Bigger Than Bakke?

The headline-grabbing Bakke decision last summer left open more questions about reverse discrimination than it answered. The Supreme Court outlawed explicit racial quotas for admission to universities receiving federal funds, while ruling that race could still be a factor in selecting applicants. But the court did not say how far employers could go with affirmative-action programs designed to give minorities a break, programs that often use quotas and also affect millions of workers.

Last week the court decided to face that issue. It agreed to review the case of Brian Weber, 32, a white employee at the Gramercy, La., plant of Kaiser Aluminum & Chemical Corp. who had been rejected by a craft training program that reserved half its places for minorities. Weber sued Kaiser and his union, the United Steelworkers, and won: two federal courts ruled that under Title VII of the 1964 Civil Rights Act Kaiser cannot use racial quotas without proof that it discriminated in the past.

The lower courts reasoned that employers could use affirmative action only to remedy past wrongs. But making an employer show past discrimination puts the firm between a rock and a hard place. . If an employer gives preference to non-white workers without admitting past errors, it opens itself up to suits from passed over white workers like Weber. But if the employer admits past discrimination, it invites suits for substantial back pay from nonwhites. Allowing the decision to stand, argued the Justice Department in its petition, "can be expected to chill voluntary affirmative-action programs throughout the country." The Equal Employment Opportunity Commission also disagrees with the Weber decision. The same day the high court decided to review the case, the EEOC announced final guidelines designed to encourage voluntary affirmative action.

Kaiser and the Steelworkers agreed to their affirmative-action program voluntarily, notes Yale Law School Professor Bruce Ackerman, but "with the Government looking over their shoulders." Fewer than 2% of the 273 skilled craft workers at the Kaiser plant where Weber works were black, while the surrounding area's work force was 39% black. Discrimination had been shown at two other Kaiser plants in Louisiana, and the company risked losing federal contracts. But Kaiser still insisted in the lower courts that there had been no past discrimination. Why? Because the company did not want to lay itself open to suits by black workers. "People are being made to feel that Kaiser would set up this kind of program even though it had not discriminated in the past," says EEOC Chief Eleanor Holmes Norton. "That's nonsense."

The EEOC and the Justice Department want the Weber case sent back so lower courts can reconsider evidence of Kaiser's past discrimination. But Weber, now a $20,000-a-year lab technician at the Kaiser plant, says he is optimistic about winning in the high court. If he does, he may become an even more important symbol than Allan Bakke. Unlike Bakke, who used to duck publicity, Weber says he doesn't mind "the notoriety." A loquacious Cajun and father of three who is fond of fishing, he likes to be photographed in his hard hat. In fact, Weber plans to go to Washington to hear his case argued in the Supreme Court's marble temple this winter. Says he: "I wouldn't miss it."

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