MAXWELL: Hiring, firing and fairness

9/11/1994 – Printed in the PERSPECTIVE section of the St Petersburg Times Newspaper

Affirmative action policies are controversial and underscore a not-so-obvious paradox in American democracy: Legislating fairness in the workplace is impossible. Policymakers and employers, therefore, should strive to make wise decisions that do as little personal harm as possible to all parties involved.

Often, however, even well-intentioned officials make bad decisions that have long-term, national implications. A good example is a 5-year-old case in New Jersey. There, the U.S. Department of Justice reversed itself by declaring that, to ensure “racial diversity” among the faculty, the Piscataway School Board could fire Sharon Taxman, a white teacher, and keep Debra Williams, an equally qualified black teacher.

Some background: Since 1975, Piscataway schools had followed a policy of hiring the best qualified person. But when two candidates were equally qualified, the board automatically chose the minority applicant. This policy worked so well that the district became a model for others statewide. By 1985, 10 percent of the instructors there were black, while only 7.4 percent of the state labor pool was black. During the same year, 9.5 percent of the district’s administrators were black, while the local black labor pool was only 5.8 percent of the area’s population.

Budget cuts in 1989 forced the School Board to dismiss one business education teacher, either Taxman, who had slightly superior certification and more experience, or Williams, who had been hired on the same day nine years earlier. Previously, officials had drawn lots in instances where candidates had equal seniority. This time, however, they gave more weight to race _ thus firing Taxman.

The Justice Department under President Bush challenged Piscataway’s action, contending that employers shouldn’t use race in dismissals except to redress a pattern of discrimination or to eradicate a “manifest imbalance.” A federal judge agreed and awarded Taxman $123,000 in back salary and $10,000 in damages for pain and suffering. Piscataway appealed, and last week in an unusual move, Deval L. Patrick, President Clinton’s new assistant attorney general for civil rights, reversed the Taxman ruling. “The interest of the United States is integrating the work force,” he said. “We do not support quotas, (but) affirmative action is a different animal.”

Further complicating the case is that, until now, the Supreme Court let public employers use affirmative action for hirings and promotions, but not for firings and layoffs. Private employers, however, have more freedom at both ends of the employment pipeline.

As a black, I support affirmative action. Frankly, I owe much of my career as a teacher to affirmative action. I know of at least one instance in which I was hired over a more qualified white male. And I know of two cases in which I’ve been passed over in favor of less-qualified whites. Even so, I’m no affirmative action absolutist _ one who sees only black and white, one who always opts for hiring the minority. To the contrary, I see myriad shades of gray in this ethical dilemma, and the Taxman case is a good example.

Initially, I agreed with Patrick and the Piscataway School Board. After becoming familiar with specifics of the district’s exemplary minority hiring record, though, I became convinced that Taxman’s firing was unconscionable. Having been a teacher for 20 years, I know that finding qualified black teachers is often daunting. Yet, through aggressive recruiting, Piscataway, a town of only 42,223, had done an impressive job long before the Taxman-Williams situation arose.

Obviously, Piscataway board members were not racists. They didn’t have a pattern of systematically shutting out blacks. These folks didn’t need to remedy gross injustices of the past.

Still, in its federal appeal, the board rationalized its race-based decision to keep the black teacher on the premise of maintaining racial diversity. One irony of this case, since diversity is the focus, is that Taxman was the only Jew on the faculty. But should mere diversity be a goal of affirmative action?

In trying to force fairness into the workplace, most public and private employers nationwide are relying on mere numbers. Fairness is more than bean-counting. It cannot be achieved when someone with an equal right to a job must be fired for the sake of retaining a minority. A semblance of fairness can be achieved only when an employer acts in good faith to recruit, train and nurture the careers of minority workers _ while being wary of hurting whites at the same time.

Piscataway officials had satisfied these criteria. But they, along with the Clinton Justice Department, erred in not acknowledging their own excellent record. They had nothing useful to prove by firing the white teacher. How much more diversity did the system need? How many more blacks did they need to place in the classroom? Could they have drawn the line?

Can we ever draw a line in such matters? I think so. Albert Shanker, president of the American Federation of Teachers, had it right when he said that the original judge was correct in rejecting Piscataway’s race-based decision to fire Taxman. And I agree with that judge, Maryanne Trump Barry: “An affirmative action plan which grants a preference based on race cannot be boundless, even under the farthest reaches of the law as it is today.”

At some point, we must be able to determine that an employer has satisfied not only the letter but the spirit of the law, that _ in case-by-case instances _ fairness can be maintained if a white is chosen over a black. Otherwise, we’ll continue to concoct bad solutions for problems that don’t exist.

What action, then, should the Piscataway School Board members have taken? With a little thought, they could’ve used the same method that had served them well for so many years when employees had equal seniority: They should’ve excluded race as a factor and drawn lots.

 

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