Democrats Try New Strategy On Civil Rights
Leaders in House say they have produced a bill that meets Bush's quota objections
THE Democratic leaders of the US House of Representatives are confident of passing a major civil rights bill May 30 against stiff White House resistance. After months of thwarted negotiations, the Democrats feel they have achieved two things:
1. The crafting of a bill strong enough to reverse United States Supreme Court decisions in recent years that make it more difficult to win discrimination suits against employers.
2. The building of a fire wall into the language to ward off charges that the bill will lead to hiring quotas.
The charge that the bill will force businesses to adopt racial quota systems hangs on a subtle turn of phrase. But if Republicans can make the charge stick, it offers them campaign dynamite.
The concept of hiring or promoting by racial quota is anathema to most Americans.
"One of the most strongly held beliefs in our society is that competition for jobs should be fair," says Michel Rosenfeld, a law professor at Yeshiva University and author of a new book on affirmative action. "What is objectionable to most people is that a quota is a fixed percentage regardless of merit."
Support also runs deep for antidiscrimination laws, notes Celinda Lake, a Democratic pollster and campaign consultant who has studied public attitudes for years.
But support for affirmative action falls off sharply when it becomes a fixed racial quota. "It's important for politicians to get quotas off the table," Ms. Lake says.
That's just what Democrats are trying to do. Staff attorneys on the House Judiciary Committee worked throughout last week to draft wording that would explicitly outlaw quotas. They also sought to ban or limit the use of "race-norming," or within-group scoring, which weights test results differently according to the race of the test-taker.
Unmoved, the Bush administration still vows to oppose it as a de facto "quota bill."
The Bush argument is that, regardless of the banning of quotas, parts of the bill would make it so difficult for businesses to defend against discrimination suits that they would hire by quota to avoid them.
This is Round 2 between President Bush and Congress over civil rights. Both House and Senate easily passed a civil rights bill last year that Mr. Bush vetoed in October. The Senate fell one vote short of overriding his veto.
This time, House Speaker Thomas Foley (D) of Washington is forecasting enough votes in the House to override a veto.
For months, Democrats were negotiating directly with the Business Roundtable, an association of major corporations, to work out a compromise.
The business executives backed out last month, however, under heavy pressure from the White House. The Bush administration argued that the association was representing only large, wealthy companies with formalized personnel policies.
Most employers are smaller businesses with less flexibility.
Both the administration and the Democratic leadership of Congress claim the same goal for a new civil rights bill - to undo a series of Supreme Court decisions, most of them in 1989, that hold antidiscrimination suits and racial preference policies to stricter tests than before.
Up until 1989, when a business practice was found to screen out a disproportionate number of minority or women employees, the burden of proof fell on the employer to show why the practice was necessary. After the 1989 court decision in Wards Cove Packing Company v. Atonio, the burden of proof fell to the applicant or employee to prove how a specific practice was discriminatory.
Both Republican and Democratic versions of the civil rights bill shift the burden of proof back to the employer to justify practices that have an unequal impact on minorities or women. The Democratic version shifts it further. It requires that such practices "bear a significant relationship" to an employee's success on the job.
The administration's own version would require a "manifest relationship" to the job or that the employer's goals are "significantly served by, even if they do not require, the challenged practice."
To many businesses, the difference in wording can mean costly nuisance lawsuits. To many minorities and women, the difference would make already difficult-to-prove discrimination cases even harder to make.
The bill up for vote this week also extends the right to sue for damages to gender and religion discrimination cases. Now, only race cases can include damage awards. Other cases would be limited to $150,000 in damages, a limit intended to make the change less threatening to businesses.
The Urban Institute recently concluded one of the few studies ever done of discrimination in hiring. Sending out black and white job seekers in pairs carefully matched in terms of education, experience, physical size, articulateness, and even apparent energy level, the study found that, 20 percent of the time, white applicants were hired and their black test partners were not.
The reverse was true only 7 percent of the time.