Without prejudice

Who needs Initiative 200? The workplace is already correcting affirmative action's excesses.

IS THE SEATTLEPost-Intelligencerbiased against men? A newly revived lawsuit levels that charge. Longtime P-I sportswriter Bud Withers, who four years ago lost out on a columnist's job that went to new recruit Laura Vecsey, sued the paper, claiming that Vecsey was chosen over him on account of her gender. After being thrown out of district court last year, the suit was reinstated a few weeks ago by an appeals court in San Francisco, which ruled that the case could go forward (see "Block that Metaphor," below).

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The case has resurfaced at a time when debate over affirmative action is beginning a nine-month rage in Washington state. Initiative 200, which will appear on the state ballot this November, outlaws "preferential treatment" based on race or gender in hiring decisions (as well as contract awards and school admissions). The P-I case would not be directly affected by I-200, since the proposed law applies only to the public sector. But Withers' claim raises a pressing question: How much can an employer take your race or gender into account when deciding whether to hire you? And how exactly would that change under I-200?

The P-I's attorney, Stephen Smith, insists that gender "played no role" in the decision to hire Vecsey: "You had an existing columnist who was being courted by some of the top newspapers in the country," he says. "On the other hand, we had a sportswriter whose only previous column experience was seven years before."

Nonetheless, in a sworn deposition, P-I publisher J.D. Alexander conceded that Vecsey's sex was "a factor," though not "the overwhelming thing," and that the paper was consciously looking to diversify its staff.

Is that so wrong? Recent court rulings have left the issue unclear. "It's up in the air whether diversity for its own sake is sufficient reason to make a decision based on race or gender," says attorney Joann Francis, a specialist in labor and employmentlaw at Foster Pepper in Seattle. Last week, in a much-anticipated case, the Supreme Court had the opportunity to clarify the matter in the lawsuit of a Lynnwood resident named Yvette Farmer. Farmer, a white sociologist, charged that she was passed over for a job at the University of Nevada, then paid less money than a black colleague, because of what her boss called a "minority bonus" policy aimed at diversifying the faculty. Affirmative action opponents had thought this case would be a chance for the court to make plain its views on preferences. But the justices declined to hear the appeal and simply let the Nevada court's ruling in favor of the university stand.

However, many other recent court cases have strongly suggested that the quest for diversity is no defense for race- or gender-conscious hiring. "Just wanting to be a good citizen or to achieve 'balance' [in your staff] will get you into trouble," says Sue Jordan, head of the state's Human Rights Commission, which enforces civil rights laws. From the legal standpoint, the employer who wants diversity still has to hire people based on their job-related strengths, she says, not their color or sex.

In fact, the employer is free to evaluate those strengths by all kinds of subjective standards, notes Bud Withers' attorney, Cynthia Turner. "You can take into account anything you want. You can prefer someone because you think their personality fits more with the company. But if their personality fits because they happen to be a white male, then you're back in the trouble area again."

According to Stephen Smith, the point at which discrimination can be alleged is when race or gender has been a "substantial" or "determinative" factor in someone's hire or rejection.

THE SITUATION BECOMES MURKIER in the public sector. Washington, the city of Seattle, and King County all have affirmative action programs in hiring and contracting that are designed to increase minorities' and women's share of the public payroll. I-200, which applies to the public sector alone, would most likely render the programs illegal.

Affirmative action establishes targets for the hiring of people who are "underrepresented" in different government job categories. In order to help reach representation targets, people who might not otherwise be there are brought into the pool of finalists during job searches. For example, King County has a "selective certification" policy that allows minority or female candidates into the interview pool even if they are not among the top-ranked candidates. The state has a similar program. King County Council members Chris Vance and Rob McKenna tried, and failed, to abolish the county program at a highly publicized hearing last week.

As affirmative action supporters are quick to note, these programs actually provide a boost to more white men than members of any other group because the preferences also apply to veterans and the disabled. (Those who have suspicions about the pretensions to pure meritocracy of I-200 backers should note that the initiative would leave preferences for white men untouched.)

But the implementation of these policies, more than their substance, may be the source of outrage over affirmative action. They would perhaps be perceived as more fair if the government adhered more closely and consistently to the regulations as they are presently written and interpreted by the courts.

Under current affirmative action policy, the government is still expected to hire the "best qualified"—or, as Sue Jordan at the Human Rights Commission prefers to say, "best suited"—person from the pool of finalists. But a boss who chooses not to hire one of the selectively certified candidates has to explain why in writing. (The County Council decided last week to eliminate that pressure tactic, although it still obtains at some state agencies.)

Affirmative action is even more aggressive in state government, where the governor's Affirmative Action Policy Committee has let it be known that a person's race or gender can be considered in making the final hiring choice. Roy Standifer, head of workforcediversity for the state, isn't happy with that policy shift, which he says occurred in the last couple of years. "Heretofore I had pursued the idea that it's 'the best qualified,'" he says.

The Supreme Court has generally found that these kinds of programs are not unconstitutional per se. But the courts have made it clear again and again that "preferences" can only be extended where there is some established history of past discrimination. "You can't just generally say, 'Well, we know there's been discrimination because there was slavery,'" says Joann Francis of Foster Pepper. Instead, public agencies are required to gather statistical or anecdotal data showing that there has been discrimination in the industries or job categories where they intend to extend preferences.

This requirement is routinely ignored. In the Yvette Farmer case, for instance, the sociologist receiving the "minority bonus" was an immigrant from Uganda.Just last week, California Gov. Pete Wilson abolished the state's set-aside program for women- and minority-owned businesses after the 9th Circuit Court of Appeals struck the program down as unconstitutional. The court acted on the basis of a case in which a state university set up "goal requirements" for a utility project without any effort to document past discrimination.

In our area, the King County Sheriff's Department has been struggling for years to achieve a police force that is half-female, despite the fact that there just weren't that many women interested in the job. "The goals that had been set for women in police jobs were unrealistic," says Anne Hendrickson, personnel officer for the sheriff's office. The county recently approved a plan that sets more reasonable targets.

AND, IN A MORE TELLING CASE, an Issaquahfirm, Government Computer Sales, last year sued to challenge state set-asides for minority- and women-owned businesses in state computer purchases. "They've done no research to show there's been any kind of discrimination in the government computer reseller business," says Craig Rusk, an attorney who represents the firm. "And you'd have a tough time because this is a business that's evolved in the last 10 years and is all done by fax and e-mail, so you don't even know who you're dealing with a lot of the time."

In the face of the lawsuit, the state eased off on women and minority set-asides in its computer purchases, and Rusk has put the case on hold.

The momentum for Initiative 200 may be growing less from the nature of affirmative action itself than from the loose and ill-considered way it has been implemented. The courts have set strict limits on how preferences should be employed, and if those parameters were better respected, affirmative action would probably be receiving more popular support. "Mend it, don't end it"—Clinton's phrase—has turned out in many respects to be a typically empty political slogan, but in the case of affirmative action, it just might work.

Previous I-200 Articles

Affirmative Reaction by Marke D. Fefer

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