How the Wagner Act Laid the Groundwork for Affirmative Action

Very interesting Touré Reed analysis at Jacobin:

The case for affirmative action — like unionization before it — proceeded from the view that anti-discrimination policy was in the public interest. Though the history of federal workplace anti-discrimination initiatives dates back to the New Deal, President Kennedy’s 1961 Executive Order 10925 — which authorized the federal government to cancel contracts with vendors who failed to take “affirmative action” to redress employment disparities — is generally understood as the start of the modern era of anti-discrimination policy.

The Kennedy and later the Johnson administrations argued that workplace discrimination was a drag on the national economy, viewing racism as an irrational encumbrance on productivity. The Kennedy administration’s case for a fair employment practices bill — what would eventually become Title VII of the Civil Rights Act of 1964 — thus centered on the Commerce Clause, placing workplace discrimination in the purview of the federal government.

Those who imagine that market-oriented programs offer the best route to racial equality today should recall that opponents of Title VII, like Republican senator Barry Goldwater, argued that fair employment practices legislation violated “freedom of contract.”

But while anti-discrimination legislation necessarily infringed on an employer’s right to hire, fire, promote, or demote whomever they wished, the Wagner Act had already abridged this right — as proponents of anti-discrimination law understood at the time — thus establishing a precedent for affirmative action.

In fact, the phrase “affirmative action” first appeared in a Wagner Act provision that directed judges to impose financial penalties on employers who discriminated against union organizers.

The eventual implementation of affirmative action in the workplace likewise drew on precedent stemming from the Wagner Act. As study after study has shown, few if any employers use quotas — which are not mandated by Title VII. Instead, employers hoping to avoid costly lawsuits established offices of equal employment to ensure compliance with anti-discrimination law.

These new equal employment offices were modeled on the labor relations departments union and non-union firms established in the wake of the Wagner Act. Moreover, many of the policies implemented by equal employment offices to ensure fair employment practices — including in-house grievance procedures, formal job descriptions, published guidelines for promotion and termination, salary classifications, and open bidding— were already in use by labor relations departments partly because unions had demanded them.

The Wagner Act and the labor movement it helped spawn are perhaps the clearest expression of the social-democratic impulses informing the old New Deal Democratic coalition. As such, the links between the right to collective bargaining and anti-discrimination legislation draw attention to the historic importance of social democracy to so-called civil rights issues.

Indeed, it’s hard to imagine on what basis black civil rights leaders — who lobbied on behalf of a group that accounted for just 10 percent of the nation’s population — would have demanded a fair employment practices act in the 1960s, if the Wagner Act had not already established a precedent, in the name of the public good, for abridging the right to freedom of contract.

Simply put, the civil rights movement’s victories required an interventionist state — as was understood by all of the principal players, on both sides, at the time. And while the New Deal had significant limitations, its efforts to enhance the purchasing power of working people — centered on fostering a more stable form of capitalism — established a framework for a rights discourse that would prove indispensable to African-American civil rights.