New Civil Rights Law Bears Seeds Of Controversy
Whether it will result in 'colorblind' hiring and promotion policies is yet to be worked out
POLITICIANS left a lot of room for argument in the 1991 civil rights bill.Although President Bush signed it into law Nov. 21, much of the battle over how it will change the rules of hiring and job promotions still lies ahead. The range of possible readings of the new bill appears to be wide - from requiring a virtually colorblind workplace, without racial preferences or minority set-asides, to stiffening the demands on business to justify any racial or gender disparities. In economic terms alone, the stakes are billions of dollars high. If the bill were used to dismantle all minority set-aside programs for federal contracts, as White House counsel C. Boyden Gray has proposed, the effect on minority businesses nationally would be "devastating," says John Winston, associate director of the Minority Business Development Agency in the United States Department of Commerce. The Department of Defense alone dispensed $4.1 billion to minority contractors in fiscal 1990. To lose such opportunities, says Mr. Winston, would be comparable among minority entrepreneurs to the 1929 stock collapse or the present savings-and-loan crisis. The hiring and promotion practices of the federal government itself have signal impact in the black community. About half a million blacks are directly employed by the US government, where they are nearly twice as well represented as in the private sector. On the other hand, a conservative reading of the new law would confront businesses with less liability for discrimination lawsuits and the costs they bring. The next step is now under way at the Equal Employment Opportunity Commission (EEOC), where lawyers are figuring out how the new law affects the federal guidelines for affirmative action in both private and public enterprises across the US. What the EEOC determines, probably in the next month or so, will be an important guide to the federal court rulings that will eventually define the law. "If the agency has adopted an interpretation that is not crazy, that is not unreasonable - then the courts will abide by it," says Alfred Blumrosen, a law professor at Rutgers University who has served as an official in and consultant to the EEOC. How much maneuvering room is left in the law was illustrated by the distance between the original draft of the President Bush's signing statement for the bill Nov. 21 and the bill's reading by most of its supporters.
Firm endorsement The original draft, written by Mr. Gray, called for termination of the federal government's affirmative action, racial preference, and minority set-aside programs. It interpreted the bill to require essentially colorblind hiring and promotion. "Any regulation, rule, enforcement practice, or other aspects of these programs that mandates, encourages, or otherwise involves the use of quotas, preferences, set-asides, or other similar devices on the basis of race, color, religion, sex, or national origin is to be terminated as soon as legally feasible," the draft said. The draft the president actually delivered firmly endorsed the concept of affirmative action. Most experts and lobbyists on either side estimate that the bill probably put the onus back on employers to prove that racial or gender disparities stem from legitimate business requirements - returning civil rights law to near what it was before a series of conservative US Supreme Court decisions in 1989. But to win passage, the bill had to blur a key point by avoiding a clear definition of how business can jus tify job requirements that end up discriminating by race or sex. Many close observers on both ends of the civil rights debate suspect that Mr. Gray's colorblind reading of the bill will resurface. In this view, the president's endorsement of affirmative action was a response to outcry over the Gray draft statement, but the draft was a glimpse of the truer direction of the administration.
Lawsuits foreseen "It tipped the president's hand," said Dwight Kirk, a spokesman for the American Federation of State, County, and Municipal Employees. Many conservatives, such as former Reagan Justice Department official Terry Eastland, believe that because the key point in the bill was left vague, the conservatives won. The defining will ultimately take place in federal courtrooms, as lawsuits percolate through the system, ending with the Supreme Court.
EEOC has next move Others believe the bill is probably specific enough to foreclose very conservative rulings. The next call will be made at EEOC. One complication is how the law, which is retroactive, will affect cases already pending. EEOC chairman Evan Kemp wrote two letters to White House chief of staff John Sununu last spring arguing against the compromise bill that Republican Sen. John Danforth of Missouri was promoting. He argued that demanding all job requirements to be strictly job-related undermined the president's education goals. Civil rights watchers take this as an indication of Mr. Kemp's conservative tendencies on civil rights. On the other hand, he has been a forceful advocate for protecting the disabled and may apply similar standards to discrimination on other fronts.