Job discrimination: Reagan team eliminates quotas, but not confusion
Boston — If US corporations think they hear confusing signals from the Reagan administration about its efforts to enforce antidiscrimination laws, they may be right.
On the one hand, President Reagan and others in his administration have criticized quotas and the use of the federal bureaucracy to correct past discrimination.
On the other hand, the US Department of Labor may soon adopt a rule that calls for the payment of up to two years' back pay to employees of federal contractors who have been the victims of discrimination. But that rule, critics say, lops one year off a previous rule that called for three years of back pay. The new rule also cuts the number of workers who can be compensated for past discrimination.
As proposed, the rule offers relief to ''identifiable'' victims of discrimination. This means, for example, if 300 people, including 150 women, apply for 10 jobs and only men are hired, only 10 women would potentially be eligible for lost pay - not all 150 who applied, as in the past. Discrimination in hiring would have to be proved, of course. The same principle would apply to promotions, job reclassifications, and layoffs.
Employers should not take the confusion over apparent conflicts in Reagan policy to mean they can go back to the days of hiring, promoting, and laying off workers without taking so-called ''protected groups'' into account, says Peter M. Panken. A New York attorney who works with several corporations on labor-law issues, Mr. Panken was chairman of a recent seminar on labor and employment law at Boston University's law school.
The seminar was typical of a lot of meetings being held these days. Here, the audience was made up of lawyers who are either in private practice and have corporate clients or are employees of the companies themselves. Similar seminars have been held around the country bringing managers and attorneys the message that antidiscrimination laws haven't changed; but the battles over those laws are being fought on different ground.
''This (Reagan) administration has said 'We are going to cut down the number of dollars that are spent on the enforcement effort,' '' Mr. Panken said. ''But there are a lot of lawyers sitting around who are more than willing to take these cases directly to court.'' If these lawyers win the antidiscrimination cases, their fees are often set by the courts and paid by the losing corporations, he noted.
This may make it necessary for many employers to actually strengthen their antidiscrimination efforts, Panken said, in order to avoid battles over the issue in the courts, brought not by the government but by someone from one of the ''protected groups.''
Those ''protected groups'' cover a wide range of people, participants at the seminar noted. In general, the only people not protected are white, Anglo-Saxon Protestant males who are not handicapped and are under 40 years of age. Anyone else may be eligible for a discrimination claim based on race, sex, age, religion, or physical handicap.
While race- and sex-discrimination claims get the most publicity, these cases are becoming easier for both employers and courts to handle as the number of case histories builds up. But these days court dockets are filling up with age-discrimination cases.
''I think age discrimination will be a very important area in the future,'' said Judith Harris, who spoke at the seminar. She is a former official of the Equal Employment Opportunity Commission (EEOC), and now practices law in Philadelphia.
In the Philadelphia area and in other, old industrial regions that are changing to service economies, many people are being laid off by companies that have employed them for more than 20 years, she noted. In many cases these people may be able to claim age discrimination, if they can prove they were not given an opportunity to train for a new job that was given to a younger person. Employers, however, argue that they need to train the younger workers in order to get the maximum number of productive years out of them.
In order to win cases like this, or any discrimination case, Panken said, companies have to establish clear ''paper trails'' that tell employees (and anyone who might investigate later) exactly what the firm's policies are and the reasons for any changes. The trail should also include copies of warning letters to employees about poor performance.
He is also advising clients on the implications of that Labor Department regulation on back pay. The rule was proposed in April by the department's Office of Federal Contract Compliance Programs. It should become effective later this summer, a spokeswoman for the office said.