White House Backs Waivers of Job Bias Suits

The Bush Administration, unveiling its long-awaited civil rights legislation, proposed Friday to allow companies to refuse to hire workers unless they sign a binding statement waiving all rights to sue in employment discrimination cases.

The Justice Department timed the release of the bill for after 6 p.m. on a Friday at the end of a war in an apparent effort to diminish the negative publicity that reopening the controversial issue is likely to cause for President Bush.

Last year, civil rights became the subject of a bruising legislative fight that reached its culmination in Bush’s veto of a law he contended would have required racial quotas.

The provision allowing waivers of the right to sue would force workers to rely on arbitration panels and give up the chance to present a discrimination case to a jury. It was immediately attacked by civil rights attorneys as a fundamental change in civil rights law.

“It’s not only substantially worse than last year’s Administration bill, it represents a substantial assault on Title VII,” the basic federal anti-discrimination law, said Kerry Scanlon of the NAACP Legal Defense Fund.

But Administration lawyers, in a statement released with the bill, argued that the no-lawsuit provision is needed “in light of the litigation crisis facing this country.”

In other areas, the new bill would strengthen some provisions of the nation’s civil rights laws. But it would do far less than civil rights advocates have demanded, setting the stage for a repeat of last year’s battle.

Many Republican strategists have been itching for another fight on that issue, feeling that the quotas charge can be used as a political wedge. Some White House officials, however, have been hoping to simply bury the issue, arguing that with Bush’s popularity now sky-high, he has no need to exploit such “wedge issues.”

Although much of the new Bush bill is non-controversial, at least three provisions are likely to recreate much of last year’s furor.

In addition to the provision for waiving the right to sue, the controversial sections involve how much money women would be allowed to collect if they win sex discrimination cases, how much proof workers would be required to show to win many types of discrimination cases and how often white, male workers could go to court to ask judges to reopen cases that resulted in special benefits to women or minorities that allegedly cause “reverse discrimination.”

Currently, because of a legal anomaly, workers who are the victims of sex discrimination can collect monetary damages only for the pay that they may lose because of the denial of a promotion, loss of a job or other discriminatory act. By contrast, victims of racial discrimination can collect far broader damages.

Civil rights advocates have been trying to change the law to give victims of sex discrimination the same remedies available to victims of race discrimination. The Administration bill, however, would stop short of doing that.

Under the Administration bill, women would be able to collect expanded damages, but only for sexual harassment, not for other forms of discrimination. Those damages would be limited to $150,000 and would have to be awarded by a judge, not a jury. Lawyers who specialize in discrimination law, on both sides, tend to believe that juries are more likely to give large damage awards than are judges.

The second controversy involves the evidence needed to prove that a company’s employment policies have the effect of discriminating even if discriminatory intent cannot be proven. A Supreme Court decision in 1989 made winning that sort of case far more difficult. The Administration bill would reverse that decision in part, but would not go nearly as far as civil rights advocates would like. The Administration argues that the changes civil rights lawyers want would leave companies no way to avoid suits other than to adopt quotas.

The key language in the Administration bill would shield a company from such suits if it can show that the policy over which a worker is suing “significantly serves” one of the company’s “legitimate employment goals.”

Last year, civil rights groups objected that nothing in the Administration’s bill would prevent a company from arguing, for example, that it was only putting men in certain jobs because a major customer preferred doing business with men. That sort of practice could be defended as a “legitimate employment goal,” the groups argued.

In response to that charge, the Administration last year modified that key section of the bill. Those modifications, however, have now been dropped.

The “reverse discrimination” issue came to the Supreme Court when the justices allowed white, male firefighters from Birmingham, Ala., to challenge an affirmative action plan that had been worked out years earlier. Civil rights lawyers argue that the court’s ruling in the case potentially will force the reopening of hundreds of cases.

The Administration, however, argues that it would be unfair to deny a day in court to people claiming reverse discrimination.

The question of whether companies can require workers to sign arbitration pacts barring suits is currently before the Supreme Court. Lower courts have held that current law prevents companies from requiring workers to waive their right to sue.

But employer groups, arguing that litigation is too expensive and that courts award excessive damages, are trying to convince the high court to change that rule. The Administration’s proposal, if it became law, would effectively preempt whatever the court decides.

The Administration bill would declare that binding arbitration “shall be encouraged,” changing the current rule that restrictions on the right to sue are against “public policy.” The bill allows waivers only if they are “voluntary,” and courts could decide that making such a pledge a condition for getting a job fails that test. In the past, however, courts generally have given companies broad latitude in setting conditions for employment so long as a “public policy” rule is not violated.