Affirmative Action as a Labor Movement Legacy

Hillsdale College’s Paul Moreno recalls the ironic source (”Affirmative Action’s Strange Career”) of the concept of “affirmative action” (links added by me):

….. The 1935 Wagner Act gave unions the power to organize mass-production industries. It was hailed as a crowning achievement, but civil- rights organizations at the time opposed the act because it did not prohibit racial exclusion–”the worst piece of legislation ever passed by the Congress,” Urban League President Lester Granger called it. (Ironically, the term “affirmative action” made its statutory debut in the Wagner Act, giving to the National Labor Relations Board power to order employers guilty of unfair labor practices to take such “affirmative action” as reinstatement, back pay or promotion.)

By the end of World War II, the federal judiciary recognized the problem of the black worker under federal labor law, and imposed on unions a duty of “fair representation.” While not compelled to admit blacks as members, unions certified as exclusive bargaining agents could not use their monopoly power to disadvantage minority-group workers. Nevertheless, since the National Labor Relations Board consistently took the side of white unions, the onus of enforcing the fair representation doctrine fell on individual black workers.By the 1960s, two decades of executive orders and state fair employment laws to cease discrimination had made little impact on unions. And when Congress finally outlawed employment discrimination in the Civil Rights Act of 1964, it included an exemption for “bona fide seniority systems,” in order to protect benefits that white workers had won at the expense of blacks over the previous generation.

In the process of trying to overcome this loophole, federal agencies devised the doctrine of “the present effects of past discrimination,” which lies at the heart of contemporary affirmative action theory.

The architects of affirmative action began to formulate the “present effects of past discrimination” principle, which they called the “rightful place” doctrine, in the late 1960s, and the federal courts eagerly adopted it. The Supreme Court endorsed it in the 1971 Griggs case. Although an employer may not intentionally discriminate, the under-representation of minority workers is regarded as perpetuating past discrimination.

This theory made sense with regard to already illegal and overt union discrimination. But it metastasized into our general principle of “disparate impact” — any policy that has racially disproportionate results is presumed unlawful, and thus encourages employers to adopt racial quotas.

And yet the Supreme Court effectively restored the seniority system exemption for unions in 1977 (actually 1976 — Ed.). After the unions had taken care of their senior members, the court then gave its imprimatur to “voluntary” quotas in the 1979 Weber case, in which the United Steelworkers set aside half of their skilled apprentice training slots for blacks, and shielded employers against “reverse discrimination” suits by white workers.

….. Critics usually point to federal bureaucrats and judges as the architects of affirmative action. They ought to remember the unions who provided the materials.

Read the whole thing, especially the earlier portions of the column that precede what I excerpted.

Personally, most of this preceded me, but I can say from summer-job and other experience in the early and mid-1970s that the most virulent, implacable anti-black sentiment (before the term “African-American” came into vogue) I have ever heard anywhere came from the mouths of more than a few longtime union members, up to and including union management, in relatively high-paid manufacturing jobs. Nobody else in my memory even comes close.