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Labor of Love
Law professors’ study provides new weapons in fighting job discrimination
By Ben Hammer

Ruth and Alfred “Al” Blumrosen have worked for almost 50 years to improve labor conditions in this country and around the world. And despite recently buying a beach house in Naples, Fla., the couple, law professors at Rutgers University in Newark, N.J., since the 1950s, are not quite going into full retirement. In fact, they have published the first comprehensive study of employment discrimination throughout the United States, yielding results the Blumrosens believe point to an easy way for the government to reduce job discrimination.

Their most recent study found that 75 percent of all “intentional discrimination” in employment occurs in just 20 percent of the industries surveyed. Legally, intentional discrimination occurs when an employer takes into account race or sex in making an adverse employment decision, even as one of many factors. Showing that a company or owner employs minorities or women far below the average rate that other employers do is evidence that the employer is purposefully discriminating, shifting the burden to the employer to prove this is not the case.

The research found that two million minorities and women in 1999 were affected by “intentional discrimination” in the workplace — marking the first time research has quantified this type of discrimination. It also found that approximately eight million minorities held upper-level jobs in 1999.

The study’s most notable findings are both positive and negative, Al notes. While Blacks and Hispanics held an increasing share of managerial and upper-level jobs in the period between 1975-1999, their overall rate of employment increased at a slower rate than the rest of the population.

The Blumrosen study provides a powerful new weapon to those trying to show in court that they were discriminated against. It compares the defendant companies’ employment of minorities and women to the average employment rates at a similar company. If the firm being sued employs a number of women and minorities that is 2.5 standard deviations below the average, the Blumrosen study shows that there is a 95 percent chance this is the result of “intentional discrimination.”

Government measures of intentional discrimination are limited by several factors. Government contractors with less than 50 employees and other firms that don’t work for the government don’t have to report the racial makeup of their staff. Also, the government doesn’t ask for a breakdown of employees by age, so age discrimination is not tracked.

Even though the U.S. government collects employment data from government contractors with more than 50 employees, it only releases statistics of overall intentional discrimination. The Blumrosens argue that the government could prod the companies with the poorest employment records to improve their records by identifying them and telling them where they stand relative to their peers.

“Then it will be up to the employers to decide what to do,” Al says. “They could decide to do nothing … or they could decide to be more proactive and say, ‘If everyone else can pull people from this labor force, so can we.’ “

It is a matter of public record that Al Blumrosen is an expert on this topic. The U.S. Supreme Court relied on his work in setting the standard for intentional discrimination in a 1977 ruling, reaffirming the same standard in a 1986 case.

“There is a group that has been pushing the idea that the use of any number is a quota, and that’s simply not the case,” Ruth says. Supreme Court Justice “Sandra Day O’Connor said that there’s a difference between preferences and a quota.”

The government’s stance on enforcing discrimination law has varied over the years, says Al.

“The courts took the widest possible view of how to interpret the law in 1965 and for 10 years they were very supportive,” he says. “That support began to waver in the late ’70s at the Supreme Court level, but by then the legal system had incorporated some of those views.”

The change in the government’s stance was crucial to changing how employers act in making employment decisions, he adds.

“The employer community has changed and now does not follow views that back in the ’60s they thought of as virtually sacred” — views that supported using employment tests that did not predict performance and negatively affected mostly minorities and women.

Though the government has thus far been unwilling to use the data it collects as a tool to prod companies that underemploy minorities, the Blumrosens have undertaken that task themselves. They recently founded the company EEO1 to offer firms analysis of how their own employment record stacks up relative to their peers.

They say employment lawyers also can use their database to decide whether a prospective case is viable or not. This is important, Al says, because the government’s employment discrimination efforts are small when compared to the weight of thousands of lawsuits filed by private attorneys on behalf of their clients.

Lawsuits filed by private attorneys have become the primary enforcement mechanism for equal opportunity law.

Producing Historic Results

Al was drawn to issues of discrimination and labor rights at an early age. He grew up in Detroit, the center of the auto industry, which relied heavily on Black labor. At that time, labor was still trying to establish its right to organize and bargain for more pay and better conditions.

Al remembers traveling by train with his mother to Virginia Beach, Va., at age 5. When the train stopped in Cincinnati, all the Blacks disembarked. Al asked his mother why and she explained that they weren’t allowed to stay on past that stop. He remembers that even at this early age, the segregation on the train struck him as unfair.

The Blumrosens have been stewards of employment discrimination law in the United States since its beginning. Both Al and Ruth have worked on civil rights issues most of their careers, producing historic results. About 10 years ago, they began working primarily with each other on most of their projects.

Meeting at the University of Michigan as law students, Ruth and Al both worked on many state and local anti-discrimination laws, earning reputations that brought them to Washington to consult on the formation of the Equal Employment Opportunity Commission as part of the Civil Rights Act of 1966. At least one member of the couple has worked in the administrations of Presidents Johnson, Ford, Carter, Reagan and Clinton. They proudly point out that they have a record of working for both parties.

In the early 1990s, the couple spent a year in South Africa as Fulbright Scholars, examining whether the U.S. experience with equal employment programs would be useful in the post-apartheid period. Several years later, the Blumrosens taught a seminar together on downsizing and workers’ rights, based on work they later published in two 1998 law review articles.

In between, Al has taught at Rutgers Law School since 1955, where he began teaching torts and labor law, until his involvement in state anti-discrimination law and the EEOC led him to teach about employment discrimination, legislation and the statutory interpretation and administration of laws. In 1972, Ruth began teaching at Rutgers Graduate School of Management, moving in 1980 to the law school as an adjunct professor, a position she holds today.

These days, the couple is looking forward to finally finishing the book project they conceived of 20 years ago. In addition, they’re beginning to market EEO1, a company they intend to use to create more opportunities for underrepresented minorities in the work force.

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