Marshall, F. Ray

English

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Washington Law Review Volume 42 Number 3 4-1-1967 Legal Restraints on Racial Discrimination in Employment, by Michael I. Sovern (1966) F. Ray Marshall Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Civil Rights and Discrimination Commons, and the Labor and Employment Law Commons Recommended Citation F. R. Marshall, Book Review, Legal Restraints on Racial Discrimination in Employment, by Michael I. Sovern (1966), 42 Wash. L. Rev. 987 (1967). Available at: https://digitalcommons.law.uw.edu/wlr/vol42/iss3/35 This Book Review is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. BOOKS REVIEWEDLEGAL RESTRAINTS ON RACIAL DISCRIMINATION IN EMPLOYMENT.By Michael I. Sovern. New York: The Twentieth Century Fund,Inc., 1966. Pp. 270. $6.00.This book deals with a variety of legal measures which have beenadopted to restrain discrimination in employment. Chapter I out-lines the basic problem by discussing the vicious circle of unemploy-ment, poverty, and inadequate opportunity which has trapped Negroesin inferior economic positions. Chapter II discusses the Fair Employ-ment Practices Commissions (FEPC's) created by President Roose-velt, under pressure from Negroes, during World War II. Sovernconcludes that "the five years of federal fair employment practicesregulation saw Negroes make enormous gains in the labor market."He concedes, however, (in what is surely an understatement) that"some of these gains were undoubtedly attributable to the wartimemanpower shortage."1Chapter III deals with state fair employment practices laws. Sovernconcludes that the evidence is inconclusive concerning the impact ofthe state FEPC's on employment, but notes that "discrimination inemployment remains common... in the very states that have outlawedit."'2 He attributes the limited impact of the FEPC's to: the agencies'inadequate powers of initiation; inadequate budgets and heavy respon-sibilities; difficulties in proving discrimination; inadequate remediesfor those found guilty; the commissions' fear of adverse reaction frombusinessmen and union leaders; and the commissions' excessive timi-dity. Excessive timidity manifests itself in the rarity of probable causefindings, protracted conciliation efforts, and soft settlements. Theauthor notes, moreover, that other government agencies fail to help thecommissions as much as they might. He concludes :'While the performance of the commissions seems disappointing whenmeasured against either their potential performance or the job to bedone, their accomplishments become impressive when it is rememberedthat they were wholly without precedent as recently as twenty-five yearsago. If this discussion has tended to emphasize the shortcomings to theexclusion of the gains, it is because the time for laurel-resting is not yetat hand, because the gains are quickly digested leaving only the indiges-tible shortcomings, and because we must be concerned now with the nexttuenty-five years, not the last.1 P. 15.'P. 31.'P. 60.19671WASHINGTON LAW REVIEWSovern offers a number of suggestions for overcoming the shortcomingslisted above.Chapter IV deals with the Civil Rights Act of 1964.1 The authorwrote this chapter before the Equal Employment Opportunity Com-mission (EEOC), which administers the employment sections of theact, had issued some of its interpretations and his analysis thereforedepends mainly on the statuatory text and the act's legislative history.This is nevertheless one of the best chapters in the book; it contains athorough discussion of the provisions of Title VII, deals realisticallywith the act's limitations, and makes imaginative suggestions for im-provement. Sovern points out very clearly that Title VII has veryweak enforcement procedures because, if the EEOC is unable to re-solve a case after "conference, conciliation, and persuasion," the com-plainant must file a suit in federal district court. Such suits are likelyto be expensive, time-consuming, and uncertain as to their outcome.The author points out, however, that the complainant might get effec-tive relief by turning to the Justice Department, because Title VIIprovides that "upon timely application, the court may, in its discre-tion, permit the Attorney General to intervene in such civil action ifhe certifies the case is of general public importance." Title VII alsopermits the Attorney General to sue on his own whenever he "has rea-sonable cause to believe that any person or group is engaged in a pat-tern or practice of resistance to the full exercise of the rights hereindescribed." Because of the EEOC's inadequate enforcement powers,Sovern believes that the intransigent respondent could successfullyresist the Commission: If the respondent "is polite but firm, it [theCommission] must eventually go away. At that point, the employermay be sued by the person harmed but the odds are against it, and if hedoes sue, one can always settle with him instead of the Commission. 'The author notes, however, that vigorous cooperation by the AttorneyGeneral, if sustained by the courts, could strengthen the EEOC's con-ciliation efforts.Chapter V discusses the use of executive orders issued by variouspresidents to curtail discrimination by government contractors. Sov-ern emphasizes that government contract compliance provisions couldbe powerful weapons against discrimination because employers whomight resist the feeble efforts of the EEOC will be reluctant to risk'78 Stat. 255, 42 U.S.C. § 2000. Section 2000e contains Title VII on Equal Employ-ment Opportunities.r P. 80.[ VOL. 42 :969BOOKS REVIEWEDlosing lucrative federal contracts. However, the contract compliancemachinery is weakened because labor organizations have not been par-ties to the contracts. Another weakness of this procedure, not givenadequate attention by Sovern, is the fact that contracts, because oftheir importance to the contracting agencies, might be very difficult tocancel.Nevertheless, the requirement of affirmative action by governmentcontractors is very important because it requires contractors to dothings to improve Negro job opportunities which they could not becompelled to do by law. The so-called voluntary "Plans for Progress"also are important, as Sovern stresses, because they too encourage em-ployers and unions to take measures which reach beyond the law. Allthe evidence suggests that the contract compliance programs have beenthe most effective legal measures to increase Negro employment.Chapter VI deals with the National Labor relations" and RailwayLabor Acts.' It contains a discussion of the duty of fair representa-tion imposed upon unions acting as bargaining agents under these laws.Sovern notes that judicial enforcement of this duty has been inade-quate because of uncertainties as to the outcome and the expenses towhich the aggrieved individual is put. The author therefore notes theimportance of recent National Labor Relations Board rulings whichpromise to give some administrative relief for discrimination. TheBoard traditionally had limited enforcement of the duty of fair repre-sentation to the rarely used remedy of revoking certification from aunion guilty of discrimination against members of the bargaining unit.Because a majority of unions do not have certification, and becausemany of those currently certified would not be significantly damagedby decertification, this penalty has been almost meaningless. How-ever, in a series of recent decisions, the Board has ruled that dis-criminatory agreements will not bar challenges by which other unionsseek to displace discriminating unions as bargaining agents.But the Board's most significant ruling has been to declare thatfailure of the duty of fair representation is an unfair labor practice.,This ruling in effect makes it possible for a person who has been dis-criminated against to get administrative relief without having to incurthe expenses of court action. The Board has ruled that discrimination'49 Stat. 449 (1935), 29 U.S.C. § 151 (1964), as amended, 61 Stat. 136 (1947),29 U.S.C. § 141 (1964) (Taft-Hartley Act).7 44 Stat. 577 (1926), as amended, 45 U.S.C. §§ 151-62 (1964).SMiranda Fuel Co., 140 N.L.R.B. 181 (1962), enforcement denied, 326 F.2d 172(2d Cir. 1963).1967 ]VASHINGTON LAW REVIEWviolates several sections of the National Labor Relations Act, includingsection 8 (b) (1), which makes it an unfair labor practice for a union torestrain or coerce employees in the exercise of their rights to bargaincollectively through representatives of their own choosing. The Boardhas interpreted this provision to mean that a union, when acting asbargaining agent, cannot take "action against any employee uponconsiderations or classifications which are irrelevant, invidious, or un-fair." 9 The Board has ruled, for example, that this section is violatedwhen a union refuses, for racial reasons, to process the grievances ofNegro members of the bargaining unit.Section 8(b) (2) of the NLRA makes it an unfair labor practice fora union "to cause or attempt to cause an employer to discriminateagainst an employee in violation of section (a) (3)." Section (a) (3)provides that employers shall not be justified in discriminating againstan employee for non-membership in a labor organization if they havereason to believe that membership was not available to that employeeon the same terms and conditions as other members or if membershipwas denied for some reason other than the failure to tender dues andinitiation fees uniformly required as a condition of acquiring or retain-ing membership. The NLRB has ruled that the unfair treatment of aworker because of his race violates this section because it is designedto encourage membership in a labor organization. Sovern supports theBoard's ruling, because "whatever the reason given, whenever a unioncauses an employer to treat a nonmember arbitrarily, membership inthe union is encouraged."' 0 This seems to be rather strained logic inthose cases where the union has segregated locals or will not admitNegroes. Section 8(b) (2) clearly gives relief in cases where a labororganization tries to enforce closed shop conditions, but it is moredifficult to extend this doctrine to cases where members of the bar-gaining unit are unfairly treated because of their race and not becauseof their union membership.The NLRB also has ruled that a union violates section 8(b) (3)when it fails to represent workers fairly. This section makes it an un-fair labor practice for a union "to refuse to bargain collectively withan employer, provided it is the representative of his employees."Although the NLRB's ruling that failure of the duty of fair represen-tation is an unfair labor practice has important implications for dealingwith racial discrimination by unions, it remains to be seen if the9Miranda Fuel Co., 140 N.L.R.B. 181, 185 (1962).'0 P. 166.[ VOL., 42: 969BOOKS REVIEWEDBoard's rulings will be upheld. Doubt arises because of the Miranda"decision (which was not a racial case) in which the Second CircuitCourt of Appeals refused to enforce an order against a union which theBoard found to have violated its duty of fair representation. Doubt alsoarises because of Congress' refusal in the past to explicitly make racialdiscrimination an unfair labor practice. Sovern gives little weight tothis objection on the ground that Congress implicitly accepted theSteele"2 case (in which the Supreme Court applied the duty of fairrepresentation to a railway labor organization) when it passed the1947 Taft-Hartley Act and did nothing to overturn that ruling. Sov-ern's argument is not convincing because at the time of Taft-Hartleythe NLRB had limited its rulings to threats to revoke certification, apower which it clearly possessed. In the absence of certification, theunion's bargaining rights are protected by its economic power and notby the NLRB unless the employer commits unfair labor practicesspecified in section 8. Sometimes, of course, actions taken againstNegroes-such as discharging them for union membership or the lackof it-is clearly an unfair labor practice, not because of the racialdiscrimination, but because such actions would be illegal if takenagainst any worker.Chapter VII deals with the remedies for discrimination in appren-ticeship programs. Sovern's treatment of this subject is centeredaround the case of Lefkowitz v. Farrell' in which the New York Com-mission for Human Rights found a sheet metal workers joint appren-ticeship committee and Sheet Metal Workers Local 28 guilty of dis-crimination. The Commission was compelled to go to court to enforceits ruling, and, in 1965, three years after this case started, the firstNegro apprentice entered the New York sheet metal workers program.Sovern feels that Lefkowitz demonstrates: the need for commissionsto have the power of initiation; the dangers involved in delaying publichearings; the need for objective standards in the selection of appren-tices; and the need to disseminate apprenticeship information.Although the reviewer agrees that all of the foregoing are importantneeds in the apprenticeship area, they dearly are not sufficient con-ditions to get more Negroes into these programs. Since the AttorneyGeneral of New York filed charges in this case, a complaint dearly" Miranda Fuel Co., 140 N.L.R.B. 181 (1962)." Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192 (1944)." Race Re]. L. Rep. 393 (Spring, 1964), ,nodified sub nor State Comm'n for HumanRights v. Farrell, 43 Misc. 2d 958, 252 N.Y.S.2d 649 (Sup. Ct. 1964).WASHINGTON LAW REVIEWwas not necessary for the commission's action. Indeed, there is noevidence that those commissions which have the power to initiate ac-tion against joint apprenticeship committees have had any greatersuccess than the New York commission in getting Negroes into ap-prentice programs. Similarly, the Secretary of Labor has imposed ob-jective standards for the selection of apprentices but these have notcaused many Negroes to be admitted; indeed, it can be shown thatobjective standards often cause fewer Negroes to enter programs.Negroes usually have inferior education to whites and do not do as wellon so-called "objective" tests. Experience also demonstrates that anti-discrimination measures alone will have very little effect on gettingNegroes into apprenticeship programs. This is due in large measure tothe difficulties involved in implementing legal remedies against theselargely voluntary programs. Anti-discrimination measures focus onlyon part of the problem. The absence of Negroes from apprenticeprograms is due to many factors other than discrimination. Lawswhich focus only on discrimination are therefore likely to producelimited results. Moreover, anti-discrimination laws focus only on thedemand side of the problem; unless measures are taken to increasethe supply of qualified Negro applicants simultaneously, not manyNegroes will enter apprentice programs. The reviewer concludes,therefore, that anti-discrimination laws are necessary but not sufficientconditions for increasing the number of Negro apprentices. The lawsare important because they can be used by those who want to acceptNegroes as excuses for doing so where there is opposition from whiteworkers or customers. But in the case of apprenticeship, we are dealingwith a situation where there often are strong resistances to acceptingNegroes or whites.Chapter VIII contains a few of the author's perspectives on theproblem of legal remedies for discrimination in employment. He ob-serves that Title VII of the Civil Rights Act is a "poor, enfeebledthing" which has "the power to conciliate but not to compel." Thestate commissions are "robust in constitution" but "weak in action."The federal contracting programs are powerful "but can reach no far-ther than the presidential orders creating it allow." Sovern points out,however, that all of these instruments are complemented by powersgiven to the Attorney General of the United States, the NLRB andthe Department of Labor.Sovern also outlines the provisions of a model fair employment[ VOL. 42: 969BOOKS REVIEWEDpractices law which would be comprehensive in its proscriptions andcoverage and would empower and direct its enforcement agency toinitiate investigations, receive and act on complaints, and enter intosettlement agreements. The model law also would provide for judicialenforcement and would empower the agency to require appropriateremedies, conduct reviews to ensure compliance with agreements andorders, and engage in educational activities. Finally, the model lawwould provide for judicial review of the agency's orders.Sovern argues for the retention of a variety of anti-discriminationagencies on the grounds that "the realities of politics and the limits ofhuman capabilities require a multi-front assault on employment dis-crimination."'1 4 He feels, however, that efforts should be made tocoordinate the activities of the variegated agencies now working inthe anti-discrimination field.This book would be very useful to legislators, civil rights organiza-tions, human rights agencies, and others concerned with the problem ofdiscrimination in employment. It is clearly written in language readilyunderstandable by those without legal training. It also contains thor-ough interpretations of the variety of anti-discrimination laws whichhave been adopted since the Second World War and makes imagina-tive suggestions for improving those laws. The book also containssome excellent suggestions for improving the legal restraints on dis-crimination in employment. These measures would prove valuableparts of an overall program-which would include effective manpowerand training measures-to improve Negro employment patterns.F. Ray Marshall*"P. 207.* Professor of Economics, University of Texas. B.A., 1949, Millsaps College;M.A., 1950, Louisiana State University; Ph.d., 1954, University of California.Author, THE NEGRO WORKER AND ORGANIZED LABOR (1965), THE NEGRO WORKER(1967). Co-author, LABOR EcoNoMIcs: WAGES, EMPLOYMENT AND TRADE UNIONISM(1967); TowARD FAIR EMPLOYMENT (1964). Professor Marshall has also writtenLABOR IN THE SOUTH, which will be published by Harvard this year; in addition,he co-authored THE NEGRO AND APPRENTICESHIP, which will be published by JohnsHopkins this year.1967 ]

\u3ci\u3eLegal Restraints on Racial Discrimination in Employment\u3c/i\u3e, by Michael I. Sovern (1966)

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\u3ci\u3eLegal Restraints on Racial Discrimination in Employment\u3c/i\u3e, by Michael I. Sovern (1966)

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