The Glass Ceiling: fundamentally about civil rights

In July, 1990, then-Secretary of Labor Elizabeth Dole announced some conclusions about the glass ceiling. Her department was about to begin regular "glass ceiling reviews" as part of OFCCP's ongoing activities; they didn't need to study the problem anymore, Dole said. What they had found was startling but clear: neither companies nor the OFCCP had ever considered that compliance applied to management. Dole's announcement generated the greatest number of telephone calls to the department in its history -- the vast majority of them highly critical of her stand.

Four years later, very little progress has been made in eliminating the glass ceiling. In many areas, there has not only been no progress, but backsliding. There are many reasons for this, from the problems of understaffing at OFCCP to the more restrained attitude of Dole's successor, Lynn Martin. The jury is still out on the differential effects of the recession on different demographic groups. And now, the Glass Ceiling Commission, created by an amendment to the 1991 Civil Rights Act, is spending a year or so studying the problem again.

The fundamental issue that is the most critical to eliminating the glass ceiling is rarely addressed, however. It is the failure of all of us, including the administration, attorneys on both sides, and plaintiffs and potential plaintiffs as well, to regard the glass ceiling as a civil rights issue.

Most people are not as explicit about this as one executive we know, who has been an outspoken leader on civil rights issues in his business since the early sixties. He views racism and discrimination based on religion as repugnant, and properly illegal. He gets very uncomfortable, however, with idea of doing reviews of promotion policy and management compensation. (His company employs 11,000 people and is a major federal contractor.) He views the difficulties of women in management as cultural or social issues, or sometimes even political issues. But certainly not civil rights issues. And he emphatically believes that "you can't legislate such things".

Our impression is that many, if not most, people in management agree with him. A summary of much of the reaction I encounter to glass ceiling cases is "it's just a white, middle class woman whining" (or who couldn't cut it, or who used a suspect complaint about discrimination or harassment to get back at some guy, or gain some advantage).

We believe, just as emphatically, that glass ceiling cases are fundamentally about civil rights, and that we will not see real progress towards eliminating the glass ceiling until we begin to create a national consensus about this. Even more, the failures that we see to enforce the civil rights laws in management are the equivalent of the canary in the mine: they are telling us that our constitution and our nation's vitality are severely deprived of the constitutional equivalent of the oxygen we need to continue to flourish as a country committed to principles of human rights.

To get to an understanding of the importance of seeing the glass ceiling as a civil rights problem, you first have to understand that the glass ceiling is primarily about two things: visibility, and power. Not separately, but in a critical combination: access to and exercise of visible power. In studying the glass ceiling, we have seen that it's basically ok for women and minority men to be visible in companies as long as they don't have meaningful or serious power. Witness the proliferation of vice-presidential women and minorities in staff jobs -- human resources and pr primarily, followed by finance and legal. These are important jobs, to be sure, but they are essentially support roles to the decision-makers in line management jobs and in general management. And it's ok for women to have power, as long as they're behind the scenes and not exercising that power too visibly -- the solid army of "good lieutenants" -- usually with titles such as director or senior director, or often with that wonderful qualifier "acting". But it's not ok to have both power and visibility at the same time.

Regardless of how you define power, the definitions overlap to a large degree in the world of business. This is not true in all parts of the world, but it is definitely true here in the United States. And business is also the sphere that spawned the American Revolution, in a very literal sense. The Adams family in Boston had built a small fortune that was going to be destroyed by new laws coming out of England, and they put the first money behind an embryonic revolutionary militia and recruited more money. Without that money, and without the concerns of merchants and traders, there might have been a revolution but it wouldn't have been won.

But as we all know, the Revolution was not just about business and the power to make money, it was also about ideas, and about ideals and principles. To really understand the problems of the glass ceiling, it can be a very practical exercise to remember that in this country, the expression of political principles and ideals, including the most basic ideas of what we mean by human dignity, has always been tied to our ideas about business, and basic concepts of fairness and ethics in business.

There is a tendency, in both business and in the law, to consider that the issues of civil rights and basic standards of ethics and fairness in business have been linked just for a short time - since the civil rights and women's movements of the sixties. Or, if the link is made back to the labor movement of the late 19th and early 20th century, then that is seen as somehow separate, historically and legally, from today, and more importantly, from the beginning point of the demand for civil rights in this country in the 18th century.

But the men who hammered out the Constitution were very aware that their decision about which Americans got the right to vote was something that would directly affect the relative financial well-being of the northern states and the southern states. And the men who called the Department of Labor in 1990, in record numbers, to protest the initiation of "glass ceiling reviews" by Dole's OFCCP, were also very aware that the application of the 1963/64 civil rights statute to their management ranks could cause some definite difficulties. The connection, and the tensions, between these two great trunks -- freedom to conduct business and create economic growth in an equitable, fair society, and freedom to be a fully-functioning, enfranchised citizen of a republic -- form a great continuum in our unique history.

Within this continuum of over two hundred years of regular, if not steady, progress towards deeper and broader commitment to civil rights for all Americans, there are of course some critical moments. A very important leap in making principles of fairness in business explicitly applicable to a disenfranchised group occurred in 1949. Harry Truman signed the first executive order that said that no company that profited by doing business with the Army could discriminate against blacks. That order was the foundation of the OFCCP, which is the agency within the executive branch that is supposed to enforce all of the civil rights laws in employment with companies that do business with the federal government.

1949. That's 45 years ago. That's almost two generations. The laws were expanded in 1963 and 1964, and women were included in an amendment originally proposed as an eleventh hour effort to derail the bill, since the Senator who proposed the amendment was certain the bill couldn't pass if it included women.

Thirty years later, we have seen a great deal of change, but in my view, what we really need to be concerned about is the last 10 to 12 years. Because in those years, we have regressed on civil rights, and to some extent, even reneged. And apart from the damage to individuals whose rights are denied, there is serious damage to the soul of this country. In this 200+ year continuum, there has been only one other period in which we reneged, where the progress, however slow, was stopped and reversed. And in that time, when the gains of freed slaves were subverted by the Jim Crow laws, we created social damage whose cost is incalculable, and for which we are still paying.

Regressing on something as basic to our national character as civil rights is fundamentally different from the ebb and flow of issues such as foreign policy or trade positions. For a nation that was founded on principles and ideals of civil rights to go backwards does damage that simply doesn't happen in a country that wasn't created in the same way. When Singapore, for instance, suppresses freedoms, people don't lose hope, and the vision for their future doesn't necessarily fade. But in the United States, we are losing hope and faith in our future, and in our ability to create and sustain national health and prosperity. And this loss is due, in large measure, to the reversals on civil rights that occurred in the twelve years of the Reagan and Bush administrations, and which the Clinton administration has in some sense done its best to ignore.

It is certainly easier to pin our country's current malaise on more obviously dramatic ills like violent crime (and I am not arguing that violent crime is a trivial problem!) I would argue, however, that increases in violence and antisocial behavior in our society also need to be understood as symptoms of a deeper problem. And that deeper problem is difficult to name and define because it is so fundamental -- it has almost the character of being the water in which we swim. It is a loss of hope that we can even wish for, or stretch for, a society in which all are truly endowed, from birth, with rights so basic that they are inalienable.

When we walk down the streets of our finest cities and see permanent bread lines, it's hard to believe in such ideas. But even more insidious is the effect of seeing that no matter how competent, well-educated, or successful, a women or minority men can go just so far and no farther (or a token number can go farther, as long as they "behave".) The existence of some success stories does not eliminate the gut-level belief that many of us have that something is still very wrong: that there is "equality" up to a point, and beyond that point there may be a select few (a shade more than mere tokens) are allowed to pass, but that it is not a level playing field; there is no equality of opportunity beyond that point. And in fact, the statistics, when pared of sugar-coated spin, support that gut-level impression. In fact, progress has slowed, and experts like Gary Orfield at Harvard have demonstrated that there has indeed been regression.

Acknowledging the damage that reneging on civil rights does to us may also be difficult because to some extent the nature of civil rights abuses has changed. Here is an example. Sam Taylor was an African American Project Manager for Pluto Consulting (names have been changed to protect the innocent and the reticent) who received his company's highest national award for performance and specifically for his project management skills. An engineering consulting company's profits are critically dependent on these skills: planning work flow, managing cash, allocating resources (which are by definition scarce), reacting to and compensating for changes in clients' plans or unforeseen problems with suppliers or with the weather, and so on. But when Pluto won a big project that was very high profile, and opened up a new area of business for the company, they didn't assign Sam to manage it. He was available, and he was interested, but the job went to someone else with less experience. When he finally questioned the decision, he was told that he didn't get the assignment because he was "too laid back".

This, to many people, looks less troublesome than a Southern sharecropper who is being denied the right to vote. Sam makes a very healthy income, and although you could make a case that he was tangibly damaged by the career blow, you would have to stretch. Sam does not look like a victim or a damaged person. But the real damage is in a realm that we don't talk about as much, and is easily called "subtle", although we don't see it as subtle at all.

The damage is to Sam's confidence and to his sense that he really was a full member of the team. The damage is to the other employees of Pluto Consulting, many of whom recognized and privately acknowledged the racism, but none of whom felt free to speak of it openly.

Executives of Pluto discounted the problem as being due to Sam's lack of "political skill". This is a rationale for many "glass ceiling" incidents -- (actually, this one is more often applied to women). But Sam's is a classic case: women and minority men are frequently derailed just as they are about to make the move to a truly visible position of power. Often they are not given credit for credentials they have truly earned; more frequently they are denied the opportunities to gain those credential-building experiences. The derailment is attributed to something vague and amorphous, such as "style", even if it flies in the face of abundant evidence, as in Sam's case.

Now imagine the same story, but with a white woman named Mary Jones in Sam's place. For many people, it is even harder to view her promotion denial as a civil rights case. But with either version, it is essential that see and describe the case as a violation of civil rights. It is essential, that is, if we are going to continue to make progress in a process in which there is no neutral gear, no treading water. If we do not continue to expand civil rights, we risk having more cases like the one at Lockheed, where an African-American satellite operator named Norman Drake found his suit slashed with razors after he complained about race discrimination in a promotion.

We don't want to argue which of these cases -- Sam Taylor or Mary Jones or Norman Drake -- represents the greater wrong. But it is clear that the turning back or dropping out that occurs when women and minority men hit the glass ceiling has a direct and devastating effect. Perhaps a direct line from Jim Crow to Sam Taylor to Norman Drake is impossible to draw. But we all understand role models. Role models are concrete, specific, real. And when aspiring women and minority men see their role models treated unjustly, or see that equal opportunity is a fraction and not 100%, that has a profoundly negative effect.

The positive side of this is easy to see - for example, in recruiting women engineers to a start-up company, the presence of one or more senior technical women is a huge help. The same is true when the candidates we're wooing are African American or Hispanic men. Less audible to management, however, are the kinds of comments we have heard from junior women when a woman executive gets "beheaded". But the impact is just as powerful.

Certainly no one would explicitly argue that a citizen who has the right to vote, but who is blocked from fully participating in the business life of his community was a fully enfranchised citizen. Yet this argument is made implicitly when we don't demand enforcement of the civil rights laws that pertain to employment, and when we don't argue that violations of these laws, no matter how "privileged" the victim, are violations of civil rights.

The intertwining of bedrock regard for these two broad principles -- civil rights and free enterprise -- is unique in the United States. Yet we have reached a juncture in our history in which there is a widely held consensus that these two roots of our culture and our constitution are not just separate spheres that sometimes overlap and are sometimes in conflict, but are essentially incompatible. We have been lulled in to believing that the application of civil rights laws in American business has contributed to the weakening of American industry and the demise of the United States as a world power.

How this belief came about was the result of a simple but powerful tactic of the Reagan and Bush machines. They engineered a subtle but very powerful shift in the policy statements of the Department of Labor.

The Department of Labor was created in 1921 with a simple charter: "To protect the rights of the workers of the United States of America". Yet, over the last twelve years, the leitmotif of the Department of Labor, emblazoned on official documents and brochures, and repeated ad infinitum in Labor officials' speeches, was that the goal of the Department of Labor was to "help American businesses become globally competitive. The quiet subversion was: yes, we believe in "diversity", and by golly, we need that diversity to be globally competitive. The men and women who carried the banner of the new policy often had other justifications -- when Clarence Thomas peremptorily ended class actions at EEOC, he had admirably-crafted legal and philosophical arguments for his decision. The unsaid part of this tactic, carried out by the EEOC and OFCCP in those years, was that diversity is always secondary.

Never mind that many American businesses were the world leaders in their industry, and that among the most ailing American industries were those that had the poorest civil rights track records (automotive, for instance), and that some of the most "globally competitive" businesses in the 80's (telecommunications and financial services for instance) were defendants in class action lawsuits filed by the Department of Labor in the seventies. (For a very visible demonstration of the effectiveness of those efforts, attend a conference of senior telecommunications managers, and then attend a similar automotive industry conference -- the difference is dramatic!) The message within this new, improved charter was clear: too rigorous enforcement of civil rights legislation has hurt America. Selfish women and people of color might not care, but this was a new kind of war, and sacrifices were going to have to be made; civil rights enforcement just couldn't be a priority.

Belief in "diversity" was OK as long as it meant "horizontal access" (lots of lower-level, low-paying jobs for good solid workers in all their diversity). "Diversity" did not mean, however, enforcement of civil rights laws for everyone, right up to the executive suite. And "diversity" did not mean, absolutely, sanctions or penalties against government contractors who violate civil rights laws.

How did this look in practice? Civil rights enforcement was quietly eviscerated. There was not a single class action lawsuit from the time Clarence Thomas ran EEOC until very recently. The district office of the OFCCP recommended penalties against Lockheed in the late 80's after finding evidence for hundreds of complaints; not a single penalty was approved by Washington. The district office of the EEOC recommended investigation of complaints at Stanford University; the investigation was canceled. (The good news is that it was re-opened in December of 1993.) The list could go on and on. And it is fair to say that in both those examples - Lockheed and Stanford - things definitely got worse for women and minority men following the institutions' reprieve from enforcement.

Now, very recently there is some indication that Clinton appointees is Labor and in Justice are going to change the policies and procedures implemented under Reagan and Bush. But Reich's Department of Labor is still propagating the carefully-nuanced phrases about "helping American companies understand that diversity is their greatest resource" and "helping American companies become globally competitive." This is very dangerous -- even subversive -- language as far as civil rights enforcement is concerned. With language like that, it's easy to forget that the basic purpose of the Executive branch's Department of Labor is enforcement of law. And it's easy to forget that enforcement made a difference.

After over three years of observing the glass ceiling in action, we do not believe that anyone, even the most eloquent, impassioned attorney, can persuade companies to do the right thing regarding the glass ceiling, or to "comply voluntarily". Not in this environment.

First of all, in any environment, but especially a recessionary one, managers of businesses exist in a constant state of overwhelm. Issues of compliance are subjected to a kind of triage, and areas where failure to comply won't get you in much trouble are going to be ignored. Additionally, American business executives are very vulnerable to peer pressure (current business school and executive suite jargon for this is "benchmarking"), and for at least a decade there has been no peer pressure. Finally, moral authority in any organization operates from the top down, and there has been no leadership from the Chief Executive of the country on civil rights issues for a very long time.

What will it take? First, recognize that the presence of some women and minorities in senior management or executive positions is wonderful, but it doesn't tell even a little bit of the whole story. This is not a "glass half-empty vs. glass half-full" issue. Rather, the numbers of women and minority men in middle management - the "pipeline" exceeded 30% over 15 years ago, and has steadily increased, while the numbers of women and minority men in top management has increased by at most 1 or 2 percent over the same time period. This represents regression.

Second, understand that what is needed is not additional law or special rights, but enforcement of existing laws and understanding that equal rights are fundamental.

And third, look for ways to support the men and women who are demanding and fighting for their rights.