Lawyers Back Bill to Restore Scope of Civil Rights Laws

The American Bar Assn. urged Congress on Monday to overturn five U.S. Supreme Court rulings last year that limited the scope of federal civil rights laws.

The lawyers’ organization, meeting in Los Angeles, threw its weight behind legislation introduced last week by Sen. Edward M. Kennedy (D-Mass.) that would rewrite the law so as to nullify the high court’s decisions.

The bill would permit employees who are victims of racial harassment to win damages from their employers and would force businesses to justify as necessary any hiring or promotion policy that tended to exclude minorities or women.

The bar association vote in favor of the new civil rights initiative came despite pleas from business lawyers and a top official of the Bush Administration to hold off action.

The association represents 365,000 attorneys nationwide, and its officials say they plan to lobby on behalf of the new civil rights legislation when the Senate begins hearings on the bill later this month.

“Historically the ABA has played a key role in the development of the civil rights laws, and it would have been a shame if the organization wasn’t willing to go on record now,” said Washington lawyer Sally Determan, who proposed the resolution approved Monday.

The pending civil rights legislation may well spark a fight between the Bush Administration and congressional Democrats.

Deputy Atty. Gen. Donald B. Ayer told the bar association gathering that the Administration will offer legislation to overturn two of the five rulings that deal with blatant discrimination.

The Bush White House is “committed to strong remedies for intentional discrimination,” Ayer said. But the Administration opposes overturning the other rulings, he said, because they deal with “quotas” in hiring and promotions. Ayer described the association’s resolution and the Kennedy bill as a simplistic “wave of the hand” response to a complicated legal issue.

But American Bar Assn. President-elect Jack Curtin, a Boston lawyer, said the issue was indeed simple. “Does the ABA want to make it easier or harder for victims of discrimination to gain relief?” he asked.

With that, the delegates voted by a 2-1 margin for a resolution calling for all five rulings to be overturned.

The five court rulings came at the end of the 1989 Supreme Court term and were decided on 5-4 votes, with the court’s conservative faction in the majority. They decided the following:

- Black employees who are victims of racial harassment on the job may not sue for damages. The Civil Rights Act of 1866 gave blacks the same rights as whites to “make and enforce contracts” and allowed damage suits against violators of those rights. In Patterson vs. McLean Credit, the court said this law covered discrimination in hiring--because that is akin to making a contract--but not on-the-job discrimination.

- Women and minorities must challenge an unfair change in a company’s seniority policy within 300 days, even if the women have no way of knowing then that they will be hurt by it. The case was Lorance vs. AT&T.; Kennedy and the Bush Administration agree that this time limit should be relaxed.

- White employees may challenge a court-approved affirmative action plan years after it was adopted. This decision in Martin vs. Wilks threatened to unravel hundreds of city and county plans to hire and promote more minorities. The Kennedy bill would forbid new lawsuits if the white employees knew about the plan when it was in the works and chose not to contest it then.

- Employees must no longer prove the necessity of hiring or promotion policies that tend to harm minorities or women. In 1971, the high court put the burden of proof on employers if their job policies had a discriminatory impact. But last year’s decision in Ward’s Cove Packing Co. vs. Atonio essentially reversed that doctrine and put the burden of proof back on employees who say they were victims of discrimination. The Kennedy bill would return to the 1971 standard.

- Managers may use racial or sexist reasons for denying an employee a promotion if they can furnish other legitimate reasons for their decision. The case was Price-Waterhouse vs. Hopkins. The Kennedy bill says the employer is guilty of illegal discrimination if race or sex was one reason for denying a promotion.