Just before noon on Aug. 28, 1963, a quarter of a million people began slowly moving toward the Lincoln Memorial. Eventually, they would completely surround the Lincoln Memorial Reflecting Pool all the way to the shade trees that surround it. They were mostly African-American, but they represented all creeds and colors of U.S. citizens. The March on Washington for Jobs and Freedom was the largest demonstration ever staged in the nation's capital.
The last speaker of the day was a preacher from Atlanta. His words soared out above the peaceful crowd. Standing below the statue of Abraham Lincoln, the Rev. Martin Luther King Jr. laid emphasis on freedom, the freedom he dreamed would someday "ring from every village and every hamlet, from every state and every city."
Unspoken but not forgotten was the march's emphasis on jobs. As the civil rights bill introduced by President John F. Kennedy languished in Congress, the marchers called for a major public works program to provide jobs to African-Americans, the passage of a law prohibiting racial discrimination in public and private hiring, and a $2 minimum wage. The dramatic photos and newsreels of the demonstration had the desired effect. Congress finally acted to approve the bill, and the following year President Lyndon B. Johnson signed into law the Civil Rights Act of 1964.
Despite that milestone, racial disparities and tensions continue to plague the workplace nearly 50 years later. To some observers, rules designed to prevent job discrimination have gone far enough if not too far. But others say America remains far from a color-blind economy where all people have an equal chance to thrive. And some advocates see this as a perfect occasion for companies to lead the way to the final fulfillment of King's dream.
Legislation and Litigation
The Fight for Rights: An Interview With Nicholas Katzenbach
In the 1940s and 1950s, the concepts of civil rights and workplace equality had barely taken hold in a society resistant to change. It wasn't until the 1960s, when the social fabric of the United States was torn by waves of unrest, that the hazy notion of civil rights was transformed into a powerful nationwide movement.
An article from January 1951, in Personnel Journal, Workforce Management's forbear, shares observations about "an increasingly useful group of our country's workers," namely African-American industrial workers. But the author, Alvin W. Rose of North Carolina College at Durham (now North Carolina Central University, a traditionally African-American institution) who interviewed black industrial workers for the article under a Carnegie Research grant, cautioned employers that attitudes and aspirations of black people needed to be taken into greater account, simply because America was changing. "Court decisions, state, national and local legislation and generally a swiftly changing public opinion are bringing about more democratic practices in race relations," he wrote.
Change was slow but inexorable, moving through uncharted waters at a time when even ardent activists couldn't predict the path ahead. In 1961, Kennedy ordered companies doing business with the government to take "affirmative action" to create a more diverse workforce. But even when Johnson signed the Civil Rights Act into law on July 2, 1964, the "action" part of affirmative action had yet to be clearly defined.
The Civil Rights Act itself, and Title VII specifically, which prohibits employment discrimination based on race, color, sex and national origin, didn't spell out what constituted discrimination and what employers had to do to comply with the law.
Thus, since 1964, workforce civil rights have come to be defined through legislation and litigation. Since the Equal Employment Opportunity Commission was created in 1965, it has filed lawsuits on behalf of employees under certain conditions. Title VII also allows employees to file private lawsuits.
Several sections of the act have been amended over the years, in particular by passage of legislation, such as the Age Discrimination in Employment Act of 1967, Americans with Disabilities Act of 1990 and Civil Rights Act of 1991, which provided more legal remedies to victims of employment discrimination.
"The protection for employees has expanded immensely since Title VII was passed, either through court decisions or additional laws," says Carolyn Cairns, an employment lawyer with the Seattle firm Stokes Lawrence.
Lawsuits and U.S. Supreme Court decisions have changed the employment landscape, particularly in Southern states, such as Alabama and Mississippi, which drew the nation's attention during the civil rights movement. Segregated workplaces, particularly in government agencies, eventually became integrated, according to Morris Dees, co-founder and chief trial attorney of the Southern Poverty Law Center in Montgomery, Alabama.
Dees is a soft-spoken Alabama native who in 1960 started his law practice in Montgomery. He works on the top floor of a highly secure, modern building just blocks away from the red-brick Dexter Avenue Baptist Church where King was thrust into the public eye by helping to organize the Montgomery Bus Boycott as a response to Rosa Parks' 1955 arrest on a segregated bus.
Dressed casually in an open-necked shirt, Dees took time from a busy schedule to talk about the progress and setbacks in civil rights since he co-founded the SPLC in 1971.
"In the workplace across the South today, you've seen an enormous number of lawsuits integrate public employment," Dees says. "Some of the better jobs that African-Americans hold, especially throughout the Southeast, are government jobs."
Dees' organization brought many of the lawsuits that resulted in integrated workplaces. For example, the SPLC brought the lawsuit in 1971 that integrated the Alabama State Troopers, the same group that had attacked civil rights marchers in Selma on what became known as "Bloody Sunday," March 7, 1965.
"Alabama had 650 white troopers and no black troopers," says Dees, who speaks animatedly on the topic that has engaged him for decades. "But neither did Kansas, and neither did Massachusetts and other states that had just token blacks. But now Alabama has the most integrated trooper force in the nation."
Even the nature of employment discrimination lawsuits has changed in recent years, according to Kelby Fletcher, a lawyer who specializes in litigation and negotiation of employment cases for Seattle's Stokes Lawrence. "Twenty-five or more years ago the discrimination cases were class actions and 'pattern or practice of discrimination' cases," he says. "We don't have nearly as many now. Most employers 'got it'—due in large part to management-side folks who encouraged them to comply with Title VII and avoid the litigation route. Most cases in which discrimination claims arise now are single- or joint-plaintiff cases. Think of that change."
Encouraging as these changes are, the fact is that what Dees calls "systemic prejudice" is still prevalent in many employment situations. That is to say, prejudice may remain at a subconscious level, even while employers insist that they are all for equal opportunity.
Dees cites a 2003 study in which matching résumés were sent in response to a total of 1,300 help-wanted ads found in the Chicago Tribune and Boston Globe. But half of the résumés had the African-American-sounding names Lakisha Washington and Jamal Jones. The other half had WASPish names: Emily Walsh and Brendan Baker.
Matching résumés with relevant work histories and references, all exceptionally good, were sent in response to different types of job openings. But Emily and Brendan received call backs 50 percent more often than Lakisha and Jamal.
"The HR people are the gatekeepers," Dees says. "They decide if the Lakishas get to this gate and therefore get a job and can educate their families and get a home and move forward. Or the gate gets closed on the Lakishas, and the Emily Walshes get to move forward in life with good jobs and that sort of thing."
The study concluded that discrimination levels were consistent across all occupations and industries covered in the experiment, even in companies that explicitly stated that they were equal opportunity employers. But the researchers said they believed the prejudice revealed in their study was mostly subconscious.
It's what Georgette Norman, director of the Rosa Parks Library & Museum in Montgomery, calls the "hierarchy of difference." It's in this mindset, she says, that people view some basic differences as better than others.
"It's not just about race," says Norman, who grew up in Montgomery when Jim Crow laws were still in force. "It's race, gender, class and religion. We need to understand how difference as a negative is ingrained in us."
Vanzetta McPherson, a retired U.S. magistrate judge for the U.S. District Court in Alabama, sees the situation another way. She has noticed a shift in white attitudes over the years from "skin color superiority" to fear and defensiveness, especially as minority populations in the U.S. grow and, in many areas of the country, become the majority.
McPherson, an African-American who was in private practice in Montgomery for 16 years litigating discrimination cases, began her law career on Wall Street. But she returned from New York City because she felt there was "work to be done" in her home town.
"White people have gotten accustomed to working with black people now," she says. "They play the lottery together, they go out for drinks together, they have picnics, and they're on the same softball teams. But one of the current issues we face as far as workplace discrimination is concerned is supervision. To a large extent, there is still a resistance to being supervised by black people."
Title VII's protections, as stated in the law, apply not only to race, but also to color, sex and national origin. Physically and mentally handicapped workers are protected, as well. Over the years protection has been parsed to cover women who are pregnant and women who have young children. And sexual harassment, of both males and females, met the sex discrimination definition. As society changes, the law, particularly state law, morphs to cover workers who once kept their true identities private, as in the case of employees who are lesbian, gay, bisexual and transsexual, or LGBT.
Illegal immigrants are also protected by Title VII, though one might question that based on recent immigration laws passed in Arizona and Alabama. The law passed in Alabama, which Dees calls "the most draconian law you could ever pass in America," spurred him to remark: "Latinos are the new blacks in Alabama. The governor condemns them for stealing American jobs, which is totally phony. They aren't stealing American jobs; these are jobs that Americans won't do."
Meanwhile, Cairns says, "The more people are thrown together, the more their biases recede because the person is no longer 'the other.' Years ago I investigated a claim of racial bias where some of the hard-hat guys had been accused of making racial jokes. They were very upfront about their racial biases, but they all, to a person, said, 'Now, I'm not talking about Joe,' or whoever it was they worked with. It's the ones they know that they don't throw into that stereotype."
Incentives for workplaces to promote equality in recruitment, retention and inclusion come in various forms. One is recognition, for example from Black Enterprise magazine, which since 2005 has named the 40 Best Companies for Diversity. In 2011, for the first time, the magazine included LGBT employees, as well as ethnic minority groups as defined by the U.S. Census Bureau.
But affirmative action might not always be a solution, especially since a number of states have passed laws banning its use in public education and employment. Some prominent people have spoken out against affirmative action, including Clarence Thomas, the only current African-American Supreme Court Justice, who asserts that the Equal Protection Clause of the 14th Amendment (which defines citizenship) is sufficient.
In a recent essay in Bloomberg Businessweek, Thomas wrote, "I was taught there's no real difference between blacks or whites, and I never thought there was supposed to be an easier or different road for us."
But civil rights advocates say their work is far from done. Dedrick Muhammad, senior director of economic programs for the National Association for the Advancement of Colored People, says, to make greater strides for racial equality in the workplace, his organization plans to borrow something from the playbook of the environmental movement.
"Look at what corporations like Bank of America have done around the environment," Muhammad says, "where they have said it is an important social principle for them to do things that are environmentally sound and will help advance a strong environmental stewardship. Similar proclamations by corporations that they are going to do the same thing around racial inequality is an important piece."
To that end, the NAACP is reaching out to top corporations to establish stronger relationships and to encourage management to include pro-diversity and pro-equality statements and actions in their own best practices. The program has just begun, Muhammad says, so in about a year's time he will be better able to judge its effectiveness.
The program is in response to the sobering economic news, according to a study from Brandeis University, that during the recession African-Americans actually lost 50 percent of their wealth and Latinos lost about two-thirds of theirs, while unemployment levels for minority workers remain considerably higher than the general population. Muhammad says the NAACP is not looking to the current Congress to find a remedy.
"When you can't move it on the table congressionally, that is where it would be perfect for some corporation to take the lead by example," he says. "Some major corporations can show that America's economy will strongly recover only if we have a more equitable economy."
Susan G. Hauser is a freelance writer based in Portland, Oregon. To comment, email firstname.lastname@example.org.