May 16, 2013 - Issue 517 Remembering a Local Case Against Racial Discrimination - A View from the Battlefield By Jamala Rogers, BC Editorial Board

We can’t sit on our laurels when our enemies are working 24-7.

When an organizer is going to the mat for justice, he or she never knows the final destination of that struggle. May 14 is the 40th anniversary of Green vs. McDonnell Douglas. What started off as a local struggle by venerable activist, Percy Green, became a landmark case in the fight against racial discrimination in employment. Green’s name will be forever connected with McDonnell Douglas (now Boeing Corporation).

Under the leadership of Percy Green, the organization ACTION busted loose jobs for black folks during the 60s and 70s in St. Louis, especially for black men. Utility companies like Laclede Gas and corporations like Southwestern Bell (now AT&T) often went into siege mode when ACTION put them on “the list.”

ACTION used aggressive and creative tactics in the 1960s to knock down the racist doors that led to more employment. What the group called guerilla theater included sit-ins, stick-ins, paint-ins, chain-ins, walk-ins and whatever was necessary to make their point. For those who were around during this time, these are vivid memories.

Most people in Green’s hometown of St. Louis are unaware of Green’s tangle with one of the world’s biggest and most powerful multinationals. They remember other, more daring feats like Green and fellow ACTION member, Richard Daly, climbing the St. Louis Arch in 1964 to protest the lack of minority contractors on the job. The construction was summarily halted and black workers were hired to complete the historic monument that pierces the St. Louis downtown skyline.

It is probably those in the legal arena who are most aware of Green vs McDonnell Douglas as it is a case that is likely to turn up in a law school syllabus for mandatory study and gets written about in law review publications.

Green filed a discrimination suit against the company in 1964 after he was laid off, allegedly due to workforce reduction. Green declared the layoff was retaliatory because McDonnell Douglas had been the target of ACTION for not hiring more black workers. When the company opened up Green’s former job and he applied for it, he was denied. Now the company’s motives were clear and Green declared them unfair and racist. He filed suit with the Equal Employment Opportunity Commission (EEOC) in 1964.

Green’s case was heard in the U.S. District Court, the U.S. Court of Appeals, and ultimately before the U.S. Supreme Court. St. Louis civil rights attorney Lou Gilden argued the case before the High Court on March 28, 1973. Warren E. Burger was the Chief Justice. On May 14 of the same year, SCOTUS ruled in favor of Percy Green. The decision was unanimous, 9-0.

The decision was a landmark case because it completely changed the way racial discrimination cases had been viewed. It now put the burden on the employer to prove they had not been discriminatory in their policies. Before this case, plaintiffs had to prove “intent,” which was damn near impossible to do. Since its issuance in 1973, all the federal courts have subsequently adopted the framework set out in this opinion for all claims of employment discrimination that are not based on direct evidence of discriminatory intent.

Green had no idea the case would go all the way to the top or that the case would end up in the history books. While he was motivated to challenge an injustice that started off with his own employment, Green knew that the same racial discrimination was happening to many other black workers at the time. The fight was much bigger than him.

Eric Vickers, another St. Louis civil rights attorney, reminded me that despite the hits it has taken, the case remains a cornerstone of American law.

“The standard set by the court in Percy's case spread like wildfire to be applied to every type of discrimination case in American law.” Vickers goes on to say that “unfortunately, major blows have been struck to the standard set in Percy's case by subsequent conservative supreme court cases, causing the bar to be raised substantially and significantly higher to prove a discrimination case.”

It should be a reminder to all of us in the social justice movement that we must continue to fight if we are to maintain the victories we have won.

At a time when workers’ rights are under assault in this country, it may feel like were going in circles. The United Mineworkers Union had to file a suit against Patriot and Peabody Coal companies when they tried to pull an okey-doke on workers’ benefits under the cloak of bankruptcy. Fast food workers are fighting for livable wages and better working conditions. The Green vs. McDonnell Douglas decision is affirmation that it is important for workers to stand up and for the community to stand with them because we are all beneficiaries of those struggles. Editorial Board member and Columnist, Jamala Rogers, founder and Chair Emeritus of the Organization for Black Struggle in St. Louis. She is an organizer, trainer and speaker. She is the author of The Best of the Way I See It – A Chronicle of Struggle. Click here to contact Ms. Rogers.