The Weber Case Revisited

Below are excerpts from a 1978 Wall Street Journal Article on the famous "Weber" Case. These excerpts are from an article explaining the importance of the case for survival of private programs that discriminate in hiring and promotion against European-Americans.

The Supreme Court agreed to review a Fifth Circuit court decision holding that promotion quotas set aside exclusively for blacks violate the Civil Rights Act. On review, the Supremes held in 1979 that private business was free to discriminate against European-Americans in any way it wished, thereby overruling the Fifth Circuit.

Translation! - Despite its neutral language, the prohibition against discrimination on account of race under the Civil Rights Act of 1964 does not apply to whites!

In 1995, the Supreme Court made news by holding that race preferences for minorities in federal contracting were illegal. However, the decision did nothing to overturn Weber.

Welcome to the hierarchy of race preferences and political resistance!

Contract set-asides are politically dangerous because the low bidders (unlike the Brian Webbers of this country) have resources and can effectively complain to their congressmen and sponsor opposing candidates if they do not get their way. Their resources could also be used to create institutions that might marshall opposition to affirmative action and, more broadly, integrationism in all its aspects.

To cripple opposition, it is most important for the liberals to get rid of quotas in government contracting.

Far less powerful are the rank and file employees like Brian Weber. The integrationsists have less to fear from them.

Less powerful still are students seeking college admissions. (Curiously, the "policy prescription" set forth by Herrnstein and Murray in the "Bell Curve" was for universities to keep admissions quotas, but to reduce the gap between white and black average IQs on campus to a half a standard deviation from the current range of from 1 to 2 full standard deviations, so that the differences would not be so obvious to European-Americans on campus.)

Last in power are the taxpayers victimized by direct subsidies and tax breaks for minority business. These are the preference schemes most often supported by the economically conservative integrationists like Jack Kemp and William Bennett with their "enterprise zones" and other direct financial handouts.

These schemes allow the Kemps and Bennetts of this country to advocate outright race preferences and buy minority votes while apearing to respect "rights of the individual".

They would impose the burden of minority preferences exclusively on the taxpayer. The virtue of such schemes is that they tend not to arouse the intense opposition of individual victims such as Brian Weber. (Liberals, on the other hand, prefer schemes that involve direct "in-your-face" degradation of European-American males.)

In any event, you should not be surprised to learn that much of the effort you read about in the press to "roll back" racial preferences is not motivated by principled opposition to them, but rather a concern to "fine tune" them so that the consequences will be less visible to the great mass of European-American sheep who commute the freeways and pay their taxes.

Also, you should not be surprised to learn that the Supreme Court will select cases based on cynical political motives as opposed to constitutional principle.

After all, this is America!

So if we are to see a rollback in affirmative action, expect to see it in contract set-asides and, perhaps, job quotas. But look more for measures that refine it and make it less visible - which is to say to load more of its costs onto the taxpayer generally and onto businesses, with less on to the backs of individual victims.

That said, here is an important background piece on the land-mark case that made employment discrimination against European-Americans perfectly "legal".

Yggdrasil-

Sep. 21, 1978 Wall Street Journal P1 C1

In Bakke's Wake Kaiser Aluminum Case May Help in Clarifying Reverse-Job-Bias Issue

Supreme Court May Consider Attack by White Worker On Preferential Program

Weakness of a Clean Record

By MARILYN CHASE

Staff Reporter of THE WALL STREET JOURNAL

Brian Weber, a 31-year-old lab analyst with 10 years' service at the Kaiser Aluminum & Chemical Corp. plant in Gramercy, La., says he longs for a crack at a skilled crafts job in which he could double his pay, get greater job security and escape the grind of night work.

However, when he applied for a crafts-retraining program back in April 1974, he was rejected. Mr. Weber is white, and the program called for at least 50% black and female trainees. Initial disbelief turned to anger, says Mr. Weber, who often wears a hard hat decorated with patriotic decals. I'm not a person to sit down and let this happen--let it happen to me, anyway," he asserts. So eight months and several fruitless complaint procedures later, he sued.

So far, Mr. Weber's claim of reverse discrimination has been upheld in federal district court in New Orleans and in the Fifth Circuit Court of Appeals; both courts ruled the Kaiser program illegal. The Supreme Court, which begins its new term Oct. 2, could consider whether to accept Kaiser's appeal shortly after that. If it accepts the case, oral arguments aren't likely to be scheduled until early next year. If the court declines to review it, the Fifth Circuit's decision against the Kaiser plan at the Louisiana plant would remain in force without setting any nationwide standard for the moment.

Kaiser's View

Kaiser's attorney, Robert J. Allen Jr., warns that a Supreme Court ruling against the company "would destroy affirmative action as we have practiced it--on a voluntary basis." Although Kaiser's chances of winning its case in the Supreme Court are far from clear, one top federal official says a decision in Kaiser's favor would be "momentous" because it would lend legitimacy to just about any industrial affirmative-action program currently in existence. Moreover, Eleanor Holmes Norton, chief of the U.S. Equal Employment Opportunity Commission, supports Kaiser's program as both "reasonable" and "responsible," and she considers such voluntary programs,"absolutely essential to law enforcement."

Mrs. Norton adds that Weber v. Kaiser -exemplifies the contradictory pressures squeezing American companies. "Kaiser," she says, "is a classic example of an employer caught between a rock and a hard place, trying to comply with the law but sued by a white employee." Then she adds: "When law enforcement makes it hard for people to comply voluntarily, then there's something wrong with law enforcement."

The central dilemma: A company that shuns affirmative action runs the risk of a discrimination suit by minority employees, and a company that hasn't a proven history of past bias but embraces affirmative action --such as Kaiser--runs the risk of a reverse discrimination suit by white employees.

* * *

Kaiser had set up its affirmative-action program to comply with an executive order issued by President Johnson. The order required that companies doing business with the federal government not only refrain from discriminating but take "affirmative action" to correct racial imbalance. Many other companies have begun similar programs to avoid losing federal contracts or to ward off Title VII suits by minorities contending that they have been victims of job bias.

The affirmative-action plan at Kaiser was negotiated between the company and the United Steelworkers of America. It was designed to channel minorities and women at Kaiser into higher-paying skilled-crafts jobs, where they were underrepresented. To achieve this, a training program was devised in which at least one black or female employee had to be admitted for every white male. In effect, the lines of seniority split into minority and white, and as a result some minority trainees were placed ahead of whites with more seniority- including Brian Weber.

"The quota eliminated me (and) a lot of people more senior than me," Mr. Weber charges, adding that white co-workers rallied to his side. "People got behind me," he says. "They put their marbles on the suit." And when black co-workers reply that they have suffered historical discrimination, he responds with what may be the rallying cry for the present wave of reverse- discrimination cases: "Yeah, but that's no reason to do it to me now."

Mr. Weber's attorney, Michael Fontham, charges, "We have what is an out-and-out quota."

Moreover, as in the Bakke case, the Weber case turns on the lack of any proven record of bias at the Gramercy plant on which to justify a quota. Kaiser had determined that blacks and women were outnumbered in the crafts because such jobs formerly had been awarded solely on the basis of seniority and prior experience, where white males traditionally had the edge. Voluntarily-albeit spurred on by federal contract compliance reviews, as are all companies- Kaiser and the union set out to redress that imbalance that sprang from years of social inequality in the South.

"I have no problem with any program designed to return an individual to his rightful place in the company, if the company and the union did anything to prevent him from advancing," Mr. Fontham argues. "But for the company to do it to correct general societal conditions is contrary to our values. People like Brian Weber are having their dreams for the future quashed."

However, many federal contractors prefer to set up an affirmative-action program before their employee rolls are found to be racially imbalanced. "It really puts the contractor at risk to have to wait for the government to come in and find something that's wrong," Assistant Secretary of Labor Donald Elisburg says. A predictable storm of bad publicity and possible loss of a lucrative federal contract make companies anxious to avoid such findings of discrimination, whether by a court or federal agency.

Federal officials believe companies undertaking affirmative action under court order, by consent degree or through conciliation with EEOC, are generally safe from reverse- discrimination complaints. But the Supreme Court has yet to issue any definitive rule guiding employers through the gauntlet of opposing claims by black and white workers. Such a rule could emerge from the Weber case.

* * *

Kaiser's case may indeed be weakened ironically enough--by its clean record, government sources say. Thus, some fear Weber v. Kaiser is a bad test case on which to pin the future of voluntary affirmative-action programs. If the lower courts had found that Kaiser or the union had discriminated against black workers prior to initiating the program, "obviously we would feel a lot stronger about the case," says James D. Henry, associate solicitor of the Labor Department.

Big corporations--some with millions of dollars tied up in their affirmative-action programs--are watching the Weber case warily.

* * *

Enforcement Impact

Those concerned with enforcing fair employment say their job would be vastly more difficult if the Supreme Court bans voluntary affirmative-action programs in the absence of prior findings of discrimination. "It would be distressing, and it would be very difficult,'' Assistant Labor Secretary Elisburg says.

The key difficulty is explained by the EEOC's Mrs. Norton. "Employers cannot be expected to admit prior discrimination because that would open them up to liability," she says. Corporate officials agree.

Thomas Hilbert, labor counsel for General Electric Co., criticizes the Fifth Circuit decision as "unrealistic" and "marginal" for requiring proof of past bias. To admit to violations is "a hell of a thing for any company to do," he says, noting that GE's recent $32 million conciliation agreement with the EEOC didn't require any such admission.

Distaste for government interference is another reason business hopes voluntary affirmative action survives the Weber case. As Robert Stenberg, Ford Motor Co.'s equal employment planning manager, says, "We function better in the business community when we sort of make our own way."


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