Civil Rights Bill Imperiled by Issue of Indirect Hiring Quotas : Legislation: Democrats seek to void 5 high court rulings that make it harder to prove job bias. But they tone down measures to avert a veto.

All men and women are not created equal. Some can race up a fire ladder carrying a thick hose on their backs. Most, particularly women, cannot.

So, if a city fire department requires job seekers to climb high ladders and carry heavy hoses and oxygen tanks, does that constitute illegal sex discrimination?

Yes, said women who sued the Evanston Fire Department, because those tests had the effect of excluding females from firefighting jobs.

No, said the city, because the test measured skills needed by firefighters.

This question is at the heart of a dispute over civil rights shaping up between Congress and the White House.

Last year, the Supreme Court in five separate rulings made it harder for groups such as blacks, Latinos or women to prove they were victims of discrimination.

Civil rights activists angrily accused the court of rolling back two decades of progress on civil rights. Taking up the cause, Democrats on Capitol Hill vowed this year to reverse all five of those rulings.

Now, the Bush Administration is charging that the Democrats’ approach will force employers to use “quotas” for hiring and promotion, and Bush has threatened to veto the entire civil rights bill over the issue.

The disagreement centers on one of the five rulings. Last year, in the case of Ward’s Cove Packing Co. vs. Antonio, the justices reversed an 18-year precedent and ruled that employers accused of discrimination must show only that their hiring or promotion practices meet “legitimate employment goals.”

Previously, the court had set the far more demanding requirement that employers prove the discriminatory job criteria were in fact a “business necessity.”

The cases do not allege that employers intentionally discriminated. Rather, they involve hiring practices that unintentionally exclude or discriminate against minorities or women.

Under the old rules, civil rights lawyers used class-action suits to challenge everything from height and weight requirements for prison guards to civil service tests used for government promotions.

Under the new rules, civil rights activists charged, employers would be permitted to discriminate with impunity. But supporters of the recent rulings countered that the real issue is competence and qualifications, not discrimination.

The case of the women who wanted to become firefighters illustrates the dispute.

After 1981, Evanston, a university town on Chicago’s North Shore, began holding physical tests for aspiring firefighters. The applicants are timed as they race up and down a 70-foot ladder, lift a ladder off a truck and lean it against a wall and carry a heavy hose across a field and then fasten it to a hydrant.

In the 1985 test, only 7% of the female candidates--but 85% of males--received passing scores in this timed test.

When 39 unsuccessful female candidates charged the city with violating federal civil rights law, a judge ruled in their favor. The test was a reasonable standard, the judge concluded, but the cut-off scores used by the city were not.

Evanston officials had failed to prove that a candidate who did all the tests in 12 minutes--a passing score--was truly better qualified than one who did it in 13 minutes, a failing score. One piece of damaging evidence: It turned out that many women who failed in the 1980s actually scored better than about one-third of the men who were currently on the job as city firefighters.

But, after the high court ruling in the Ward’s Cove case, an appeals court in Chicago overturned the judge’s decision in Evanston.

The same day, the same Chicago-based appeals court used the Ward’s Cove standard to overturn a ruling in favor of black bank examiners who had challenged a promotional test given by the Federal Deposit Insurance Corp.

Because only 39% of black candidates passed the test, compared to 84% of whites, a judge had found it discriminatory. Now, the FDIC can prevail, the appeals court said, by showing only that the test fostered the “legitimate employment goals” of the agency.

In both the firefighting and bank examiners’ cases, lawyers said their clients have accepted small out-of-court settlements rather than go through another trial.

However, if the new legislation were to become law, future suits of this type would stand a good chance of success.

The Senate bill, as approved by a committee in April, set a stiff standard. An employer whose hiring or promotion practices had “disparate impact” on groups such as blacks, Latinos or women would be violating the law unless the employer could prove that those practices are “essential to effective job performance.”

Sen. Edward M. Kennedy (D-Mass.), its chief Senate sponsor, said this provision will “root out the subtle and not-so-subtle practices of discrimination that kept minorities and women from participating fully and fairly in our economy.”

The law would apply to all employers--public and private--with more than 15 employees. It would cover not only “objective” hiring measures, such as the standardized Evanston test, but also more subjective ones, such as interviews.

Critics contended that this provision, if enacted into law, would force employers to adopt hiring and promotion quotas to head off lawsuits.

The problem, said Harvard law professor Charles Fried, is that employers will not be able to prove that any hiring or promotion standards are “essential to effective job performance.” For instance, he doubted that a university could prove that it was essential for faculty members to have a doctorate.

The only alternative, he contended, would be to hire and promote employees so that the work force reflected the local labor pool. That criticism, voiced by corporate lawyers and Republicans on Capitol Hill, led Atty. Gen. Dick Thornburgh to recommend that President Bush veto the legislation.

Civil rights advocates countered that the bill said nothing about quotas and was intended merely to restore the law to what it had been before the Supreme Court reversed course.

Nevertheless, the House version of the bill, sponsored by Rep. Augustus F. Hawkins (D-Los Angeles), was changed two weeks ago to ease the burden on employers. Now, an employer accused of having hiring or promotion standards that tend to exclude minorities or women must prove only that the standards “bear a substantial and demonstrable relationship” to job performance.

Last Thursday, Kennedy, joined by key Senate Republicans, announced that he would accept that change to make the legislation “veto proof.”

These recent changes in the civil rights bill have mollified some critics, but not others. Last week, the White House backed off somewhat from its threat to a veto the bill. However, some business advocates are still unhappy.

The legislation, which the Senate is expected to vote on next month, does not affect the Supreme Court’s 1989 ruling limiting the ability of city and state agencies to reserve a percentage of their contracts for minority members and women. Since that ruling, affecting only public employers, was based on the Constitution, not federal law, Congress cannot reverse it.

But it almost certainly is expected to reverse another of the controversial five rulings last year.

In the case of Patterson vs. McLean Credit, the court said that a black employee who is subjected to racial harassment on the job cannot sue for damages. The federal law allowing blacks to sue for racial bias in “making contracts,” the court said, covers only hiring or firing, not work conditions.