The Equal Opportunities Revolution

by James Heartfield

  Oliver Kearney was chairman of a grassroots campaign in Northern Ireland called Equality, set up to highlight the problem of discrimination. ‘We’ve had eighteen years of this legislation and there’s been no improvement’, he said in 1992. Though ‘the legislation has been trumpeted by the British Government throughout the international community as being the complete answer to discrimination’, Kearney explained, ‘in fact the legislation actually provides for discrimination on a political basis’. There are two sections in the Fair Employment Act which protect the employer from discrimination if the employee is suspected of ‘holding views which may be in support of or in sympathy with political violence’. The clause was important because all the Catholic population at the time was considered disloyal, and any employer could avoid a judgment from the FEA. Another section of the 1976 Act permits the Secretary of State to issue a certificate denying the Fair Employment Commission the right to conduct an investigation on the grounds that ‘the security of the state is considered to be endangered’ — and again, this was interpreted pretty broadly, since the security of the State rested on discrimination. As Kearney saw it, the FEA was not there to stop discrimination, but to uphold it. ‘The Northern Irish state was specifically constructed with the objective of securing’ the Protestant community ‘as their reward for securing Britain’s control of Ireland following partition’.6

  In 1998 after a long stalemate between the insurrectionary Irish Republican Army, along with its political wing, Sinn Fein, and the British security forces, they came to the ‘Good Friday Agreement’. The 1998 Agreement put a statutory obligation on public authorities to ‘carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion’, and also ‘gender; race; disability; age; marital status; dependents; and sexual orientation’. These goals were also set down in Section 75 of the 1998 Northern Ireland Act along with the injunction to have ‘regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group’. The Fair Employment Commission was replaced by a new Equality Commission in Northern Ireland. Bronagh Hinds and Ciaran Kelly say that ‘government departments and public bodies took a restricted approach to questions of equality’. All the same, 154 equality schemes were set up for public bodies under Section 75 by March 2003. There was also a clause creating ‘contract compliance’ as a motive for companies to adopt equal opportunities policies.

  While the 20 years up to 1990 had been stagnant, employment began to grow, and faster in the Catholic community, so that their share of jobs grew from 38% to 41% in 1999, and the unemployment gap between the two communities fell. In 1990 about three quarters of all the firms that were covered by Fair Employment Commission agreements were more than three quarters Protestant, or in some cases, three quarters Catholic. By 2000 that was true of just under two thirds of all firms covered, which did suggest that the policies were beginning to work. The share of Catholic workers who were in monitored workplaces grew from 33% to 37.8%. Though more jobs did a lot to moderate the longstanding problem of Catholic unemployment, income statistics still showed that poverty was concentrated in that section of the community.7

  Even with the winding down of the shooting war between the IRA insurgents and the security forces, Northern Ireland remains a deeply divided community with Belfast alone divided by 26 miles of ‘peace walls’. The political settlement did not end the divisions, but rather entrenched them as the Northern Ireland Assembly works under a ‘power-sharing’ agreement that has institutionalised the ‘nationalist’ and ‘unionist’ political identities: all members of the legislative assembly must adopt ‘a designation of identity, being “Nationalist”, “Unionist” or “Other”’. Institutionalised sectarian divisions lead the politicians to compete for resources, widening the gaps even further.8

  Affirmative action in the United States9

  From the Second World War up to 1964 the United States’ Congress and Executive made a number of acts and decrees to advance civil rights, under pressure from a burgeoning civil rights movement. A. Philip Randolph of the Brotherhood of Sleeping Car Porters and Bayard Rustin organised the first ‘March on Washington Movement’ with rallies for civil rights across the country in the 1940s. Later Martin Luther King, the Southern Christian Leadership Conference, and the Student Non-Violent Coordinating Committee all helped build a mass civil rights movement. Laws, beginning with Roosevelt’s Executive Order 8802 desegregating the army, right up to the Civil Rights Act (1964) and the Voting Rights Act (1965), all aimed at dismantling the system of race discrimination in America. It was well understood that race discrimination was closely tied to jobs (the largest single demonstration, on 28 August 1963, was titled the ‘March on Washington for Jobs and Freedom’). There were a number of local attempts to persuade employers to take on black workers specifically, through pickets and protests.10 For the most part, civil rights supporters from Hubert Humphrey through to the Black Panther Party all saw progress as coming through full employment, and up until 1968 the idea of preferential treatment for minorities was a taboo. The civil rights movement argued that people should be judged by ‘the content of their character not the colour of their skin’ (King).

  By the end of the 1960s, though, America’s leaders were disturbed by the lack of progress towards equality. President Johnson gave a speech at Howard University saying that freedom and equal opportunities were not enough; there would have to be a new turn in civil rights, ‘not just equality as a right and a theory but equality as a fact and equality as a result’.11 Rioting in Watts in 1965 (following an arrest) and across urban America after Martin Luther King was assassinated in 1968 made the issue electric. A report on black schoolchildren’s underachievement (Coleman Commission) was followed by a shocking conclusion from the Kerner Commission on Civil Disorders that ‘our nation is moving toward two societies, one black, one white — separate and unequal’.

  Surprisingly, the President who took the first step towards positive discrimination — or, as it would become known, affirmative action — was Richard Nixon. He tasked Secretary of State George Shultz with the revival of the ‘Philadelphia Plan’ — a plan to get Philadelphia construction firms to hire black workers by favouring those that did with government contracts. This was the original ‘affirmative action’ and the basis of all that came after. In 1972 Assistant Secretary of Labour Richard J. Grunewald went round the country promoting ‘hometown plans’ on the Philadelphia model, so that around 50 were running in different cities. At the time, the battle lines over affirmative action were not as sharply defined as they were later. The conservative William Buckley wrote that ‘we must in fact encourage a pro-Negro discrimination’. Meanwhile the black congressman and civil rights activist Augustus Hawkins was sceptical about the Philadelphia Plan:

  In the first year of the operation do you know how many blacks got jobs? Less than one hundred. Do you know how many women have gotten jobs in the history of the Philadelphia Plan? Not one.

  Other civil rights supporters, like Democrat congresswoman Edith Green, opposed the Philadelphia Plan, because it introduced quotas for black recruits.12 There is evidence that Nixon and his team were pleased to have set labour organisers and civil rights activists at odds, and caused some consternation amongst Democrats, who had the support of both of those constituencies, and certainly the prospect of holding down construction workers’ wages would have been a consideration.13 On the whole, though, it was fear of a widespread disaffection of black people from society that drove the initial introduction of affirmative action for the Nixon administration.

  Pulling in the opposite direction, race discrimination got a new impetus in the 1970s. While Federal government had, at last, taken an active role in dismantling Southern segregation in the 1960s, the Federal Bureau of Investigations targeted black militants under its COINTELPRO campaign, most notoriously killing Black Panther leader Fred Hampton. Later, Nix
on’s government launched a ‘war on drugs’, which tended to criminalise black youth, leading to policing targeted at black communities and much more at black men in prison. Economic recession hurt all working people, but black communities in inner cities much more.

  The success of affirmative action was always open to question. A 1973 Office of Federal Contract Compliance survey found that 3,243 minority placements in construction work had been made, though some of those lasted only 30 days.14 J. Edward Kellough looked at many surveys of affirmative action outcomes in 2006, and the results were very mixed. There was evidence that firms with affirmative action policies hired more minorities, but overall the impact was very small. A number of different surveys found that women generally did better out of affirmative action policies, whereas black men did not, especially in times of recession. Employment in construction for black men had been positively influenced by affirmative action policies, and employment in the civil service for women also.15 As far as black incomes went the impact of positive discrimination was overwhelmed by negative discrimination. In 1988 the median income for whites was $25,384; for blacks it was $15,630. Thus, on the whole black income was roughly 60% of white income, a percentage that had not changed substantially since 1980.16

  US media portrayed black people as a violent threat

  Protesters for affirmative action against the Bakke decision

  Affirmative action was a bitterly-fought-over political issue in the 1980s and ’90s. Having taken up the idea of affirmative action for black Americans, Nixon went on to develop a politics of white American complaint against favouritism, under the label of the ‘the silent majority’ — an appeal to the country’s white middle classes. Later, the Republican President Ronald Reagan (in office 1980-88) similarly appealed to white America’s supposed sense of outrage at the special treatment afforded black Americans. Reagan played on prejudices against so-called ‘welfare queens’ living on state handouts in the ghettos. In 1984 the Supreme Court ruled that the Memphis Fire Department was within its rights to take length of service (seniority earned in days when whites were favoured over blacks) over ethnicity in its choice of who to lay off. The following summer the Reagan Justice Department set about overturning affirmative action plans in 56 cities, counties, and states. In the 1980s and 1990s affirmative action programs were more like an Aunt Sally for white complaints than a positive gain for blacks. The Supreme Court continued to curb them, and Democrat President Bill Clinton gave ground on much of the argument, with his affirmative action policy of ‘mend it don’t end it’. In February 1995 Newsweek ran a covers story proclaiming the ‘End of Affirmative Action’.17 The political debate over affirmative action in America had a tendency to treat employment as a zero-sum game, where black gains could only come at the expense of white workers, and vice versa. The historical record is that job competition really was a zero-sum game when the economy was poor. In 1982 black unemployment peaked at 18%, while white was at 9%. More people in jobs, as happened in the period 1995-2005, tends to help both black and white, so that in 2000, black unemployment was at 8%, and white at 4%.18

  For all that, private industry, larger companies in particular, took a much more sanguine view of the question. A ‘National Alliance of Businessmen’ set up by Henry Ford undertook to give black candidates preference in hiring with the aim of creating ‘500,000 jobs in 50 cities’. They were following a lead given by Eastman Kodak in Rochester, which, after being picketed by activist Saul Alinsky’s FIGHT organisation, offered to recruit 1,500 workers from black and poor communities. The CEO of Pitney-Bowes of Stamford, Connecticut announced a policy of preferential hiring shortly after President Kennedy’s assassination. A survey of Fortune’s 750 largest companies found that senior executives were mostly in favour of ‘lowering the company’s employment qualifications to hire more from disadvantaged groups’, while junior managers were mostly against.19 ‘Affirmative Action is Deeply Ingrained in Corporate Culture’, reported Business Week in 1991. They quoted AT&T chairman Robert Allen: ‘Affirmative action is not just the right thing to do it is a business necessity.’20 The difference between Business Week’s firm-oriented conclusion in 1991 and Newsweek’s politicised argument in 1995 is telling. Affirmative action was indeed part of corporate culture, but it remained politically sensitive.

  In 1996 the State of California courts struck down college affirmative action programmes, forbidding the prestigious UCLA and UC Berkeley from taking race into account in awarding places. The ban on affirmative action had a marked impact on black enrolment which fell from around 10% to less than 5%. Other state judiciaries followed suit, with Michigan the latest to knock back affirmative action at its colleges in 2013. There was always a question as to whether affirmative action was supposed to be a limited or a permanent project. But the end point of the programme for US colleges is that black enrolment has fallen pointedly.

  The Commission for Racial Equality in Britain drew on the American experience. At the 1986 TUC Annual Conference, the Commission organised a meeting on ‘Britain’s Cities and the Trade Union Movement’. The guest speaker was Ted Watkins, ‘a US trades unionist and founder member of Watts Labour and Community Action Committee’.21 It was often argued that the British legislation was different, because it was only positive action, that is preference in promotion and training, expressed in target, not affirmative action, meaning actual quotas for recruiting black candidates. British universities did better than US ones in recruiting black students, who are more likely to study beyond eighteen than the general population — a target achieved without US-style quotas.22 But then again, as Barbara Bergmann, a defender of US-style affirmative action, argues, the difference between the British and American approaches is not as great as it seems.23 Certainly programmes like the Creative Diversity Network’s one-year trainee commissioner posts look like jobs, rather than targets. Perhaps the substantial difference between the US and UK experiences was that positive action did not become a political football.

  The European Union and women

  In 1957 France, Germany, Italy, Belgium, the Netherlands, and Luxemburg signed the Treaty of Rome, setting up the European Economic Community. In 1973 Britain, Ireland, and Denmark joined, and in the decades that followed so did the former dictatorships in Portugal, Spain, and Greece, and then the formerly neutral and Comecon states in East Europe. Over those decades the European Economic Community became more than a customs union, with common rules on social policy, a guiding Commission, a Parliament, and a European Court of Justice. To signal those changes the EEC changed its name to the European Community (1967), and then the European Union (1993).

  The original Treaty of Rome had a clause, Article 119, that calls for each member state to ‘ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work’. The inclusion of the clause calls for some explanation, since, as Helsinki professor Johanna Kantola points out, ‘the interests of women were not raised in the debate’ over the Treaty of Rome: ‘Article 119 was a piece of legislation by men, drafted in all-male working groups to which women had no access and no channels of influence.’24 Equal pay for equal work had been an International Labour Organisation demand since shortly after the end of the First World War, and at the end of the Second, it was part of France’s legislature. In the negotiations Holland and Germany were reluctant to agree to French demands that there should be parity in legislation so that France would not be at a disadvantage, but Germany’s legal advice was that their own laws would meet the rule, so they agreed. For the most part the clause was not taken up by the national governments, as was clear in a survey by the Directorate General on Employment and Social Affairs, and a deadline for the implementation of equal pay provisions of 31 December 1964 passed without any changes.25

  The social disturbances in Western Europe in the late Sixties led to a decade of disorder that led many governments to worry about disaffection and a perceived crisis of legitimacy. At
the European level this led to a ‘Social Action Plan’ proposed by German Chancellor Willy Brandt and French President Pompidou, stressing that ‘a common social policy was essential so that the population could identify with the [EEC]’. The Plan had equal pay and non-discrimination clauses.26 Another influence was the case (two cases, in fact) brought to the European Court of Justice by lawyer Eliane Vogel-Polsky on behalf of a stewardess on Belgium’s Sabena airline, Gabrielle Defrenne. Defrenne had been sacked on reaching the age of 40, while her male peers were allowed to work to 55, and had also been barred, as a stewardess, from the company pension. The Justices at the European Court were sympathetic, but said they did not have the powers to rule in her favour. The European Commission acted with three directives addressing women’s inequality, on Equal Pay (1975), Equal Treatment (1976), and Social Security (1978).

  The European Economic Community’s — and its successors’ — directives were a great source of confidence for the Equal Opportunities Commission in its push for equal opportunities, and they welcomed the news that ‘The directives of the European Economic Community on equal treatment for men and women and on equal pay have come into effect’. The Commission took pride in the fact that ‘the Equal Pay and Sex Discrimination Acts have generated a marked interest in Europe’ and that ‘the implementation and monitoring of the two EEC Directives provide a unique opportunity for this country to set the trend in the next phase of securing equality for women’.27 European comparisons underlined the Commission’s demands, as for example in 1979, when they were pointing out that ‘Britain’s mothers-to-be are getting a poor deal on maternity rights, in comparison with their European neighbours’.28 Not only did the directives on equal pay and equal treatment help to secure the British laws on Equal Pay and Sex Discrimination, they also gave courage to the Commission in the years when it was at odds with the Conservative government in Westminster. From early on in the first Thatcher term, the Equal Opportunities Commission used the positive example of Europe to try to embarrass the government.