Senate Debate Opens on Bill to Reverse Rights Rulings

The Senate began debate Tuesday on a broad civil rights bill that would reverse some of last year’s Supreme Court rulings and create a new right for women to sue employers for sexual harassment.

Since January, Senate Democrats have jockeyed with the White House in hopes of working out a version of the bill that President Bush would endorse.

“It is essential for this Congress to send a clear message to the country that retreat on civil rights is unacceptable,” Sen. Edward M. Kennedy (D-Mass.), the chief Senate sponsor, said in opening the debate.

But Sen. Orrin G. Hatch (R-Utah), the main opponent, complained that the measure “will force employers to proportionally hire . . . by statistics.” But he conceded that Kennedy has more than enough votes to pass the bill.

Both Republicans and Democrats say they agree that the law should punish employers who blatantly discriminate based on race, sex, religion or national origin. They continue to disagree over how to handle employers whose policies have resulted in few minorities or women being hired or promoted.

In 1971, the Supreme Court ruled unanimously in the case of Griggs vs. Duke Power that employers may not use a hiring test that tends to exclude minorities unless they can prove the standards set by the test represent a “business necessity.”

But last year, the court reversed that ruling on a 5-4 vote. Now, employers may use tests or other criteria which have a discriminatory effect so long as they serve “legitimate employment goals.” Moreover, to win a job discrimination suit, disgruntled employees bear the burden of proving that those tests are unfair and unnecessary, the court said in Wards Cove vs. Antonio.

The Kennedy bill would put the burden back on employers to prove that their hiring and promotion standards are fair. If, for example, a company uses tests, interviews and other criteria to select or promote employees, and if a “disparate” percentage of blacks, Latinos or women are excluded, the company can be accused of violating federal civil rights law.

If sued, the employer must prove that those standards are “required by business necessity” and “bear a substantial and demonstrable relationship to effective job performance.”

Democrats said that this change would return the law to the way it has been since 1971 and would prevent discrimination.

But, in a six-page letter to Kennedy on Tuesday, White House Chief of Staff John H. Sununu said that he “continues to fear” that the bill would force employers to adopt hiring quotas to head off lawsuits.

Though overshadowed by the “quota” fight, the bill would significantly expand the Civil Rights Act of 1964 by allowing victims of discrimination to win compensatory and punitive damages from their employers. Under the 1964 law, persons who were fired or not hired because of discrimination based on race, sex, religion or national origin could get their jobs and receive back pay--but that is all. They could not win damages.

However, under a separate law dating to 1866, blacks and other victims of racial discrimination who were denied employment or were fired because of their race could sue employers for damages.

Among those left out were women who were victims of sexual harassment on the job. Under the current law, a judge could issue an order to stop such harassment but the victims could not win damages. The Civil Rights Act of 1990, as Kennedy’s bill is known, would permit federal courts to award damages to women and other victims of discrimination.

California is one of seven states that now allow women to win damages in state courts for sex discrimination and harassment.

In addition to reversing the Wards Cove ruling, the pending bill would reverse several other high court rulings from 1989:

--In Patterson vs. McLean Credit, the court ruled that a black woman harassed on the job because of her race could not sue her employer. The bill would allow an employee who was harassed or discriminated against in any aspect of his or her job to win damages. Both public and private employers are covered.

--In Martin vs. Wilks, the court said that whites who are hurt by a consent decree that favors blacks or other minorities may reopen the case to challenge it. The bill says that a final consent decree “may not be challenged” in a new suit.

--In Lorance vs. AT&T;, the court ruled that employees hurt by a change in seniority rules cannot challenge them after they have been in effect for 180 days. The bill would drop that deadline and allow legal challenges.

Staff writer David Lauter in Houston contributed to this story.