The Excerpt podcast: Why does a 50-year-old affirmative action case still divide us?

On a special episode of The Excerpt podcast: Fifty years ago, a white Louisiana factory worker named Brian Weber sued for reverse discrimination and lost. The 1979 Supreme Court United Steelworkers of America vs. Weber decision focused on the use of race-conscious affirmative action to address specific disparities in employment opportunities. Who was the man at the center of this historic landmark case? And why is overturning it still the focus of conservative efforts today? USA TODAY Senior Reporter Jessica Guynn joins The Excerpt to discuss the case’s history and why it still divides us.

Hit play on the player below to hear the podcast and follow along with the transcript beneath it. This transcript was automatically generated, and then edited for clarity in its current form. There may be some differences between the audio and the text.

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Dana Taylor:

Hello and welcome to The Excerpt, I'm Dana Taylor. Today is Wednesday, March 6th, 2024, and this is a special episode of The Excerpt. 50 years ago, a white Louisiana factory worker named Brian Weber sued for reverse discrimination and lost. The 1979 Supreme Court, United Steelworkers of America versus Weber decision focused on the use of race-conscious affirmative action to address specific disparities in employment opportunities. Who was the man at the center of this historic landmark case and why is overturning it still the focus of conservative efforts today? I'm joined now by USA Today senior reporter Jessica Guynn, to discuss the case's history and why it still divides us. Jessica, thanks for joining me.

Jessica Guynn:

Thanks so much for having me.

Dana Taylor:

So let's start with Brian Weber. Who was he and what was happening at Kaiser Aluminum that led to this lawsuit?

Jessica Guynn:

Well, in 1974, Brian Weber was an ambitious 32-year-old Blue Collar worker at the Kaiser Aluminum and Chemical plant in Gramercy, Louisiana, which was about midway between New Orleans and Baton Rouge. And around those parts, you had sugar mills and other plants that dotted the horizon. He had been working there for six years. He was hired as a laborer, then bid into an operator's position at the company's chlorine facility, and then he transferred into a job as a lab technician. But he really, really wanted one of the positions as a craftsman at the plant. These were men who had better schedules and working conditions. In fact, craftsmen could earn an additional 10,000 to $15,000 more a year, including benefits and overtime. But at the time, there wasn't any way to move into these jobs. The plant only hired experienced workers through union hiring halls, and the company and the union were negotiating a new contract.

So Weber saw an opening and he rallied his coworkers and got them to sign a petition. And what they wanted was an on the job training program at the Gramercy plant. And he was pretty elated when the agreement called for that. But what he didn't realize is at the time, the company and the union were under a lot of pressure from the federal government to address the lack of black workers. Almost all the craftsmen were white at the plant. So the agreement called for setting aside half the slots for black workers who typically had less seniority than the white workers. And so Weber who applied, was then rejected and he didn't think this was fair. So he sued on his own behalf and on behalf of workers at the plant.

Dana Taylor:

Weber used Title VII of the 1964 Civil Rights Act in his argument, this was roughly 10 years after the passing of that act. How did that argument initially work out for him?

Jessica Guynn:

Well, Title VII basically prohibits employment discrimination on the basis of race. And that doesn't matter what race you are. So he prevailed in federal court and on appeal on the grounds that the affirmative action program that the union and the company agreed to, it wasn't legal that you could only use the Civil Rights Act to remedy past discrimination and restore justice to specific individuals who had been victims of discrimination. But the Kaiser company and the union kept appealing and the federal government was on their side. They said employers were basically in an impossible situation if they tried to improve the status of black workers without admitting to prior discrimination, they'd open themselves up to lawsuits from white workers. But if they admitted they discriminated in the past, then they would open themselves up to lawsuits from black workers. And the government said voluntary affirmative action programs like this one were the answer.

Dana Taylor:

The 1979, United Steel Workers of America versus Weber Decision upheld the constitutionality of affirmative action in certain circumstances as you've described, what did the Supreme Court say in the decision?

Jessica Guynn:

The Supreme Court ruled by five to two vote that private employers can give workers special preference for jobs that were traditionally all white to remedy historic racial imbalances in the workforce. The majority opinion was written by a justice William Brennan, and he conceded that the lower courts had followed the letter of the law, but he said not the spirit of the law, and that Congress was primarily concerned about what he said, what called the plight of the Negro in our economy. And that Title VII of the Civil Rights Act should not be used to prohibit all voluntary private race-conscious efforts to abolish traditional patterns of discrimination. There was a sharp dissent from Justice William Rehnquist who said that Congress, "Expressly prohibited the discrimination against Brian Weber, the court approves now."

Dana Taylor:

Affirmative action programs aim to address historical inequities. What effect has the Weber Decision had on the representation of women and minorities in the workplace?

Jessica Guynn:

Well, thanks to the Weber Decision, the private sector has had the flexibility to institute voluntary affirmative action programs that thousands of companies have used to hire more women and more minorities. And one scholar said that of all the Supreme Court affirmative action rulings in the 1970s, Weber might've had the longest reach.

Dana Taylor:

In your story, you highlighted the professional life of a black who benefited from the affirmative action training program at Kaiser Aluminum. Who was James Tyrone Nailor?

Jessica Guynn:

Well, in 1968, the same year as Weber was hired, James Tyrone Nailor Sr, got a job at Kaiser Aluminum. He came from a bit of a different background. He was born on a plantation where his parents were field hands. He went to a segregated school, and because there was no black high school in his area, his parents sent him to Alabama to study. After high school, he moved away again to study, to be an electrician in junior college, and he joined the Air Force. He eventually returned home to take care of his parents, and he came up against a really hard reality of the time that there were just no good jobs for black workers. Despite the education he'd gotten, he was digging ditches. Eventually, he found work as a contractor for local plants. But it wasn't until 1968 that he got a break. A white councilman quietly pulled some strings and he got a job at Kaiser Aluminum.

And at the time, the federal government was starting to put pressure on Kaiser Aluminum because black workers made up 39% of the local workforce, but just 15% of workers at the plant. And even then, they were basically stuck in very low paying jobs. And that was in part because trade schools at the time did not admit black students. And union halls turned away black workers as well. An investigation at the time found that black workers had a harder time getting hired. They were afraid to bid for better jobs because of racial intimidation at the plants. White workers with less seniority were promoted ahead of black workers, and the company often waived qualification requirements for some white workers to work in, say, maintenance craft jobs. So Nailor knew he was up against some long odds. So when Kaiser Aluminum began the training program in 1974 for crafts workers, he was really elated to be one of the first accepted into it.

His son, Charles Nailor, said that it was just not an easy time for his dad. Some of his white co-workers would not speak to him. Charles Nailor's mom was really afraid that something terrible would happen to her husband because he dared to speak up and tell the other side of the story to Brian Webers, which was the way black workers had been discriminated against. Charles Nailor said his dad would point to Jackie Robinson and said he was going to do whatever he had to, to help black Americans overcome discrimination and get ahead. He said that his dad told his mom that it might just take one person to make a change, and he wanted to be that person.

Dana Taylor:

In your piece, you also wrote about some of the inequities affirmative action was put in place to help rectify. James Tyrone Nailor's son spoke to you, as you said, but he talked about what he called the different playing fields his father and Brian Weber were on. What did he mean by that?

Jessica Guynn:

Well, because of historic discrimination, Charles Nailor said that even though his dad got a leg up from this affirmative action program, that his career was quickly overtaken by Weber's. Unlike Nailor, Weber never did get a craft job at Kaiser Aluminum, but he went to college, he got an MBA. He ended up leading a very long career in labor relations. And that's why Charles Nailor says that Weber and his dad were never really on the same playing field. And that pattern was very typical in the 1970s. And some of our research shows that it still holds true today. White men now are even more likely than their grandfathers to be in management. And Nailor says, even though some progress has been made, he sees the same racial disparities today between white and black workers up and down the Mississippi River. And he says, "Black workers still have to work harder to prove that they can do the job equally as well or better."

Dana Taylor:

Jessica, the term reverse discrimination is culturally charged, in part because it's an acknowledgement of discrimination against certain groups of people. Affirmative action has long been a subject of both debate and controversy. Is the backlash we're seeing today similar to the backlash we saw 50 years ago?

Jessica Guynn:

Well, the story of a 50-year-old court case caught my eye because the backlashes are similar. The term reverse discrimination came about at a time growing unrest over civil rights laws that were designed to fix centuries of oppression against black Americans. But many people started to see those as also victimizing white workers. And in part that was driven by the economy, which was changing. Wages were stagnating. Inflation was high and high paying Blue Collar jobs like the craftsman jobs at the plant were becoming more scarce. At the time, politicians began accusing the federal government of using racial quotas to promote less qualified black workers at the expense of white workers.

When Ronald Reagan ran for president, he campaigned against affirmative action. He campaigned against reverse discrimination. And while in office, he did everything he could to block affirmative action. Though he ultimately backed off a plan to use an executive order to get rid of it because major corporations and politicians from both parties complained. But today, the arguments we're having about affirmative action are really in the same vein. We're starting to see a swell of reverse discrimination lawsuits across different industries. There are pockets of resentment among white employees and conservative activists are attacking DEI programs in the workplace.

Dana Taylor:

Affirmative action policies have faced legal challenges since the Weber Decision, notably the Supreme Court sided with conservatives last [inaudible 00:11:57] ban the consideration of race and college admissions. Are some of the same players in the college admissions case also involved in trying to reverse Weber?

Jessica Guynn:

Indeed, anti-affirmative action activist Edward Bloom is one of the ones leading the charge. His organization, the American Alliance for Equal Rights has taken legal action or threatened top law firms and other organizations, accusing them of excluding white and Asian students from fellowship programs based on race. And many organizations are capitulating, and they're opening up those programs to anyone who wants to apply. And the growing attacks on DEI have companies working really hard to head off accusations of mistreatment of white workers. They're slashing DEI teams. They're removing language about minority workers in regulatory filings, and they're getting a lot quieter about the work that they are doing to attract a diverse workforce and promote a culture of inclusion.

Dana Taylor:

And then finally, Jessica, what Brian Weber and the family of the late James Tyrone Nailor see as their legacies?

Jessica Guynn:

Well, Weber says when he lost his case before the Supreme Court that the company and the Union won. Well, that might seem kind of obvious. What he was saying is that they are the ones who discriminated against black workers, and yet they were not the ones who had to pay the price. He was and other white workers like him, and he does not think that that was right. He's now 77 and retired in Florida, but he still prays that the Supreme Court will reverse that decision. And James Tyrone Nailor Sr. died when he was 54 years old, but his son, Charles Nailor Sr. and his grandson, Charles Nailor Jr. have carried on his legacy. Charles Nailor Sr. says his father standing up for what was right and for claiming what was rightfully his, helped generations of his family and the families of other black workers in the local area. Today, Charles Nailor Sr. is a 43-year veteran at a local plant, and his son works there too.

Dana Taylor:

Fascinating reporting, Jessica, thank you so much for being on The Excerpt.

Jessica Guynn:

Thank you so much for having me.

Dana Taylor:

Thanks to our senior producers Shannon Rae Green and Bradley Glanzrock for their production assistance. Our executive producer is Laura Beatty. Let us know what you think of this episode by sending a note to podcasts@usatoday.com. Thanks for listening, I'm Dana Taylor. Taylor Wilson will be back tomorrow morning with another episode of The Excerpt.

This article originally appeared on USA TODAY: The Excerpt podcast: A 50-year-old affirmative action case's relevancy