(FORTUNE Magazine) – THE ALL-PURPOSE SUIT

It had to happen, and therefore it is happening, but why did it take 24 years? The logic has been there for all to see ever since 1971, when the Supremes ruled in Griggs v. Duke Power that you could be guilty of discriminating--of violating the 1964 Civil Rights Act--even if you had no intention of discriminating. Your guilt resided in the fact that your facially fair and race-neutral policies had a "disparate impact" on a protected class.

The problem in Griggs was a group of poor, undereducated blacks who were unable to get laborers' jobs at Duke Power because company policy required that all hires be high school graduates and score reasonably well on an intelligence test. It is easy to sympathize with the blacks who had failed to qualify for those jobs. It is also easy to see why the disparate-impact principle had to spiral out of control. Inescapable core problem: God's plan for a world in which different groups are really different, guaranteeing that most if not all laws, regulations, and corporate policies have disparate effects.

The lawsuits are suddenly everywhere. Here in the Big Apple, the big news as we type concerns a lawsuit to prevent the Metropolitan Transportation Authority from raising subway fares by 20%. Contending that the commuter railroad fares were being raised far less, the suit posited that the differences were racially discriminatory because they had a disparate impact on minority-group members (who were overrepresented on the subway and underrepresented on commuter trains). The suit was almost universally judged absurd until a funny thing happened the other day--a federal judge said it was meritorious and should proceed to trial. Brandishing similar logic, another suit in New York charges the legislature with violating the Civil Rights Act by giving more funding to upstate public colleges than to those in the city (which have more minority students).

Elsewhere around the land, you have possibly noticed a sudden national debate on whether it is discriminatory to have much stiffer penalties for selling crack cocaine (the dealers being mostly black) than for selling the powdered stuff. Also in the pile of clips on our desk is a story about the Veterans Administration getting accused of age discrimination because a college recruitment program it has recently established, in an effort to attract high-talent executive prospects, is said to have a disparate impact on the (mostly older) bureaucrats who had aspired to the executive slots. An Illinois state police rule prohibiting husband-and-wife trooper teams from working together has been assailed for having a disparate impact on females (who are likely to have less seniority and are therefore at greater risk of being taken off the force).

Not yet in court is the argument broached in a recent Berkeley Journal of Employment and Labor Law, lengthily arguing that the U.S. already has a law barring job discrimination against gays. Congress has long refused to pass any such laws, but author John Douglas says that really doesn't matter. His point is that discrimination against gays has to be illegal because it would have a disparate impact on the HIV-positive and AIDS sufferers, who clearly are protected against discrimination (by the Americans with Disabilities Act). Ingenious, eh? Or are you saying too obvious?

ROOTING AGAINST THE WHOM TEAM

When we last discussed the who-whom question in this space, it was 1982, the Cold War was in full flower, hundreds of Soviet rockets targeted American cities, and our exposition centered on the Russian phrase kto-kogo, identified as the key to Leninist psychology and arguably relevant to Soviet foreign policy. The phrase literally means "who-whom," but in the literature of Bolshevism it served as a kind of shorthand for "Who dominates whom?" or "Who destroys whom?"--questions that were always on Lenin's mind, not to mention one's own.

Today's who-whom discussion will be more parochial and less geopolitical. In a recent (November 13) entry about Hillary, your servant turned in a sentence noting that a White House speechwriter was helping the First Femme with her newspaper column, so the reader doesn't know "who he's up against." The august FORTUNE copyroom instantly changed the "who" to "whom." One was frankly not wild about the sentence as altered but opted for a posture of slightly sullen acquiescence, assuming that the copyroom was right, as usual, and knowing in any case that its ruling conformed to the grammatical logic pounded into one's skull by Miss Herbert back at New York City Public School 166 quite a few decades ago.

The heart of the who-whom problem is that a chap is forever on the horns of a dilemma. On one horn are sentences like "You never know whom you'll meet at an ox roast," which doggedly conform to Miss Herbert's rules but sound weird and pedantic. On the other are sentences like "Who do you think you're kidding?"--which sound normal and natural but seem to be against the law. The only "whom" sentences that seem natural are those in which the word comes after a preposition.

A few days after the Hillary column was locked up, we suddenly found ourselves reading some prose by conservative icon Bill Buckley, who was airily telling National Review readers that he personally never used "whom" except after a preposition. Impressed by Bill's daring but uncertain whether he had any major-league followers, we plunged into Nexis to check out the position of another media conservative, William Safire, who is also an authoritative columnizer on language for the New York Times. It turns out that Safire is a bit more cautious than Buckley. He too detests most "whom" sentences but declines to just run with "who." Attacking George Bush for a 1992 campaign speech asking "Who do you trust?" Safire stated that his own rule is: "When whom is correct, recast the sentence," e.g., "Which politician do you trust?"

Our next stop was ProfNet, the online consortium of experts from 800-odd universities and other research centers, which counsels journalists on any subject they trot out. The query we put out mentioned Buckley and Safire and asked whether it might really be true that "whom" is on the ropes. Somewhat to our surprise, we came away with a lot of support for this perspective.

As we write, some 25 serious responses have tumbled into our Internet box. Not all of them agree with Buckley's "whom only after prepositions" approach, and none of them showed any interest in Safire's "recast the sentence" approach. But just about all the missives agree that the ever-pedantic "whom" is fading away, and only a few expressed any anguish over the fade. An especially powerful witness was Steve Tollefson, who is the author of three books on grammar and for 20 years has taught freshman writing at the University of California at Berkeley. One somehow senses that Steve is not a stout conservative, as he starts off by stating: "I would rather eat dirt than agree with Buckley or Safire." But a few sentences later, he is gamely adding: "However, I do agree with them. It is clear that 'whom' is on the way out."

Clearly, academic opinion is relaxed about this transition. And, as we have also discovered, so is the FORTUNE copyroom. When we finally got around to expressing angst over the change in our own copy, we were told that whomism is weaker than it used to be around FORTUNE's corridors, and that we should have spoken up about the change. So it's no more Mr. Timid Guy with the copyroom. Kto-kogo is one's slogan for 1996.

THE KENNEDY-GOLDBERG LABOR MOVEMENT

As insistently played in major media, the big question about the unions these days is whether the AFL-CIO's militant new chieftain will galvanically transform the labor movement and get the porkchoppers moving again in a giant tsunami of activism. labor wakes up was the headline atop the New York Times editorial after John J. Sweeney's elevation, and the accompanying news story afforded breathless details of Sweeney's forays into civil disobedience as chief of the Service Employees International Union, e.g., when SEIU stalwarts idealistically blocked bridges into Washington, D.C., last September as part of a campaign to organize janitors, if we have that straight.

In a deregulated high-tech economy where employers face endless worldwide competition, they dare not welcome unions, and workers dare not push hard for them. A much more realistic question about Sweeney's labor movement: whether it would even exist at a level worth media attention now if not for John F. Kennedy.

It was J.F.K. who legitimized public-sector unionism, which is relatively impervious to competition and represents organized labor's only remaining growth area. Unionism in the capitalist sector is now in terminal decline. About seven million private-sector workers have been lost by the unions since 1970, and Professor Leo Troy of Rutgers, our guide as always on such matters, estimates that private unionism in 2000 will represent 7% of all eligible workers--exactly the proportion the labor movement had in 1900.

Kennedy ran in 1960 on a platform proposing collective bargaining for federal workers, a deal previously deemed unthinkable. When Congress proved unwilling to buy this package, J.F.K. went ahead on his own and issued Executive Order 10988, which legalized and encouraged unions for federal employees--much of the encouragement coming from Labor Secretary Arthur Goldberg, a veteran labor lawyer and major architect of the AFL-CIO merger.

From Kennedy's point of view, the executive order was a marvel comprising all benefits and zero costs, or at least zero to his Administration. Issued in mid-1962, the order cemented labor's electoral ties to the Democratic Party, while the fiscal problems created by militant public unions were a decade or more away. As this marvelous logic sank in on other progressive politicians in the early Sixties, they hastened to extend public-sector unionism at the state and local levels, especially in New York (where it was boosted by Nelson Rockefeller), New Jersey, Pennsylvania, California, and Massachusetts. In New York City, Mayor Robert F. Wagner Jr. also went for public unions, thereby ensuring the city's mid-Seventies descent into something synonymous with bankruptcy.

In a few more years, public-sector unions will have a majority of AFL-CIO members, and one senses a certain nervousness among the laborites as they ponder the image of a labor movement whose interests are identified with the growth of government (and opposed to those of taxpayers). Appearing on Ben Wattenberg's Think Tank show the other day, Al Shanker of the teachers union opined, "If the union movement should become all public sector, or 80% public sector, I think [it] would be in very serious trouble." Some would say the conditional is no longer appropriate.

Reporter Associate David C. Kaufman