With forty-seven sponsors in the Senate, including seven Republicans, and an apparently solid majority of House supporters, the Civil Rights Act of 1990 now seems likely to clear the House Judiciary Committee easily and survive floor fights during the summer. The threat of a presidential veto of this employment-discrimination bill has not dimmed the optimism of most civil rights leaders. I think the bill will be passed by Congress and approved by the President,’ says Julius Chambers, director of the NAACP Legal Defense and Educational Fund.
Propelled by the symbolic power of a crusade to stamp out bigotry, the legislation has encountered relatively smooth sailing thus far. But parts of it are hard for American business and its champions in Congress and in the Bush league to swallow; it is still too early to tell what kind of pressure they might apply as the Congressional session comes to a close. As Earl Weaver might have noted, the fat lady hasn’t sung yet; she’s only warming up in the wings.
The bill is generally touted by its proponents as remedial, repairing the damage done to equality in employment by a handful of Supreme Court cases decided last year. The United States, the world’s leader in civil rights, cannot regress at home,’ says American Bar Association president-elect John Curtin Jr. The Civil Rights Act of 1990 preserves victories won long ago’ and will ‘shore up the foundation of civil rights in our country.’ Most of those 1989 decisions made it more difficult for minorities and women to get legal redress for bias in hiring and promotion or for harassment in the workplace. One case allowed white male workers claiming reverse discrimination to file suit long after court-approved settlements of bias claims had been entered into, even though the workers had not availed themselves of the opportunity for such a challenge at the time of the settlement. While the business community and conservatives hailed the Court’s trend as a welcome change from social activism on the bench or downplayed it as finetuning’ that continues to protect equal opportunity (the characterization of Utah Senator Orrin Hatch), civil rights groups saw it as a disastrous setback, what N.A.A.C.P. executive director Benjamin Hooks called the legal lynching of black America’s hope.”
The law that would restore that hope touches many bases. It would amend Title VII of the Civil Rights Act of 1964 by providing a jury trial for plaintiffs claiming racial or sexual discrimination or harassment, as well as money damages for successful complainants (and punitive damages in cases of malicious abuse). It would effectively reinstate Griggs v. Duke Power, a unanimous 1971 Supreme Court decision that imposed on employers the burden of showing why a personnel practice that has the effect-whether intended or not – of excluding minorities or women is required by business necessity.’ The new law would invalidate seniority systems adopted with intent to discriminate and employment practices adopted with mixed motives which include bias. To the federal statute that bars discrimination in making and enforcing private contracts, it would add a prohibition against discriminatory conduct that occurs during the period when the agreement is in force. Finally, the bill sets forth provisions for the finality of court settlements in discrimination suits, disallowing challenges by people who could have made a timely protest but didn’t.
A parade of witnesses at House and Senate hearings in February presented a disheartening picture of an American workplace rife with racial and gender-based tension and bias. Representatives of such groups as the American Way Legal Defense Fund and the National Women’s Law Center summoned up case after case of demeaning assigments and demotions based on race, racist and sexist epithets hurled at defenseless employees, contracts terminated because of religious bigotry, and skills tests and educational requirements upgraded just as women and minorities began to apply for jobs. In most of those cases the Supreme Court decisions of 1989 had thwarted legal redress.
In, arguing that justice had been denied, the witnesses had a model in Patterson v. McLean Credit Union, the most widely publicized of last year’s Supreme Court rulings on civil rights. In that case the plaintiff, a black credit-union teller and file coordinator, had been repeatedly passed over for promotion and opportunities offered to whites and had been subjected to racial slurs; she testified that the head of her company had told her several times that blacks are known to work slower than whites’ by nature. She had been denied recovery on the ground that the federal statute that covers private contracts did not protect her against acts of bias that occurred after the contract was entered into and that didn’t interfere with its performance.
Opponents of the bill have rarely addressed the human impact of the Supreme Court’s retreat on civil rights. Instead they have groused about costs and railed against quotas. Business representatives know as well as anyone else that equality doesn’t come cheap. They decry the added inconvenience and cost of defending lawsuits that might be directed against them if the bill passes; one witness submitted to the House Labor and Education Committee a table purporting to show that the costs of litigation under Title VII – attorneys’ fees, settlements and monetary awards – would jump from $775 million to $2 billion. A lawyer for the National Association of Manufacturers reminded the Representatives that the bill would impose “crushing costs” on public-sector employers, saddling the taxpayers with protracted litigation in a federal system which is already overburdened.’ The most common target, however, is the section of the bill that deals with lawsuits attacking employment practices that are, as the Supreme Court said in Griggs, fair in form but discriminatory in operation.’ Griggs bit the dust with last year’s decision in Wards Cove Packing Co. v. Atonio, which forces plaintiffs to prove a negative: that the employer has no business justification for a discriminatory practice. Now that the Civil Rights Act proposes to shift the burden of proof back to the employer, those opposed to the bin are quota rattling. This provision threatens great harm,” said Charles Fried, Solicitor General under President Reagan and now a professor of jurisprudence at Harvard Law School, in Senate testimony in February. It would force employers to use quotas in hiring or else expose themselves to lawsuits they cannot win.’ The argument here is that employers faced with charges of bias because of a discrepancy between the demographics of the local labor market and the corporate work force are so lacking in imagination that they will be unable to think of anything to do but hire unqualified minorities and women.
The quota issue is also the sticking point for the Bush Administration. In a letter to Senator Edward Kennedy written the day before the Senate Committee on Labor and Human Resources markup, Attorney General Dick Thornburgh expressed concern that the legislation would encourage quota systems’ and warned, If S. 2104 were presented to the President in its current form, I and other senior advisers would recommend that it be vetoed.’ The veto threat has not been repeated, and President Bush has made it difficult for observers to read his lips, telling reporters on May 17, ‘I want to sign a civil rights bill, but I will not sign a quota bill.’ At a meeting with civil rights groups a few days earlier he was similarly noncommittal, making only general and platitudinous reassurances and allowing chief of staff John Sununu (undoubtedly one of the most important of the ‘senior advisers’ referred to in Thomburgh’s letter) to warn of “ghosts” in the legislation – presumably the specter of quotas – that would have to be banished before the Administration gives its blessing.
The Bush people may be in a real jam on this one. If they go along with the legislation they are open to the charge from business groups and conservatives that they are agreeing to quotas. To oppose it would seem politically dangerous in an election year, especially when the civil rights community has made clear that Bush’s reputation with blacks may stand or fall on his support of or opposition to the bill. Kennedy has now brought along several new supporters, including two Republicans, by a”% to modify the definition of the business necessity that employers must prove in defending an employment practice that results in the exclusion of minorities and women. The new language allows employers to justify an employment test or educational requirement that has a discriminatory effect if it can be shown that it “bears a substantial and demonstrable relationship to effective job performance.’ This is nearly identical with the Griggs standard there the permissible practice had to have a manifest relationship to the employment”) that prevailed for nineteen years, and it is less onerous than the standard originally written into the bill-that a discriminatory practice is defensible only if it is ‘essential to job performance.” if the Bush Administration can’t agree to the new formulation, it is rejecting the message of the old law: that employers mustn’t screen out, even unintentionally, minorities and women without a very good reason. Surely this is a message that most American voters, if they knew they had the choice of accepting or rejecting it, would endorse.
But the contest over the Civil Rights Act is not about providing voters with that kind of information. The opposition is playing bogyman politics, throwing up a symbolic smoke screen to protect what one Senate witness candidly referred to as the national ideology’ of an employees right to hire and fire at wil. The bill’s critics bemoan the loss of the merit system’ in employment policy, but they have not presented a single piece of evidence that competence in job performance was threatened or that quotas were in fact adopted when companies were doing business under the Griggs standard. When public visibility is low, opponents of the legislation may abandon recourse to the buzzwords and simply make bizarre proposals to protect bosses’ right to hire workers they are comfortable with. One of the twelve amendments that Hatch brought with him when he came to the Senate committee markup was a masterfully circular proposal essentially allowing anyone to sue at any time to throw out a court-approved affirmative action plan as long as the allegation charged a violation of equal protection. (What else would the plaintiff charge?)
Throughout the legislative process conservatives have been saying that this bill is not intended merely to correct a few Supreme Court errors but that it goes beyond preserving the pre-1989 status quo in employment discrimination law. They have a point. The law synthesizes the pre-1989 judge made rules into a thoroughgoing legislative commitment to end employment bias and to enlist employers in achieving equality in the job market, not just demographic balance in individual workplaces. Its larger aims surface in its use of the word “eliminate’ when describing what federal civil rights laws are supposed to do about discrimination, and in its stipulation that all such laws shall be broadly construed.’ While affirmative action is not directly addressed by the bill, its spirit is still at issue – not the legitimacy of formal plans with goals and timetables for achieving racial and gender representation but the informal extra mile employers must go to conform hiring standards to the likely backgrounds of the minorities and women who will be coming to them for jobs. Employers will also have to recruit more imaginatively and aggressively. Most important, in order to insure that educational and training requirements for workers don’t shut out minorities and women, they may have to do the training themselves and support general and vocational education that prepares a broader range of people for the jobs of the twenty-first century.
One of the troubling aspects of affirmative action has been that it often pits poor African-Americans and Latinos against working-class whites, whose choices in jobs and education are also very limited. Anything that contributes to better job preparation in the larger society will benefit whites and males as well as racial minorities and women. A continuing tension is the competition between the needy and the less needy for scarce resources, including jobs. The Civil Rights Act of 1990, contrary to the charge that it will rigidify the labor market, has the potential for stimulating some universal entitlements.