aimed at, among other things, eliminating the existing discriminatory barriers to equal employment opportunity. Some common examples of discriminatory barriers to equal employment opportunity are:

Instances in which an employer or union rely upon word of mouth contact for recruitment, minority persons who have less acces than other persons to informal networks of employment information, such as through present employees or officials, are denied equal access to available opportunities.

Recruitment at schools or colleges with a predominantly nonminority or male makeup is discriminatory when comparable recruitment is not done in predominantly minority or co-ed institutions.

Rules against employment of married women and rules providing for the automatic termination of employment upon pregnancy amount to unwarranted discrimination against women.

Job qualifications which are not substantially related to job requirements unfairly penalize minority persons with limited education or job experience.

A past history of discriminatory practices continues to deter minority applications until the employer has clearly demonstrated that equal employment opportunity is being achieved.

There has been a growing awareness in recent years of these problems, and widespread adoption of remedies to deal with them. Despite these efforts, both intentional discrimination and systemtic discrimination remain widespread. Moreover, a point of even greater significance is that the consequences of years of such discrimination in the past remain. As long as the consequences of past discrimination-e.g., the employment opportunity preference in favor of white males-persist, the necessity to redress the imbalance continues.

These, then, are the considerations which underlie the need for remedial "affirmative action".

As part of the Civil Rights Act of 1964, Congress enacted Title VII of the act which makes it a violation of Federal law for an employer, labor union, or employment agency to discriminate against an employee or prospective applicant because of race, color, ethnic origin, religion, or sex. To enforce this new law, Title VII established an Equal Employment Opportunity Commission with the power to investigate complaints, conciliate, and recommend the initiation of civil action by the Department of Justice."

In addition to Justice Department instituted procedings, Title VII permits the complainant to initiate suit in Federal court if EEOC conciliation fails. In cases arising under Title VII, the Federal courts have established that where the proportion of minorities employed by the defendant employer is less than that which reasonably would be expected on the basis of the availability of qualified minority group members, a presumption of discrimination arises. United States v. Ironworkers Local 86, 443 F. 2d 514, 550-551 (9th Cir. 1971), cert. den., 404 U.S. 984 (1971): United States v. Hayes International Corp., 456 F. 2d 112, 120 (5th Cir. 1972); United States v. United Brotherhood of Carpenters and Joiners, Local 169, 457 F. 2d 210, 214 (7th Cir. 1972). The burden is shifted to the defendant to demonstrate that such underutilization is not the product of discrimination. Id.

If the Federal court reaches a finding of employment discrimination under Title VII, it may "order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay." Section 708 (g), Title VII. Because of the significance of the consequences of 5 Under Title VII, as amended by the Equal Employment Opportunity Act of 1972, the EEOC has jurisdiction over those businesses engaged in interstate commerce that employ more than 25 employees. As of March 24, 1973, the jurisdictional number will drop to 15 employees as provided by the 1972 amendments. Coverage was also extended to include employment by State and local governments, and educational institutions exempt under the 1964 legislation. This extension was effective as of March 24, 1972.

The EEOC was also empowered to initiate legal actions in Federal court against violators of EEOC orders, and the courts were authorized to issue cease and desist orders enjoining unlawful employment practices when a violation of the law has been proven. This EEOC court enforcement power applies to discrimination by private employers only. The Department of Justice is responsible for enforcement of Title VII against public employers and educational institutions. Public Law 92-261 (March 24, 1972).

43-979-75-pt. 2B-35

years of past systematic discrimination, the legal wrong ends only when all the consequences of past discrmination have been eliminated by the employer. The number of cases which can be tried by Federal courts of administrative tribunals is small compared to the pervasive nature of employment discrimination. Responding to this void, the Federal Government over the last decade has promulgated a series of Executive orders that provide for nondiscriminatory employment by Federal contractors, and construction contractors on federally assisted projects. The current order is E.O. 11246.

The use of affirmative action remedies is basic both to Title VII and to Executive Order 11246. Thus, for example, when the court in an action under Title VII determines that the defendant has discriminated in violation of the Title, the court will order the employer to undertake affirmative action which will remedy the discriminatory consequences of past discrimination and prevent the recurrence of such discrimination in the future.

A principal difference between Title VII and Executive Order 11246 is that the Executive order imposes upon Federal contractors the duty to make a selfdetermination as to the need for affirmative action, without resort to a judicial determination. Thus, the keystone of the "affirmative action plans" which Federal contractors are required to adopt, is the self-analysis performed by the contractor.

Like other affirmative action requirements applicable to Federal contractors, this "self-analysis" requirement appears in regulations promulgated by the Office of Federal Contract Compliance (OFCC) of the United States Department of Labor (41 CFR 60). The regulations require:

An analysis of all major job classifications at the facility, with explanation if minorities or women are currently being underutilized in any one or more job classification .... 41 CFR 60-2.11(a).

The regulations define "underutilization to mean

having fewer minorities or women in a particular job classification than would reasonably be expected by their availability. Id.

While the regulations afford guidance in making the determination of "underutilization" (see 41 CFR 60-2.11(a) (1)), the determination is of necessity an approximate one. The determination will depend upon the industry of the contractor, and the location of the facility or institution. While it is probably that minority underutilization will include blacks, women, and Spanish surnamed individuals, it is quite possible that, in some locations, Jews, Asian Americans, ethnic Europeans, and Indians will be underutilized minorities for some Federal contractors. Nonetheless, the crucial point to bear in mind is that patterns of systemic discrimination have been so pervasive that gross and unmistakable underutilization is a common occurrence. As the OFCC regulations point out, this is most likely to be the case in such categories as officials and managers, professional, technicians, sales workers, office and clerical staffs, and skilled craftsmen. (See 41 CFR 60-2.11).

Once a pattern of underutilization is identified, the next step is to assess the obstacles (generally, form of "systemic discrimination" such as those described above) which have produced it, and to design corrective aaffirmtive action accordingly. (41 CFR 60-1.40; 60-2.24).

The kinds of affirmative action which may be appropriate are as diverse as the forms of systemic discrimination themselves. The OFCC regulations (41 CFR 60-2.24) list a host of affirmative actions which may be appropriate. These include actions in the area of determining qualifications, recruitment, training, promotion, counseling, and other areas.

The absence of a court order does not permit employers to legally continue otherwise discriminatory employment practices. All employers covered by Title VII and all Federal contractors covered by E.O. 11246 have a legal obligation to obey the law, and thus take steps to eliminate any discriminatory employment

The Federal Regulations for the implementation of E.O. 11246, known additionally as "Revised Order No. 4." do not provide a comprehensive definition of the terms "minority” or "minority group." The Regulations do provide some limitation on the terms by referring to the affirmative action program's beneficiaries as "members of an 'affected class' who by virtue of past discrimination continue to suffer the present effects of that discrimination." 41 CFR 60-2.1. Thus, the term "minorities" applies generally to blacks, Indians, and Spanish surnamed Americans. In certain contexts, depending upon the geographic area and a past history of discriminatory practices, Asian Americans. Jews, and white ethnic groups may also be deemed "minorities" within the meaning of 41 CFR 60-2.10, 60 -2.11.

In the absence of such gross and unmistakable underutilization, discrimination and/or the present effects of past discrimination would, of course, have to be shown as the basis for any affirmative action effort.