JOHN T. PATZER, Complainant

STATE OF WISCONSIN
DEPARTMENT OF ADMINISTRATION
BUREAU OF PERSONNEL, Respondent

UNIVERSITY OF WISCONSIN-MADISON
DIVISION OF PHYSICAL PLANT, Respondent

John T. Patzer filed his complaint with the Department on January 11, 1973, alleging that he was denied the opportunity to apply for a painter apprentice position because of his race and sex (Caucasian male), in violation of the Wisconsin Fair Employment Law, ss. 111.31-111.37, Wis. Stats. An identical charge was filed with the U.S. Equal Employment Opportunity Commission (Charge No. TMK3-0326) under Title VII of the Civil Rights Act of 1964.

The Department investigated the complaint, and on February 23, 1973, an initial determination was issued finding probable cause to believe that both Respondents discriminated against the Complainant because of his race and sex. Conciliation was waived by both Respondents in separate letters dated February 27, 1973, and the matter was certified to hearing on March 5, 1973.

A notice of hearing was mailed on March 28, 1973, scheduling the hearing on May 1, 1973 in the State Office Building, 201 East Washington Avenue, Madison, Wisconsin. Answers were filed by both Respondents and the hearing was held, as scheduled, before Attorney Bruce D. Schrimpf, acting as authorized hearing examiner for the Department. At the hearing, the Madison Building Trades Council by Attorney Richard Graylow was granted permission to participate as amicus curiae. Post-hearing briefs were filed by the Madison Building Trades Council and by Respondent University of Wisconsin-Madison, Division of Physical Plant (hereinafter Respondent UW) on September 7, 1973 and October 24, 1973 respectively.

The Hearing Examiner's recommended decision and summary were issued to the parties on February 22, 1974. Written exceptions were filed by both Respondents on March 14, 1974 and oral argument was requested before the Commission. On May 6, 1974, a brief was filed by Respondent UW. The Commission on May 8, 1974 granted permission to Attorney Percy Julian to intervene as amicus curiae. On June 3, 1974, Respondents filed motions and a supporting brief requesting that the Commission dismiss the complaint for mootness and for lack of jurisdiction. The Madison Building Trades Council filed its brief on June 5, 1974. On June 7, 1974, Respondents filed another motion asking that the Commission disqualify itself.

Oral argument was held before the Commission on June 10, 1974 in the State Office Building, 201 East Washington Avenue, Madison, Wisconsin. The Commission denied all three of the Respondents' motions prior to hearing oral argument. After the oral argument, on June 25, 1974, the Center for Public Representation,  Madison, Wisconsin, sought Commission permission to file a brief as amicus curiae, On July 29, 1974, the Commission granted such permission and set a deadline for the brief of September 1, 1974. All other participants were given a chance to reply by October 1, 1974. The brief was filed by the Center for Public Representation on August 30, 1974. No other briefs were received by the October 1, 1974 deadline. The Respondents renewed their motion that the Commission dismiss the complaint for want of jurisdiction on September 23, 1974. The Commission denied the motion in writing on October 9, 1974.

Based upon the Hearing Examiner's recommended decision and summary, upon the transcript of testimony and evidence received, and upon the written and oral argument of counsel and amici curiae, the Department makes the following:

l. Complainant is a Caucasian male. In November 1972, he was employed as a maintenance worker by the Wisconsin Department of Natural Resources in Devils Lake, Wisconsin He had formerly been a journeyman carpenter for approximately 16 years.

2. Prior to November 1972, no females and no minorities were employed by Respondent UW on the Madison campus in the entire classified crafts series. (Tr. 63). As of March 28, 1973, there were no minorities or females employed among the 180 employees in the classified crafts on the Madison campus (Respondent Exhibit 13), and among 31 employees in the crafts at Chapter 36 Institutions (excluding Madison) there were no minorities and only one female (Respondent Exhibit 14). Moreover, in all State departments and agencies, except UW-Madison and the Chapter 36 Institutions, of 183 persons employed in the crafts, only two were minorities (Respondent Exhibit 16).

3. Minorities constitute 3.6% and women constitute 37% of the Wisconsin workforce, and minorities constitute 1.9% and women constitute 40% of the Dane County workforce (Respondent Exhibit 15).

4. After analyzing its workforce by employing unit and identifying a clear under-utilization of minorities and women in the classified crafts series, Respondent UW in November 1972 set certain "affirmative hiring goals for the Physical Plant for the coming year" (Respondent Exhibit 12), including hiring three minority employees for two steamfitter and one painter apprentice positions.  These were "positions in which both the expectation of the position to be filled and the expectation of the probability to obtain qualified minorities or women candidates was such that it was reasonable to establish a goal to be met within a year's time." (Tr. 96, emphasis added).

5. Turnover in the building trades area with Respondent UW is relatively low. What turnover there is results from retirement or medical disability. The low turnover is due, at least in part, to the fact that persons employed in the crafts receive high pay and fringe benefits, and have year around employment. Between 1970 and 1972, three trades positions (two journeymen carpenters and one electrician) were filled through open competition. In the same period, approximately twenty workers who were laid off in 1970 were recalled to work.  For the 1973-75 biennium, no increase in the total number of persons working in the trades area was anticipated, and only a few openings were expected. (Tr. 120-123)

6. In November 1972, there were 28 or 29 persons (all white males) in the crafts trades on lay-off from State service who were not employed by Respondent UW, and perhaps one or two persons in the crafts on lay-off from the employ of Respondent UW. (Tr. 89-90). It was a common practice to fill vacancies in State service with persons previously laid off from State service (even if laid off by a different employing unit than the one filling the vacancy) rather than initiate recruitment from outside through open competition. This practice was not mandatory in November 1972 but it was anticipated that it would become mandatory. (Tr. 90). In fact, in April. 1973, Respondent Department of Administration, Bureau of Personnel (hereinafter Respondent DOA) proposed to implement the policy of the State Manpower Council to require state employers, including Respondent UW, to give preference to persons affected by layoff for any State vacancies for which they are eligible and qualified (Respondent Exhibit 17- 18).

7. On October 31, 1972, Respondent UW filed a certification request with Respondent DQA to fill three apprentice positions (two steamfitter and one painter), asking that recruitment be limited to minorities, pursuant to Pers. 27, Wis. Adman. Code. (Respondent Exhibit 8-11) (Tr. 31-34)   Respondent UW asked that recruitment be limited, as necessary to meet its affirmative action objectives, for the following reasons:

(a) Reluctance of women and minorities to apply for crafts positions because of their previous systematic exclusion from the crafts (particularly in Madison) and consequent common attitude that women or minority applicants simply would not be considered (Tr. 66-68, 83, 85-86).

(b) Special or limited recruitment avoids the potential problem of unvalidated screening procedures which have a disparate adverse impact on women and minorities (Tr. 67, 84).

(c) Anticipated inability of Respondent UW to expand its workforce and the low turnover in the crafts area (Tr. 70, 88).

(d) Anticipated requirement that persons on lay-off status in State service would have to be selected for vacancies before new recruiting could be done, and the fact some 30 persons then on lay-off all were white males (Tr. 6869, 89-90).

8. Pursuant to Respondent UW's request, Respondent DOA announced the painter apprentice vacancy in its Current Opportunities Bulletin with the following:

"SPECIAL REQUIREMENT. In accordance with the State of Wisconsin's Affirmative Action Program, only applicants who are women, or who are members of the six minority groups as defined by EEOC may apply for this position. These groups are: American Indian, Oriental, Spanish Surname, Eskimo, Aluet, and Afro-American." (Respondent Exhibit 1) (emphasis added ).

9. Complainant filed an application for the painter apprentice position on December 26, 1972 (Complainant Exhibit 4, Respondent Exhibit 2) (Tr. 15-16). A letter was sent to Complainant by Respondent on December 29, 1972 attempting to determine whether or not he was a member of one of the minority groups specified (Complainant Exhibit 3, Respondent Exhibit 3). On January 2, 1973, Complainant responded and indicated that he was a white male. He was then notified by Respondent DOA on January 8, 1973 that it could not consider his application for the painter apprentice position because he was "not a member of the target groups to which eligibility to apply is extended . . ." (Complainant Exhibit 2, Respondent Exhibit 4).

10. Approximately 18 persons filed applications for the painter apprentice position and approximately 15 were found eligible. Twelve persons appeared for a competitive examination and those who passed were ranked in accordance with the grades they received on the examination. Pursuant to Pers. 27 category certification, nine names were certified to Respondent UW. (Tr, 41-42). Two persons wire hired for painter apprentice positions from the group certified. One was a Caucasian female and one was an American Indian male (Tr. 125)

11. As part of its affirmative action program, Respondent UW would continue to use the limited recruitment process until such point in time that a balance or the workforce is reached, i.e., until the percentage of women or minorities in the crafts is correlative to the percentage of women and minorities in the workforce. (Tr. 81).

12. Respondent DOA is responsible for the recruiting, examination, and certification of eligible applicants for State classified positions (Tr. 22). Prior to the adoption of Pers. 27, Wis. Admin. Code, in an effort to recruit women and minorities into the crafts area, Respondent DOA disseminated recruitment announcements to specific recruiting target areas (including the building trades council) and made personal contacts with the Milwaukee Urban League and similar organizations (Tr. 133, 158159).

13. Section 16.08(7), Wis. Stats., created by Ch. 270, Laws of 1970, effective April 29, 1972, provides:

"Exceptional Employment Situations. The director shall provide, by rule, for exceptional methods and kinds of employment to meet the needs of the service during periods of disaster or national emergency, and for other exceptional employment situations such as to employ the mentally handicapped, the physically handicapped and the disadvantaged." (Respondent Exhibit 5).

14. Pers. 27.02 Wis. Admin, Codes provides that Respondent DOA's Director "may authorize establishment of exceptional employment eligible lists to enable departments to hire the occupationally handicapped and disadvantaged. . . and may use such processes as: (a) Limitation of recruitment to the specific occupationally or disadvantaged applicant target group. (b) Use of category rating in the examination and certification process." Such steps may be taken where necessary to implement an "approved department affirmative action goal." (Respondent Exhibit 7).

15. Executive Order No. 39, issued on May 17, 1972, requires, inter alia, that each State department or agency "develop and implement a realistic affirmative action program of employing women and minorities . . . at all employment levels with the goal of attaining numbers of such employees proportionate to their labor force participation; and shall develop specific goals and timetables based on an analysis of departmental. deficiencies . . ."

Based upon the Findings of Fact, the Department makes the following:

Respondent UW is an "employer" and Respondent DOA. is an "employment agency" and/or a "person" within the meaning of the Wisconsin Fair Employment Law, ss. 111.31-11137, Wisconsin Statutes.

The issue in this case, as stipulated by the parties, is whether or not in attempting to balance a pre-existing injustice in the workforce within the State classified service the utilization of limited recruitment efforts is in violation of and constitutes discrimination prohibited by law?

It should be noted initially that nothing in the language of Executive Order No. 39 nor in section 16.08(7), Wis. Stats. requires any action which would contravene the Wisconsin Fair Employment Law. It should also be noted that this decision is not intended to imply that there is anything objectionable about Respondents' goal of increasing and upgrading employment opportunities for minority groups and women. On the contrary, it is entirely consistent with the public policy underlying the Fair Employment Act "to encourage and foster to the fullest extent practicable the employment of all properly qualified persons regardless of their age, race, creed, color, handicap, sex, national origin or ancestry." s. 111.31(3), Wis, Stats. However, this desirable objective must be sought in a manner which does not "discriminate against any employee or any applicant for employment" s. 111.325, Wis. Stats. (emphasis added).

It is undisputed that Respondents denied Complainant an equal opportunity to compete for a painter apprentice position solely because of his race and sex (Caucasian male).  We believe that this constitutes race and sex discrimination within the meaning of the Wisconsin Fair Employment Law, ss. 111.31-111.37, Wis. Stats. We cannot read into that Law a legislative intent to permit present discrimination against Complainant as a cure for possible past discrimination against others.

Respondents argue that such an absolute preference for women and minority group members does not constitute unlawful discrimination because it is no different in method or effect from hiring ratios frequently prescribed by federal courts to remedy past discrimination. They further argue that there were no realistic and effective alternatives to the use of limited recruitment in order to reach their goal, of increasing and upgrading employment opportunities for minority groups and women. We agree with Respondents that an absolute preference does not differ from hiring ratios in method or effect (except that with hiring ratios fewer non minority males are discriminated against), but we find absolute preferences and hiring ratios equally repugnant to the twin concepts of equal employment opportunity and non-discrimination in employment. Moreover, we disagree that the record substantiates that there were no realistic and effective alternatives to the use of limited recruitment.

Respondents contend that in order to remedy a clear under-utilization of women and minorities in the classified crafts series (evidencing a prima facie case of sex and race discrimination), an absolute preference was necessary and, under the circumstances, was no different than hiring ratios previously imposed by the federal courts. Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974); NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974); Bridgeport Guardians Inc. v. Bridgeport Civil Service Commission, 482 F.2d 133 (2nd Cir. 1973); Vulcan Society v. Civil Service Commission, 490 F.2d 287 (2nd Cir. 1973); Pennsylvania v. O'Neill, 473 F.2d 1029 (3rd Cir. 1973); Castro v. Beecher, 459 F.2d 315 (1st Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972) (en banc); but see Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973). We likewise see no important difference between the absolute preference and a partial preference, but we believe that discriminatory preference for any group, minority or majority, is precisely what the Wisconsin Fair Employment Law proscribes. Griggs v. Duke Power Co., 401 U.S. 424 (1971).

In Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), a three member appellate court panel reversed the district court order requiring that an absolute preference in fire department employment be given to twenty minority applicants. The panel found the minority preference provision of the decree to discriminate in favor of minority persons and against whites. On rehearing, the Eighth Circuit Court of Appeals, sitting en banc, decided that while an absolute preference for minority applicants would operate to deny the constitutional rights of non-minority applicants with equal or superior qualifications, a "reasonable ratio" of hiring one minority applicant for each two non-minority applicants (until 20 minority persons were hired) constituted a lawful remedy. In a dissenting opinion, Senior Circuit Judge Van Oosterhout points out that the ratio hiring provision for minorities suffers from the same constitutional infirmity as the absolute preference provision. He states:

"This court's minority preference provision will not discriminate against as many applicants as Judge Larsen's decree but it will still give some minority persons preference in employment over white applicants whose qualifications are determined to be superior under fairly imposed standards and tests." Carter, 452 F.2d 315, 332 (8th Cir. 1971) (en banc)

In a more recent case, before the U.S. Supreme Court, the admissions policy of the University of Washington Law School was challenged as granting an unlawful preference to minority applicants. DeFunis v. Odegaard, __U.S.__, 94 S. Ct. 1704 (1974).  In a split decision, the Court decided not to hear the merits of the case because the plaintiff DeFunis was about to graduate from law school. Nonetheless, Justice Douglas in a dissenting opinion discussed the problem of granting preferences. In the DeFunis case, minority applicants were evaluated competitively with one another, but were never compared directly to the other applicants. A proportion of the entering class, some 15 to 20 per cent, was reserved for minority students. As a result, minority applicants were enrolled who appeared less qualified, under the tests applied, than some of the white students not admitted. Commenting on the practice of preferring and reserving a certain proportion of the entering class for minority students, Justice Douglas made the following observations:

"Without becoming embroiled in a semantic debate over whether this practice constitutes a 'quota', it is clear that given the limitation on the total number of applicants who could be accepted, this policy did reduce the total number of places for which DeFunis could compete -- solely because of his race."

"There is no constitutional right for any race to be preferred . . . A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner." Hughes v. Superior Court, 339 U.S. 460 (1950).

"The reservation of a proportion of the law school class for members of selected minority groups is fraught with similar dangers, for one must immediately determine which groups are to receive such favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group." DeFunis v. Odegaard, __U.S. __ , 94 S. Ct. 1704, 1714, 1716 (1974).

We conclude that an absolute preference does not differ materially from hiring ratios, and that the preference granted in this case to women and minority persons constituted unlawful discrimination. Moreover, unlike past cases before this Commission involving discrimination against a specified individual, where we ordered as a remedy the hiring of such individual, Complainant herein was denied equal opportunity to apply for state service solely because of his race and sex (Caucasian male) and not because of competition with a specific individual previously discriminated against.

The Wisconsin Fair Employment Law in clear and unambiguous language affords protection to all properly qualified persons regardless of their race or sex. Caucasian males are entitled to the same protection under the Fair Employment Law as is afforded to minorities or women.

Respondents contend that there were no realistic and effective alternatives to the use of limited recruitment, given (1) the reluctance of women and minorities to apply because of their previous systematic exclusion from the crafts (particularly in Madison), (2) the possibility that screening procedures would disproportionately exclude qualified women and minorities (3) a nonexpanding workforce and low turnover in the crafts area, and (4) the requirement that previously laid off crafts workers (all of whom were white male) were to be preferred for new crafts vacancies. We disagree.

We do not dispute the assumption that given their historical exclusion from the crafts, women and minorities may be reluctant to apply for such positions.   However, there has been no convincing showing that limiting recruitment to minorities and women is the only viable alternative to cause them to apply. On the contrary, the record shows that prior to instituting limited recruitment, the only recruitment efforts by Respondent DOA consisted of dissemination of announcements to specific recruiting target areas (including the building trades council) and personal contacts with the Milwaukee Urban League and similar organizations (Tr. 133, 158159). As for screening procedures that disproportionately exclude women and minorities, an obvious alternative is the development of screening devices free of adverse race or sex impact. Finally, whether a stable workforce in the crafts area and a mandatory preference for previously laid-off crafts workers in State service might have restricted the possibility of considering qualified minority and women applicants in the future, this does not prove that there were no realistic and effective alternatives to limited recruitment in filling the apprentice vacancies which did exist in the present case.

Respondent UW's Director of Affirmative Action testified that Respondent UW would continue to use the limited recruitment process until such point in time that a balance of the workforce is reached. (Tr. 81). Assuming, arguendo, a non-expanding workforce of 180 crafts employees, a turnover of three positions per biennium, and a Wisconsin workforce percentage of 3.6% minorities and 37% women, if recruitment were limited to women only, it would be forty-four years before a male applicant could even be considered for crafts employment with Respondent UW. Given the same assumptions, if recruitment were limited to minorities only, it would be four years before a non-minority applicant could even be considered for the same crafts employment. We believe that this demonstrates the type of evils which can result from attempting to cure past discrimination by present discrimination.

There are no easy solutions to Respondents' goal of increasing and upgrading employment opportunities for women and minorities. Affirmative action to reach that goal might include taking positive steps to assure full communication of available job opportunities, providing tutoring or training, and revising screening procedures to eliminate unintended sex or race bias. However, in taking affirmative steps, there can be no short cuts such as a special preference which discriminates against others. EEOC Decision No. 74-106 (April 2, 1974). As Justice Douglas states in DeFunis, "(t)he key to the problem is the consideration of each applicant in a racially neutral way."__U.S.__, 94 S. Ct. 1704, 1714, 1717 (1974) (emphasis in original).

We conclude that Respondents discriminated against the Complainant because of his race and sex (Caucasian male), in violation of the Wisconsin Fair Employment Law, ss. 111.32(5), 111.325, Wis. Stats.

Based upon the Findings of Fact and Conclusions of Law,, the Department makes the following:

(1) That Respondents cease and desist from discriminating against applicants for employment in the State classified crafts series by imposing special eligibility requirements based on race or sex.

(2) That Respondent DOA examine Complainant, within ten days of the date of this order, with the same competitive examination given applicants tested for the painter apprentice positions here in issue.

(3) That if Complainant's score on said examination would have entitled him to be certified, to Respondent UW, his name shall be so certified by Respondent DOA.

(4) That following such certification, Complainant shall be hired for Respondent UW's next available painter apprentice vacancy.

(5) That Respondent DOA. communicate its compliance with paragraphs two and three of this order within thirty (30) days from the date thereof;  that Respondent UW communicate its compliance with paragraph four of this order upon achievement of compliance.

Dated at Madison, Wisconsin this 31st day of October, 1974.

DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS

/s/ John C. Zinos, Commissioner

/s/ William A. Johnson, Commissioner

The decision in this case has been a difficult one for this Commission. It is perhaps one of the more significant matters presented to us and certainly one involving complex legal and moral decisions. The case has been thoroughly briefed and argued by knowledgeable legal counsel representing the parties and various amici. The issues raised go far beyond the principals in this case and touch upon the very commitment of this State to the abolition of racial and sexual discrimination.

Did the use of Pers. 27 in the factual situation before us constitute a violation of the Wisconsin Fair Employment Act? I am of the opinion that it did not and that the decision of the hearing examiner should be reversed.

There can be no doubt that full-time employment is a valuable commodity given the current economic instability in this nation. Employment with governmental entities becomes particularly valuable in times of economic instability because of the security inherent in civil service positions. This factor has, I believe, contributed to the emotionalism generated by this question.

I must, however, clearly reject the so-called concept of "reverse discrimination" which has fueled the fires of emotion. The thrust of the Wisconsin Fair Employment Law is to eliminate illegal discrimination in the employment field. There is no utility in posturing this case, or any other, in terms of the interests of one race or sex as opposed to another. The selection of one person over another in any hiring situation involves an act of discrimination. The purview of our jurisdiction involves a judgment as to whether that decision is illegal under the Wisconsin Fair Employment Act.

Statutory Construction

Clearly it is our responsibility to construe Wis. Stat. 16.08(7), Pers. 27, Executive Order No. 39 and our own Act in a consistent and harmonious manners, if at all possible. Brunette v. Bierke, 271 Wis. 190, 72 N.W. 2d 702 (1955); Pruitt v. State, 16 Wis. 2d 169, 114 N.W. 2d 148 (1962).

It is particularly true in this situation where all of the enactments are designed to further the goal of remedying prior employment discrimination. It is also clear that in its role as an employer, the State has a substantial burden to lead the way in encouraging meaningful affirmative action programs.

The State should not be in the position of asking the private, non-government sector to do what it the State is unwilling to do. Even if they are less than perfect, voluntary efforts to cure past wrongs, are preferable to the use of the statutory power.

I believe that the view that any differential in treatment resulting in a "preference" for disadvantaged groups is discrimination, is contrary to the legislative intent of our Act. The Wisconsin Fair Employment Act was enacted to provide protection for target groups who traditionally and historically suffered discrimination in employment. To deny these same groups any preference in employment situations is to freeze then into the status quo of under-representation in numerous categories of employment. See Quarles v. Phillip Morris, 279. F. Supp. 514 (E.D. Va. 1967). The situation can be likened to a race in which some of the runners have been shackled for the first two hundred years. Removing the shackles does not make the never shackled and just unshackled runners equal in their ability to compete. Something must be done to counter the long advanced development of the unfettered runners.

The creation of statutory remedies under our Act should not be construed as the total solution to the problems of minorities, women, the aged and the physically handicapped. Such a result is indicated when the Fair Employment Act is adjudged as a bar to preferential treatment.

A construction of our Act which permits the limited use of preferential treatment in employment situations meets the policy declaration set forth by the Legislature which reads in part:

". . . (I)t is declared to be the public policy of the State to encourage and foster to the fullest extent practicable the employment of all properly qualified persons regardless of their age, race, creed, color, handicap, sex, national origin or ancestry. This subchapter shall be liberally construed for the accomplishment of this purpose. (emphasis added). Wis. Stat. 111.31(3)

Such a construction is consistent with the spirit and intent of Wis. 16.08(7), Pers. 27 and Executive Order No. 39, and it effectuates the Legislative policy of full employment opportunity as set forth in our Act.

Acceptable Preferences

Having determined that preferential treatment is acceptable under the Fair Employment Act the next consideration is what limits should be imposed upon employers in the utilization of such preferences. The examiner's proposed decision turns on his finding that "absolute preferences" are inconsistent with our Act, (pp. 9-11 Recommended Conclusions of Law). He concludes however, that hiring ratios (quotas) would be acceptable and not inconsistent with judicially ordered remedies in various cases. (pp. 11-14 Recommended Conclusions of Law). I believe such a distinction clouds the real issue. Regardless of whether one applies an affirmative action plan, a court order or a Commission order -- either through an absolute preference or a hiring ratio -- some qualified white male may be denied a job.

Let us assume hypothetically that at some point in the past the University had decided to fill the next two painter apprentice positions on a 1:1 hiring ratio of white males to minorities and women. Assume further that the first opening was filled by a white male and that some time after Mr. Patzer had applied for the second opening. Would be have felt less aggrieved if he were not considered because of the operation of a ratio rather than Pers. 27?

This Commission has utilized absolute preferences when fashioning orders in cases where we have found discrimination in refusal to hire on numerous occasions.

When we order that an employer offer the next available opening to an individual previously discriminated against such an order is clearly an absolute preference as applied to any and all others who would seek such a position. Federal courts grant similar preferences when they order remedial hiring in employment discrimination cases, and Title VII clearly permits such affirmative action in the fashioning of remedies. 42 U.S.C.A. sec. 2000(e)-5(g).

The distinction between absolute preferences and hiring ratios is cloudy at best and the lines drawn by the courts appear to me to be artificial. Generally the federal courts considering this problem have indicated that they will provide absolute preferences in cases where identified parties plaintiff exist but will not do so with regard to members of a class. As Judge Gibson observed in Carter v. Gallagher, ". . . these cases deal with discrimination to a specified individual who has been presently discriminated against on account of race, and the remedy is there easily applied as the individual who has been discriminated against can be presently ordered employed without running into the constitutional question involved in granting preference to any one class over another." 452 F.2d 315, 329 (8th Cir. 1971) (en banc).

That reluctance to grant absolute preferences to members of a class as expressed in Carter supra has not extended to actions involving labor unions., U.S. v. Iron Workers Local 86, 443 F.2d 544 (9th Cir. 1971) cert denied __U.S.__(1971) (job referrals and union membership); U.S. v. Sheet Metal Workers Local 36, 416 F.2d 123 (8th Cir. 1969) (altering referral system) .

While I disagree with the Carter rationale I believe it is distinguishable from the case at hand. The District Court judge in Carter, after making numerous findings of discriminatory conduct upon the part of the defendants, ordered that the Minneapolis Fire Department immediately hire twenty qualified minority group applicants for fire fighter positions. __ F. Supp.__(D. Minn.__) On review by the Court of Appeals the panel reversed that order and eliminated the absolute preference. The full court, sitting en banc, established a hiring ratio of 3:1 to stand until twenty minority group individuals were hired.

The important distinction between Carter and this case is that the Federal Court had entered orders enjoining the use of the numerous methods the defendants had employed which resulted in a discriminatory pattern and practice. The Court barred the use of arrest and conviction records, unvalidated exams, entry age requirements, and durational residency requirements, The Court also ordered extensive recruiting efforts aimed at minority groups and retained continuing jurisdiction of all aspects of the controversy, In other words every conceivable means was employed to assume that future hires were conducted in a racially neutral manner.

In this case the Respondents were acting on their own behalf without judicial supervision.  They realized that a discriminatory pattern existed within the skilled trades at the University.  Respondents lacked the ability to insure that adequate numbers of women and minorities would apply in order to heighten the chances that a representative of either group would be hired. The testimony of Cyrene Pondrom and Milton Bentley establishes the fact that if this position was not listed under Pers. 27, a white male would have filled it. While minorities and women would meet the minimum qualifications, the probabilities are high that an over qualified white male with construction and painting experience would be available. Additionally, without the benefit of a federal court order, Respondents were compelled to operate within existing budgetary limitations in their efforts to attract women and minorities to apply for this position.

The sum and substance of my conclusion with regard to absolute preferences is that they are acceptable in situations where a clearly identified pattern and practice of discrimination has operated to exclude minorities and/or women in the past and where the probabilities are such that conventional recruitment will, not secure a sufficient pool of minority and/or women applicants.

Application of Pers. 27

Respondent University of Wisconsin has acknowledged that a pattern and practice of discrimination has operated to exclude women and minorities entirely from its skilled trade workforce. (Respondent's Brief pp. 19-20)

It is important to remember that the job in question was an entry level position. For one hundred and twenty-six years skilled trade positions at the University had been filled by white males. If that pattern is to be reversed it must be done at the apprentice level -- where qualified women and minority applicants are available.

The statistics, together with the well documented pattern of discrimination in the industry as a whole, substantiate the need for affirmative action. One can conclude that women and minority group members would be unlikely to apply for a painter apprentice position in sufficient numbers to insure a representative pool of applicants. While I find the application of Pers. 27 in this case acceptable under the Wisconsin Fair Employment Law, I do not believe the responsibilities of either Respondent end here.

I share the concerns of the Hearing Examiner over the viability of the Respondent University's affirmative action program. I can not help but wonder whether the University's zeal for balancing its workforce extends into the higher ranges of the classified service. Similarly the Respondent Bureau of Personnel could well exert more effort in insuring that the system it oversees operates in. a racially and sexually neutral manner.

Conclusion

While I have not addressed the constitutional issues raised by this case I find the following commentary by Judge Wisdom helpful:

"The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification then denies a benefit, causes harm or imposes a burden must not be based on race. In that sense the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effect of past discrimination." U.S. v. Jefferson Co. Board of Education, 372 F.2d 836, 876-877 (5th Cir. 1966).

Likewise in the interpretation of the Wisconsin Fair Employment Law this Commission must balance the competing interests of neutral treatment for all and at the same time remedy the effects of almost three hundred years of discrimination. On the facts of this case the equities tip the balance in favor of the latter. I would reverse the recommended conclusions of law, and order of the hearing examiner.

Dated at Madison, Wisconsin, this 31st day of October, 1974.

/s/ Phillip E. Lerman, Commissioner

Appealed to Circuit Court.  Affirmed  May 17, 1976, sub nom. State of Wisconsin v. DILHR (Dane Co. Cir. Ct., No. 144-480, May 17, 1976), 12 Fair Emp. Cases 1447. 
Appealed to Wisconsin Supreme Court.  Affirmed April 19, 1977, sub nom. State (Dept. of Administration) v. DILHR, 77 Wis. 2d 126; 252 N.W.2d 353 (1977)

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