Tag: discrimination

PCR as a fair housing tester in 1962

Clip from the affidavit reading: I then asked Mr. Rock, "In spite of the fact that your company makes use of FHA in selling homes, and the president has ordered an end to discrimination in such homes, and the copy of the President's order which he has just shown you, you still refuse to sell him a home solely on the ground that he is a Negro?" Mr. Rock answered, "Yes!!"

In 1962, my father participated in fair housing testing of a development benefiting from Federal Housing Administration financing.

Classic paired fair housing testing involves Black and white homeseekers inquiring at the same home or apartment, potentially learning that the seller or landlord will sell/rent to the latter but not the former. This practice was endorsed by the Supreme Court in 1982 in the case of Havens Realty Corp. v. Coleman, 455 U.S. 363, 374 (1982) holding that, in such situations, the Black tester had standing to sue the housing provider for discrimination. By 1982, however, at least some subtlety was required: in Havens, a Black tester inquired and was told no apartment was available; in a separate inquiry, a white tester was told there were vacancies. Id. at 368. In this way, non-obvious discrimination can be identified and challenged.

In 1962, when the Fair Housing Act was still six years in the future – and the relevant Executive Order hot off the presses – testing required no subtlety whatsoever. Below is a draft affidavit my father prepared detailing his role in a paired test.

STATEMENT BY PETER C. ROBERTSON TO SUPPORT COMPLAINT BY KARL D. GREGORY FILED WITH THE FEDERAL HOUSING ADMINISTRATION

I am Peter Robertson, [STREET ADDRESS REDACTED] Washington, 16, District of Columbia. On December 15, 1962 I accompanied Mr. Karl D. Gregory and his wife and child and Mr. Marvin Caplan in a visit to the Belair project of Levitt and Sons, Incorporated, at Bowie, Prince George’s County, Maryland. Mr. Gregory’s purpose in going to Belair was to purchase for the personal use of himself and his family a personal residence from those offered for sale by Levitt and Sons, Incorporated.

Upon arrival at the project Mr. Caplan and I went immediately to the sales office. Mr. and Mrs. Gregory and their daughter went to look at the model homes. When we arrived at the sales office we engaged in conversation one of the men standing behind the counter and appearing to be a salesman. We did not obtain his name. This salesman indicated in answer to our questioning that there were a number of houses available. He indicated that there were some available for short term delivery at reduced prices which had been quoted in an advertisement in the morning paper (Washington Post, 15 December 1962), and that there were a number of houses available for later delivery at the non-reduced prices. He further indicated that a potential buyer could be assured of obtaining financing insured by the Federal Housing Administration of the United States Government and thus a low down payment. In fact, he indicated to us that the prices which appeared in all of the published advertising issued by Levitt and Sons, Incorporated, were based on the assumption that the buyer will purchase the house with a mortgage insured by the Federal Housing Administration.

I had called on the telephone prior to going to Belair and had been given similar information over the telephone by the Levitt and Sons, Incorporated, salesman who spoke to me on the phone. Thus the low down payments which are offered by Levitt and Sons, Incorporated, both in person and over the telephone are possible only if such a mortgage insured by the Federal Housing Administration is obtained. A down payment more than four times as large is required if such insurance is not obtained. Thus does the participation of the Federal Government materially aid Levitt and Sons, Incorporated, in the sale of residential housing.

After Mr. Caplan and I had discussed the financing arrangements Mr. and Mrs. Gregory came into the sales office and Mr. Gregory indicated that he was interested in buying a home. The salesman, Mr. Herbert Rock, declined to give the Gregorys an application stating that it was against the policy of his company to “accept applications from Negroes.” Mr. Gregory then asked if the sole reason for not making the sale was that he was a Negro. Mr. Rock replied, “Yes.”

Mr. Gregory then asked Mr. Rock if he had read the Executive Order (11063) of the President of the United States prohibiting discrimination because of race in the sale of residential housing where such housing was financed, or where the financing was insured, by the Federal Government. The answer was to the effect that Mr. Rock had not read the order but that he assumed that Mr. Levitt had. Mr. Gregory then read Mr. Rock some parts of the executive order and then asked again, “Do you still refuse to sell me a home?” Answer, “Yes.” Then, “Do you still base this refusal solely on the fact that I am Negro.” Answer, “Yes.”

I then asked Mr. Rock, “In spite of the fact that your company makes use of FHA in selling homes, and the president has ordered an end to discrimination in such homes, and the copy of the President’s order which he has just shown you, you still refuse to sell him a home solely on the ground that he is a Negro?” Mr. Rock answered, “Yes!!” Mr. Gregory then requested to know the amount of the initial deposit that would be necessary for a potential white buyer to commence the processing of an application. Mr. Rock said that it took one hundred dollars. Thereupon, Mr. Gregory handed him some cash, Mr. Rock counted it and verified — at Mr. Gregory’s request — that there was, in fact, one hundred dollars. He refused to accept the money, however, repeating that a sale to a Negro was against the company’s policy. He handed the money back to Mr. Gregory and said. “Now you have your case.”

On several occasions in addition to those specifically cited above Mr. Rock explicitly said that he was refusing to sell a house to Mr. Gregory solely on the ground that Mr. Gregory was a Negro, and that he was acting on instructions which reflected the official policy of the company for which he worked.

I, Peter Robertson, [ADDRESS REDACTED] Washington 16, D.C., do hereby state that the foregoing is a true statement.

“Now you have your case.”

Levitt & Sons were the builders of the infamous Levittown and similar developments around the country. These development were made possible by FHA loan guarantees which, in the 1940s and 1950s required that each home have a restrictive covenant: a clause in the deed prohibiting resale to Black people. That’s right, our government mandated housing segregation in a program that created several generations of white family capital. (Richard Rothstein’s The Color of Law: A Forgotten History Of How Our Government Segregated America” is a brilliant account of this and similar programs.)

On November 20, 1962, President Kennedy issued Executive Order 11063, 27 Fed. Reg. 11527, prohibiting discrimination in federally-supported housing. My father’s test took place less than a month later.

Throughout the 28 years of our work at Fox & Robertson, my husband and I have had many occasions to work on civil rights testing issues, from Tim establishing the gold standard for Americans with Disabilities Act tester standing in the Ninth Circuit, to my work on a team defending the practice in an amicus brief to the Supreme Court. But I had learned about basic paired testing long before, from my father, around the dinner table (metaphorical dinner table – more likely on some early morning figure skating commute). My father admired the practice and later urged us to use it in our disability rights cases, which we did to excellent effect. Throughout it all, I had no idea he himself had been a tester.

EEOC Diary: February 23, 1967

Title: EEOC Diary

Date: February 23, 1967

Overview: PCR keeps a diary of his first two months working at the Equal Employment Opportunity Commission. For background on this diary, see the earlier post “EEOC Diary: February 6 to April 4, 1967.” I still haven’t finished proofreading the whole thing, so I still don’t have a link to the full document. Here’s an excerpt from February 23, 1967.

Introduction: In this segment, he relates a discussions with Al Blumrosen concerning what he then called “affirmative action” but which would now be called “voluntary compliance.” Toward the end of the excerpt, he calls it “accelerated voluntary action.” Perhaps we should have adopted that terminology!

We had lunch together very early after my arrival and I have had numerous contacts with him since. He quite early expressed the view to me that the key struggle going on within the agency was basically the struggle between what he called the “hawks” and the “doves”. By this he meant that the “hawks” were those who favored a strong enforcement approach and that the “doves” were basically those who favored using the affirmative action approach under which individuals who were considered to be discriminating were urged to take voluntary action to amend their ways. He indicated that one of the current on going disputes that focused this issue was the dispute over what would be done by way of follow up to the EEO-1 forms and whether they would be used for the basis of initiation of enforcement action or simply as triggers for the initiation of other commission action under which individuals who were low utilizers would be called in for discussions as to the reasons for their low utilization and gentle request that they take action to improve the situation. Of course, my own leanings are very much along the lines of strong enforcement. But I have recognized throughout my entire service in Missouri that there is a real conflict and pressure upon an agency as to how to handle this problem. I deeply believe that in the long run the in depth change in employment patterns that we want to achieve in the United States economy will depend in large part upon voluntary action which employers take to increase their recruitment of minority group members. Although emotionally I can make and could accept an argument for preferential treatment based upon past inequities it has always seemed to me unfair, and if not unfair at least politically impracticable, to make a demand that an individual employer conduct preferential treatment. The economic pressures of making a profit which are imposed upon individual private employers and the realistic pressures of getting the work done that are placed upon any employer make it very difficult for him to accept in a slot an individual less well qualified than the best obtainable. But I have also felt that to frame the question in these terms really does not adequately define the problem. Many employers hire large quantities of marginally skilled workers and train them on the job for a wide variety of tasks. The thing that has always bothered me in this context is the layer of subjective discrimination about the trainability of the Negro that seems to keep the Negroes from getting into these jobs in a degree which is proportionate to his numbers in a given area. As to any one particular individual it is always possible for an employer to make a logical argument that that individual does not meet certain objective criteria but when the net impact of the thousands and thousands of individual cases is that the average Negro ends up being excluded a great deal more often than the average whites and you have a serious dislocation in the economy and misallocation of resources. I relate this back to my original thought about preferential treatment by saying that it is my feeling that the massive inroads which I want to see made into the discriminatory patterns against Negro in the American economy are only going to come when the employer realizes that his existing pattern for whatever objective or subconscious reasons is resulting in an exclusion of Negroes and puts the pressure on his personnel office to deliver in the employment field as he puts it on his other top level management personnel to deliver in their respective fields. For example, if a salesman or a sales manager were told that his quota for a certain month were to sell a certain number of units and he consistently failed to meet the results the company president would not be interested particularly in the reasons if he thought he could get someone to replace the sales manager who would deliver results. Similarly, in the long run it is always been my feeling that the leaders of industry have to take the position with their personnel manager that they want to see a reasonable quantity of Negroes employed in the business and that when these results fail to be achieved they are not really interested in the reasons or excuses and that they replace the personnel manager with someone who will get results. Now– this ties back in to Al Blumrosen’s dispute between the hawks and the doves in a theoretical sense with the argument that if you are going to try to get the leaders of industry to undertake this kind of action you want them to be friendly with you. If you undertake vigorous enforcement against them they will become unfriendly and will not undertake the voluntary actions which you want.
Now I stated that I felt this was somewhat of a conflict that would torture the soul of those trying to administer fair employment practices agencies and to the question of whether they allocate their resources heavily for enforcement or for attempts to obtain voluntary action. I resolved this appearing controversy in a fashion which is perhaps shaped considerably by my own assumption. I start with the assumption that most businessmen are simply at best non-crusaders interested in producing their product and very difficult to convince that they should enlist in a social cause. The fact that this social cause may in the long run produce the extra production benefits of increased efficiency in their own operation and an improved labor market in terms of supply of skilled workers is irrelevant to the fact that they view the kind of accelerated voluntary action which I anticipate to be necessary as basically a charitable act on their part and one which they are generally ill inclined to take. I said at best they are non-crusaders – – at worst many of them are still subjective or even overt discriminators against Negroes feeling that generally Negroes are unsuited for the work in their plants and unqualified and willing to engage after some pressure in some form of token hiring but not willing to engage in any meaningful overall change in their employment patterns unless extensive pressure is put on them. I remember in the course of the Rives School District case in Missouri we consistently told each other that that school district would do nothing more than it was “forced to do”. It is quite frankly my feeling that this is the view and the posture of most employers and that the necessary first step to obtaining from them meaningful voluntary action is an enforcement procedure to convince them of two things. First, they need to be convinced that if they do not obtain results there will be a penalty for failure to obtain results and that this penalty will be administered through the enforcement procedures of fair employment practices legislation. Secondly, many businessmen now simply refuse to believe that there is a need for them to undertake action within their company to change this employment pattern. Most of the larger firms have at the top undertaken to enunciate a strict policy of nondiscrimination but they simply will not believe that this policy is being carried out at the lower level so one of the reasons that you need strong enforcement is to root out and find the provable deliberate or subconscious discrimination at the lower level and convince higher level management of its existence so they can undertake the remedial action that you feel necessary. I remember for example the remarks of the employment manager of McDonald Aircraft, a company which has one of the strongest reputations for affirmative action in this field — during the heat of the investigation of a complaint against them when he turned to me after proud protestations of nondiscrimination and a good company attitude and shouted “who the hell are you going to believe me, the white company personnel manager, or some unemployed Negro.” Needless to say the unemployed Negro was a Negro who they had discharged and who had filed the complaint.

Note, too, that this problem has persisted for almost 60 years: ”Most of the larger firms have at the top undertaken to enunciate a strict policy of nondiscrimination but they simply will not believe that this policy is being carried out at the lower level.”