When President George Bush vetoed the Civil Rights Act of 1990 last October, he claimed that the Administration would introduce legislation to correct recent Supreme Court rulings that have watered down protections against employment discrimination. In part because of that pledge, the President's veto survived by a single vote in the Senate.
Earlier this month, the Administration unveiled the promised proposal--on a Friday evening, a time designed to attract the least public attention. The reason for the timing is plain when the proposed legislation is analyzed: It is shameful anti-civil-rights legislation.
The Bush Administration has squandered an opportunity to play a decisive leadership role in civil rights. The Gulf War, a war in which one-third of the ground troops are African-American, is now behind us. Many of those serving in the Gulf--minorities and women--would have been beneficiaries of the vetoed 1990 legislation. As a historical matter, many civil- rights gains have come in postwar eras, when the country has attempted to live up to its proclaimed ideals of freedom and equality that its military have defended in battle. How much better it would be for the President to aid, not retard, that process.
The Civil Rights Act of 1990 had a 65% level of support in both houses of Congress. The legislation enjoys wide backing outside Congress as well, ranging from the American Bar Assn. to the Administration's own Civil Rights Commission to conservative columnists such as James Kilpatrick.
The need for new legislation is clear. In its 1989 term, the Supreme Court issued a series of rulings that cut back the rights of minorities and women by depriving employees of protection against on-the-job harassment, no matter how offensive or blatant; by limiting the ability of employees to obtain relief from broad, systemic discrimination, and by permitting long-resolved discrimination cases to be reopened and challenged. The Civil Rights Act of 1990 straightforwardly dealt with these and other problems.
Not having a legitimate difference of substance with the act, the Administration invented the issue of quotas. It argued that the legislation would result in hiring or promotion by the numbers without relation to qualifications, although the act expressly prohibited any quotas.
The Administration leveled its charge notwithstanding the protests of several leading anti-quota organizations--the Anti-Defamation League of B'Nai B'rith, the American Jewish Committee and American Jewish Congress--that the legislation clearly did not require or encourage quotas.
Now, in its own proposal, the Administration has come up very short. Although the legislation is supposed to restore legal protections stripped from employees, one of its key features instead robs them of yet another. It permits employers to force employees, as a condition of employment, to waive their right to sue in case of job discrimination.
The protections that our civil-rights laws give racial and religious minorities and women are crucial. For this reason, Congress has not restricted employees to one remedy or another; since 1974, the law has been that employers cannot require employees to submit to arbitration of discrimination claims and give up their right to sue. Now the Administration wants to force employees to give up that right to pursue justice in a court of law.
If employees cannot sue, employers are not deterred from discriminating; rather, we embolden unscrupulous employers who might take advantage of a recession or other happenstance to deprive hungry employees of civil-rights protection. We should not force a worker to sell his or her birthright for a bowl of porridge; employees deserve both their civil rights and their jobs.
The Civil Rights Act of 1990 also would have given women and religious minorities the right to obtain damages from juries for harassment and other employment discrimination, a right that racial or ethnic minorities had until the 1989 Supreme Court decisions. Last year, the Administration opposed that reform.
This year, it has changed its position to permit women to seek damages for harassment but not for any other discriminatory behavior, such as failure to hire women, denial of promotions or wrongful termination. While other protected groups have these rights under another statute, women will not be able to obtain compensatory or punitive damages no matter how outrageous the discriminatory conduct may be.
Moreover, a woman--but not members of other groups--would be denied a jury trial and be limited to $150,000 in damages, no matter how egregious the employer's illegal acts may have been. The woman would be required to submit her claim to an employer's internal procedure for resolving complaints within 90 days. If she failed to do so, she couldn't sue, although no other employee has to meet such a requirement under the civil-rights laws. There is no way to effectively police the legitimacy of such procedures.
The Administration proposes to help employers in yet another way that opens the door to renewed discrimination.
The Supreme Court decided 20 years ago that the 1964 Civil Rights Act prohibited not only intentional discrimination but neutral practices, such as certain written examinations, that had discriminatory effects. In proving these cases, employees had to show the adverse impact of these practices, while employers had the burden of showing that such practices were necessary in their conduct of business.
In 1989, the Supreme Court let the employer off the hook. It said employees had the burden of proving that there was no "business necessity" behind the discrimination. Last year's Civil Rights Act would have restored the employer's burden of proof.
The Administration, however, proposes to restore to the employer only a minimal burden. Its legislation would redefine "business necessity" to mean that some legitimate employment goal is significantly served by the practice being challenged. So employers could argue that ostensibly neutral practices--including subjective selection procedures as well as tests--are justified by something so flimsy as customer preference.
For example, it might well be legitimate under the Administration's bill for a bank to refuse to hire African-American tellers because their white customers might not like them. That reduces the ban on discrimination by so-called neutral, unjustified practices to an empty promise.
There are many other defects in the Administration bill. It is so one-sided, so biased in favor of employers, so directly contrary to Congress' demonstrated concern for civil rights, that it should be summarily rejected. Congress should enact--one hopes with support from the Administration--a Civil Rights Act that will ensure equal and fair employment opportunities for all people.
DR, RANDY LYHUS / For The Times