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History of Labor Regulation in Advertising:

Why Is This Regulation Necessary?

Discrimination in advertising, as in most other professions, was commonplace and unchallenged until the Civil Rights Movement of the 1960s. Equal opportunity in employment was blatantly denied under the long-standing system of legal segregation. Finally, out of the widespread protests, marches, sit-ins, and clashes across the nation, the Civil Rights Act was passed, guaranteeing the right of equal employment opportunity in private industry to every individual. Title VII established its investigative and administrative role, with the formation of the Equal Employment Opportunity Commission (EEOC):

Title VII ... declared it an unlawful employment practice for companies ... with 25 employees or members to fail or refuse to hire, to exclude or expel, or to limit, segregate, or classify its employees or members in any way that would deprive any individual of employment opportunities because of race, color, religion, sex or national origin (EEOC 1968).

Regulators quickly came to the realization that “large, diffuse interest groups have trouble enforcing mutually desired norms in the absence of coercion” (Bernstein 2001: 111). By the 1960s, the advertising industry publicly announced its dedication to diversity in recruitment and hiring, but, without legal coercion, there was no pressure to change.

The New York City Commission on Human Rights was first established in 1945 as the New York State Commission Against Discrimination. Its goal was to pass fair employment legislation and set up an independent committee to investigate charges of discrimination. The Commission eventually became the leading government body in the nation examining discrimination in the advertising industry. However, its first goal was to examine how advertising incorporated African Americans (Chambers 2008: 60); hiring practices were a secondary concern. The Commission conducted a study in the early 1960s that served as the foundation for examination of the use of minorities in advertising: “Their study revealed that even in the rare instances in which blacks appeared in advertisements, they usually did so in an institutional role as an employee of the advertiser rather than as spokespersons. Agencies included them as evidence of an integrated employment policy within the company sponsoring the advertising” (160—61).

Why would use of minorities in advertising imagery be considered evidence of an “integrated employment policy”? The underlying assumption in the 1960s was that minorities must be used in ads to clearly communicate that the advertiser does not discriminate in its own employment policies. Clearly, by this time, agencies and clients began to realize that featuring minorities makes good business sense; it reflects racial and ethnic diversity in employment and also communicates effective target marketing strategies to reach diverse consumers. Given the spending power of minorities, marketers realized it would be unwise not to employ minorities in advertising imagery. William Boyenton writes:

The Congress for Racial Equality (CORE) ... took the position that advertisers owed Negroes an obligation now and they proposed to have the demands satisfied. Either Negroes were to be incorporated in general advertising or the advertisers being addressed—which were the nation’s biggest consumer spenders—might expect to have Negro patronage withheld; the euphemism, “selective patronage,” was used (1965: 228).

Boyenton notes that from the inception of advertising three fundamental rules have dominated its practice: “to advertise to people ready, willing and able to buy; to use the media which reach them; to make advertisements which will win their business” (227). However, there is another dimension, a “social responsibility to represent Negroes in general advertising.” He explains that the first three rules of practicing advertising are concerned with generating profit, while the last rule deals with social responsibility.

As minority representation began to improve slightly in the 1960s, the NYSHR still argued there were contradictions and blatant inequalities in how advertising agencies, advertisers, and networks ignored or portrayed African Americans and other minorities in advertisements. Chambers states:

So, since networks and producers were open to more black actors, and advertisers followed agency recommendation, the NYSHR concluded ... that advertising agencies were the stumbling block. Their study revealed that even in the rare instances in which blacks appeared in advertisements, they usually did so in an institutional role as employees of the advertiser rather than as spokespersons. Agencies included them as evidence of an integrated employment policy within the company sponsoring the advertisement. To be fair, this was a direct response to the arguments from black marketing and advertising professionals who stressed the need for firms to display their fair hiring policies as a way to reach black consumers. To commissioners, this institutional approach, while not problematic by itself, unfairly limited the roles black could play in advertisements (Chambers 2008: 161).

According to Chambers, the continuing work of civil rights organizations like CORE and the NAACP and NYSHR commissioners recognized the “shell game”-like arguments that networks, advertising agencies, and advertisers were always using about African Americans in advertisements. They recognized “that it was easy for the networks to pass the responsibility for blacks’ invisibility on television onto advertising agencies and for agencies to pass it back to networks or onto their clients.” Consequently, if investigations evolved beyond advertising images to include agency hiring policies, the Commission could threaten agencies with more than moral arguments; it could threaten to prosecute under state fair employment laws. Moreover, since advertising agencies were the link between networks and advertisers, they had the influence to change the policies of both parties about the use of minorities (161). Again, without the threat of fines or legal action, there is little incentive for any organization to change its practices.

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