Balancing the Scales


There was a time -- and it lasted a long time -- when cases of racial discrimination were uniformly one-sided: They involved discrimination by whites against blacks. U.S. Circuit Judge Abner Mikva once described them as cases of "overt and blatant bigotry."

In recent years an opposite trend has begun to develop. Many of the cases now reaching the higher courts involve reverse discrimination -- that is, discrimination not against blacks, but against whites. And here and there, the whites are winning.

The case of Dr. William McNabola is in point. The Chicago Transit Authority hired him in 1983 to perform in-house medical examinations of CTA employees seeking workmen's compensation.

Evidently there was reason to believe that many employees were abusing the system. They were being compensated for trivial injuries, or they were being paid on leave when they were perfectly able to come back to work.

Dr. McNabola went to work on the problem. An old hand at indus- Many of the cases now reaching the higher courts involve reverse discrimination against whites.

trial medicine, he had completed more than 45,000 worker's comp cases during his career.

On a part-time basis, at $50 an hour, he examined patients referred to him by claims adjusters. Three white investigators checked to see whether claimants were really at home incapacitated, or whether they were goofing off or working for someone else. The results were astonishing. Claims dropped dramatically. Dr. McNabola sent 70 percent of the referrals back to work.

Then came the winds of change. Joyce Hughes, an African-American woman, became the CTA's general counsel in

1984. In 1986 she fired Dr. McNabola and replaced him with Dr. David Reid, an African-American orthopedic surgeon who had conducted fewer than 20 "fitness for duty" examinations before accepting his new post. At the same time, she transferred the three white investigators. She fixed Dr. Reid's salary at $75 an hour. The winds of change rose to gale force. Nine percent of CTA's per diem attorneys had been blacks. Under the new regime, more than 70 percent were blacks. White employees began to complain to the CTA board.

Ms. Hughes displaced Lorene Murray, a white woman who had ranked high in the CTA's legal department; in 1987, Ms. Murray resigned because working conditions had become intolerable. Meanwhile, under Dr. Reid, claims soared once again.

All this got to be too much for Dr. McNabola. He went to court, charging reverse discrimination. He won a substantial victory in the U.S. District Court. On Nov. 23, the 7th Circuit sustained the jury's verdict. The physician will receive $265,000 in damages, $185,000 in legal fees and $13,000 in costs.

Circuit Judge Ilana Diamond Rovner found that the CTA board, though it had never adopted an "official policy" of reverse discrimination, had knowingly tolerated Ms. Hughes' actions. This became a "policy or custom," and as such, violated the doctor's civil rights.

The authority attempted to justify its firing of Dr. McNabola by presenting evidence of complaints against his administration. Judge Rovner agreed with the jury that these reasons were mere pretexts. The jury was entitled to infer that Dr. McNabola's race was the "determining factor" in his dismissal.

Over the past 15 years a smattering of case law has developed in the area of reverse discrimination.

In what is known as the Weber case of 1979, the Supreme Court ruled 5-2 that affirmative action programs, as temporary measures, do not "unnecessarily trample the interests of white employees."

Such preferential programs are intended only to remove "conspicuous racial imbalance in traditionally segregated job categories."

Chief Justice Burger dissented in Weber. Racial discrimination in employment is "contrary to the explicit language of the statute."

His colleagues were effectively rewriting the law to achieve a desirable result. Justice Rehnquist wrote his own impassioned dissent, accusing the majority of using the tactics of an escape artist to evade the law.

Since Weber in 1979, the high court has appeared to retreat slightly from its defense of practices that handicap white employees while helping minority workers. No clear rules have developed on how much discrimination is permissible discrimination. If the Chicago Transit Authority appeals the 7th Circuit decision, some bright lines could yet emerge.

James J. Kilpatrick is a syndicated columnist.

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