EQUAL EMPLOYMENT by Barry Bearak and David Lauter

Affirmative action has traveled a tortuous road since the 1964 Civil Rights Act. Intended to right wrongs in the workplace, it instead created confusion, gave birth to charges of reverse discrmination and Reagan-era attacks, and now has found an uneasy place among employers.

'Reverse discrimination': How the debate was born

Gramercy, La.--America's debt of conscience had become Brian F. Weber's account to settle.

He was no racist. And to his mind, neither was his company. But suddenly blacks were being lifted over him on the seniority list:.

He was furious. The year was 1974, and Weber did not so much blame his employer, Kaiser Aluminum & Chemical Corp., as that familiar old meddler Uncle Sam. The government was pushing affirmative action as a sort of racial amends.

Weber believed in equality for blacks, but to him that meant they deserved to get in line with everyone else.

Instead, the line was being rearranged by some hand that seemed to reach out for retribution across the generations.

He sued. And over the next five years, his anger would echo all the way to the U.S. Supreme Court, along the way picking up a shorthand moniker that was the grumble of a million white males: reverse discrimination.

Like Weber, the nation's laws against bias in the workplace were in a quandary. Was the goal simply to treat all people, black and white, the same? Or was it to end the long legacy of racism by giving

blacks a boost up? If the latter, could that be accomplished without discriminating against whites?

Nearly two decades later, the answers remain an elaborate twine of conflicting feelings. They involve some of the knottiest trade-offs in a century of social change.

While politicians have preferred not to discuss such matters head-on, they have been at the center of the debate between Congress and the White House over the new Civil Rights bill.

Since it passed a landmark law in 1964, Congress has forfeited the crucial choices in the nation's anti-discrimination efforts to others. Federal regulators--and sometimes employers themselve have made up the fateful rules as they went along, then waited for the courts to sort out the legalities.

At Kaiser's plant here, 25 miles upriver from New Orleans, the decisions carried stakes as real as the pile in any poker game.

Kernell Goudia, a black, would soon be earning $25,000 a year as a skilled craftsman. Weber wanted that job. He made only $17,000 a year as a lab technician.

The two men were friends. One of their conversations repeated itself so often it carried the unvarying cadences of a ritual chant.

Weber: "It's not just integration now. You're taking our jobs."

Goudia: "That's because of all the discrimination in the past."

Weber: "I didn't do the discriminating."

Goudia: "Your father did and his father did."

. Web er: "But that's no reason to do it to me."

Weber was a near-perfect soldier for this battle. Son of a grocer, he had grown up not far from here in Reserve, La. Railroad tracks separated the white part of town from the black.

But Weber was somehow spared the germ, say blacks he worked with. They believe his lawsuit was based entirely on principle.

Weber and Coudia began work there in 1968, the same memorable year that Richard M. Nixon won the presidency. America was suffering a fit of domestic convulsions then, Nixon inheriting the stubborn indigestion of Vietnam.

There were other, less conspicuous ailments as well, including one that was upsetting businessmen and confusing bureauaats.

It had a high-sounding name: affirmative action.

The phrase was coined in the fine print of a section on unfair labor practices in the 1935 Wagner Act. The words carried a graceful, progressive lilt, but they were empty of definition.

In 1965, President Lyndon B. Johnson issued a far-reaching executive order that forbade discrimination by private companies with federal contracts, but the words again went unaccompanied by explanation.

More than 25 percent of the American labor force worked for companies that were federal contractors. For decades, the government had been commanding these companies to end bias in hiring. But there had been little in the way of change.

The National Association for the Advancement of Colored People was busy amassing affidavits against offending employers, then asking the government to get tough. But crackdowns were few.

Somehow racial change had to hasten. This would occur more in ghetto streets than executive suites. Black patience was exhausted. Rioting sent a jolt into America's psychic fuse box.

One way for the government to respond was to lean on the contractors. Passing grades were no longer routine on compliance forms.

As President Johnson's executive order began to take hold, the long-amorphous phrase was finally picking up meaning.

At the very least, a company was to make efforts to seek out qualified minorities. Recruiters began to visit black campuses. Want ads ran in Latino newspapers.

In truth, many companies welcomed the federal intrusion. It was sound business. The more applicants, the bigger the labor pool. Costs would stay low.

Yet whatever the benefit, the rules also seemed distressingly imprecise.

Businessmen like goals if noncompliance meant jeopardizing contracts, companies wanted to know specific numbers: how many minorities to hire.

But quotas were reviled.

Federal regulators were reluctant to use any numbers at all, and this left them with a problem. How were they to measure compliance? Without numbers, an employer could merely fulfill its obligations with promises and fibs.

By 1968, some type of numerical standards seemed an absolute necessity. But there were two obstacles. The first was procedural: how to make the numbers pack some clout without them being actual quotas.

The second impediment was political. Nixon had won the White House, and he did not favor affirmative action. But somehow, affirmative action lived on.

Soon, guidelines were in place. They did not use quotas, but a distant cousin crafted to be less rigid.

Applying government criteria, a company would assess whether its work force made suitable use of available minorities. Then it would submit a proposal--with hiring numbers--to fix any shortcomings.

These plans required approval by the government. Regulators would then monitor progress. A company did not have to exactly meet its numbers, but it did have to demonstrate a "good-faith effort." If that effort was deemed slack, the company risked losing its contracts.

Affirmative action now had a handmaiden: goals and timetables.

Businesses and unions felt the pressure, and some did not wait for any government hammerlock.

Kaiser Aluminum had reviewed its employment practices. They made no sense. Job requirements, such as high-school diplomas, often had no bearing on the work to be performed. Worse, they disproportionately kept out minorities. inadvertently or not, the company was discriminating.

Such practices seemed immoral. And by 1971, it was becoming clear that they were illegal as well. In the case of Griggs vs. Duke Power, the U.S. Supreme Court unanimously ruled that an employer could be found guilty of discrimination even if the bias had been unintended.

As lower courts interpreted the decision, discrimination could be presumed merely on the basis of unequal racial numbers.

Big Business needed no abacus to figure out it had trouble. "I could have closed my eyes and grabbed any handful of corporations and closed them down," said James E. Jones Jr., associate solicitor of labor under Nixon.

However much companies might have wanted to change, they were at risk until they did so--and liable for past sins. Workers were filing class-action suits. Judges were awarding huge sums of back pay.

Gender was at issue as well as race. The 1964 act included protections for women.

By 1971, so did the contract compliance program.

The impact could be dizzing.

Kaiser's racial imbalances in unskilled jobs were easy to change: simply give preference to black applicants. "How else would you do it?" said Thomas Bowdle, who was the company's director of equal employment. "Society has lots of preferences, for veterans and farmers and all the rest. This was just another."

The solution was not so obvious for the skilled crafts, however.

Those jobs--electrician, insulator, welder--required a certain mastery. Few blacks had the know-how. They had been denied training by the gatekeepers of segregation, vocational schools and local union halls.

Something different was needed. To meet racial goals, Kaiser decided to train its own people for the skilled positions.

Here was the twist. Workers would be eligible to enter the training program based on seniority, but there would be separate seniority lists for whites and blacks. The slots would then be divided one-for-one by race. Inevitably, some blacks would skip past more senior whites.

Time and again, Weber had suggested that Kaiser start a training program for the skilled crafts. Those jobs offered not only more pay but security too. If a craftsman was laid off; he'd have an easier time catching on elsewhere.

Now there was such a program. Goudia was picked for it and Weber was not. His life--his family--seemed to be victims of a sort of racial pork barrel.

Weber complained to the U.S. Equal Employment Opportunity Commission, the agency created by the 1964 law to investigate discrimination. He was told they had a three-year backlog of cases, but he was given a right-to-sue letter.

The lawsuit made Weber a hero at the plant--its white crusader. "I was everyone's rallying point," he said.

Reverse discrimination" had eased into the vernacular. Weber was one of two men well-known for carrying its banner. The other was Allan P. Bakke, who was denied a spot in medical school at University of California, Davis.

The Supreme Court had issued an ambiguous opinion in the Bakke case: The university's racial quota was illegal, and Bakke was to be admitted. On the other hand, it was OK to use race as a consideration in selecting students.

Many were now confounded about what was permissible and what was not.

That made the upcoming Weber case all the more important. Besides, this one involved the workplace, not the ivory tower. This affected everyone.

The Suprerne Court hearing lasted 100 minutes.

What else could Congress have meant in the 1964 Civil Rights Act but the opening of opportunities, the court said when it ruled.

Race-conscious hiring for that good purpose was not discrimination,

And so there it was.

Fifteen years after the 1964 Civil Rights Act, affirmative action had both a clear working definition and a high court endorsement. It was doubtlessly among the crowning achievements of modern liberalism.

Yet at the same time, something else was happening. Liberalism had lost its stamina. Just 16 months later, its great achievements would become its heavy burdens to defend.

Ronald Reagan was elected president. The political scaffolding under affirmative action would soon begin to loosen, strut by strut.

Since '60s, affirmative action has traced a zigzag course

Washington--America was no longer a nation weighted down with racial regrets. By the Ronald Reagan years, two decades of self-reproach were merely part of a murky and curious past. More and more whites were troubled instead by the penances imposed on them--affirmative action and busing.

Reagan tapped into this anger.

In 1980, he opened his first presidential campaign in the backwater of Philadelphia, Miss. The town had been named for brotherly love but was better known as a bastion of white supremacy. Three young civil rights workers had been murdered there in 1964.

Standing before a huge crowd at the red-earth county fairgrounds, Reagan said something as rousing to them as a rebel yell: "I believe in states rights. I believe we have distorted the balance of our government today by giving powers that were never intended...to the federal establishment."

His election struck out at that establishment. Affirmative action was a major target for dismantling. The Department of Justice picked up the crowbar. And the program survived only because it had made unexpected friends along the way, including big business.

Over time, arother serious adversary appeared. Reagan appointees had recharted the ideological course of the Supreme Court. In 1989, several rulings reversed the thinking of two decades of anti-discrimination law. Employment practices lapsed into uncertainty--that is, until last month.

On Oct. 24, the Senate and the White House agreed on a proposed new civil rights act. The bill might not have seemed as historic as some of its landmark predecessors, what with all the arcane details about how lawsuits were being made easier to file. .

But the bill did return the law to its earlier bearings, and, in doing so, Congress explicitly answered a question that it had dodged for 27 years:

Is it OK to use racial preferences to remedy past wrongs?

Its answer was yes.

Reagan would have answered otherwise. To him, words like "preference" and "goals" and even "affirmative action" were genteel synonyms for something detestable: "quotas."

Reagan was convinced that the government was forcing employers to hire by the number--so many blacks, so many Latinos, so many women.

His point man for putting a stop to this was an energetic young heir to the DuPont fortune, William Bradford Reynolds, his assistant attorney general for civil rights. Nine lawyers had held this position before, dating back to President Eisenhower's administration. All of them had championed ninority rights.

By his own reckoning, Reynolds was doing much the same. He was simply more inclusive in defining his terms. "It must be remembered that we are all--each one of us--a minority in this country, a minority of one," he said.

It was the rebuttal argument in a long debate about the meaning of the 1964 Civil Rights Act. Did the law permit race- conscious hiring?

Up until then, the working answer had been "yes." In 1965, President Johnson had even issued an executive order to that effect. He demanded that the 15,000 companies doing business with the government take "affirmative action" toward hiring minorities.

That would eventually bring a revolution to the American workplace, and the long years of injustice had demanded nothing short of that.

Progress was steady, if incomplete. For a time, historic wage gaps between the races narrowed. Only later did structural changes in the economy undermine the advancement.

The average weekly income of black male workers was 57 percent that of white males in 1959, but 64 percent in 1969 and 73 percent in 1979, aocording to research by economists James P. Smith and Finis R. Welch. The gap between black and white women-- sharing the added burden of sex bias--came to a virtual close.

Credit for the substantial gains is hard to parcel out. Some of it is because of a seismic shift in racial attitudes. Still more can be attributed to an opening in educational opportunities.

Timing helped as well. Anti-discrimination efforts picked up velocity in the late 1960s, just as the economy was suffering labor shortages. Many employers were eager to make use of a long- neglected labor pool. Government-enforced affirmative action provided them a justifiable reason for defying the codes of racism.

Prejudice still held a powertul sting, of course, but at its side was something new. Blacks were often in demand, the more educated the better.

By 1973, wages of black college graduates entering the labor market equaled those of their white counterparts, according to economists John Bound and Richard B. Freeman. From 1974 to 1978, their starting salaries were actually higher.

In the first decade of the executive order, enforcement was scatter-shot. Until the Carter administration, oversight was split among 11 government agencies.

Carter consolidated the program under the Department of Labor in 1978. The black man he put in charge was Weldon J. Rougeau, a Harvard-educated lawyer and the son of a sharecropper.

Rougeau was corporate America's nightmare.

He wanted word to go out: He was ready to "debar" companies from government business if they did not meet their hiring goals.

Twelve corporations were debarred during his tenure. No one before-or since--has caused so many companies to lose their federal contracts. "'Mr, Debarment,' the contractors called me," Rougeau said. "They hated my guts."

Company managers, top to middle, feared him. Some complained that they were getting picked on, pushed around, beaten up.

Some complained they were forced to use quotas.

Quotas have always been the flash point. Reagan, and later George Bush, knew this. If they forgot, their pollsters were bound to remind them.

Approval for the vague words "affirmative action" is high among both blacks and whites. But when the question mentions "quotas" or "preferences," results begin to somersault.

Even while Rougeau ran the federal program, quotas--or rigid, inflexible numbers--were never commonplace, employers and labor experts say.

Affirmative action plans begin with a company's review of its work force by race and gender. If there is an "underutilization" of any segment of the available--and qualified --labor supply, then hiring goals are set.

Businesses are only obligated to show a "good-faith effort" to meet the goals. Active recruiting, for instance, would be a sign of effort. Serious violations can lead to debarment or, far more often, a negotiated agreement with precise steps for making amends.

These agreements must be signed by a company's top officer, a chilling thought for a mid-level manager. "if the personnel director in Plant X thinks his future depends on meeting a goal, then that goal becomes a quota," said attorney Ed Dilworth of General Motors Corp.

Preferences are far more common than quotas. They have always been a part of the quirky process of hiring. Most often, employers have tended to favor people like themselves, something of obvious benefit to white males. This is still done.

But some companies now are also mindful of affirmative action goals.

"I may tell someone we want a female for that job, and we're willing to wait a month instead of a week if that's what it takes to find a qualified one," said John Goodwin, human resources manager for an oil company.

Mike Rogets, vice president of human resources for BancFirst in Oklahoma City, said he would hire a black over an equally qualified white--and "most likely" hire a well-qualified black over an even more qualified white.

For the point man at Justice, Reynolds, like Reagan, affirmative action meant preferences, and preferences meant quotas.

He pressed on with his fight, though he was not having any success in the courts.

Then, in 1985, Reynolds got a new boss as attorney general, the canny political operator Edwin Meese III. The two devised an additional tactic.

If the underpinning of affirmative action was President Johnson's 1965 executive order, then the way to gut the program was to rewrite the decree.

Reynolds and Meese proposed a new edict that would have made the setting of minority hiring goals strictly voluntary. This had an implied twist.

Companies that still chose to practice affirmative action would then be in legal jeopardy. If sued for reverse discrimination, they would no longer be able to argue that they were only following the government's orders.

When Meese presented it to the Cabinet, he expected little resistance. The administration's most forceful blacks supported him, including Clarence Thomas, then head of the Equal Employment Opportunity Commission.

Secretary of Labor William E. Brock III argued against it. He insisted that the nation's obligations for past injustices were still far from fulfilled. And he had some peersuasive allies.

Secretary of State George P. Shultz had run the Department of Labor under President Nixon. It was Shultz who first approved of "goals and timetables," the very practice now fingered as the roundabout to quotas.

Reagan faced a quandary. He was philosophically inclined to accept Meese's view.

Favoring the Meese revisions was the U.S. Chamber of Commerce, made up of small and medium-sized businesses. But on the other side was the National Association of Manufacturers, representing the largest companies.

Faced with this nettlesome conflict, Reagan took the path of least resistance.

He left things alone.

The brouhaha was nevertheless well-noted Uncle Sam was obviously no longer a major booster of affirmative action.

Toward the end of the 1980s, the rebuilt Supreme Court tilted to the right.

On Jan. 18, 1989, two days before Reagan left office, the court heard a case titled Wards Cove Packing Co. vs. Atonio. It concerned salmon canneries that operated seasonally in the far reaches of Alaska.

Most of the non-skilled jobs--the eviscerating of the fish-- were filled by non-whites, primarily Filipinos and Eskimos. They claimed that company bias kept them from the better-paying skilled positions.

The nine justices never did decide if they were right, but in returning the matter to lower courts, a majority did something far more eventful: It pulled the well-worn rug out from under a 1971 decision that employers could be found guilty of discrimination even if the bias had been unintended.

The opinion said that instead of an employer being made to show a business necessity, the burden of proof ought to shift to the employee.

That small point of law made an enormous difference. It required workers to prove a negative: that the company's job requirements were irrelevant to its business performance.

Lawyers knew that would be hard to do. Companies understood how to interpret their employment and financial records; workers did not.

The Davids had lost their slingshot.

Reaction was immediate. Democrats proposed a new civil rights bill. For the first time, it formally endorsed the court's decisions from the 1971 case, Origgs vs. Duke Power Co., but not including, Wards Cove. In effect, the legislation stamped approval on a quarter of a century of rac-conscious hiring to remedy numerical imbalances.

And that put President Bush on the spot.

Like Reagan, he was faced with a split in his administration --for and against affirmative action. Initially, he took the advice of C. Boyden Gray, his White House counsel, and Dick Thornburgh, the attorney general. They argued that the recent Supreme Court decisions ought to stand.

Then, in the summer of 1990, under pressure from civil rights groups and moderate Republicans, Bush reversed his position and submitted his own bill. It, too, called for a return to the 1971 standard. But when the Democrats' version was passed instead, the president vetoed it and called it "a quota bill:"

The "quota" label was again a puzzling one. To most eyes, neither bill opened that dreaded trapdoor anywider.

If the Democrats' proposal did, so did the president's. But "quota" is a well-chosen word freighted with political symbolism. It is associated with a liberalism gone out of fashion.

For more than a year, Bush's strategy was to offer his own Griggs bill--all the while lashing out at the Democrats for being pro-quotas. This worked until fellow Republicans began to bolt. The battle seemed unseemly. They wanted to compromise.

Civil rights is whispered to be a politically defining issue, a so-called wedge issue that can be used to drive middle- class white voters into the arms of the Republican Party," Sen. William S. Cohen, R-Maine, said in a speech on the Senate floor on Oct. 23.

"But I believe the short-term political success is going to prove to be a long-term public policy disaster. . . . Success, for a party and for our country, ought to mean something more than he who dies holding the most votes."

Two days later, the president agreed on a bill strikingly similar to the ones he had opposed.

So now, a generation after the landmark 1964 law, the apparatus of affirmative action remains in place, even as the undertaking has lost its moral clarity.