Friday, May 22, 2015

Politics, Administration, and Fair Employment Practices

How Did It Operate?  Without Coercive Power.
Library of Congress
One of Forging Rivals' chapters focuses on the history of the San Francisco Commission on Equal Employment Opportunity (CEEO). Created in 1957 after a decade of contentious political wrangling, the CEEO enforced San Francisco’s local prohibition on employment discrimination. It closed its doors in 1960, less than three years later, when a statewide fair employment practices law was passed establishing a state agency charged with combating employment discrimination.

The CEEO was one of a number of fair employment practices agencies that sprang up in postwar America. Indeed, by the time San Francisco Mayor George Christopher appointed its first commissioner, 22 jurisdictions (11 states and 11 cities) had some administrative body that enforced fair employment practice standards. By one calculation, there had been close to 10,000 complaints made to these commissions by the middle of the 1950s. Only a handful of these complaints – about 20 nationwide-- resulted in full adjudications.

This last statistic – that less than 1 in 500 complaints were fully adjudicated – raises some interesting questions. Surely this fact does not suggest that all but a tiny number of these claims were frivolous. After all, in the decade after World War II, discriminatory employment practices were widespread and openly practiced. Contemporary commentary, as well as my own research in Forging Rivals, indicated that this number was so low because local and state agencies focused their energy on the informal resolution of the complaints they received. This research also revealed that these informal resolutions did little to stop employment discrimination. To understand why this is the case, it’s helpful to look at the United States' first attempt to use the administrative state to promote fair employment practices.

In 1941, President Roosevelt created the federal Fair Employment Practices Commission (FEPC) by an executive order. The FEPC was a major civil rights victory. It was the first federal effort to combat race discrimination since the end of Reconstruction. That said, the FEPC was a weak agency. Its powers were purely investigatory. When it found instances of employment discrimination, it could bring public pressure on employers and unions to end discriminatory practices, but, beyond that, it was powerless.

Many of the state and local fair employment practices agencies that emerged after the War were shaped by this wartime experience. In particular, civil rights activists fought hard to ensure that the postwar agencies had some form of coercive power: that they could fine employers, require employers to eliminate discriminatory practices, or force employers to hire or promote people they had discriminated against. In exchange for these sorts of powers, most agencies were required to keep their investigations, deliberations, and adjudications entirely confidential. This trade off – coercive power for secrecy – turned out to be a problematic one. It made it difficult for agencies to generate political support for themselves. If the San Francisco CEEO was any indication, this lack of political support made agencies reluctant to punish recalcitrant employers and unions. Indeed, stranded in a hostile political environment, and lacking methods of generating support, these agencies struggled mightily to avoid using their coercive powers. Instead, they functioned as mediation services, secretly resolving employment disputes in a manner that did little to address the systemic problem of employment discrimination.

The San Francisco CEEO thus illustrates an interesting characteristic of regulatory governance: isolated expertise, even when coupled with coercive authority, may not be enough to further an agency’s policy goals if the agency can’t generate political support for its mission. For people steeped in the study of the administrative state, this may be a quotidian observation, but seeing the actual mechanics of administrative failure in the face of political opposition is fascinating. Additionally, it is striking how the administrative actors at the postwar fair employment practice commissions did not anticipate the need to develop and nurture political support. Their disappointment with the wartime FEPC and its lack of coercive power led many of them to believe that silencing themselves in exchange for enforcement powers was a worthwhile horse trade. As it turned out, it was not.

1 comment:

Gautham Rao said...

Fascinating Reuel--and provocatively argued as always. I am working on similar questions in an altogether different era: the so-called critical period in American history (1780s) when the confederal state had no power to compel or coerce and faced remarkable political intransigence.

Your phrase "informal resolution" is analogous to the "informal" methods confederal officials were forced to rely on under the Articles of Confederation. Above all, I am finding that a gendered administrative culture and discourse was relied on to do what the law could not.

thanks again for the post!
gautham