Affirmative Action for the Future

5. A Defense of Remedial Affirmative Action

5 A Defense of Remedial Affirmative Action Compensating for Past Discrimination Although the U.S. Supreme Court has adopted different positions at different times, it has always held that it is permissible to adopt remedial affirmative action as compensation for identifiable acts of purposeful discrimination committed by that very institution. Of course, it is rare for an institution that is engaging in affirmative action to actually admit that it has committed identifiable acts of purposeful discrimination, or that it did so in the recent past. This is because such an admission would render the institution vulnerable to claims of compensation from other victims. Consequently , institutions frequently engage in remedial affirmative action only when they have been found guilty of discrimination, or, more likely, when they have been “forced” to accept a legal settlement. In 1973, AT&T reached a settlement with the Justice Department in which it agreed to restructure its hiring and promotion policies. Until then, half the company’s 700,000 employees were women, all of whom A Defense of Remedial Affirmative Action 39 were either telephone operators or secretaries. The company had been categorizing virtually all of its jobs as either men’s work or women’s work. Women, along withminoritymen,werevirtuallyexcludedfromthehigher paying positions in the company.1 The agreement resulted in $15 million in back wages to 13,000 women and 2,000 minority men, and $23 million in raises to 36,000 employees who had been harmed by previous policies.2 In 1993, Shoney’s Restaurant chain settled a racial discrimination case against it.3 Shoney’s had been tracking blacks into kitchen jobs so that most employees in the dining area would be white. The case arose when two white managers complained that they had been pressured by their supervisors to restrict blacks to kitchen jobs, and that they had been fired when they had resisted that pressure. As more evidence was gathered, the case grew into a nationwide class-action suit against Shoney’s.4 The case was settled out of court for $105 million.5 In 1997, Texaco reached a settlement in a class-action suit against it charging that the company systematically passed over black employees for promotions in favor of less experienced whites, and that the company fostered a racially hostile environment.6 Some participants in the suit contended that they were called “uppity” for asking questions; others said that black employees were called “orangutans” and “porch monkeys.”7 The agreement was reached after the disclosure of a secret tape recording of senior Texaco executives, revealing them planning the destruction of documents demanded in the lawsuit and belittling black employees, referring to them as “black jelly beans” and “niggers.”8 The settlement for $176 million is the largest race-discrimination settlement in U.S. history.9 It called for lump sum payments averaging around $63,000 to about 1,300 black employees.10 In addition, salaried blacks still working for Texaco received an 11 percent pay raise worth an estimated $26 million over five years. Texaco also paid $35 million for a five-year task force that revised its personnel programs.11 Peter Bijur, who was chair and CEO of Texaco at the time, said that the racial discrimination problems at his company represented just the “tip of the iceberg” in corporate America.12 In 2000, the Coca-Cola Company agreed to settle a racial discrimination case in which it was accused of erecting a corporate hierarchy where black employees were clustered at the bottom of the pay scale, averaging $26,000 a year less than white workers.13 One plaintiff, who worked for Coca-Cola for thirteen years, said she made less than white workers she supervised. 40 Affirmative Action for the Future The settlement of $156 million provided as many as 2,000 current and former black salaried employees with an average of $40,000, while the four main plaintiffs received up to $300,000 apiece.14 Ending Present Discrimination Since in all four cases compensation was paid to those who claimed they were harmed by the discriminatory practices of their companies, few opponents of affirmative action have objected to these remedial actions. However , there are other forms of remedial affirmative action in which the individuals who benefit are not the ones who were actually discriminated against by the institution that is providing the remedial affirmative action .15 For...