Discrimination at the Opportunity Commission

Article excerpt

Has the equal Employment Opportunity Commission violated the civil-rights laws it is supposed to enforce by discriminating against its white male employees? Two federal-court decisions say it has .

The day after a panel of the 9th U.S. Circuit Court of Appeals unanimously upheld the constitutionality of a voter-approved California law that ends state government preferences based on race and gender, one of the law's biggest boosters wrote that the decision "should focus the federal government's attention on the writing on the wall."

Ward Connerly, the University of California regent who worked tirelessly to put the referendum known as Proposition 209 on the November 1996 ballot, urged in an April 9 column in the Los Angeles Times that "the executive branch should bring itself into compliance with the spirit of Proposition 209 and with the growing body of case law being handed down by courts throughout the land."

Ironically, one of the arms of the federal government that critics say is most in need of being brought into compliance with the case law and growing public sentiment that preferential treatment by government amounts to discrimination is the agency that enforces the nation's antidiscrimination laws. For the last 20 years, the Equal Employment Opportunity Commission, or EEOC, repeatedly has been accused -- and at least twice found guilty -- of discriminating against its white male employees, violating the civil-rights statutes it is charged with enforcing.

"If the EEOC were a private employer, the racial makeup of its workforce would set off alarm bells," says Clint Bolick, an attorney who worked on the staff of an EEOC commissioner during the eighties and heads the Institute for Justice, a Washington public-interest legal group. In some cases, the alarm already has sounded. In May 1996, a white male EEOC attorney in Memphis who had been passed over 10 times for a position in the EEOC's senior executive service won a race-and sex-discrimination lawsuit against the commission. In a 91-page opinion, a federal district judge ordered the agency to promote the attorney and pay him damages.

The agency did not appeal the case of Terry vs. Gallegos, and the plaintiff, Joseph Ray Terry, now is the EEOC's deputy general counsel in its down-town Washington headquarters.

Some of the most noted experts on affirmative action with whom Insight spoke claim to be completely unaware of the EEOC's history of discrimination against white males. Many of those who have intimate knowledge did not wish to speak on the record. The office of EEOC Chairman Gilbert Casellas would not return telephone calls about the matter. Nevertheless, court records and the agency's annual report of its workforce statistics support agency critics such as Hans Bader, who litigates reverse-discrimination cases for a Washington public-interest group called the Center for Individual Rights. Bader likens the EEOC's enforcement of antidiscrimination laws to "the fox guarding the henhouse."

Richard Sampson, chairman of the labor and employment-practices group at the Washington law office of Semmes Bowen and Semmes, has represented discrimination victims of all races. He was an attorney for the black plaintiffs who recently settled with Texaco and he also has represented white employees suing federal agencies, including the EEOC. Sampson calls the term "reverse discrimination" a misnomer because, as he says, "the Civil Rights Act of 1964 always did cover everybody."

But Sampson says the EEOC sometimes forgets this point when dealing with its own employees. "Given what we know about the racial composition of upper management at the EEOC and anecdotal incidents of discrimination against individuals who are white males, one is drawn to the conclusion that white males are discriminated against as a group in the Employment Opportunity Commission," Sampson observes.

Given the emphasis of current discrimination law on numbers, says Sampson, the EEOC's statistics establish a prima facie case of discrimination because minorities are heavily overrepresented. …