The Origin of Affirmative Action as We Know It–The Philadelphia Plan Pivot
by The Honorable Laurence H. Silberman*
I am now a senior judge and have the time and inclination to look back 30 years
ago to the actions of President Nixon’s first Labor Department. I had been planning to tell my
version of the Philadelphia Plan story. It is interesting and poignant coincidence that John Irving
provided the opportunity by asking me to speak to this gathering. John was my executive
assistant as Solicitor and Undersecretary of Labor until he went off to the NLRB. He loyally and
effectively supported me during a tumultuous period. Yet John, from the beginning, advised
against the crucial shift in affirmative action that I pursued, so if I was misguided it was not
John’s fault. Of course, as a federal judge, I am not permitted to present normative views on
present, or even past, policy issues, but nothing precludes me from describing historical events,
nor is there any barrier to explaining in personal terms why we took the position we did.
First, the background. The Wirtz Labor Department had gotten itself into quite a
tangle with the Comptroller General over its efforts in enforcing Executive Order 11,246. That
order, as you well know, bars government contractors from engaging in employment
discrimination and requires “affirmative action” to avoid discrimination. The Labor Department
had and has the overall supervisory role in enforcing the order.
The Department’s Office of Federal Contract Compliance had sought for several
years to establish pre-award compliance requirements on construction contracts over a million.
* Of the United States Court of Appeals for the District of Columbia Circuit. This speech
was delivered to the Federalist Society and the Labor & Employment Practice Group, The
Willard Inter-Continental Hotel, Washington, D.C., October 10, 2001.