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Bush and Senate Settle Differences On Civil Rights

In sex-discrimination suits, burden of proof would return to employer, caps would be set

AFTER nibbling away at affirmative action for the last few years, the United States is on the verge of enacting new civil rights protections for women and minorities.Senate Democrats and the White House have reached a compromise that, if passed, would represent a major step. The compromise bill would: * Sweep away provisions of recent Supreme Court decisions that have made discrimination suits harder to win. Instead, the bill would codify an earlier and easier test of discrimination. * Allow victims of intentional sex discrimination to sue for compensatory and punitive damages up to certain limits. Currently, they can sue only for back pay, restoration of seniority, and an injunction against further discrimination. * Prohibit "race-norming the practice of adjusting employment-related test scores by group. Instead of hiring the top 10 applicants, for example, businesses using race-norming could hire the top 10 whites, top 10 blacks, and top 10 Hispanics. Legal experts hailed the proposed language. "This has got to be treated as a significant advance," said Rod Boggs, executive director of the Washington Lawyers' Committee for Civil Rights. In a rare display of collaboration, Senate Democrats and Republicans cheered and hoped the compromise would move rapidly through the House. "We've restored the nation's bipartisan consensus on civil rights," said Sen. Edward Kennedy (D) of Massachusetts. "This is the next great milestone toward achieving equal justice in our society and removing race and sex discrimination from the workplace." "It's a joyous day," President Bush said Friday, adding that he would sign such legislation enthusiastically. A year ago, Bush vetoed similar civil-rights legislation, saying it would force businesses to resort to racial quotas to avoid discrimination suits. "We have a civil rights bill," Bush said. "It's not a quota bill." Some business groups are skeptical. "We have not seen the details of the compromise, but based on what we know so far, we are gravely disappointed," said William Archey, senior vice president for policy with the US Chamber of Commerce. The National Federation of Independent Business, the nation's largest small-business group, was more direct in its response: "This bill will make businesses sitting ducks for capricious lawsuits." While the proposed legislation increases the potential damages in sex-discrimination suits, it also imposes caps on those damages. Maximum damages are $50,000 for businesses with 16 to 100 employees; $100,000 for businesses with 101 to 200 employees; $200,000 for companies with 201 to 500 workers; and $300,000 for firms with more than 500. Current law exempts companies with fewer than 16 workers. "Overall, this is not a victory for women," a spokeswoman for the American Association of University Women was quoted as saying. The concerns of business and women's groups relate to two key provisions of the compromise. The first involves cases of unintentional discrimination by businesses. For example, what happens if a company has business practices that appear neutral but cause a disproportionate number of white applicants to get jobs over blacks or Hispanics? In a 1989 case called Wards Cove v. Antonio and in subsequent decisions, the Supreme Court shifted the burden of proof from the employer to the plaintiff. Before Wards Cove, employers had to prove that such practices were "a business necessity." Currently, plaintiffs must disprove that. The compromise would return the burden of proof to employers in language similar to the 1971 Supreme Court decision Griggs v. Duke Power Company. The second provision - caps on damages in sex-discrimination cases - is not logical, legal experts say; such limits don't apply to racial discrimination suits. Nonetheless, "it's big enough that women who are harassed will be able to find lawyers who will take the case," said Jamin Raskin, a law professor at American University in Washington. The idea of caps has riled some Democrats, such as Sen. Tim Wirth of Colorado. Senator Kennedy and others have vowed to pass separate legislation later to eliminate the caps. Sen. John Danforth of Missouri sponsored the Republican compromise that finally broke the two-year deadlock between Democrats and the White House. In the end, each side claimed the other had compromised. "These things get so semantically fine," says Terry Eastland, a resident fellow of the conservative Ethics and Public Policy Center, who opposes the compromise. "It's a bad idea for him [Bush] to try to shave it so close." Speculation in Washington was rife that the White House had caved in to political pressure from GOP senators. Until now, the White House had enough Republicans to support a veto of Senator Danforth's compromise. But Republicans have come under increasing scrutiny on civil rights since sexual harassment charges were leveled against Supreme Court Associate Justice Clarence Thomas during his confirmation hearings. Party candidates did not want to face a barrage of criticism for downplaying such charges. Republicans were further flustered when former Ku Klux Klan official David Duke finished second in the Louisiana governor's primary. Mr. Duke, who is running as a Republican, now faces a Democrat in the runoff.

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