Dispute grows over immigration law's anti-bias hiring clause. Critics contest administration's requirement of bias `intent'
Civil-rights groups, Hispanic organizations, and members of Congress are charging that President Reagan is attempting to emasculate the antidiscrimination portion of the new immigration-reform bill. Immigration analysts see the controversy as the result of an administration attempt to limit an expansion of the federal government's role in civil-rights enforcement.
The controversy centers around a provision in the legislation that calls for the appointment of a federal special counsel to prosecute employers who discriminate against their workers or job applicants on the basis of nationality or alien status. The provision applies to United States citizens and aliens with legal status.
The reform legislation grants amnesty to certain undocumented immigrants who entered the US before Jan. 1, 1982, and establishes a process whereby they can eventually become US citizens. The law also imposes sanctions on employers who knowingly hire undocumented aliens.
Some members of Congress warned during debate on the legislation that the fear of sanctions could prompt employers to discriminate against job applicants with, for instance, Hispanic surnames. They also expressed concern that confusion over the sanctions language could spark a rash of discriminatory firings of current Hispanic or alien employees.
When he signed the landmark immigration-reform bill Nov. 6, however, President Reagan issued a statement offering new interpretations of the antidiscrimination language. He argued that employers would be allowed to exclude applicants who failed an English test or an aptitude exam as long as the employer did not administer the test with ``discriminatory intent.''
Rep. Barney Frank (D) of Massachusetts, who wrote the antidiscriminatory section of the bill, called Reagan's interpretation ``intellectually dishonest, mean-spirited,'' and incorrect.
The congressional conference committee that produced the final version of the legislation did not require proof of intent in discrimination causes, according to Arnold Leibowitz, an expert who is an expert on the immigration legislation. Mr. Leibowitz drafted several early versions of the legislation when he served as the counsel to the Senate Subcommittee on Immigration and Refugee Policy from 1981 to 1984.
The President's reading of the bill, Mr. Leibowitz added, ``will be making a tough job almost impossible'' for the special counsel that will be charged with prosecuting discrimination cases under the new law.
``There was nothing in the floor debate on the committee hearings about intent,'' charged Wade Henderson, associate director of the Washington office of the American Civil Liberties Union. ``This is nothing more than a political thrust by the President to shape the provision to his liking.''
The dispute will probably end up in the courts, according to Leibowitz. ``I think there's going to be a lawsuit, no question,'' he said.
Administration officials said the Nov. 6 statement was a joint effort of the White House and the Justice Department. They said it was doubtful that Reagan's interpretation of the law will be altered.
The administration's introduction of the ``intent'' concept after the bill had become law indicated to Leibowitz that Reagan would do all he could to prevent what the President saw as ``the back-door creation'' of a new civil-rights institution.
The Frank amendment was intended to set up ``an easy, inexpensive, and quick'' way to enforce the law, said Mario Moreno, an official of the Mexican-American Legal Defense and Education Fund. He said the administration's interpretation will have the opposite effect.
Mr. Henderson said there are already indications that employers who do not understand the bill are firing Hispanic workers. ``We've received complaints about firings in the Dallas and Los Angeles areas,'' he said.
Reagan's opponents also charged that he tried to render the special counsel impotent by claiming in his Nov. 6 statement that the prosecutor would serve ``at the pleasure and with the policy guidance of the President, but for no longer than for a four-year term.''
``That is not what the law says,'' remarked Leibowitz. The President does have the power to appoint the special prosecutor, who is subject to congressional confirmation, for a four-year term, he said. But since the bill specifies the length of the term, continued Leibowitz, the President would not be within his legal rights to remove the counsel before the four years were up.
Reagan's remark about the prosecutor serving at his ``pleasure'' is an attempt to transform the special counsel from an independent prosecutor into someone ``who would be one of the team,'' Leibowitz said.
A White House official said the challenges to Reagan's reading of the bill were merely ``a question of one interpretation against another.''