1. A few of the leading scholars on affirmative action and examples of their work: Glazer, Nathan, Ethnic Dilemmas 1964–1982 (Cambridge, Mass., 1983)Google Scholar, and Affirmative Discrimination: Ethnic Inequality and Public Policy (New York, 1975)Google Scholar; Belz, Herman, Equality Transformed (New Brunswick, N.J., 1991)Google Scholar; Graham, Hugh Davis, Civil Rights and the Presidency: Race and Gender in American Politics, 1960–1972 (New York, 1992)Google Scholar, The Civil Rights Era: Origins of a National Policy, 1960–72 (New York, 1975, 1990)Google Scholar, and his edited anthology, Civil Rights During the Nixon Administration, 1969–1974 (Bethesda, Md., 1989)Google Scholar; Thernstrom, Stephan and Thernstrom, Abigail, America in Black and White: One Nation, Indivisible (New York, 1997)Google Scholar; Nieli, Russell, ed., Racial Preference and Racial Justice: The New Affirmative Action Controversy (Washington, D.C., 1991)Google Scholar; Moreno, Paul D., From Direct Action to Affirmative Action: Fair Employment Law and Policy in America, 1933–1972 (Baton Rouge, La., 1997)Google Scholar; Wolters, Raymond, Right Turn: William Bradford Reynolds, the Reagan Administration, and Black Civil Rights (New Brunswick, N.J.: 1996)Google Scholar; Sowell, Thomas, Civil Rights: Rhetoric or Reality? (New York, 1984)Google Scholar, Preferential Policies: An International Perspective (New York, 1990)Google Scholar, and Race and Economics (New York, 1975)Google Scholar; Murray, Charles, Losing Ground: American Social Policy, 1950–1980 (New York, 1984)Google Scholar. Graham is one of the few in this list who mentions the at&t case (Civil Rights and the Presidency, 123–24), and while he examines private-sector affirmative action more closely than most, his contributions are in the area of understanding eeoc rather than employers.

2. Skrentney, John David, The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Chicago, 1996)Google Scholar.

3. See Part II of Ironies and particularly chapter 7 (177–221), in which Skrentny uncovers the surprising supporters of affirmative action within the halls of government.

4. Skrenty's definition of “affirmative action”:

a model more or less advocated in public or official statements or institutionalized in particular practices or law, on the basis of the extent to which the following unit ideas are present: (1) that employers see in their everyday hiring and promoting practices group difference and specifically race as real (rather than unreal or irrelevant), (2) an emphasis on counting anonymous minorities in the workforce (rather than treating each individual as an individual), (3) a de-emphasis rather than emphasis on discriminatory or racist intent and on finding individual victims of discrimination, (4) de-emphasis or re-evaluation rather than emphasis or acceptance of previously accepted standards of merit (usually with a critique of the traditional concept of merit in employment as “white” or “middle class”), and (5) an over-riding concern with representation, utilization, or employment of minorities, rather than stopping harmful, “bigoted” acts of discrimination. (Ironies, 7–8)

In this article, I use a simpler definition of one type of affirmative action (see the text following endnote 5) and particularly dispute Skrentny's definition of affirmative action as implicitly coming from an actor external to the employer (presumably government) that chooses to de-emphasize or emphasize certain characteristics.

5. In this archetypical story, a shepherd boy using nothing but a staff, a sling, and five stones defeated a well-armed warrior/giant. It turned out that David needed only one stone because, as David said to Goliath, he came at the giant “in the name of the Lord of Hosts, the God of the armies of Israel, whom thou hast defied.” For obvious reasons, this story has often been a favorite of those who lack resources but fight for a cause they believe just. It is found in the Bible, 1 Samuel 17. See Herr, Lois Kathryn, Women, Power, and at&t: Winning Rights in the Workplace (Boston, 2003)Google Scholar; Wallace, Phyllis A., “Employment Discrimination: Some Policy Considerations,” 155–75, in Discrimination in Labor Markets, ed. Ashenfelter, Orley and Rees, Albert (Princeton, 1973), 156Google Scholar; Stockford, Marjorie A., The Bellwomen: The Story of the Landmark at&t Sex Discrimination Case (New Brunswick, N.J., 2004)Google Scholar. Considering the sheer size and power of the gigantic at&t, it is tempting to conceive of it as a Goliath, and considering the valor of those who challenged at&t's request for a rate increase, it is equally tempting to see them collectively as David. Neither the former's power nor the latter's valor is in question here. Beyond eeoc as David, perhaps equally heroic and inspiring were the efforts of the grassroots supporters of eeoc, including Wallace herself. These included women and minority employees of Bell documented in Wallace and Stockford (above) and in MacLean, Nancy, Freedom Is Not Enough: The Opening of the American Workplace (Cambridge, Mass., 2006)Google Scholar. At pp. 130–33, MacLean asserts that eeoc inspired fear in employers as a result of the at&t Consent Decree. Rather than dispute the findings of these and others that the eeoc and grassroots activists were necessary to the implementation of affirmative action, I suggest that an at&t executive was also necessary and that none alone was sufficient. The only point at which I significantly part company with MacLean is that I believe nothing from this conflict that resulted in the Consent Decree inspired fear. Rather, it provided a model.

6. eeoc attorney, David Copus, telephone interview with author, 15 August 2003.

7. North, Douglas, Growth and Welfare in the American Past: A New Economic History (Englewood Cliffs, N.J., 1966)Google Scholar. Chandler, Alfred DuPont Jr., The Visible Hand: The Managerial Revolution in American Business (Cambridge, Mass., 1977, 1980)Google Scholar.

8. Employment practices that favor white men are addressed in Katznelson's, Ira book, When Affirmative Action was White: An Untold History of Racial Inequality in Twentieth-Century America (New York, 2005)Google Scholar.

9. Alfred Blumrosen is widely recognized as the leading chronicler of eeoc and employment discrimination law generally. As my study is not about eeoc or even the law, but an employer, I do not cite him. However, this discussion of an employer that was confronted by eeoc would not be possible without the groundwork he laid. See Black Employment and the Law (New Brunswick, N.J., 1971)Google Scholar; Modern Law: The Law Transmission System and Equal Employment Opportunity (Madison, 1993)Google Scholar; and his edited volume, The Foundations of Equal Employment Opportunity (Washington, D.C., 1972)Google Scholar.

10. Civil Rights Act of 1964, Public Law 88–352; 78 Stat. 241; H.R. 7152, U.S. Code Congressional and Administrative News, 88th Cong., 2d sess., vol. 1, 287–319.

11. eeoc v. General Motors Corporation (Northern District of Ohio, Eastern Division, 1973), U.S. Dist. lexis 11336; 7 Empl. Prac. Dec. (cch) P9414; eeoc v. Sears, Roebuck & Co., 435 F. Supp. 751 (D.D.C., 1977).

12. Herr, Lois Kathryn, Women, Power, and at&t: Winning Rights in the Workplace (Boston, 2003), 17Google Scholar.

13. U.S. Equal Employment Opportunity Commission, “A Unique Competence:” A Study of Equal Opportunity in the Bell System (Washington, D.C., 1971), 12, 32, 35–36, 39, 42Google Scholar.

14. There is some discrepancy in the participants' accounts. They do not concur on who within eeoc was the driving force behind the at&t intervention. Herr and Stockford both credit staff attorney David Copus with the genesis of the idea. Herr writes in a very convincing passage that Copus first linked eeoc, fcc, and at&t. Herr, Women, Power, and at&t, 16. Copus was one of the three authors of the copious Petition to Intervene, which appears to have been written by a forceful and passionate advocate who nonetheless lacked litigation experience (while the author clearly and convincingly makes the case that at&t was discriminating, he or she makes a rookie litigator mistake by failing to ask the court for specific relief). This would be an accurate description of Copus. Brown says that Charles Wilson was the experienced litigator whom Brown relied on and who was the innovator behind the case and that William Oldaker had the original idea to intervene. Brown says that Copus “took credit for just about everything.” Brown, telephone interview with author, 29 July 2003.

15. Southern Bell repeatedly rejected conciliation efforts. The tersest of these rejections was two one-sentence paragraphs long, and perhaps demonstrates better than any evidence just how weak eeoc was before 1973:

Dear Mr. Muse:

This is to acknowledge receipt of and respond to the Commission's ruling in the two captioned cases which were received by our Miami, Florida office on November 29, 1967.

In our judgment the Commission has erred in its ruling in these cases and, under the circumstances, we must respectfully decline to conciliate.

This is one of several sample conciliation rejections from Southern Bell found in National Archives, College Park, Md. (hereafter cited as na), Record Group 403, Box 37, at&t Litigation.

16. In the hearing transcript, the attorneys for Bell, eeoc, and fcc described talks they had going back to August. Lilley also met with Brown, Copus, other eeoc representatives, and representatives of now five times during the same period according to his 1971 date book. In the Matter of Petitions filed by Equal Employment Opportunity Commission (eeoc) et al., Before the Federal Communications Commission, Docket # 19143, 21 January 1972, Washington, D.C., Records Group 403, eeoc v. at&t Proceedings, Box 1, vol. 7, pp. 130–37; Date Book, “R. D. Lilley” 1971, Box 5, Robert D. Lilley Papers, Butler Rare Book and Manuscript Library, Columbia University, New York (hereafter cited as Robert D. Lilley Papers).

17. By the end of 1971, at&t and more than twenty of the Baby Bells had loose affirmative action plans, based on at&t's Model Affirmative Action Program. And each plan called for implementation of goals for increasing the participation of women and minorities in the workforce at all nine job categories as delineated by eeoc, plus six further refinements of management positions, for a total of fifteen categories. “at&t Litigation,” na, Record Group 403, Boxes 49–51.

18. The Petition for Intervention filed with the fcc was subsequently published as U.S. Equal Employment Opportunity Commission, “A Unique Competence:” A Study of Equal Opportunity in the Bell System (Washington, D.C., 1971). In their brief in support of the petition, Copus and the other attorneys present an almost indisputable case that at&t was in violation of Title VII. The brief and petition were slightly over 300 pages. The litigation file (now contained in several boxes at the National Archives in College Park, Md., in Records Group 403) contained more than 15,000 pages of at&t documents produced in response to discovery requests. However, the case did not turn on whether at&t was violating Title VII. It turned on whether eeoc could find a way to compel at&t to change.

19. Copus, telephone interview with author, 15 August 2003.

20. Code of Federal Regulations, Title 47, Part 32, addresses the fcc's power to regulate rates. Neither the regulators nor the authors of the 1934 Telecommunications Act seem to have anticipated the possibility that another agency (i.e., eeoc) would intervene in an effort to block a carrier's request for a rate increase based on alleged violation of another federal statute. The Telecommunications Act regulates the relationships among carriers and between carriers and consumers, not between carriers and their employees: “All charges, practices, classifications, and regulations for and in connection with [wire] communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is hereby declared to be unlawful.” 47 USC § 201(b), 1934.

21. Shortly before intervening in the fcc hearings, eeoc chairman William Brown lost a struggle within the Nixon administration to increase the agency's total annual budget to a paltry $19 million because a Nixon domestic policy adviser, Leonard Garment, believed it would lead to a floor fight in the Senate. Brown to Leonard Garment, Washington, D.C., 15 July 1970, carbon copy, na, Records Group 403, Correspondence of the Chairman, July 1970 Chronological File.

22. In addition to her role in opening the serious discussion of the at&t case among scholars shortly after the consent decree was entered (see note 2), Phyllis Wallace was a part of the litigation itself (on the side of “David” of course). Understandably, her analysis overwhelmingly focuses on eeoc and its efforts. As the editor of (and significant contributor to) Equal Employment Opportunity and the at&t Case (Cambridge, Mass: 1976)Google Scholar, she and her fellow contributors chronicle the case from the eeoc perspective, using its data on at&t. Wallace appears to be the only contributor to mention Robert Lilley, and only then to note that his actions were not considered. Phyllis Wallace, “Equal Employment Opportunity,” ibid., 253 n. 1.

23. Brown, telephone interview with author, 29 July 2003. David Copus, telephone interview with author, 15 August 2003.

24. Brown, telephone interview with author, 29 July 2003.

25. “Interview and Appraisal of Applicant; Name: Ivy Vaughn,” Southern Bell Telephone and Telegraph Company, marked eeoc-C-1535, carbon copy, na, Record Group 403, Box 35, at&t Litigation.

26. U.S. Equal Employment Opportunity Commission, “A Unique Competence, 35–36.

27. “Notes for Selectors—Switchman Bids,” 24 February 1969, Southern Bell Telephone and Telegraph Company, carbon copy, na, Record Group 403, Box 35, at&t Litigation.

28. W. B. Noel to R. B. Howard, “Private Memorandum,” Atlanta, marked eeoc [illegible]-570, 21 April 1970, Southern Bell Telephone and Telegraph Company, carbon copy, na, Record Group 403, Box 56, at&t Litigation. All emphasis in the original.

29. Another interesting facet of this letter is that while it shows clear intent on the part of one or more of the Bell companies to discriminate on the basis of sex, the group discriminated against was male. Copus explained that the reason eeoc chose to vigorously pursue that particular form of discrimination was that, as he was told by National Organization for Women president Wilma Scott Heide, “As long as people think there is a job so demeaning that only a woman will have it, women will never be free.” Copus, telephone interview with author, 15 August 2003.

30. See Herr, Women, Power, and at&t, 79–93.

31. Date Book, “R. D. Lilley” 1970, Box 5, Robert D. Lilley Papers.

32. In the Matter of Petitions filed by Equal Employment Opportunity Commission (eeoc) et al., Before the Federal Communications Commission, Docket # 19143, 17 April 1972, Los Angeles, Morning Sessions. Records Group 403, eeoc v. at&t Proceedings, Box 3, vol. 30, p. 2728.

33. In the Matter of Petitions filed by Equal Employment Opportunity Commission (eeoc) et al., Before the Federal Communications Commission, Docket # 19143, 19 April 1972, Los Angeles. Records Group 403, eeoc v. at&t Proceedings, Box 4, vol. 32, p. 3088.

34. In the Matter of Petitions filed by Equal Employment Opportunity Commission (eeoc) et al., Before the Federal Communications Commission, Docket # 19143, 13 November 1972, Washington, D.C. Records Group 403, eeoc v. at&t Proceedings, Box 7, vol. 50, p. 5919–21.

35. Ibid., Box 7, vol. 50, p. 5976–81.

36. 1 cch Emp. Prac. Guide P 1860 at 1533–3 to 1533–14 (1973). The Consent Decree included soft affirmative action, such as directing operator recruiting advertising at men. And it included hard affirmative action in the form of targets of 10 percent and 15 percent for hiring men over a five-year period to be operators.

37. The Consent Decree included at&t's Model Affirmative Action Program, which had already been approved in negotiations with the Department of Labor and was to be implemented at at&t and its subsidiaries. The affirmative action provisions included five-year goals seeking statistical parity with the available labor pool for hiring and promotion for ten classes of employees and applicants (five minorities times two sexes) in fifteen job categories, including all levels of management in the Bell system. 1 cch Emp. Prac. Guide P 1860 at 1533–3 to 1533–14 (1973).

38. Equal Employment Opportunity Commission v. American Telephone and Telegraph et al., 365 F. Supp. 1105 (E.D. Pa. 1973), 1108.

39. Herbert R. Northrup and John A. Larson in their article “The Impact of the at&t-eeo Consent Decree” (Philadelphia: Industrial Research Unit, Wharton School, University of Pennsylvania, 1979), 9–10, contend that a benefit that flowed to at&t was the assurance that at&t's 1970 request for a rate hike and future requests would not be blocked by allegations of discrimination. There are two problems with this analysis: the Consent Decree contained no such guarantee of immunity from future charges, and there is no reason to believe that at&t was going to lose before the fcc.

40. Herr, Women, Power, and at&t, 144, quoting from her telephone interview with Copus.

41. Of 172 articles in the New York Times focused on at&t during a sixteen-month period, including the fourteen months that eeoc was in the hearing and the month before and after, forty-two articles were about the hearings, but only nine referred to eeoc's allegations, and only two discussed the allegations in any detail. Three of the nine came after the Consent Decree was entered and addressed reactions to it. For example, an article in the 20 January 1973 New York Times was buried on page 19, column 5, and was not unfavorable. It reported that the more “militant” employees felt they had been sold out by eeoc.

42. New York Times, 11 January 1973, 53, col. 6.

43. Copus, telephone interview with author, 15 August 2003.

44. Memorandum, 16 February 1972, effective 1 April 1972, Box 7, Folder: “Lilley—Corporate Committee Work—at&t,” Robert D. Lilley Papers.

45. “White Man's Sensitivity Riot Key, Says Lilley,” The [Newark, N.J.] Record, 9 January 1968, “Newspaper Clippings on Report of Governor's Select Commission on Civil Disorder in N.J.,” 10 February 1968 [not labeled, but subsequent volumes are labeled volumes 1 and 2], Box 5, Robert D. Lilley Papers. Demaree, Allan T., “The Age of Anxiety at a.t.&t.,” Fortune, 81, no. 5: 156–160, 261–72.Google Scholar

46. Walter Menninger, M.D., to Robert D. Lilley, Topeka, 15 February 1965, Robert D. Lilley Papers.

47. Gavin K. MacBain to Robert D. Lilley, New York, 15 June 1965. Box 1, Folder: “Lilley correspondence—personal and misc,” Robert D. Lilley Papers.

48. “Taking Part: A report on New Jersey Bell's commitment to help solve the problems of the cities,” New Jersey Bell Telephone Company, Box 10, Biographical, Folder: “Lilley—Biographical—New Jersey Bell c. 1965,” Robert D. Lilley Papers.

49. Flamm, Michael, Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s, Columbia Studies in Contemporary American History (New York, 2005), 85–88, 226Google Scholar; O'Neill, William, Coming Apart: An Informal History of America in the 1960's (New York, 1971), 176.Google Scholar

50. “News” wabc, New York, and abc Network, 10 February 1968, 3:55 p.m., copy of television transcript in “Newspaper Clippings on Report of Governor's Select Commission on Civil Disorder in N.J.,” vol. 2, 15 February 1968, Robert D. Lilley Papers.

51. Thomas J. Sugrue argues that Skrentny and Graham (see note 2) and other affirmative action scholars acknowledged but downplayed the role of protest in northern cities in shaping federal affirmative action policy. “Affirmative Action from Below: Civil Rights, the Building Trades, and the Politics of Racial Equality in the Urban North, 1945–1969,” Journal of American History 91 (06 2004): 145–173, 147CrossRefGoogle Scholar. While Sugrue focuses on labor and civil rights activists in Philadelphia and their influence on policymakers, the Newark Riot had a significant influence on Lilley.

52. Walter W. Straley, Introduction to untitled manual by Hugh Folk, marked eeoc-C-1537, carbon copy, na, Record Group 403, Box 35, at&t Litigation.

53. “Biography: John D. deButts,” 1 February 1972 [no other publication information], p. 1. Box 7, Folder: “Lilley—Corporate Committee Work—at&t,” Robert D. Lilley Papers.

54. “Biography: William L. Lindholm,” 1 February 1, 1972 [no other publication information], p. 1. Box 7, Folder: “Lilley—Corporate Committee Work—at&t,” Robert D. Lilley Papers.

55. See note 27 and accompanying text.

56. Demaree, “The Age of Anxiety at a.t.&t,” 158.

57. Lilley saved an original of the article—neatly torn from the magazine. Box 1, Folder: “Lilley—Subject Files—at&t—Article—Fortune 1970,” Robert D. Lilley Papers.

58. Demaree, “The Age of Anxiety at a.t.&t,” 156.

59. Sally L. Hacker, now at&t Coordinator, to “Vice President Eastlick” [sic Presumably David Easlick, vice president, Equal Employment Opportunity, at&t] cc: to John D. deButts, Robert D. Lilley, and members of the now at&t Task Force, Des Moines, 6 June 1972, and Sally L. Hacker, now at&t coordinator, to John D. deButts, “Chairone” at&t, Cambridge, Iowa, 24 April 1972, Carton 18, Folder 23, Wilma Scott Heide Papers, Radcliffe Institute, Schlesinger Library, Harvard University. Eventually Hacker was able to arrange a meeting with Lilley. Joan Hull wrote to Hacker: “The at&t appointment is set for 2:30 2:00 p.m. October 10 23 with Mr. Liley [sic], President. Lois & Woody can put up two people on a pull-out sofa. I can put up two people—one on a twin bed, the other on a couch and a third on an aluminum webbed folding cot with an air mattress. Take your pick.” Joan Hull, now board member, to Wilma Heide, President now, [New York] undated. Carton 18, Folder 23, Wilma Scott Heide Papers, Radcliffe Institute, Schlesinger Library, Harvard University.

60. Sugrue, “Affirmative Action from Below,” 147.

61. 1 cch Emp. Prac. Guide P 1860 at 1533–3 to 1533–14 (1973).

62. See Northrup and Larson, “The Impact of the at&t-eeo Consent Decree,” 9–10. They list four.

63. See eeoc v. at&t 506 F.2d 735 (3rd Cir. 1974), in which the Communications Workers of America failed in its challenge of the affirmative action override contained in the Consent Decree.

64. See note 17 and accompanying text. Five years later, the Supreme Court upheld an agreement similar to the Consent Decree in U.S. Steelworker v. Weber, 443 U.S. 193 (1979).

65. Herr, Women, Power, and at&t, 148.

66. eeoc v. at&t, 1108–9.

67. Herr, Women, Power, and at&t, 130.

68. Howard A. Glickstein to William Brown III, Washington, D.C., 20 December 1970, carbon copy, December 1970 Chronological File, Correspondence of the Chairman, na, Records Group 403.

69. Brown, telephone interview with author, 29 July 2003.

70. Herr, Women, Power, and at&t, 26.

71. Copus, telephone interview with author, 15 August 2003.

72. 1 cch Emp. Prac. Guide P 1860 at 1533–3 to 1533–14 (1973).

73. See eeoc v. General Motors Corporation (Northern District of Ohio, Eastern Division, 1973), U.S. Dist. lexis 11336; 7 Empl. Prac. Dec. (cch) P9414; eeoc v. Sears, Roebuck & Co., 435 F. Supp. 751 (D.D.C., 1977); eeoc v. Westinghouse, 450 F. Supp., 792 (E.D. Mo., 1978).

74. at&t itself maintained the policy after the expiration of the Consent Decree in 1979. Much has been written about the impact of affirmative action generally. Jonathan Leonard has been very effective in measuring the economic impact of affirmative action in employment. He does not distinguish between federal-contractor affirmative action and private-sector affirmative action, as he is measuring results. “The Impact of Affirmative Action Regulation and Equal Employment Law on Black Employment,” Journal of Economic Perspectives 4 (Autumn 1990): 47–63Google Scholar, is just one example of the dozen or so articles he has authored on this topic. For the effect in higher education, see, for example, Bowen, William G. and Bok, Derek C., The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton, 1998).Google Scholar

75. Klein, Jennifer, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State (Princeton, 2003), 48–49.Google Scholar