Smoking Guns Are Hard to Find : Court Places Affirmative Action Burden on Employees

Judges usually interpret legislation as they find it and not as they would like it to be. Sometimes, though, a judge’s underlying dislike for a statute is openly revealed by the illogic of the reasoning the judge uses for its interpretation. One such example is the 1971 U.S. Supreme Court decision in General Electric Co. vs. Gilbert, interpreting the sex discrimination language in the 1964 Civil Rights Act. Another example is the present court’s recent decision in Wards Cove Packing Co. vs. Atonio, interpreting the race discrimination provision of the same statute.

In the Gilbert case, a female employee complained that her employer violated the Civil Rights Act with a disability insurance plan that covered every conceivable male disability, including elective vasectomy, but failed to cover pregnancies and disabilities arising out of pregnancies. The Supreme Court acknowledged that the Civil Rights Act prevented sex discrimination, but held that there had been no sex discrimination against Gilbert. Instead, the court decided that any discrimination suffered by Gilbert was not in favor of males but in favor of “non-pregnant persons.” Therefore, there was no violation of the Civil Rights Act.

In 1978 Congress, very much aware that only females can become pregnant, amended the Civil Rights Act to correct the court’s plain misinterpretation of its intent in the Gilbert case. Consequently, the Civil Rights Act now outlaws pregnancy discrimination.

The court’s analysis in the recent Wards Cove case similarly demonstrates judicial hostility toward the objectives of federal employment discrimination legislation. In 1974, a group of nonwhite native Alaskan and Filipino workers at a salmon cannery filed Civil Rights Act claims of racial discrimination against their employer. They argued that they were confined to lower-paying, unskilled jobs in the cannery, while white employees held higher-paying jobs in non-cannery work in diverse positions, including cooks, carpenters, storekeepers and laborers. The nonwhite plaintiffs produced evidence of nepotism, word-of-mouth hiring for the higher-paying jobs, segregated living and dining facilities and the absence of objective job qualifications. For example, when a college student inquired about employment in the cannery, a company foreman wrote him a letter saying, “Our cannery labor is either Eskimo or Filipino and we do not have the facilities to mix others with these groups.”

The question the Supreme Court had to decide was how the complaining employees’ evidence of discrimination should be analyzed. Once the employees offered some evidence of apparent discrimination, should the burden be placed on the employer to prove that the apparently discriminatory practices were justified by valid business reasons?

In 1971, an opinion for the court authored by Chief Justice Warren Burger (Griggs vs. Duke Power Co.) decided that in such instances the burden of proof does shift to the employer and that the “effect” of discriminatory practices could sometimes be relied on as a substitute for evidence of intentional discrimination. The June 5 decision in Wards Cove effectively overrules Griggs and places on complaining employees the burden of proving--with what amounts to smoking-gun evidence--that their employer intentionally discriminated against them on the grounds of race.

In the past, the statistics like those presented by the Wards Cove employees, showing high numbers of high-paying jobs for white men and high numbers of low-paying jobs for nonwhite employees, could be used as proof--though not conclusive proof--of racial discrimination. Now, the court has directed that such statistics carry no weight unless comparisons between the work force and the job market are made. That is a fair analysis when there is a wide gap in the skill requirements for jobs. But in the Wards Cove case, some of the high-paying positions included truck driving and other jobs that used skills easily acquirable by the general public.

Though the case is now 15 years old--a damning reflection on how unproductively complex Civil Rights Act litigation has become--it is not over yet. The court gave those plaintiffs who are still alive another chance to win, but they must now face the new proof standards established last week. Four justices, none of them appointees of President Reagan, dissented.

The Wards Cove case is symbolic of the former President’s now obviously successful efforts to extend his conservative agenda beyond the term of his Administration through judicial appointments.

President Reagan said he sought judges who would “interpret” but not “make” laws. But all judges, to some degree, make the law when they interpret statutory or constitutional provisions containing language as vague, for example, as “unreasonable restraint of trade” or “unreasonable searches and seizure . . . .”

The Wards Cove case illustrates how political catch phrases like “strict constructionist” and “judges who are not activists” are little more than code words for judges who, among other traits, simply dislike civil-rights legislation.

In its ruling, the court not only struck down a legitimate and reasonable method for ensuring a “level playing field” for equal opportunity; the decision also has exposed the disingenuous notion of “ideology-free” judges.