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John Sununu Issues Files
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Originally Processed With FOIA(s):
FOIA Number:
1998-0004-F[2]; 1999-0285-F
S
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This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin: Chief of Staff, White House Office of
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Sununu, John, Files
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Issues Files
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29147-003
Folder Title:
Civil Rights (2 of 2) 1991 [5]
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15
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7
6
09/25/91
14:01
002
JOYCE
DENNIS
EMORY UNIVERSITY
School of Law
Faculty
Gambrell Hall
Atlanta, Georgia 30322
404/727-6816
September 18, 1991
Senator Bob Dole
United State Senate
Office of the Republican Leader
Washington, DC 20510-7020
Dear Senator Dole:
In response to your request, I have reviewed Senator
Danforth's proposals for civil rights legislation and the
modifications suggested by you and Senator Kassebaum. I will limit
my comments to the four areas, identified in your letter, where the
two versions differ.
1. Finality of Consent Decrees. In my opinion, the Dole-
Kassebaum modifications strike a better balance between the need
for consent decree finality and the rights of third parties
adversely affected by consent decrees. Your modifications will
encourage settlements which take account of the interests of all
employees, rather than casting the onus of settlement upon
employees not represented in decree negotiations. In workforces
increasingly diversified by sex and national origin as well as
race, finality should not be given to settlements made at the
expense of employees who have notice only that a settlement "might
adversely affect the[ir] interests and legal rights." Your
modification would prevent litigants from capitalizing on the high
probability that potentially affected employees would decline to
enter ongoing litigation when their legal rights might not be
adversely affected.
Moreover, how would courts determine whether notice contained
"sufficient detail" to show an employee that the decree "might
adversely affect" him or her? Your proposal, barring challenges
where an actual challenge on "the same legal grounds and with a
similar factual situation" occurs, would be much easier for courts
to apply fairly.
Your proposal might be improved by deletion of the phrase
"unless there has been an intervening change in law or fact.
Though I appreciate your effort to recognize that legal doctrines
in this area do change and that factual changes such as labor
market shifts do occur, I think the preceding clause adequately
addresses this issue. Where there is an actual challenge to a
09/25/91
14:02
003
decree involving "the same legal grounds and with a similar factual
situation,' it is fair to hold all those "adequately represented"
to the outcome of that challenge.
2. Disparate Impact Causation. I believe the Dole-Kassebaum
deletion of the phrase "in whole or in significant part" would
improve the Danforth proposal. Under the Danforth language, courts
would be drawn into making fine determinations of causation not
required under Griggs and its progeny or Wards Cove. Your proposal
effectively deals with the post-Wards Cove dilemma of employees
excluded from employment opportunities by processes "not capable of
separation for analysis" without otherwise altering Title VII law.
3. The Definition of "Business Necessity." I will take as a
given that a bifurcated standard for "job qualifications" and
"other employment practices" would be politically acceptable to
both Congress and the Administration. Deletion of "that include job
qualifications and are" so that the subsection would read "in the
case of employment practices used to measure the ability to perform
the job, the challenged practice must bear a manifest relationship
to the employment in question" would simplify the provision.
4. Jury Trials. Like you, I am concerned that jury trials,
when combined with compensatory and punitive damages, will convert
a process designed to facilitate conciliation into a tort
litigation system. However, I do not believe any bill before
Congress combines greater remedies to victims of discrimination
with inexpensive and conciliatory dispute resolution processes.
Given the limited framework within which constructive suggestions
may be made, I believe your revision would produce more uniform
assessments of monetary liability because judges, unlike juries,
would have to articulate standards for their calculations of
damages. I can not address whether your proposed liability/
damages bifurcation would meet Constitutional standards without
further research.
If I can be of further assistance to you and Senator
Kassebaum, please do not hesitate to call.
Sincerely,
Charles (Lasts A. Shanor
Professor of Law
CAS:atj
09/16/91
17:37
001
BOB DOLE
KANSAS
Hnited States Senate
OFFICE OF THE REPUBLICAN LEADER
WASHINGTON, DC 20510-7020
FACSIMILE COVER SHEET
cR
TIME: 5:10 p.m
DATE: Sept. 16, 1991
TO:
Governor Sununu
FROM.
Senator Dole
RE:
23
PAGES TO FOLLOW THIS COVER SHEET
COMMENTS:
During the recess, I asked five outside experts to
review the changes suggested in the Dole-Kassebaum letter. So
far, I have received three responses, which I would like to share
with you. I have also sent these to Boyden Grey's office.
SENT BY:
TELEPHONE: (202) 224-7771 FACSIMILE: (202) 224-3163
PLEASE DELIVER A.S.A.P.
09/16/91
17:38
002
LAW OFFICES OF
PAUL., HASTINGS, JANOFSKY & WALKER
ATLANTA OFFICE
COUNSEL
LEE o. PAUL
. PARTNERSHIP INCLUDING PROFESBIONAL CORPORATIONS
QEORQIA-PACIFIC CENTER
ROBERT P. HABTINGS
133 PEACHTREE STREET. N.E.
LEONARD B. JANOPSKY
TWELFTH FLOOR
ATLANTA, GEORGIA 30303-1840
CHARLES M. WALKER
TELEPHONE (404) $80.9000
1050 CONNECTICUT AVENUE, N.W.
LOS ANGELES OFFICE
CONNECTICUT OFFICE
505 SOUTH FLOWER STREET
WASHINGTON, D.C. 20036-5331
loss WASHINGTON BOULEVARD
LOS ANGELES. CALIFORNIA 00071-2371
STAMFORD. CONNECTICUT 06901-2217
TELEPHONE (213) 003-6000
TELEPHONE (803) 961-7400
TELEPHONE (202) 223-2000
ORANGE COUNTY OFFICE
NEW YORK OFFICE
098 TOWN CENTER DRIVE
TWX 710-333-9062
399 PARK AVENUE
COSTA MESA, CALIFORNIA 02626-1024
NEW YORK, NEW YORK 10022-4597
TELEPHONE (714) 028-6200
FAÇSIMILE (802) 182-2140
TELEPHONE (818) 310-0000
WEST LOS ANGELES OFFICE
TOKYO OFFICE
1299 OCEAN AVENUE
TORANOMON OHTORI BUILDING
SANTA MONICA. CALIFORNIA 90401-1078
4-3. TORANOMON I-CHOME
TELEPHONE ($13) 319-3300
September 3, 1991
MINATO-KV, TOKYO 105
TELEPHONE 1031 3507-0730
WRITER'S DIRECT DIAL NUMBER
OUR FILE NO.
(202) 457-9445
09071.00001
VIA MESSENGER
Senator Robert Dole
United States Senate
office of the Republican Leader
United States Capitol
Room S 230
Washington, D.C. 20510-7020
Re: Danforth Civil Rights Proposals
Dear Senator Dole:
Thank you for asking me to review and comment upon
Senator Danforth's proposed civil rights bills, and the
modifications to those measures suggested by yourself and
Senator Kassebaum. I hope that my comments prove useful in
considering this important legislation.
Before addressing the specific provisions in
question, let me commend you, Senator Kassebaum and Senator
Danforth for your attempts to mediate the different
approaches in this area in order to achieve a compromise
acceptable to all of the various interested parties and in
the national interest. I know these efforts have been
difficult, and everyone concerned with ensuring civil rights
in America is in your collective debt.
Senator Danforth's three bills, while a
substantial improvement over H.R. 1 and the civil rights
bills passed by both the House and Senate last year, still
are very far reaching measures that go well beyond reversal
of five troublesome Supreme Court rulings. Indeed, the
Danforth bills embody all of the essential elements of prior
legislative proposals. For this reason, these bills still
09/16/91
17:38
003
PAUL, ILASTINGS. JANOFSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 2
suffer from the defects inherent in prior legislation in
several key areas. In response to your request, however, I
have addressed only those areas in which you and Senator
Kassebaum have proposed alteration of the Danforth
proposals.
Remedies
1.
The Danforth Proposals
One principal area of concern lies in remedies. I
have made my views on expanded remedies under Title VII
quite clear in prior comments and testimony, and will not
repeat those views at length yet again. I summarized my
thoughts on this subject in a letter to you, dated October
10, 1990, discussing last year's proposals:
I am firmly convinced that the basic Title
VII remedial structure -- administrative
conciliation, restorative relief rather than
damages and bench rather than jury trials
remains appropriate for the vast majority of Title
VII cases. There may be some situations where
some variance from this scheme is called for; for
example, in harassment cases where there is no
economic remedy available under current law. If
Congress wishes to supplement existing remedies in
these areas, it should do so specifically. It
should not turn Title VII into a national tort
law, at a time when tort law has shown itself so
troublesome in so many areas of our society.
1/
I have not addressed collateral attacks to consent
decrees, an issue raised by the Supreme Court decision in
Martin V. Wilks, 109 S. Ct. 2180 (1989), because I wrote an
amicus curiae brief to the Supreme Court in the Martin case,
and actively participated in the advocacy of the losing side
before the Court.
2/
You were kind enough to insert my comments into the
Congressional Record on October 16, 1990, beginning at S
15350. I would be happy to send you other materials I have
prepared on this issue, including testimony on H.R. 1
earlier this year.
09/16/91
17:39
004
PAUL, HASTINGS. JANOFSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 3
Nothing has altered my fundamental conviction on
this score. Senator Danforth apparently does not agree with
me; his bills continue to allow compensatory and punitive
damages, and jury trials, for all Title VII cases involving
"intentional discrimination." I believe that this proposal,
even with limitations on the amount of compensatory or
punitive damages, threatens to disrupt Title VII's
successful remedial mechanism.
The principal reason that I am concerned about the
enhanced remedies embodied in the Danforth proposals is that
they would apply to the vast majority of Title VII cases.
Lest there be any misunderstanding, "intentional
discrimination" is a term of art under Title VII, and has
come to encompass all cases that are not premised upon a
"disparate impact" theory of discrimination. "Intentional
discrimination" claims do not necessarily involve malicious
or intentional bigotry. These cases do not require direct
proof of wrongdoing, and in my experience cases of
"intentional discrimination" involving direct evidence of
animus are quite rare.
Instead, the normal individual "intentional
discrimination" claim is based wholly upon circumstantial
evidence, and is tried according to a paradigm of proof
established by the Supreme Court in McDonnell Douglas Corp.
V. Green, 411 U.S. 792 (1973), and Texas Department of
Community Affairs V. Burdine, 450 U.S. 248 (1981). Under
these standards, a plaintiff seeking to prove "intentional
discrimination" initially must show that he or she is a
member of a protected group; was qualified for and sought a
particular opportunity; was rejected; and that thereafter,
the employer continued to seek others for that opportunity.
If the plaintiff can meet this initial burden, the employer
must articulate a legitimate non-discriminatory reason for
the plaintiff's treatment. If the employer does 50, the
plaintiff then must prove that this reason is a pretext;
that is, that it is not the true reason for the employer's
action. At no point in this sequence is direct evidence of
intentional wrongdoing required.
The Danforth bills would allow compensatory and
punitive damages, and jury trials, in such individual
"intentional discrimination" cases. Additionally, it is
vital for members of the Senate to understand clearly that
09/16/91
17:39
005
PAUL. HASTINGS. JANOFSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 4
these enhanced remedies and jury trials would be readily
available in class actions under Title VII. As stated
above, "intentional discrimination" encompasses a wide
variety of claims, including any Title VII case not premised
upon the disparate impact theory of discrimination. Many
Title VII class actions involve claims of unequal treatment
that plainly fall within the world of "intentional
discrimination" as that term is used under Title VII.
In such "disparate treatment" class actions, the
plaintiff generally must prove a pattern or practice of
discrimination. To do so, plaintiffs often depend heavily
upon statistical evidence. For example, in a disparate
treatment class action attacking an employer's promotion
policies, a minority plaintiff might use statistics to show
that fewer minorities are promoted than would be expected by
their presence in the relevant pool in the workforce. This
is much the same premise that would be used in a disparate
impact case, which would arise if the plaintiff chose to
attack one specific aspect of the promotional process (e.g.,
an allegedly unlawful test) as opposed to the results of the
promotion process as a whole. Moreover, many courts regard
the same level or quantum of statistical proof as probative
of discrimination under both theories. See, e.g., Kilgo V.
Bowman Transportation, Inc., 789 F. 2d 859 (11th Cir. 1986) i
Diaz V. AT&T, 752 F. 2d 1356 (9th cir. 1985). While most
courts require some anecdotal evidence in disparate
treatment class actions, on the theory that statistical
evidence alone may not prove that the employer's "standard
operating procedure" is discrimination, this trend is not
uniform, and in any case introduction of some such evidence
does not present a substantial barrier to recovery if
adequate statistical evidence is available.
In other words, both the disparate impact and
disparate treatment theories are usually available in any
given class case, with the result that the expanded
remedies, and jury trials, made available under the Danforth
proposals would be regularly used in Title VII class
actions. Moreover, given the pivotal role statistics often
play in pattern or practice class actions, the availability
3/ In a disparate impact case, plaintiffs also typically
would demonstrate that the specific employment practice has
a disparate or screening impact.
09/16/91
17:40
006
PAUL. HASTINGS. JANOPSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 5
of enhanced remedies in such cases would generate
substantial pressure for employers to avoid such actions in
the first place. It is ironic that those who have
criticized current civil rights proposals for imposing too
much pressure upon employers to balance their workforces
have not recognized that making class action remedies much
more costly is as important in this regard as is too strict
a definition of business necessity. If class action
remedies are significantly enhanced, as the Danforth bills
propose, risk-averse employers desirous of avoiding large
potential liability naturally will attempt to avoid
liability, presumably through eliminating any statistical
disparities that might generate litigation.
To be sure, the Danforth proposals place caps on
the recovery of damages, and these are preferable to
unlimited damages. But these caps do not cure the
fundamental problem. Under Senator Danforth's bills, the
vast majority of Title VII cases would involve compensatory
and punitive damage claims and would be tried to juries.
This would result in a fundamental alteration of Title VII's
remedial scheme, and would sacrifice prompt resolution of
employment discrimination claims in favor of protracted
litigation.
None of the arguments made by the proponents of
this legislation are sufficient to justify this wholesale
revision of Title VII's basic remedial structure. I have
discussed the arguments of the proponents at some length
elsewhere, and in the interests of brevity I will not
recapitulate my views in this letter. 4/ I hasten to add, as
stated above, that enhanced remedies are appropriate under
Title VII in some situations. Providing economic remedies
for workplace harassment is fully justified. But this
limited remedial flaw in the current statute is no reason
that the statute's basic remedial scheme should be
jettisoned. Title VII is a very successful statute, and it
should not be transformed into a national employment
discrimination tort claims act.
4/
I would be pleased to provide you with a complete
discussion of these matters if this would be helpful.
09/16/91
17:41
007
PAUL. HASTINGS, JANOFSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 6
2. The Dole-Kassebaum Alternative
The alteration that you and Senator Kassebaum have
suggested in response to Senator Danforth's bills is a step
in the right direction, but in my view incorrectly concedes
that Title VII remedies are in need of a generic revision.
I agree with you that the legislation would be improved by
Jury
characterizing the enhanced remedies as "equitable monetary
relief" and limiting jury trials to determinations of
Trials
liability, as opposed to awards of damages. At the very
least, this step would simplify the issues to be presented
to the jury, and allow more expeditious resolution of Title
VII cases. It also would provide less incentive for
litigation as opposed to prompt resolution of employment
discrimination claims.
Nonetheless, I do not believe the evidence is
sufficient to justify your willingness "to accept the
principle of jury trials to determine liability in
intentional discrimination cases." Indeed, as stated above,
I believe the arguments offered by proponents of this
legislation are insufficient to justify extension of jury
trials and enhanced remedies to the broad universe of Title
VII "intentional discrimination" cases. Moreover, limiting
juries to determination of liability will not eliminate the
evil that will arise from wholesale expansion of Title VII
remedies; that is, undermining the system of administrative
conciliation wisely inserted in Title VII in 1964. The
enhanced remedies contemplated by the Danforth bills, even
as modified by your proposal, would result in dramatic
disruption of Title VII's existing remedial scheme.
I would urge you and Senator Kassebaum to
reconsider your proposal, and specifically to consider
whether the enhanced remedies proposed by Senator Danforth
are justified for all Title VII "intentional discrimination"
cases. As I have explained above, this is a broad universe
of claims, and expanding remedies for all such actions would
involve a substantial alteration of Title VII. I believe
the expanded remedies that you and Senator Kassebaum
contemplate would be quite useful in cases where there is a
need for expanded remedies, such as workplace harassment.
Indeed, the expanded remedies for workplace harassment
contained in the Women's Equal Opportunity Act of 1991 (S.
472) that you introduced earlier this year seem to me a
well-considered response to a significant problem. But in
09/16/91
17:41
008
PAUL, HASTINGS. JANOFSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 7
the absence of some showing that there is a need for
additional remedies and jury trials in all "intentional
discrimination" cases, there is no justification for
deforming Title VII's remedial structure.
Cumulation of Practices
1.
The Danforth Proposal
The "particularity" or "cumulation" problem that
has arisen in connection with this legislation is a problem
of substance. This problem is exemplified in Wards Cove
Packing Co. V. Atonio, 109 S. Ct. 2115 (1989), in which
plaintiffs alleged that the employer's hiring practices,
taken as a whole, were unlawful because the result of those
practices was an unbalanced workforce. The Court in Wards
Cove held that a plaintiff could not engage in a wholesale
attack upon an employer's practices, based upon proof that
the employer's selection process taken as a whole yielded
fewer successful minority candidates than would have been
expected given the pool of qualified candidates available.
Rather, the Court stated that a plaintiff was obliged to
determine which specific employment practice was being
challenged.
This step is vital if the Title VII inquiry is not
to devolve into a pure search into whether the employer has
hired or promoted by the numbers. This is particularly true
in cases involving higher level jobs, where a number of
subjective factors may contribute to the employer's
decisions. If a plaintiff can attack those practices on a
"bottom line" basis, the employer's opportunity to defend
itself is severely truncated and there will be tremendous
pressure to avoid litigation at all costs.
on the other hand, there may be situations where a
plaintiff simply cannot parse an employment process up into
its constituent parts for purposes of analysis. When this
happens, and where the plaintiff can prove that the
employment process, taken as a whole, has a significant
disparate impact upon a protected group, it exalts form over
substance to dismiss the case.
Senator Danforth's proposal attempts to encompass
both situations, and offers a significant advance over prior
09/16/91
17:42
009
PAUL, HASTINGS, JANOPSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 8
bills insofar as it provides that the plaintiff can only
attack an identified practice absent proof that the elements
of the decision-making process are not susceptible of
separate analysis. This basic principle, adapted from the
Wards Cove case, is the only logical way to avoid pure "by
the numbers" litigation. In cases where a plaintiff can
prove that an employer's decisional process cannot be
segregated for analysis, the process may be attacked as a
whole, assuming it creates a disparate impact as a whole.
Moreover, the Danforth bill still would allow an employer,
in a case in which a global challenge is allowed, to avoid
justifying any given practice under the "business necessity"
doctrine by proving that the practice did not cause the
disparate impact (i.e., was race or sex neutral).
2.
The Dole-Kassebaum Alternative
Unfortunately, the Danforth proposal departs from
the sensible principles enunciated in Wards Cove by
repeatedly speaking of whether a particular employment
practice causes the disparate impact "in whole or in
Jumulation
significant part. Like you and Senator Kassebaum, I
believe inclusion of this phrase in this legislation is very
unwise. Indeed, I believe the use of such language stems
from basic confusion about this issue, and that its
inclusion in the bill will result in significant confusion
and perhaps unintended consequences in the courts.
The focus of the disparate impact theory has been
and should continue to be upon the use of criteria that
unfairly hamper the employment opportunities of members of
protected groups; on practices that the Supreme Court in
Griggs V. Duke Power Co., 401 U.S. 424 (1971) described as
"built-in headwinds" hampering full employment of members of
protected groups. Where practices have an adverse impact,
it is appropriate to place the burden on the employer of
justifying their continued use despite their adverse impact.
Where practices do not have such an impact, and thus do not
disadvantage members of protected groups, their use should
be committed to the employer's judgment.
The Danforth proposals appear to confuse two
separate issues on this score; the adverse impact of the
entire decisional process, and the adverse impact of any
individual segment of that process. In a case where the
elements of an employer's decisional process may be
09/16/91
17:42
010
PAUL. llastings. JANOPSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 9
segregated for the purposes of analysis, determining whether
any one of those elements has a disparate or screening
impact on members of a protected group is relatively
straight-forward. Well-accepted statistical principles
regularly are utilized by the courts to determine whether
any given practice (e.g., an employment test or educational
qualification) has a disparate or screening impact upon
members of protected groups. These principles are fully
adequate to decide whether a particular standard adversely
affects members of a protected group.
In these circumstances, there is no reason to add
a link between the individual selection criterion and the
ultimate disparate impact of the entire selection process,
which is what the Danforth proposals appear to do. The
appropriate measure is the impact of the practice itself.
If a selection criterion causes a disparate impact, it can
be challenged under the disparate impact theory, regardless
of whether it contributes "in whole or significant part" to
any ultimate disparate impact. If the practice itself does
not cause a disparate impact, it should not fall under the
disparate impact theory, regardless of its relationship to
any ultimate bottom line impact.
The normal method for such analysis lies in standard
tests of statistical significance, originally used in jury
selection cases (e.g., Castenada V. Partida, 430 U.S. 482
(1977) ) and later adapted to Title VII and other
discrimination claims. (See, e.g., Hazlewood School District
V. United States, 433 U.S. 299 (1977))
6/
of course, this would be different if the employer
were allowed to defend its selection practices on a "bottom
line" basis. This would occur, for example, where an
employer could show that its employment process was
justified, even though it contained one of more screening
tests, because taken as a whole it produced results
consistent with the percentage of protected group members in
the selection pool. The bottom line defense was rejected by
the Supreme Court in Connecticut V. Teal, 457 U.S. 440
(1982), and no legislator has suggested that it be
reinstated in connection with these bills. Absent such a
defense, there is no rationale for tying the impact of a
particular practice to the impact of the entire selection
process.
09/16/91
17:43
011
PAUL, HASTINGS, JANOFSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 10
Allowing challenges to practices that account for
a disparate impact "in significant part" is nothing more
than a thinly disguised method of stating that Congress is
willing to allow challenges to practices that in fact do not
cause a disparate impact. There is no warrant for allowing
challenges to practices that do not hamper the employment
opportunities of members of protected groups; by definition
these practices do not serve as "built-in headwinds". It is
difficult to see why their use should be of concern under a
law designed to prohibit employment discrimination.
Moreover, allowing challenges to practices that do
not cause a disparate impact opens the back door to the
problem that the Court recognized in Wards Cove; attacks on
the entire selection process, rather than unfair individual
components of those processes. Allowing attacks on the
entire selection process should be limited to cases where
the entire process is so intertwined that it cannot be
segregated for analysis. In such cases, and only in such
cases, should the bottom line impact of the process be of
significance. In such cases, an employer should be allowed
to demonstrate that one or more components of its process
does not cause or contribute to the bottom line impact in
whole or significant part, and thus avoid the difficult task
of justifying a practice under business necessity standards.
And in such cases, the plaintiff should be able to
controvert this proof, and demonstrate that one or more
element of the selection process in fact does cause or
contribute in significant part to the bottom line disparate
impact. The linkage between individual components of a
decisional process and the bottom line impact of that
process should be of significance only in such unusual
cases, There is no justification for going further, and
allowing attacks on practices that do not themselves have a
disparate impact on the grounds that these practices somehow
contribute to the bottom line impact.
6/ ( continued)
defense, there is no rationale for tying the impact of a
particular practice to the impact of the entire selection
process.
09/16/91
17:44
012
PAUL, HASTINGS. JANOPSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 11
Business Necessity
1.
The Danforth Proposal
An appropriate definition of "business necessity"
is central to this legislation. An unduly strict definition
of business necessity would lead employers to abandon merit-
related selection criteria, because the standards for their
justification would be too stringent. There seems to be
general agreement that the business necessity standard
initially enunciated in Griggs V. Duke Power Company, 401
U.S. 424 (1971), and developed by the federal courts during
the 20 years since the Griggs decision, represents an
appropriate accommodation of the competing interests
involved.
Senator Danforth's proposal, like SO many others
that have made their way into Congress, attempts to
distinguish between employment practices that "are used as
job qualifications or used to measure the ability to perform
the job" and other practices, thus creating two different
business necessity standards. I never have understood the
need for two business necessity standards; the Court's
decision in Griggs created only one standard. Two standards
surely will lead to uncertainty and increased litigation,
especially concerning what definition applies in any given
case. The Griggs test was clear and simple. The Court held
that where an employment practice is shown to have a
disparate impact upon the employment opportunities of a
protected group, "Congress has placed on the employer the
burden of showing that any given requirement must have a
manifest relationship to the employment in question." 401
U.S., at 432. That concept has been elucidated by the
federal courts during the past twenty years, and until the
controversy over Wards Cove Packing Co. V. Atonio, 109 s.ct.
2115 (1989), no one (in my memory) in the civil rights
community argued that Griggs was not stringent enough.
Assuming there is some need for creating two
different business necessity standards, there are two
critical requirements; first, creating definitions that are
appropriate, and second, determining when each definition
applies. The Danforth proposal is better than prior efforts
in the first respect because it uses the appropriate
language from Griggs -- manifest relationship to the
employment in question -- as the criterion in cases of
09/16/91
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013
PAUL. HASTINGS, JANOFSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 12
employment practices that "are used as job qualifications or
used to measure the ability to perform the employment in
question." Moreover, the Danforth proposal also uses a
broader phrase -- manifest relationship to a legitimate
business objective of the employer -- as the standard for
all other employment practices. The proposal also
appropriately recognizes that the "employment in question"
must encompass not only the ability to perform the job, but
"any requirement related to behavior that is important to
the job." This language is absolutely necessary to ensure
that important aspects of behavior (e.g., absenteeism) may
be the basis for selection criteria.
2. The Dole-Kassebaum Alternative
But the Danforth proposal fails to clarify the
vital issue of when each standard applies, and in so doing
creates serious potential problems. In particular, it is
difficult to see how any employer would rely on any
employment standards that are not "job qualifications."
+1
Virtually any requirement relied upon by an employer can be
deemed a "job qualification", and thus fall within the first
prong of the definition. If this is so, one wonders why the
proposed legislation contains a second definitional clause.
Moreover, to the extent that all job qualifications are to
be judged under the "manifest relationship to the employment
in question" standard, and that standard is tied to
performance of "actual work activities
for a job or
class of johs", there is some question as to the employer's
ability to hire the best qualified employees, as opposed to
those possessing only minimum competence to perform the job.
I believe the alteration that you and Senator
Business
Kassebaum have suggested -- that prong one of the definition
Necessity
be limited to cases dealing with job qualifications that are
used to measure the ability to perform the job --
meaningfully delineates between the two prongs of the
definition, and solves many of the problems inherent in the
Danforth proposal. Prong one of the definition obviously is
meant to refer to performance-related criteria, measuring
the employee or applicant's ability to perform a particular
job. Prong two of the definition just as clearly refers to
broader criteria, insofar as it discusses a "legitimate
business objective of the employer." If there is to be a
meaningful distinction between the two prongs of the
definition, it surely should correspond with the purpose of
09/16/91
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014
PAUL, HASTINGS. JANOFSKY & WALKER
Senator Robert Dole
September 3, 1991
Page 13
the definitions themselves. Employers should be allowed to
justify criteria that are not directly concerned with job
performance (e.g., measures designed to ensure public
safety) under standards that correspond to their underlying
concerns. Moreover, an employer's right to hire the best
possible workers would be safeguarded more adequately by
your language than by Senator Danforth's provision standing
alone. Your alternative seems to accomplish this goal while
preserving the essential aspects of the Griggs principle.
with the alteration that you and Senator Kassebaum
have suggested, I believe the Danforth proposal would
provide a business necessity standard that satisfies the
essential requirements of this legislation. I would like to
make it clear that I do not share the view expressed by some
that the Danforth proposal is flawed because it does not
afford preference to those with greater educational
achievement, whether or not such achievement is related to
job performance. I agree with critics of the Danforth
proposal, such as EEOC Chair Kemp and Secretary of Education
Alexander, that our society places too little emphasis upon
educational achievement, and that we should do everything
possible to encourage young men and women to stay in school
and obtain an education. I do not agree, however, that the
equal employment laws should be altered to reward
educational achievements if those achievements are not
related to the work being performed. A fork-lift driver
with an advanced degree in Chinese may be a more interesting
person than someone with a grade school education, but there
is no rationale for an employer preferring someone with this
level of educational achievement if the result is to
disadvantage minorities who have had less opportunity for
advanced education. In this regard, I believe the Griggs
principle strikes an appropriate balance that should be
maintained in this legislation.
Once again, I hope that these comments will be
useful to you. I would be happy to expand upon them, or to
clarify any portion of them, at your convenience.
Very truly, yours,
Zachary D. Fasman
ZDF/djw
09/16/91
17:45
015
STEPTOE & JOHNSON
ATTORNEYS AT LAW
1330 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036-1795
S&J LEX INTERNATIONAL
PHOENIX, ARIZONA
APFILIATE IN MOSCOW, U.S.S.R.
CITIBANK TOWER
(202) 429-3000
TELEPHONE: (602) 266-6610
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TELEPHONE: (011-7-095) 290-6776
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TELEX: 89-2503
FACSIMILE: (011-7-095) 925-9992
N. THOMPSON POWERS
(202) 429-6416
September 9, 1991
Honorable Bob Dole
Republican Leader
United States Senate
Washington, DC 20510-7020
Dear Senator Dole:
This is my response to your invitation to comment on
the modifications you and Senator Kassebaum have proposed to the
civil rights bills (S. 1407, S. 1408 and S. 1409) introduced by
Senator Danforth. I will address your proposed modifications to
each of Senator Danforth's bills in the numerical sequence of
those bills.
1.
CIVIL RIGHTS RESTORATION ACT OF 1991 (S. 1407)
Before commenting on your proposals and the Danforth
provisions on Martin V. Wilks, I want to advise you that I filed
an amicus brief on behalf of the Legal Defense Fund in Martin V.
Wilks when that case was before the Supreme Court. I did so
because I believe it is important to effective and efficient
settlement of discrimination complaints that employers and other
respondents be able to resolve such complaints without subjecting
themselves to repeated challenges by others affected by the
resolution. As a result, while I do not favor retroactive
reversal of Martin V. Wilks (or of other Supreme Court
decisions), I do support prospective change in the law concerning
collateral attacks on judgments or orders resolving employment
discrimination complaints.
You and Senator Kassebaum have proposed three changes
Martin
to the Danforth provisions on Martin V. wilks. The principal one
of these three would eliminate the provision barring collateral
Wilks
attacks by individuals who did not have actual notice of the
proposed judgment or order but whose interests were "adequately
represented by another person who had previously challenged the
judgment or order on the same legal grounds and with a similar
factual situation."
09/16/91
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016
Honorable Bob Dole
September 9, 1991
Page 2
I appreciate your belief that it is "fundamentally
unfair" to bar challenges to judgments or orders by affected
persons who did not have actual notice of such judgments and
orders. Nevertheless, it seems to me that basic due process
considerations are satisfied if one's interests in civil
litigation are adequately represented by others similarly
situated. Under Rule 23 of the Federal Rules of civil Procedure,
we already have a procedure for binding class members who may not
have actual notice of litigation but whose interests are
adequately represented by others.
While the Danforth provision does not require the kind
of class certification or notice to class members provided in
Rule 23, in practice it might function similarly. Perhaps your
concerns could be met if these requirements were made more
specific.
The second significant change you propose in the
Danforth provisions on Martin V. Wilks is to limit the employment
practices that will be insulated from collateral attack to those
"specifically required" by a judgment or order. The Danforth
provision would insulate a practice if it "implements and is
within the scope of" a judgment or order.
Your desire to bar collateral attacks only when
necessary for compliance with judgments or orders is
understandable. However, actions may be "necessary" that are not
specifically or at least expressly required by the judgment or
order. While these problems could be met by specifying
requirements in judgments or orders or in subsequent hearings,
this may burden the parties and the courts with time consuming
details.
I recommend that you reconsider if actions that are
taken in good faith compliance with judgments or orders should
not be protected from collateral attack if the other requirements
for such protection are met.
Your third proposed change in the Danforth Martin V.
Wilks' provisions is to substitute "challenge" for "present
objections to" in the two places where the latter words are used.
This does not appear to be a significant substantive change and
should not be controversial.
09/16/91
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017
Honorable Bob Dole
September 9, 1991
Page 3
2.
EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1991 (S. 1408)
You have proposed five changes to Senator Danforth's
provisions concerning Ward's Cove and disparate impact analysis.
As you may know, I testified before the House Education and Labor
Committee in 1990 in opposition to the Ward's Cove provisions of
the Kennedy-Hawkins Bill. A copy of that testimony is attached
for your information. I do not believe that either the bill
passed by the House this year or Senator Danforth's bill
adequately resolve my concerns.
Most of your proposals are ones I would support,
especially your proposed substitute paragraph (K) (1) (C) which
Alternative
would make clear that cost is an appropriate consideration in
Business
judging the suitability of a proposed alternative employment
practice. To my knowledge there is nothing to the contrary in
Practice
any Supreme Court decision on this issue and at least two courts
of appeals have declared that costs are an appropriate
consideration in applying the suitable alternative language of
Albemarle Paper Co. V. Moody, 422 U.S. 405 (1975). See Clady V.
County of Los Angeles, 770 F.2d 1421, 1426 & n.1 (9th cir. 1985),
cert denied 475 U.S. 1109 (1986) i Chrisner V. Complete Auto
Transit, Inc., 645 F.2d 1251, 1263 (6th Cir. 1981).
I also favor deletion of the reference to Griggs and
References
Ward's Cove as you propose, because I do not believe that all of
to Supreme Ward's Cove should be rejected (e.g., its description of suitable
Court Cases alternatives) and because I do not believe that "codifying"
Griggs adequately deals with all of the issues that twenty years
of disparate impact litigation have revealed.
I also support your proposal to eliminate the phrase
Cumulation "in whole or in significant part", because it seems to me that if
the challenged practice or practices do not cause a statistically
significant disparate impact by themselves, there is no basis for
a liability determination.
As I testified last year, however, I question the
appropriateness of requiring plaintiffs to identify one specific
practice that is causing the disparity if the employer has so
mingled selection considerations that the specific cause of the
disparity is undiscoverable.
Finally, I see merit in your proposal to limit the
Business
practices that must be justified by showing that they bear a
Necessity
manifest relation to the employment in question, to practices
that are both job qualifications and that measure ability to
perform the job. Your proposal would permit other nonperformance
09/16/91
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018
Honorable Bob Dole
September 9, 1991
Page 4
based job qualifications to be justified if they bear a manifest
relationship to other legitimate business objectives of the
employer. It is a fact that all legitimate job qualifications
are not performance based and Senator Danforth's proposed
definition of the term "employment in question" recognizes this.
(S. 708, Section 5 proposing subsection 701 (0)). Your proposal
seems to me appropriate further recognition of this same fact.
3.
CIVIL RIGHTS AND REMEDIES ACT (S. 1409)
You propose characterizing compensatory and punitive
damages to be issued under Title VII as equitable monetary awards
and to require a judge to determine the amount of the award after
a jury determines liability.
I agree with your comment that the proposal that
compensatory and punitive damages be added to Title VII is in no
way a "restoration" of what civil rights law was before the
Supreme Court's 1988-1989 term. (The same can also be said about
a number of the other changes contained in the Danforth bills
including the Price Waterhouse provisions and some of the Ward's
Cove revisions.)
I also see no reason to introduce jury trials into
Title VII litigation unless it is concluded that additional
monetary awards should be provided and it is determined that
those awards constitute damages to which a constitutional right
to trial by jury attaches. If there is no constitutional right
to a jury to decide on such monetary awards, I would question the
reason for providing a jury trial only on liability.
I hope the above comments are helpful and would be glad
to discuss these matters in more detail with you or your staff.
Sincerely,
7. Thompson Pawers
N. Thompson Powers
Enclosure
09/16/91
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019
THE
SCHOOL or LAW
THE
THE UNIVERSITY OF TEXAS AT AUSTIN
2
727 Past 26th Street Austin, Texas 78705-3299 512)471-5151
Teleropher Number: 512) 471-6988
September 3, 1991
Hon. Bob Dole
United States Senate
Office of the Republican Leader
Washington, DC 20510-7020
Dear Senator Dole:
At your request, 1 have reviewed the Dole-Kassebaum proposals to amend the three
civil rights bills you sent me, each dated June 27, 1991 at 1:00 p.m. I gather that these three
bills taken together are the Danforth proposal. Needless to say, the views expressed in this
letter and personal, and do not represent The University of Texas.
1. Martin Yes, Whiks. The problem of judgments or consent decrees that override the
rights of third parties is not unique to civil rights litigation. In my judgment, it can be
adequately handled by existing procedures for mandatory joinder and class actions, and no
legislation is necessary. Legislation to simplify the procedures for binding third parties
should scrupulously protect the rights of those third parties. It should not be a disguised
effort to legislate their rights away.
The Danforth proposal is a considerable improvement over carlier drafts on this
issue. As a practical matter, $ (i)(1)(B)(1) will require that formal notice be sent to
affected third parties. Informal notice through press reports and word-of-mouth will rarely
make clear that affected third parties could present objections by a date certain. The
requirement in $ (/)(1)(B)(ii) of adequate representation by a person "with a similar factual
situation" will usually require a challenge by another employee or applicant, and will
generally exclude claims that the employer was an adequate representative. The
requirement that the earlier challenge be on "the same legal grounds" eliminates the
possibility of a legal theory being waived by an carlier challenge. The legislative history
should emphasize these requirements.
a. "Implements" or "specifically required by." You propose to strike "implements
and is within the scope of," and substitute "is specifically required by." This would be a
good change. Other employees should not lose their right 10 challenge discrimination
against them because the employer has made a discretionary decision to do something that
helps implement a prior decree. An employer who is discriminating against employees on
the basis of race, and claiming the protection of an earlier judgment, should be doing
something required by the judgment.
b. Adequate representation. You also propose 10 delete $ (f)(1)(B)(ii), providing
that an employee is barred If his interests were adequately represented by another person
who challenged the judgment on the same legal grounds and with a similar factual situa-
tion. This matters more in theory than in practice, but it would be important even in
practice if the whole package of bills is enacted.
1
09/16/91
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020
Your proposal is certainly correct in theory and in general legal principle. The
standard rule of res judicata is that one litigant's claim is not barred by an earlier litigant's
similar claim unless the first litigant were authorized to represent the second. But It is easy
to exaggerate the practical significance of this. If the second suit is tried to a judge, and
especially if it is tried to the same judge, as the Danforth proposal requires it possible, the
second litigant will face a difficult burden of persuasion. The judge will know that the
plaintiff is raising objections that have already been litigated and rejected. Getting the
judge to take a second challenge seriously, or even to allow adequate time for a full trial on
the merits, will be very difficult.
The legal right to your OWN day in court matters most when there is truly
independent fact finding, and that means, when there is a right to jury trial. If the second
employee to challenge the decree can try his claim to a jury, the jury will not know about
the first challenge. With a jury trial, it may make a real difference whether later claims are
bound by the disposition of earlier claims.
A suit to enjoin the operation of an affirmative action plan, either across the board
or to the extent of hiring or promoting the plaintiff, would be an equitable claim and tried
to a judge. With respect to that claim, I think your proposed amendment is of limited
practical significance.
But a suit for damages for intentional discrimination would be a legal claim, triable
10 a Jury, under one of the other bills in the Danforth package. An employer who prefers a
minority employee pursuant to a judicial decree is acting infentionally; the only question is
one of justification. A white worker disadvantaged by such a preference, who was willing to
waive his right to the job and simply sue for his lost pay or other damages, ought to be
entitled to a jury trial. With respect to that claim, your proposal makes a practical
difference, and your proposal is more consistent the traditional law of the right to be heard.
Not
c. "Reasonable opportunity to object." Your proposals do not address what seems
True
to me to be the greatest weakness in the Danforth proposal. The bill does not define
"reasonable opportunity to present objections." What legal standard applies to these
objections? Someone should have to prove, in a hearing to which the claimant is a party,
that the employer violated the law and that an adequate remedy for the proven violation
necessary requires discrimination against the claimant. Anything less than that takes away
the claimant's civil rights without due process.
The Danforth proposal does not explicitly say this. It may be read as requiring a
mere "reasonableness hearing," in which there is no stated legal standard, and it is enough
that the employer might have violated the law and that affirmative action is a fairly
debatable remedy. Everything would be de facto presumed in favor of the decree and
against the claimant. Such a hearing would be a charade, but that is what was allowed in
some of the cases prior to Martin V. Wilks. See the cases collected in Douglas Laycock,
Consent Decrees Without Consent: The Rights of Nonconsenting Third Parties, 1987 U. Chi.
Legal Forum 103, 137 n.144.
If Congress is going to legislate in the area, it should clarify the substantive standard.
I would rewrite $ (7)(1)(B)(i) as follows:
(i) by a person who, prior to the entry of the judgment or order described in
subparagraph (A), had
(1) actual notice of the proposed judgment or order sufficient to
apprise such person that such judgment or order might adversely affect the
interests and legal rights of such person and that an opportunity was
2
09/16/91
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021
available, to present objections to such judgment of order by a future date
certain, to litigate the claim that such person has rights inconsistent with the
judgment or order; and
(II) # reasonable an opportunity to present foctions litigate
the claim that such person has rights Inconsistent with the judgment or order;
or
Then, I would add an additional subparagraph, something like the following:
(C)(i) If. in an action claiming employment discrimination in
violation of the Constitution or Federal civil rights laws. a person objects 10
an employment practice required by a proposed remedy on the ground that
the practice would violate such person's OWN tights under the Constitution or
Federal civil rights laws. and the objecting person demonstrates that he
would be disadvantaged because of his race by the proposed practice. then
the person urging the proposed practice must demonstrate every element of
a claim that the objecting person's rights under the Constitution and Federal
will not be violated,
(ii) If, in an action challenging an employment practice described in
subparagraph (A), the complaining party demonstrates that he has been
disadvantaged because of his race by the challenged practice. then the person
defending the challenged practice must demonstrate every element of a
claim that the complaining party's rights under the Constitution and Federal
have not been violated.
Note that this proposal does not specify what a plaintiff of one race must show to
override the nondiscrimination rights of workers of other races. It does not try to resolve
the debate over affirmative action. It simply says that whatever the elements of a claim to
racial preferences are, affected workers of the other race are entitled to be heard on every
element of that claim. I don't know whether this amendment is politically viable, but your
hearing. efforts to guarantee a hearing may be of little moment unless you specify the purpose of the
2. Proof of disparate Impact.
a. "Practice" or "practices." Your propose to strike "or particular employment
practices" and "or practices" where ever they appear in § (k)(1)(B)(I). This suggestion is
sound. Even after your proposal, the subsection would authorize cumulation of practices
where "the elements of a respondent's decision-making process are not capable of
separation for analysis." That would seem to be the only legitimate reason for cumulation.
If the practices can be separated for analysis, they should be.
I tried to think of a case in which "or practices" might matter. I came up with this
one: suppose an employer has one practice -- say a test ** that is readily isolated for
analysis, and other practices that cannot be separated for analysis. The last proviso of $
(k)(1)(B)(i) may not handle this situation; the language seems to contemplate either a
practice-by-practice analysis or a unitary analysis of the whole "decision-making process."
Perhaps Senator Danforth intended "or practices" to cover a multi-practice part of the
decision-making process,
You can handle this problem by adopting your proposal to strike the references 10
"practices," and by rewriting the final exception as follows:
3
09/16/91
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022
except that if the complaining party can demonstrate to the court that the
two or more elements of a respondent's decision-making process are not
capable of separation for analysis, the decision-muking-process inseparable
elements may be analyzed as one employment practice.
Unless I have missed something, I think that this would serve both your goals and Senator
Danforth's.
b. "In significant part." Your other proposal is to strike "in whole or in significant
part" where ever it appears. I am not aware of any case that has considered whether a
practice can cause disparate impact in significant part. My initial reaction was that I simply
did not know what this phrase meant or what cases it was intended to cover.
But I may have thought of a case, and I am not sure what is the best way to handle
it. Consider & typical hiring process for a highly competitive white collar position. The
hiring officer or committee attempts to predict success in the position and the career to
which it leads, based on an assessment of the whole person and the whole file. They may
use many predictors, no one of which is controlling. At and near the entry level, one
predictor will be grades in college or professional school. The other predictors may be
more subjective -- Interviews, recommendations, writing samples, etc. Suppose the whole
decision-making process has disparate Impact, and that grades would have disparate impact
if they were used alone.
One way to handle this is 10 say reliance on grades causes "in significant part the
disparate impact." Therefore, the employer must show the business necessity of relying in
part on grades. The other way to handle it is to say the elements of the employer's deci-
sion-making process cannot be separated, so the employer must show the business necessity
of the whole process. Your amendment would leave only the second alternative; it would
eliminate the first.
It may be casier for both sides to litigate the business necessity of a discrete practice
like reliance on grades than to litigate the business necessity of the whole decision-making
process. You may be taking away the more manageable option. On the other hand,
leaving the more manageable option available would not preclude a plaintiff from trying to
litigate the business necessity of the whole decision-making process. And we do not know
what other meanings "In significant part" may turn out to have. It is a wildcard phrase, and
1 may even be wrong even about its core meaning. So I would not argue strongly for
leaving it in. But neither am I sure it should come out.
c. Equally effective alternative.
You propose a substitute for Senator Danforth's § (k)(1)(C) on equally effective
alternatives. One of the changes incorporates your suggestions to delete all references to
"practices" and to "in significant part." Most of the others are stylistic and do not appear to
affect meaning. Two changes appear to be substantive and independent of those discussed
above.
a. Serving legitimate Interests as well. You would elaborate on what it means to
"serve the respondent's legitimate interests as well" as the existing practice. You would
specify: "comparable in cost and equally effective in predicting job performance or serving
the respondent's legitimate interests." This makes clear that cost matters, and that
predicting job performance is only one of respondent's legitimate interests.
4
09/16/91
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023
These are both helpful clarifications. A substantially more expensive alternative
does not serve the employer's interests "as well," but that should not be left to inference.
Neither proposal defines the scope of the respondent's "legitimate interests," and there will
be arguments about that under either draft. But your proposal eliminates the argument
that predicting job performance is the respondent's only legitimate interest.
b. More than negligible improvement. You would also eliminate Danforth
language that the alternative must "make a difference in the disparate impact that is more
than negligible." This is probably not very important; negligible differences are
presumptively negligible. But the Danforth language eliminates the possibility of a plaintiff
showing an alternative that would make a trivial difference, and then claiming that all
persons rejected under the old practice are entitled to a remedy. I would be inclined to
leave the Danforth language in.
3. Business necessity. You propose to substitute "and" for "or" in paragraph 1 of the
Danforth definition of business necessity. Your proposal is so obviously an improvement
that I suspect the Danforth language may just be a drafting error. Paragraphs 1 and 2 of
the definition divide all employment practices into those that must be justified by showing
"a manifest relationship to the employment" and those that must be justified by showing "a
manifest relationship to a legitimate business objective." Obviously, those job qualifica-
tions that are designed to predict performance in the employment belong in the first
paragraph, and those that are designed to predict something else belong in the second. But
the Danforth "or" puts all "job qualifications" in the first paragraph. Thus, even those
qualifications that are not used to measure ability to perform the job must be justified by
their "relationship to the employment." Your substitution of "and" would correct this error.
4. Jury trial. The Danforth proposal would allow damages and jury trials in
intentional discrimination claims. You propose to allow jury trial on liability but not on
damages, recharacterizing damages as "an equitable monetary award." You have not
specified how you would have the court determine the amount of this award.
I believe that your proposed amendment is unconstitutional. The Seventh
Amendment is a dead letter if Congress can avoid it at will by referring to damages as an
"equitable monetary award." Changing the label does not change the constitutional
substance. The historical law-equity distinction is arcane, and it is unfortunate to have the
scope of a constitutional right depend on it. But If Congress may choose legal or equitable
remedies at will, the right to jury trial survives only at Congressional sufferance. In my
view, the equitable label is plausible only where the money to be awarded is more
analogous to some traditional equitable remedy than to common law damages.
The elements of recovery in the Danforth proposal are plainly common law
damages. They are referred 10 as damages, they do not include any relief now authorized
under § 706(g), and they do include "future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." If
these would also be the elements of your equitable monetary award, then it would still be
damages and the Seventh Amendment should still apply.
You may have in mind something like the "equitable penalty determination" that is
now lined out on page 4 of the Danforth bill. This language directed a penalty sufficient to
deter, and authorized the court 10 consider various factors relating to culpability. 1 believe
that this is just a legislative punitive damages provision; the parties could argue about every
one of these factors under common law punitive damages rules. But this provision does not
so obviously track the elements of common law damages as the other, and there is a
5
09/16/91
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024
substantial chance that the Supreme Court would accept the equitable label and uphold the
denial of jury trial.
In Tull v. United States, 481 U.S. 412, 427 (1987), the Court considered a scheme of
civil penalties payable to the government, where the amount depended on "highly
discretionary calculations that take into account multiple factors." It said that such
calculations were "traditionally performed by judges," and that jury trial was not required.
That reasoning might well apply here, but there is one important difference between Tull
and any version of the civil rights bill. In Tull, the penalty was payable to the government,
which made it look more like a fine or a criminal sentence, where juries have never been
required in federal court. I assume that your equitable monetary award would be payable
to the plaintiff, which makes it look a lot more like damages. If the money is not payable to
plaintiff, it wholly fails to serve the bill's purpose of providing a meaningful remedy for
violations that do not result in large accumulations of back pay.
Dicta in Tull went even further than I have indicated. The Court said that the
Seventh Amendment simply does not apply "to the remedy phase of a civil trial." Id. at 426
n.9. If the Court were serious, then you can authorize common law damages and deny jury
trial. But the statement is so preposterous that it is hard to believe the Court would adhere
to its implications. The remedy to be awarded is the most important factor in determining
whether the right to jury trial applies at all. Despite what it said, I do not believe the Court
would hold that judges can assess damages in traditional common law actions.
Even if the Court would let you get away with it, I do not believe you should do it.
Senators and Representatives also swear to uphold the Constitution, and If the Court quits
enforcing the Seventh Amendment. it becomes all the more important for Congress to
enforce it.
Assuming you can get away with it, amending the Danforth proposal to eliminate
jury trial under Title VII would leave the anomaly that race cases under $ 1981 would be
treated differently from sex cases under Title VII. At the very least, one would have a jury
trial available and one would not. If you change the measure of recovery under Title VII,
so that plaintiff gets some sort of equitable penalty instead of common law damages, the
anomaly is greater. If you try to eliminate the anomaly by eliminating jury trial and
common law damages under § 1981, I assume you will have political difficulties because
you would be trying to retract rather than restore civil rights protection.
I have written more than you asked for. But the proposals and their implications
are complex, and my conclusory approval or disapproval would not help you much. No one
elected me to anything, and my conclusions matter only insofar as their reasons are per-
suasive. 1 hope that at least some of the reasons are helpful.
Very truly yours,
Douglas Laycock
Alice McKean Young Regents Chair in Law
6
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1600 PENNSYLVANIA AVENUE
WASHINGTON
DATE 9-11-91
FACSIMILE TRANSMITTAL SHEET
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Boyden gRAY
FAX NUMBER
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TELEPHONE NUMBER
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COMMENTS
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THE WHITE HOUSE
WASHINGTON
Date: 9/11/91
TO:
CBG
FROM:
NELSON LUND
Associate Counsel
to the President
Action
Comments
like This mitchell is pushing for
doesn't X make it sound
FYI
early consideration of
civil rights
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S 12580
CONGRESSIONAL RECORD - SENATE
September 10, 1991
In the meantime, on behalf of his
their own. Our best hopes cannot real-
There less real possibility of starva.
colleagues, who are also-each and
ize their objectives
tion in the Soylet Union this winter.
every Member of the Senate-his good
They and they alone will define and
The West cannot allow this to be the
friends, I am pleased to welcome
determine their future.
Soviet peoples' reward for rejecting
DAVID PRYOR back to the Senate. We
The United States wants to assist.
the coup and thwarting a return to
have missed his counsel and his contri-
the Soviet people achieve democracy
communism.
bution in the past 5 months. I know
and a free-market economy. It obvi-
Yet the Western nations, including
we will benefit from both in the
ously is in our interest to do so.
the United States, have done little to
future. and we are grateful that he
But I do not believe that the United
assuage the fears of the Soviet people.
has been spared to return to his seat
States should provide significant fi-
Together with our G-7 partners, or
in the Senate and the friendship of his
nancial assistance to the Soviet people
alone If need be, the United States
unless they demonstrate their commit-
should make our intentions to help
colleagues,
ment to democratization and free
the Soviet people receive the food and
market. The pressing challenge
humanitarian help they need to sur-
THE SOVIET UNION,
is for the Baltic States, the various re-
vive the coming winter.
publics and the preconfigured central
We have grain and medical supplies.
Mr. MITCHELL Mr. President,
government to implement painful but
We have the ability to deliver the nec-
since we last convened in August, re-
crucial far-reaching economic reforms.
essary items. Our humanitarian tradi-
markable events have occurred in the
Otherwise, no amount of outside as-
tion and our own self-interest dictate
Soviet Union. The Soviet people's re-
sistance can revitalize the economy
that we will rise to the occasion and
jection of the coup in Moscow was a
and stabilize the future of democracy.
help avert starvation in the Soviet
historic event.
I also believe that the United States
Union.
It was catalyzed by a handful of in-
should not provide direct financial as.
We should plainly state our willing.
spiring leaders-Yeitain. Sobchak,
sistance unless Soviet governmental
ness to do 80, and work with our allies
Popov-supported by a significant ele-
authorities drastically reduce their in-
to make all the necessary arrange-
ment of the Soviet military. and
vestment in the weapons of war-par-
ments now.
achieved by tens of thousands of ordi-
ticularly the strategic nuclear arsenal
But we must never lose sight of the
nary and courageous people.
that becomes increasingly academic as
fact that our first responsibility is to
The restoration of Soviet constitu-
the United States and Soviet Union
the people of the United States. That
tional authority and return to the
enhance their ties:
is what must take priority in the
path of reform-the most stunning ex-
The United States, facing its own in-
ample of popular will ever demonstrat-
ternal economic problems, cannot sub-
coming weeks as we seek to wind up
ed in the Soviet Union-deserves a
sidize Soviet military expenditures.
the 1st session of the 102d Congress.
prominent place not simply in their
Both America and the Soviet Union
We have made E good start: The
history, but in the history of the 20th
should be reducing their defense
Senate completed action on the crime
century.
spending. It is time to adjust our de-
bill, the highway legislation, seven of
fense budgets to the new realities of
the regular appropriations bills for the
Their triumph testifies) to the uni-
coming fiscal year, the Defense De.
versal longing for freedom and democ-
Soviet American
racy.
I remain hopeful that othe Soviet
partment authorization. campaign fl-
nance reform legislation among other
Their actions can only reinforce the
Union will take the necessary steps to
determination of those individuals-in
make outside assistance practical.
important matters.
Cuba, in China-who have yet to real-
There is much we can do, applying the
But B great deal remainsito be done.
lze their right to choose their own gov-
model of Western assistance to East-
Most urgently. we must address
ernments and determine their own fu-
ern Europe: Establish & currency stabi-
again the plight of jobless workers
tures.
lization fund, expand investment guar-
whose unemployment benefits have
So, too, does the triumph of popular
antees and commodity credits, provide
expired.
will in the Soviet Union reaffirm our
private enterprise funds, increase tech-
Although the President signed the
own appreciation of our prectous liber-
nical training programs, assist with de-
bill providing for extended benefits. he
ties.
fense conversion and environmental
says the situation is not serious
The sobering chill of the attempted
cleanup efforts, and move swiftly to
enough for him to declare an emergen-
coup laid bare the magnitude of what
provide most-favored-nation trading
CY BO the benefits can be paid
is at stake for the West as the Soviet
status.
But when more than 2 million work-
Union attempts to transform itself
Some assistance will be best provid-
ing people cannot find jobs and have
into a democracy.
ed directly to the Republics and the
exhausted their unemployment insur-
During the first day of the putsch,
Baltic States: some may appropriately
ance, we say that is as much an emer-
the possibility of a new international
go through the central government.
gency as the foreign aid emergencies
order, a new era of cooperation and
This will depend upon the ultimate di-
President Bush has seen fit to finance.
peace, suddenly seemed doomed.
vision of responsibilities between the
So we must make another effort to
A renewed cold war, a new arms
center and the Republics.
bring the plight of working Americans
race, the intensification of proxy con-
Much of the Western assistance
to the President's attention.
fliet, a stalemated United Nations, and
should be provided through multilat-
Dramatic events overseas do not
the return of ideological foreign policy
eral institutions. The World Bank and
change the fundamental fact that the
seemed unavoidable.
the IMF can play & critical role in
health and well-being of our own
It could have been a moment of de-
helping to implement economic re-
Nation depends directly on the health
spair for the West.
forms, and now is the time to fully uti.
and well-being of the middle-income
The reversal of the coup now allows
lize the newly created European Bank
families of America. to volue **
us to move swiftly. with renewed vigor,
for Reconstruction and Development.
It is on that well-being I intend to
to help strengthen and make irreversi-
While it is useful to discuss ways in
focus. We must begin to address seri-
ble the forces of change in what was
which the West can help institutional-
ously. the erosion of: average Ameri-
once the Union of Soviet Socialist Re-
las the transformation of the Soviet
cans' incomes that has been caused by
publics.
Union. the Soviet and Baltic people
higher taxes, despite & decade of tax-
There remain inherent limits on our
face an immediate threat: the lack of
cutting rhetoricisqued trad ***
ability to assist this process.
food, medicine, and other essential
We: remain the jonlg:dndustrialized
First and foremost, the course of the
supplies.
country in the modern world which
Soviet Union must be charted by the
This year, the Soviet economy 18 pre-
does not extend basic health care to
people of the various Republics them-
dicted to decline by 17 percent and the
all its people the spiraling cost of
selves. We cannot define their goals.
harvest is anticipated to be 25 percent
care and the gaping holes in the
Our energies are no substitute
for
smaller than last year.
health insurance safety net threaten
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September 10, 1991
CONGRESSIONAL RECORD SENATE
S12581
families with economic disaster in the
Alaska, Senator STEVENS, who has un-
certainty in the nuclear world and uni-
case of accident or serious fllness.
dergone a rather serious operation
lateral disarmament just do not mix.
We heps to move forward and take
during the recess and he is back hale
HEALTH CARE THE PROPLE'S NO. PRIORITY
up legislation to correct that problem.
and hearty and ready to work. I will be
We all agree that health care is a na-
No American should have to fear that
making further statement with refer-
tional priority. 1 spent the recess trav-
illness will cost the family Its econom-
ence to Senator PRYOR later today.
eling to everytrorner of my State, and
ic security.
Levery place I went. health care was the
The economic security of our Nation
rests on the ability of Americans to
CONGRESS RETURNS TO FACE
No. 1 issue, followed closely by the
THE DOMESTIC AGENDA
Federal deficit. But there are not any
produce goods and services in the
easy answers to the health care dilem-
future that can compete with the
Mr. DOLE. Mr. President, & lot has
ma. It will take creative thinking.
products of other nations in a world
happened in the world since we last
courage-and yes. a way to pay for it.
marketplace. The only thing that can
met here. But despite the earth-shat-
These are just some of the chal-
guarantee our future economic securi-
tering changes in the Soviet Union,
lenges facing us for the rest of the
ty is a high-quality system of educa-
there is plenty of work left for us to
year.
tion.
do. The American people expect us to
On this side of the sisle, we are
We will conclude action on the ele-
get busy, and SO does President Bush.
ready to cooperate to implement & re-
mentary and secondary education bill
I do not need a calendar to know
sponsible, realistic agenda, not some
introduced at the beginning of the ses-
that 1992 in around the corner. No
political agenda. And when we are
sion. The bill will provide both the re-
doubt, we will hear B lot of talk this
done, we should adjourn. go home and
sources needed to improve education
fall about the domestic agends-who
listen to the people again
and the accountability to make sure
has one and who does not. Much to
Let its get 1891 done before we start
the resources are wisely spent. We
the disappointment of his critics,
1992.
need more than speeches about the
President Bush has & domestic agenda.
goals of the year 2000. We need & way
It 18 the domestic agenda the people
to reach those goals.
elected George Bush to implement in
OPENING OF THOMAS
In addition, of course, we must con-
the 1988 landslide. The fact is, his op-
HEARINGS
clude work on the routine annual ap-
ponents do not like it because it is not
Mr. DOLE Mr. President, the
propriations before the beginning of
their agenda. It is standard political
Senate returns to Washington today
the fiscal year. We will deal with the
spin to bash the President-but that is
with & bang. Over in the Judiciery # is
confirmation of 4 new Supreme Court
not why we are here.
lights. camera, action as the curtain
Justice and a new head for the Central
DIPARTISAN COOPERATION
goes up on the confirmation hearings
Intelligence Agency.
Let us face St. the only way any do-
on the -nomination of Clarence
We face veto threats over the notori-
mestic agends will be enacted is with
Thomas to the Supreme Court
our gag rule, even though the Nation's
bipartisan cooperation. We may share
The great Will Rogers once said that
medical community universally agrees
many of the same goals, but we often
Senate hearings always contrib-
that it must be revised.
disagree on how to achieve them. And
ated more to amusement than they
In addition, we hope. to act on
we have to face reality, and start Has-
have to knowledge. Fifty years later,
energy legislation. civil rights legisla.
tening to the taxpayers for & change-
Rogers words ring more true than
tion, cable television legislation, paren-
we do not have any money to start
ever.
tal leave legislation as well as conclud-
new, freewheeling spending programs.
I have been In this body long enough
ing conference work on such impor-
And under our budget agreement, any
to witness a complete reversal in the
tant Items as the crime bill and the
programs we do start have to be paid
rules of confirmation hearings. It was
highway measure.
for.
not an that long ago when the Senate
We have a full plate before us. The
PAYING FOR PROGRAMS
was comfortable basing their vote on
Senate will be in working session 5
We are all sympathetic to the plight
the experience, the ability, and the
days each week and there will be votes
of
of the unemployed-one person out of
character of the nomines.
scheduled throughout the 5 days
work is one toe many. But even the
The hearings were usually fast and
work.
With the cooperation and consider-
New York Times-not exactly B Re-
efficient, but they were not very good
ation of all Senators, I hope we can
publican newsletter-characterizes the
theater.
debate fairly and thoroughly on those
Democrate' latest unemployment solu-
All that has changed. Through no
Issues and vote on them. and where
tion as a legislative hoax. I had & plan
fault of Judge Thomas, the hearings
last month, too, that would have paid
which open today are the nottest show
significant differences divide us debate
for itself, and would have been signed
in town.
those differences in a forthright and
into law by President Bush-a fact
Those opposed to Judge Thomas
civil manner and then move promptly
conveniently ignored by the Presi-
quickly realized that, as the ABA has
once the Senate reaches agreement.
dent's critics.
concluded, Judge Thomas is qualified
The changes occurring abroad
cannot distract us from the vital issues
I also see where the Democrats may
to sit on the Court. They realized that
hatch some more soak the rich
he is a man of exceptional ability. He
facing Americans at home. I intend to
put the priorities of Americans first in
schemes. They may sound good. but
possesses a brilliant intellect, and has
we have seen the impact of the so-
excelled in every position in which he
the remainder of the 102d Congress.
called fairness of the luxury tax imple-
has served. They realized that his
mented by the Democrats last year-
character is second to none-a charac-
RECOGNITION OF THE
pink slips all the way from aircraft
ter forged in a childhood of poverty in
REPUBLICAN LEADER
and boat manufacturers, to car dealers
the segregated South.
and small-town jewelry shop owners.
And they realized that Judge
The PRESIDENT pro tempore. The
They said they were giving the middle
Thomas' life and record were exam-
time of the leader has expired.
The Republican leader is recognized
class $ helping hand by taxing the
Ined by the Senate when he was nomi-
under the standing order.
rich-instead, that hand pointed them
nated as Chairman of the EEOC,
to the unemployment line.
when he was renominated for a second
1 expect we will see no shortage of
term, and when he was nominated for
SENATORS PRYOR AND
efforts to slash defense spending to
his current position as judge on the
STEVENS
pay for # laundry list of big spending
D.C. Circuit Court of Appeals. On
Mr. DOLE. Mr. President, first I
programs. But If the incredible turn of
each occasion. Judge Thomas was
wish to join my majority leader in wel-
events in the Soviet Union taught us
everwhehningly confirmed.
coming back Senator DAVID PRYOR. I
anything, It's that the only certainty
Given the fact that Judge Thomas
also note on the floor my friend from
is uncertainty. And if you ask me, un-
does have the experience. the ability,
NCLR
NATIONAL COUNCIL OF LA RAZA
THE EMPTY PROMISE:
CIVIL RIGHTS ENFORCEMENT AND HISPANICS
SUMMARY REPORT
Prepared by:
Claire Gonzales
Senior Civil Rights Policy Analyst
and
Francisco Lopez
Civil Rights Research Assistant
Policy Analysis Center
Office of Research, Advocacy, and Legislation
National Council of La Raza
Raul Yzaguirre
President
810 First Street, N.E.
Suite 300
Washington, D.C. 20002
Telephone: (202) 289-1380
Fax: (202) 289-8173
July 1991
TABLE OF CONTENTS
Page
ACKNOWLEDGMENTS
i
I.
SUMMARY AND INTRODUCTION
1
A.
Summary
1
B.
The Equal Employment Opportunity Enforcement System
1
II.
SCOPE OF THE PROBLEM
3
A.
Legacy of Discrimination: The Hispanic Experience
3
B.
Persistence of Prejudice in American Society
3
III.
CURRENT ENFORCEMENT EFFORTS
7
A.
The EEOC Enforcement Process
7
B.
Historical Perspectives: The Hispanic Charge Study
8
C.
EEOC's Record in Recent Years
9
D.
Conclusion: The EEOC Provides Inequitable
14
Treatment to Hispanics
IV.
ANALYSIS AND IMPLICATIONS
16
A.
Barriers to Improved Civil Rights Enforcement for Hispanics
16
B.
Societal Factors Inhibiting Effective Enforcement
17
V.
POLICY RECOMMENDATIONS
19
A.
The EEOC
19
B.
Congress and the Administration
20
C.
The U.S. Commission on Civil Rights
21
D.
The Hispanic Community and Other Interested Parties
21
ENDNOTES
23
ACKNOWLEDGMENTS
The authors wish to express special thanks to Emily Gantz McKay, Vice President for
Institutional Development, for her invaluable assistance in all phases of preparation of this
report.
The authors also wish to express thanks to Marcus Johnson, Administrative Assistant,
for his expert assistance with graphics and layout. Special thanks also to Diane Cabrales,
Materials Specialist, for her editing expertise.
This analysis was made possible by funding from the Rockefeller Foundation, through
its support of NCLR's Policy Analysis Center and Poverty Project, and the Philip Morris
Companies Inc. The content of this report is the sole responsibility of NCLR and does not
necessarily reflect the opinions of these funding sources.
I.
SUMMARY AND INTRODUCTION
A.
Summary
This summary report presents key findings and recommendations from the forthcoming
report, The Empty Promise: Civil Rights Enforcement and Hispanics, which is scheduled for
publication in August 1991. The summary focuses on the Equal Employment Opportunity
Commission (EEOC), the largest and most important of the federal civil rights enforcement
agencies. The full report will provide more detailed information on the EEOC and other
federal enforcement efforts that address employment discrimination against Hispanics.
This summary briefly describes the federal equal employment opportunity system,
presents evidence on the scope and degree of employment discrimination against Hispanic
Americans, describes and analyzes current EEOC enforcement efforts on behalf of the
Hispanic community, and provides a series of recommendations to policy makers and the
private' sector.
Many respected academics, policy makers, and philanthropists now suggest that
strategies for improving the social and economic conditions of racial and ethnic minorities
should de-emphasize civil rights-based approaches.' They argue that civil rights enforcement
has "worked," and that eliminating continuing disparities between Whites and minorities
should focus exclusively or primarily on human capital improvements, e.g., education and
training, or economic development approaches.
At least for Hispanics, the data presented in this summary report suggest otherwise.
The summary documents that, far from having "worked," a civil rights enforcement strategy
for Hispanics has yet to become a reality. Notwithstanding the necessity of improved
education, training and economic development programs and policies - and the National
Council of La Raza vigorously supports such programs and policies - this summary report
demonstrates the urgent need for a vigorous civil rights enforcement strategy to better prevent
employment discrimination against Hispanic Americans and to provide compensation for the
victims of discrimination.
B.
The Equal Employment Opportunity Enforcement System
The principal federal statutes and executive orders intended to secure equal
employment opportunity for all Americans through the prohibition of various forms of
employment discrimination include:
Title VII of the Civil Rights Act of 1964 (Title VII), which generally prohibits
discrimination in public and private employment based on race, color, religion, sex or
national origin;
1
Executive Order 11246, as amended by Executive Order 11375 (EO 11246), which
prohibits discrimination in employment by federal contractors and subcontractors;
Age Discrimination in Employment Act of 1967, as amended (ADEA), which
prohibits employment discrimination on the basis of age;
Equal Pay Act of 1963 (EPA), which prohibits discrimination on the basis of sex in
the payment of wages;
Sections 501 and 505 of the Rehabilitation Act of 1973, as amended (Sections 501
and 505), which prohibit employment discrimination in the federal sector because of
disability;
Americans with Disabilities Act of 1990 (ADA), which generally prohibits
discrimination in public and private employment because of disability; and
42 U.S.C. Section 1981 (Section 1981), a Reconstruction-era statute which prohibits
discrimination in the making and performance of contracts, including employment
contracts.
Many states, counties, and municipalities also have statutes and ordinances that
prohibit employment discrimination.
Title VII is the primary federal equal employment opportunity statute; it prohibits
discrimination in employment and in employment-related activities based upon race, color,
religion, sex, or national origin. The Equal Employment Opportunity Commission (EEOC)
was created by Title VII to administer and enforce its statutory mandates; other enforcement
agencies include:
Civil Rights Division of the Department of Justice, which is responsible for
enforcing claims under Title VII involving state and local governments and
governmental agencies;
Office of Federal Contract Compliance Programs, in the Employment Standards
Administration of the Department of Labor, which has primary enforcement
responsibility for EO 11246; and
Qualified state and local Fair Employment Practice Agencies (FEPAs), which may
share Title VII enforcement authority with the EEOC.
The EEOC is primarily responsible for enforcing Title VII, as well as the EPA, the
ADEA, Sections 501 and 505, and the ADA. Because of the scope of both the EEOC's
jurisdiction and its mission, the agency is usually the first point of contact for victims of
employment discrimination seeking relief or remedy.
2
II.
SCOPE OF THE PROBLEM
A.
Legacy of Discrimination: The Hispanic Experience
Whether they came to what is now the United States by conquest or by choice,
Hispanic Americans have faced severe discrimination. In 1848, after the signing of the
Treaty of Guadalupe Hidalgo, which ended the Mexican War, thousands of Mexican
Americans in the American Southwest were murdered, executed without trial, or lynched;
according to one scholar, more Mexican Americans were lynched from 1850 to 1930 than
Blacks in the South during the same period. During that period and since, Mexican
Americans have been subject to enormous discrimination in education, employment, housing,
and the administration of justice. In addition, in the 1930s and again in the 1950s, millions
of persons of Mexican descent - including many U.S. citizens and legal residents - were
"repatriated" to Mexico without benefit of due process.²
Puerto Ricans also became U.S. citizens by conquest in 1898, and, like Mexican
Americans, have suffered the consequences of being a conquered minority group. Coming to
the mainland in large numbers primarily since World War I, first as agricultural laborers and
later as industrial workers, Puerto Ricans have faced high levels of social and economic
discrimination in education, housing and employment.' Other Hispanics, including Cubans
and Central Americans, although entering the United States in large numbers during and after
the civil rights movement of the 1950s and 1960s, have also been subjected to serious
discrimination.
Every Hispanic subgroup, in varying degrees, has encountered discrimination on the
basis of skin color and on the basis of cultural characteristics (e.g., language and surname).
The literature is replete with references, including many from alleged "scientists," to
Hispanics as "mongrels," "lazy," "ignorant, illiterate and non-moral," "miserable,
wretched,.. petty, thieving, [and] gambling," "greasers," "idle," "thriftless," "sneaky," "do-
nothing," "sloppy," and "undependable." In various combinations, these references have
formed the basis for a stereotype of Hispanics as being inferior, primitive, and docile; such
stereotypes themselves often lead, directly or indirectly, consciously or unconsciously, to
discrimination.
B.
Persistence of Prejudice in American Society
While most people would prefer to believe that prejudice and bigotry are all but
extinct in present American society, recent studies indicate otherwise; for example:
A December 1990 study by the National Opinion Research Center (NORC) examined
public opinions and perceptions of six major American cultural groups -- Whites,
Jews, Blacks, Asian Americans, Hispanic Americans, and Southern Whites. Of six
characteristics measured (wealth, work ethic, violence, intelligence, dependency, and
patriotism), Hispanics were rated last on three and next to last on three. Over 80% of
3
those surveyed rated Hispanics, together with Blacks, lower than Whites on one or
more of the six characteristics.
A 1989 study conducted by the Urban Poverty and Family Structure Project at the
University of Chicago analyzed the manner in which employers' perceptions of
ethnicity and race affect hiring decisions. The study, based on interviews with 185
Chicago-area employers, found that 70% of those surveyed made distinctions among
employees or potential employees based on ethnicity and race. According to the
employers, being Hispanic and/or Black was perceived as being "lower class" and
being White meant "middle class." The study confirmed the tendency of employers to
generalize about the meaning of ethnicity and race with regard to the quality of the
work force and to rely on these generalizations in their hiring practices.'
These studies indicate that the most powerful motivations for employment
discrimination - personal prejudice, intolerance of diversity, reliance on negative
stereotypes - continue to permeate American society. Survey research by the General
Accounting Office (GAO), the investigative arm of the Congress, has documented additional
evidence of national origin discrimination against Hispanics. In a March 1990 report on the
Immigration Reform and Control Act of 1986 (IRCA), the GAO reported the results of a
survey of 4362 employers concerning the effects of IRCA's employer sanctions provisions on
their hiring practices." The GAO found that:
An estimated 10% of the employers surveyed reported discriminating against
employees or job applicants solely on the basis of national origin
characteristics;
An estimated 5% began a practice of refusing to hire persons based on
"foreign" appearance or speech accent; and
An estimated 8% required only "foreign-looking" and "foreign-sounding"
persons to comply with the IRCA's employment verification requirements.'
Labor market research provides further evidence that, throughout the 1980s, Hispanics
continued to experience high levels of employment discrimination. At least four independent
studies have found that, even after controlling for factors known to affect employment and
earnings, such as age, occupation, and educational attainment, a significant proportion of the
discrimination. "earnings gap" between Hispanics and Whites appears to be attributable to employment
A 1982 National Council of La Raza (NCLR) study, The Effects of Discrimination on
the Earnings of Hispanic Workers: Findings and Policy Implications, using data from the U.
S. Bureau of the Census' March 1981 Current Population Survey, found that 14% of the
earnings gap between White males and Hispanic males and 29% of the gap between-White
4
males and Hispanic females was due to ethnicity alone, suggesting serious levels of
employment discrimination.
A 1982 U.S. Commission on Civil Rights report, Unemployment and
Underemployment Among Blacks, Hispanics and Women, using data from the March 1980
Current Population Survey, found that, while disparities in unemployment and
underemployment between Hispanics and Whites could be explained to some extent as
reflections of differences in education, training, and age, substantial disparities remained even
after controlling for these factors. The Commission concluded that sufficient evidence exists
to suggest that discrimination continues to be a significant, if not a precisely quantifiable,
factor in employment disparities between Whites and Hispanics."
A 1985 University of Colorado study, using Census data to analyze the causes of the
disparity in earnings among Hispanic, Anglo, and Black males, found that in 1980
discrimination and labor market segmentation accounted for 18.1% of the difference between
Hispanic male and White male earnings."
A 1990 study sponsored by the Inter-University Program for Latino Research (IUP),
using data from the 1940, 1950, 1960, 1970 and 1980 Censuses, and the 1983, 1986 and
1988 Current Population Surveys, analyzed and compared Latino and White incomes from
1939 to 1987. After controlling for demographic, occupational and human capital differences
between Hispanics and Whites, the researchers estimated that employment discrimination
accounted for:
Approximately 10-16% of the gap between Latino male and White male
incomes from 1973 through 1987; and
Approximately 30-40% of the Latino female-White male income gap over the
same period.
The study concluded that, although significant progress was made in the 1960s,
inequality due to discrimination in the labor market has not declined, and for many Hispanics
has actually increased, over the past 20 years."
Taken together, the results of these studies provide compelling evidence of severe,
persistent employment discrimination against Hispanics. Despite the fact that the studies
relied on a number of different data bases and used somewhat different methodologies," the
research findings are remarkably consistent:
The percentage of the Hispanic male-White male income gap attributable to
employment discrimination falls within a 10%-18% range;
The percentage of the Hispanic female-White male income gap attributable to
employment discrimination falls within a 30%-40% range."
5
Using the mid-point of these ranges, the cost to the Hispanic community attributable to
employment discrimination could be conservatively estimated as high as $11.7 billion in lost
income annually."
Finally, a new research technique known as a "hiring audit" provides powerful,
empirical evidence of continuing employment discrimination against Hispanics. A hiring
audit tests for differential treatment in hiring by having pairs of closely matched testers, one
from the majority group and one from a minority group, inquire about or apply for the same
job. The pairs are matched on all attributes that could affect the hiring decision. The
experiences and results of the testers are compared and analyzed to determine differential
treatment. A 1989 Urban Institute study, based on 360 "hiring audits" conducted in San
Diego and Chicago, found that:
Anglo (White, non-Hispanic) applicants received 33% more interviews and
52% more job offers than the Hispanic applicants; and
31% of the Hispanic applicants encountered unfavorable treatment in the hiring
process, compared to only 11% of the Anglo applicants.
Since the hiring audit technique controls for factors that might legitimately affect the
hiring process, the adverse treatment experienced by Hispanic auditors was caused by national
origin discrimination."
Considered as a whole, the combination of studies cited above demonstrates
persuasively that Hispanics suffer from enormous levels of discrimination in the labor market.
Survey research shows that Hispanics continue to be perceived in a negative, stereotypical
fashion by much of the American public. The research also confirms that negative
perceptions of Hispanics are translated by employers into discriminatory hiring practices.
Furthermore, statistical research that isolates the effect of ethnicity on earnings
consistently finds that, if other factors are held constant, simply being Hispanic means one is
less likely to be employed, and if employed, will earn lower wages, than otherwise expected.
Moreover, at least one such study suggests that labor market discrimination against Hispanics
may be on the rise.
Finally, the "real world," empirical data drawn from hiring audits shows conclusively
that Hispanics receive fewer interviews and job offers than equally qualified Anglo job
applicants.
Despite the undeniable progress that Hispanics and other minorities have made since
the passage of landmark civil rights legislation in the 1960s, equal employment opportunity
remains an unfulfilled goal.
6
III.
CURRENT ENFORCEMENT EFFORTS
A.
The EEOC Enforcement Process
The EEOC's primary responsibility under Title VII is the prevention of unlawful
employment practices. The principal method of accomplishing this goal is the processing of
"charges" or complaints of alleged unlawful employment practices. Charges may be filed
with the EEOC by or on behalf of the person claiming to have been discriminated against, or
by a member of the EEOC. Charges must be in writing and verified, and must contain
information about, among other things, the charging party, the party against whom the charge
is made (the "respondent"), and the facts constituting the alleged unlawful practice(s). In
certain circumstances, charges are referred to authorized state or local fair employment
practices agencies (FEPAs) that share subject matter jurisdiction with the EEOC. These state
and local agencies are first given an opportunity to resolve the charge before the EEOC
initiates its own proceedings.
Once a charge is filed with the EEOC, an investigation is initiated to determine if
reasonable cause exists to believe that the charge is true. If the EEOC determines that no
reasonable cause exists, a notice of "no cause determination" is sent to all parties to the
charge. Unless a request for review is made and granted, no further action will be taken by
the EEOC on the charge.
If reasonable cause is found, the EEOC must first try to eliminate the unlawful
employment practice through informal conciliation. If no acceptable conciliation agreement is
reached, the EEOC may bring a civil action against the respondent. If reasonable cause is
found, but the EEOC decides not to bring a civil suit against the respondent, the EEOC must
issue a "notice of right to sue" to the charging party.
Under certain circumstances, the charging party may request a notice of right to sue
from the EEOC before the EEOC has completed its investigation and conciliation efforts; this
notice is required before a charging party may bring a civil suit based on the charge. The
issuance of a notice of right to sue terminates all proceedings on a charge, unless the charge
was filed by an EEOC Commissioner.
A charge may be dismissed if: it is not filed in a timely manner; it fails to state a
claim under Title VII; the charging party fails to provide necessary or requested information,
fails or refuses to appear or be available as necessary for the EEOC to perform its
investigation, or otherwise refuses to cooperate; or the respondent's written settlement offer
providing a complete remedy for the charging party has not been accepted by the charging
party within 30 days. A charge may also be withdrawn as part of an acceptable negotiated
settlement between the parties prior to the issuance of a reasonable cause determination by the
EEOC. Any sort of resolution of a charge -- dismissal, withdrawal, termination of
7
proceedings, final judgment in a lawsuit - - is considered to be a "charge disposition" by the
EEOC.
The EEOC also has statutory authority to bring a civil suit for "pattern or practice"
violations of Title VII. The EEOC may bring suit to address systemic discrimination
whenever it has reasonable cause to believe a pattern or practice of unlawful employment
discrimination exists.
B.
Historical Perspectives: The Hispanic Charge Study
Hispanics have consistently argued that their community does not benefit equitably
from federal civil rights enforcement efforts. In the EEOC's own 1983 report, Analysis of the
EEOC's Services to Hispanics in the United States (1983 Hispanic Charge Study), an EEOC-
appointed task force unanimously found that the EEOC was not providing equivalent service
to all protected groups, particularly Hispanics.
Based on the testimony of 120 representatives of the Hispanic community, the study
found that Hispanics were either unaware of the EEOC's enforcement authority or had a
negative perception of, or general lack of trust for, the agency and its service to Hispanics."
Moreover, the task force found that the EEOC's record of hiring Hispanics was very poor,
particularly in policy positions, and that the EEOC had made little effort to improve its
presence or reputation in the Hispanic community.
The task force also carried out a statistical analysis of the EEOC's record with respect
to: (1) the proportion of EEOC's caseload of charges involving Hispanics, (2) the disposition
of Hispanic charges, and (3) the agency's litigation efforts on behalf of Hispanics.
The data compiled by the task force showed that during the late 1970s and early
1980s, at a time when the proportion of Hispanics increased from less than 3% of the labor
force to nearly 6%, and the overall EEOC charge caseload increased by 76.5%, the
proportion of caseload involving Hispanics dropped from an average of 7.5% (from 1974-80)
to less than 5% in 1982. 19
In addition, once charges alleging national origin (Hispanic) discrimination were filed,
they were more likely to be closed administratively without remedy to the charging party than
were charges from other groups." For example, the task force found that in both 1980 and
1982, the EEOC was nine times more likely to recover back pay for Black charging parties
than for Hispanic charging parties." During this period, between 79% and 84% of the
charges brought by Hispanics were closed without any remedy to the charging party."
With respect to the Commission's litigation record, the 1983 study found that from
1980 through 1983, lawsuits alleging discrimination based upon national origin (Hispanic)
were only 2.8% of the EEOC's caseload. Of the EEOC's reported "significant litigation"
8
from 1972 to 1982, there were no cases listed in which the issue of national origin
discrimination was litigated on behalf of Hispanics as the sole or primary issue, Hispanics
were the primary class represented, or Hispanics were the only individuals represented in a
"pattern or practice" case.
Based on these findings, the study concluded that the EEOC was responsible for the
Hispanic community's lack of knowledge about or lack of trust for the agency because of the
extremely poor quality of its investigations of Hispanic charges, the inadequate allocation of
resources to service the Hispanic community, and lack of communication between the EEOC
and community-based Hispanic organizations.
C.
EEOC's Record in Recent Years
NCLR conducted its own statistical analysis of EEOC data on charges, dispositions
and litigation since the issuance of the 1983 Hispanic Charge Study. Overall, this analysis
indicates that little or no improvement has been made by the EEOC since 1983. In fact,
given the enormous growth of the Hispanic population during the last decade - - and the
concomitant increase in the Hispanic proportion of the labor force NCLR's analysis shows
a relative decrease in the EEOC's service to the Hispanic community over the last decade.
According to the 1990 Census, for example, Hispanics constitute nearly 9% of the total U.S.
population, as compared to less than 6% in 1980. Hispanics constituted nearly 8% of the
civilian labor force as of March 1990, as compared to less than 6% in 1980.2
NCLR's analysis shows that, from 1985 through 1990, charges alleging discrimination
based on Hispanic national origin have continued to constitute a disproportionately small
percentage of the EEOC's total charge receipts. Charges from Hispanics during this period
constituted only 4.15% of the EEOC's total charge caseload (See Figure 1).
By comparison, charges from Blacks alleging discrimination on the basis of race
constituted more than 31% of the EEOC caseload. Charges based on allegations of sex and
age discrimination constituted more than 21% and nearly 18%, respectively, of the
Commission's total charge receipts over this period. Even the number of charges from
Whites alleging "reverse discrimination" were nearly as high as those from Hispanics alleging
national origin discrimination.
Viewed another way, for every charge alleging discrimination based on Hispanic
national origin during this period, there were nearly eight charges alleging racial
discrimination against Blacks, more than five charges alleging sex discrimination, and more
than four charges alleging age discrimination. Figures 2, 3 and 4 graphically illustrate the
disproportionately low rate of Hispanic charges within the total EEOC charge caseload.
9
FIGURE 1
EEOC Charge Caseload by Basis* of Discrimination
FY 1985 - FY 1990
Basis
# of Charges
% of Total
Black
261,123
31.65
Gender/Female
177,294
21.49
Age
148,063
17.94
Hispanic
34,305
4.15
White
20,377
2.47
Religion
13,009
1.58
Other
170.957
20.72
TOTAL
825,129
100%
Source: NCLR Analysis of EEOC Data
Charging parties may allege more than one basis of discrimination, c.g., gender and race. "Gender/Female"
category includes claims filed under both Tale VII and EPA. "Other" category includes Asian, American Indian, and
"retalistion" bases.
FIGURE 2
Moreover, these data tend to
overstate the proportion of charges
1985 EEOC Charges
from Hispanics. A significant
By Basis
proportion of the charges listed
under the "Other" category were
filed on the basis of "retaliation,"
Black 33%
by employers against persons who
had previously filed discrimination
Gender/Female 22%
complaints. Because Hispanic
complaints constitute such a small
proportion of the EEOC caseload
Religion 2%
White 2%
overall, the number of Hispanics
Hispanic/Mexican 4%
filing retaliation-based charges is
likely to be very low. Thus, the
Other 19%
Age 18%
actual percentage of the
Commission's total charge receipts
filed by Hispanics is almost
*Includes both Title VU and EPA
certainly lower than the cited
4.15% figure.
10
FIGURE 3
1990 EEOC Charges
By Basis
Black 31%
Other 22%
Religion 2%
White 3%
Hispanic/Mexican 5%
Gender/Female* 21%
Age 17%
*includes both Title VII and EPA.
FIGURE 4
EEOC Charges by Basis
Percent
35
30
25
20
15
10
5
0
1985
1986
1987
1988
1989
1990
Black
Gender/Female-
Age
Hispanic/Mexican
-Includes both Title VII and EPA.
11
Moreover, the proportion of charges from Hispanics that are administratively closed
by the EEOC without remedy to the charging party has increased dramatically in recent years.
In 1985, approximately 45% of Hispanics' complaints were administratively closed with no
remedy; by 1990 that figure had increased to more than 72%. For five of the six years
during the 1985-90 period, Hispanic charges were closed without remedy at a rate higher than
all other groups combined.
The majority of these charges were closed on the basis of "no cause" findings, i.e.,
because the EEOC found insufficient evidence that discrimination had occurred. In addition,
a significant number of Hispanics' complaints were closed based on the "failure of the
charging party to cooperate" with the EEOC's investigation.
There is substantial reason to view these categorizations with extreme suspicion. The
EEOC came under considerable criticism in the late 1970s and 1980s for administratively
closing cases with little or no substantive investigation.*
Any shortcomings of the overall EEOC charge processing system, however, cannot
explain the enormously high rate of administrative closures of complaints filed by Hispanics.
One possible explanation is that Hispanic complaints are simply not taken seriously by the
Commission.
One example of possible differential treatment of Hispanic charges cited in the
Hispanic Charge Study involved a case filed by an Hispanic against the State of California
Department of Corrections in 1976. After six years with no action, the case was transferred
from the EEOC's Los Angeles office to its Phoenix office. The charging party was advised
by the EEOC and state officials that a settlement of the case was pending. A year later, the
charging party received a notice that the charge had been dismissed based on a "no cause"
finding. The charging party subsequently stated that he was informed that the "EEOC needed
to close 'old' cases to improve their status with auditors and the Administration." 26
NCLR examined the EEOC's litigation activity since the 1983 Hispanic Charge Study;
this analysis revealed a similar pattern of low levels of service to Hispanics; for example:
In 1985, only 3.8% of all lawsuits filed by the EEOC were based on a charge
of national origin (Hispanic) discrimination.
Lawsuits filed by the EEOC in 1987, 1988 and 1989 on the basis of Hispanic
national origin discrimination constituted, respectively, 4%, 3%, and 2% of all
EEOC lawsuits (see Figure 5).
12
FIGURE 5
EEOC Lawsuits
Percent
35
30
25
20
15
10
5'
0
1987
1988
1989
Gender/Female
Age
Black
Hispanic/Mexican
With respect to cases perceived as being of particular significance, the Commission's
1986, 1987, and 1988 summary of "noteworthy resolutions secured by the EEOC" for each of
the three fiscal years shows that:
In 1986, only 4.8% were based on a claim of national origin (Hispanic)
discrimination; in 1987, only 1.6% were for Hispanic claims; and in 1988,
only 1.9% were for Hispanic claims.
Only 4.9% of all "substantive" lawsuits filed by the EEOC in fiscal years
1986, 1987, and 1988 list national origin as at least one basis for the charge.
Because these data are not disaggregated by type of national origin, it is unclear
how many, if any, are specifically Hispanic claims.
Even when the EEOC litigates on behalf of Hispanics, it appears that Hispanics
receive smaller average monetary awards than other groups. In 1988, for example, in single
plaintiff lawsuits - which generally tend to recover larger monetary awards than suits with
two or more plaintiffs - Hispanics received an average of $6,867 per suit, compared to
average awards of $39,282 for suits alleging discrimination based on age, $10,078 claims
based on race (Black), $9,270 claims based on religion, and $12,004 claims based on
gender/female (See Figure 6).
13
In 1989, the average awards in such suits were markedly different for each group;
however, Hispanics' awards continued to be significantly lower than other groups' awards
(See Figure 7).*
FIGURE 6
FIGURE 7
Average Litigation Awards by Basis
Average Litigation Awards by Basis
Individual Plaintiff Suits - 1988
Individual Plaintiff Suits - 1989
Thousands
Thousands
60
20
$18,409
$39,282
$15,601
$15,185
40
$13,502
16
so
$12,004
10
20
$10,078
$9,270
$4,750
$6,867
5
10
o
0
Age
Rece/Black
Religion
Conder/Female- Hisp./Mexican
Age
Pace/Black
Religion
Conder/Female Hisp./Mexicas
Basis
Basis
-tactudes both Title VN and EPA claims.
-factudes both Title VM and EPA claims.
Finally, a number of major class action lawsuits (those with 25 or more plaintiffs)
were resolved by the Commission in 1988 and 1989. Such lawsuits are believed to have a
major deterrent effect in that they are often accompanied by substantial publicity. Of these 31
class action lawsuits, 13 were on behalf of victims of sex discrimination, 12 were on behalf of
age discrimination victims, and six on behalf of Black victims of racial discrimination; none
was on behalf of Hispanics.
D.
Conclusion: The EEOC Provides Inequitable Treatment to Hispanics
By any standard, Hispanics are underserved by the EEOC, and it appears that the
trend is worsening. Hispanics constitute a significantly smaller portion of the total EEOC
charge caseload than either the percentage of Hispanics in the population or the proportion of
Hispanics in the workforce. In addition, the Hispanic proportion of the EEOC caseload in the
late 1980s was lower than it was at any time during the period from 1974 through 1980.29
It cannot be credibly argued that Hispanic complaint levels reflect low levels of
discrimination against Hispanics relative to other groups. The 1990 IUP study cited above,
for example, shows that discrimination against Hispanics as compared to other groups has
14
increased in recent years.' Macro-economic indicators, including a relative decline in the
wage gap between males and females, for example, suggest that the levels of charges alleging
sex discrimination should have decreased relative to Hispanic complaints in the 1980s; instead
the reverse was true. Finally, similar hiring audits of Blacks and Hispanics by the Urban
Institute - albeit in different markets - showed that Hispanics faced higher levels of
discrimination at the hiring stage than Blacks. 32 If levels of discrimination were the primary
determinant of complaint caseloads, then one would have expected the relative proportion of
Hispanic complaints to have increased in the 1980s.
Some might argue that the high closure rate of Hispanic cases may simply reflect that
Hispanics are more likely to file frivolous or unsubstantiated discrimination claims. There are
two problems with this reasoning. First, it fails to explain why the administrative closure rate
of Hispanic charges would have increased from 45% in 1985 to 72% in 1990. Second, given
the compelling evidence of massive employment discrimination against Hispanics cited above,
if Hispanics tended to file many unsubstantiated complaints, one would expect that total
Hispanic charges would constitute a disproportionately high percentage of the total EEOC
caseload; in fact, the opposite is true.
It is difficult to avoid the conclusion that the EEOC is engaging in differential
treatment of Hispanics in its charge receipt and disposition system. One the one hand, if the
Hispanic charges received by the EEOC are without merit, it means that the EEOC is failing
to identify and seek relief for the thousands of legitimate Hispanic discrimination victims. If,
on the other hand, the relatively low number of Hispanic charges in the EEOC caseload
represent bona fide cases of discrimination, then the high administrative closure rate reflects a
pattern of negative, differential treatment of Hispanic complaints.
Finally, even if the low level of EEOC litigation on behalf of Hispanics is in part a
reflection of the low rate of Hispanic charges, it also is a reflection of the EEOC's failure to
seek out and litigate Hispanic claims on its own initiative.
Thus, in 1991, nearly a decade after the issuance and acceptance by the EEOC of the
Hispanic Charge Study findings, it is clear that the Commission's service to Hispanics
remains extremely poor. Indeed, if the Commission applied the same "disparate impact"
analysis it uses against employers alleged to have engaged in acts of unintentional
discrimination to its own enforcement record, it would be forced to conclude that the EEOC
is itself guilty of discrimination against the Hispanic community."
15
IV.
ANALYSIS AND IMPLICATIONS
A.
Barriers to Improved Civil Rights Enforcement for Hispanics
The civil rights enforcement system in general, and the EEOC charge system in
particular, places heavy burdens on victims of discrimination in seeking and obtaining redress.
Such victims must have the knowledge, skills, and resources to: (1) know and understand
what constitutes unlawful employment discrimination; (2) know how and where to file a
formal complaint or obtain legal representation; (3) collect evidence to support the allegation
of discrimination; (4) follow through on the complaint by appearing at one or more interviews
with investigators and attorneys, formal hearings, and conciliation meetings; (5) withstand
possible intimidation and threats of retaliation by employers; (6) bear substantial economic
opportunity costs, e.g., time lost while pursuing the claim or looking for work in cases
involving refusals to hire or unlawful firings; and (7) pay substantial direct costs, including
transportation, child care, and attorney's fees. It is a system that only the most aggressive,
persistent, and resourceful members of the population can use.
Hispanics constitute a disproportionate share of the most economically disadvantaged
Americans with extremely low levels of education, high unemployment rates and low
incomes." Given these severe hardships, the burdens of the civil rights enforcement system
are particularly difficult for many Hispanics to overcome.
Many interrelated factors account for the failure of Hispanics to benefit equitably from
federal civil rights enforcement. Some of these factors are unique to the Hispanic community
and may require special, targeted efforts by the EEOC and other enforcement agencies.
Other factors are directly related to the manner in which the EEOC and other civil rights
enforcement agencies choose to serve Hispanics.
The failure of the EEOC to implement effective outreach and education for the
Hispanic community has resulted in Hispanics generally having little knowledge about their
own rights and about what constitutes illegal employment discrimination. Lack of outreach
and education has also resulted in Hispanics having little or no knowledge of how to access
the services provided by the various federal civil rights enforcement agencies, particularly the
EEOC.
If an outreach and public education program is to be effective for the Hispanic
community, the special needs of many Hispanics must first be addressed. Language and
literacy are particular concerns for the Hispanic community. About one in four Hispanics in
the United States has limited proficiency in English." Even among those fluent in English,
educational disparities mean high levels of illiteracy within the Hispanic community -- by one
estimate, more than half of all Hispanic adults are functionally illiterate.*
Moreover, Hispanics who are aware of their rights and know where and how to file a
complaint may be deterred from doing so because of the EEOC's dismal record regarding
16
Hispanics' interests. Hearings before the 1983 EEOC Task Force revealed a profound level
of mistrust of the EEOC within the Hispanic community." NCLR's analysis of EEOC's
performance since the 1983 Hispanic Charge Study demonstrates that this lack of trust is well
founded.
Even those Hispanics who do file EEOC charges are more likely than other groups to
have those complaints dismissed. Those who are lucky enough not to have their cases
dismissed - and, therefore, must pay the substantial direct and indirect costs of pursuing a
complaint - are still not likely to receive equitable and effective service; they are less likely
than other groups to receive monetary awards and their average award is likely to be
significantly smaller than those received by other groups.
B.
Societal Factors Inhibiting Effective Enforcement
Not all of the disparity in Hispanics' treatment by the civil rights enforcement system,
however, is attributable to government programs and policies. Policy makers and the media
are also guilty of ignoring or neglecting Hispanics in the context of civil rights. For example,
during the Senate floor debate on the Civil Rights Act of 1990, there was no mention of
Hispanics by the major sponsor of the legislation.
Similarly, an NCLR study analyzed 626 articles in the New York Times and
Washington Post from January 1989 through November 1990 to examine the manner in which
the media covers Hispanics on civil rights issues. The study revealed that only 50, or 7.9%,
of such articles even mentioned Hispanics as a group in their coverage of general civil rights
matters, including the pending Civil Rights Act of 1990.* The little media coverage received
by Hispanics tends to be negative. Portrayals of Hispanics in national television and print
advertising have been particularly onerous, and have included the now infamous "Frito
Bandito," but also lesser known - but no less damaging - caricatures such as Liggett &
Myers' Paco, who never "feenishes" anything, and Arid Deodorant's "bandido," ("If it works
for him, it will work for you"). Finally, recent content analysis of television programming
has found that Hispanics are the most negatively portrayed group on television.⁴ Negative
portrayals of Hispanics are particularly harmful because, given the significant influence of the
media on public opinion, they tend to reinforce negative attitudes toward and foster
discrimination against Hispanics.
To the extent that policy makers and the media both ignore Hispanics in civil rights
debates and coverage, enforcement agencies are less likely to focus time, energy, and
resources on addressing discrimination against Hispanics because they are likely to believe no
problem exists. Similarly, the general public is unlikely to take or to urge action because it
will remain unaware of or unsympathetic to the problems facing Hispanics.
Hispanics are further hampered in their efforts to obtain relief or remedy for
employment discrimination by the lack of access to legal services. If an Hispanic victim of
17
employment discrimination is persistent and tenacious enough to make it to and through the
EEOC process, but is still left with no remedy for a valid claim, it is extremely difficult to
find an attorney able to pursue the claim in a private lawsuit. In general, much of the private
civil rights enforcement network, including public interest law firms and legal service
agencies, suffers from problems similar to those affecting government agencies: their time,
attention, and resources are focused elsewhere.
The public interest law community's civil rights efforts contribute to the problem in
several ways. First, public interest legal organizations tend to emphasize "impact litigation,"
usually to the exclusion of more fundamental, "garden variety" civil rights enforcement
issues, which include the vast majority of discrimination claims. A result is that little
attention or visibility is given to the virtual absence of an effective public and private
infrastructure that is needed to handle the vast majority of discrimination claims.
Second, the high visibility advocacy and public education efforts of these groups
frequently focus on expanding civil rights coverage to include new classes or new remedies or
deal with very technical, often arcane, legal issues. This lack of attention to the basic
elements of civil rights enforcement tends to encourage the widely-held misperception that the
"basic" civil rights problems have been solved. This allows public debate and discussion to
shift to the most extreme and controversial issues, such as "quotas," and undermines political
and public support for the less controversial notion of improving the existing civil rights
enforcement system.
Finally, Hispanic organizations at both the local and national levels have not focused
sufficient attention to improving the civil rights enforcement system. Community-based
organizations, which are generally advocacy and social service groups, are the primary
institutions in and serving the Hispanic community; these organizations usually lack the
capacity or the expertise to guide discrimination victims through the legal process. Given the
large and growing body of evidence of widespread employment discrimination against
Hispanics, the Hispanic community itself will have to play a more aggressive and effective
role in developing and implementing an effective civil rights enforcement system.
18
V.
POLICY RECOMMENDATIONS
To make the current federal equal employment opportunity enforcement system
work effectively for Hispanics, will require special and renewed commitment to civil
rights by all elements of American society. The EEOC, the federal agency charged with
primary enforcement responsibility, should initiate both internal and external programs
targeted to the Hispanic community. Congress and the Administration should indicate their
support by authorizing new programs designed to combat employment discrimination and by
appropriating sufficient resources to carry out those programs. The United States
Commission on Civil Rights (USCCR) should reassume its former position as independent
monitor of federal civil rights enforcement efforts, with special emphasis on the EEOC and its
service to underserved groups. Hispanic and other civil rights organizations should broaden
their agendas and redirect their energies to assure that the basic elements of civil rights
protections are preserved and made more effective. Other interested parties, such as the
media, the education community, and philanthropic organizations, should devote more
attention to Hispanic concerns to promote much-needed understanding of Hispanic issues.
The recommendations presented below are suggested starting points for the many entities that
play important roles in the equal employment enforcement system.
A.
The EEOC
The recommendations made in the 1983 Hispanic Charge Study to the EEOC for
improving its service to Hispanics remain appropriate in 1991, primarily because few, if any,
were subsequently implemented by the EEOC.
1.
The EEOC should develop and implement a major outreach and public
education campaign targeted to underserved groups like Hispanics, as well
as Asian Americans, Native Americans, and people with disabilities, with
the goal of encouraging and receiving more charges by victims of
discrimination.
As suggested by the 1983 Hispanic Charge Study, the most effective means of
outreach to the Hispanic community is through the use of Hispanic community-based
organizations. The effort must be vigorous, direct, and widespread.
2.
The EEOC should improve - by redesign if necessary - its internal
procedures for processing, investigating, and prosecuting charges to
address the extraordinarily high administrative closure rate of Hispanic
charges.
3.
The EEOC should commit itself to pursuing litigation on behalf of
Hispanics as vigorously as it pursues the claims of other protected groups.
19
4.
The EEOC should fulfill its obligation to pursue affirmative efforts by
increasing systemic investigations and litigation on behalf of Hispanics,
particularly in industries and areas of the country in which discrimination
or unfair employment practices are especially likely to occur.
5.
The EEOC should initiate aggressive recruitment of and promotion for
Hispanic employees.
Unless the EEOC can demonstrate -- through deeds as well as words - that it
will equitably serve Hispanics who do come forward with discrimination complaints, then no
amount of outreach will improve the Commission's image in, and trust by, the Hispanic
community and complaint levels will remain unacceptably low.
B.
Congress and the Administration
Both Congress and the Administration should demonstrate their commitment to the
civil rights of Hispanics by allocating attention and resources to the special concerns of
Hispanics.
1.
Congress and the Administration should authorize and fund the
development and implementation of new fair employment "hiring audit"
programs to assist and complement the EEOC's enforcement efforts.
Creating and/or funding Hispanic community-based organizations to carry out
fair employment auditing programs would be the most effective method of identifying and
combatting employment discrimination against Hispanics.
2.
Additionally, Congress and the Administration should assist in the
development and maintenance of the grassroots infrastructure that links
victims of discrimination to enforcement authorities.
Particularly with underserved groups such as Hispanics, a grassroots network to
assist victims in finding and using civil rights enforcement mechanisms is currently almost
non-existent. In addition to hiring audits, community-based groups should be assisted to
provide outreach and public information programs, victim assistance, and other activities that
will bring federal enforcement efforts to the community level.
3.
Congress should appropriate and the Administration must approve an
increased level of resources to the EEOC and other civil rights
enforcement agencies sufficient to perform the recommended outreach,
education, and enforcement activities, as well as their current efforts.
20
Appropriations for civil rights enforcement activities should be at least equal to
inflation-adjusted FY 1980 levels, with additional funds to cover newly protected classes like
persons with disabilities.
C.
The U.S. Commission on Civil Rights
1.
The USCCR should resume its role as monitor of federal civil rights
enforcement efforts, with special attention to the EEOC.
The 1983 Hispanic Charge Study recommended that the EEOC be subject to
oversight by an independent agency with authority to monitor and evaluate its enforcement
efforts. This description parallels the original statutory mandate of the USCCR. Although
the agency has strayed from that mandate in the last decade, under its present leadership the
USCCR has made substantial progress in regaining its former stature. The USCCR should
return immediately to its historic role of civil rights "watchdog."
The USCCR should once again issue annual reports evaluating the performance
of federal civil rights enforcement agencies, analyzing their funding levels and allocation of
resources, and suggesting improvements. Because the EEOC is the one federal agency with
the sole function of enforcing civil rights, it needs and deserves particular attention.
D.
The Hispanic Community and Other Interested Parties
All other entities concerned with civil rights - among them the media, philanthropic
organizations, and the education community - should become knowledgeable about the
concerns of the Hispanic community. For far too long, Hispanics have been either ignored or
presumed to have similar, but lesser, problems compared to other minorities.
1.
The Civil Rights Community should expand its shared agenda to include basic
enforcement issues as a priority. The established civil rights community should
be most "inclusive" in its approach; it should invite all minorities to participate
in the dialogue in which the general civil rights agenda is set so that all
fundamental civil rights concerns are equitably addressed.
2.
The Media should also take a more "inclusive" approach to coverage of civil
rights issues to provide a more accurate and complete perspective. With the
explosive growth of Hispanics and Asian Americans, the media should soon
realize that civil rights issues are no longer simply Black and White. Hispanic
views on "mainstream" stories, as well as special and feature stories on issues
unique to the Hispanic community, should be standard elements of media
coverage. The media should acknowledge and assume its responsibility to
heighten the public's awareness of and understanding of Hispanic civil rights
issues. Inaccurate and demeaning stereotypes and portrayals of Hispanics
should be eliminated in advertising, news, and entertainment programming.
21
3.
Philanthropic Entities, such as foundations and corporations, should devote
greater resources to civil rights enforcement issues - including Hispanic-
specific issues - in their grant-making activities.
4.
The Education Community at every level should take responsibility for
educating the public about the contributions made and problems faced by
Hispanics in American society. Issues such as the Hispanic civil rights
movement and Hispanics' struggle to take their place in mainstream American
society should be standard in curriculum at all levels.
5.
The Hispanic Community, especially our elected officials and organizational
leadership, should become more active in the civil rights arena. Hispanic
leadership has a responsibility to:
Better inform the Hispanic community about its rights and remedies;
Incorporate civil rights activity into all aspects of programmatic activity;
and
Insist on being part of any negotiation or decision-making process in
which civil rights matters are addressed.
To fulfill the promise of equal employment opportunity for Hispanics, the performance
of civil rights enforcement agencies, most notably the EEOC, must improve and public
attitudes toward and images of Hispanics must change. This requires simultaneous awareness,
attention, and action by a number of different groups and entities, none of which can begin
too soon.
22
ENDNOTES
1.
See, for example, William Julius Wilson, The Truly Disadvantaged: The Inner City, the
Underclass, and Public Policy, Chicago, University of Chicago Press, 1987.
2.
On discrimination generally against Mexican Americans in the 19th and early 20th
centuries, see: John H. Burma, Spanish-Speaking Groups in the United States, Durham,
NC, Duke University Press, 1954; Cary McWilliams, North From Mexico: The Spanish-
Speaking People of the United States, New York, Greenwood Press, 1968; Leo Grebler,
Joan Moore and Ralph Guzman, The Mexican American People, The Nation's Second
Largest Minority, New York, The Free Press, 1970; Wayne Moquin and Charles Van
Doren, eds., A Documentary History of the Mexican Americans, New York, Praeger
Publishers, 1971; Matt S. Meier and Feliciano Rivera, The Chicanos, A History of
Mexican Americans, New York, Hill and Wang, 1972; and Albert Camarillo, Chicanos
in a Changing Society, Cambridge, Harvard University Press, 1979. On murders and
lynchings of Mexican Americans, see McWilliams, op. cit., pp. 107-132 and Moquin and
Van Doren, op. cit., p. 253.
3.
On discrimination against Puerto Ricans, see Burma, op. cit.; Joseph P. Fitzpatrick,
Puerto Rican Americans, The Meaning of Migration to the Mainland, Englewood Cliffs,
NJ, Prentice Hall, 1971; Luis Antonio Cardona, "The Coming of the Puerto Ricans,"
Washington, D.C., Unidos, 1974; U.S. Commission on Civil Rights, Puerto Ricans In
the Continental United States: An Uncertain Future, Washington, D.C., October 1976;
Clara E. Rodriguez, Puerto Ricans, Born in the U.S.A., Boulder, CO, Westview Press,
1991.
4.
On discrimination against Cubans, see Andres H. Hernandez, et. al., "The Cuban
Minority In the U.S.: Final Report on Need Identification and Program Evaluation,"
Washington, D.C., Cuban National Planning Council, 1974; Jose Llanes, Cuban
Americans: Masters of Survival, Cambridge, MA, Abt Books, 1982.
5.
On pejorative references generally, see Burma, op. cit.; Grebler, et. al., op. cit.;
McWilliams, op. cit.; and Octavio I. Romano, ed., Voices: Readings from El Grito,
Berkeley, CA, Quinto Sol Publications, 1971. On relationship of stereotypes to various
forms of discrimination, see above and Camarillo, op. cit.
6.
Tom W. Smith, Ethnic Images, General Social Survey Topical Report No. 19, National
Opinion Research Center, Chicago, University of Chicago, December 1990.
7.
Joleen Kirschenman and Kathryn M. Neckerman, "We'd Love to Hire Them, But.
The Meaning of Race for Employers," in Christopher Jencks and Paul E.Peterson, eds.,
The Urban Underclass, Washington, D.C., The Brookings Institution, 1991.
8.
IRCA imposes civil and criminal penalties on employers who knowingly hire or continue
to employ individuals who are not legally authorized to work in the United States.
23
9.
U.S. General Accounting Office, Immigration Reform: Employer Sanctions and the
Question of Discrimination, Washington, D.C., March 1990. Based on 4362 usable
responses from employers surveyed, the GAO projected its findings to 4.6 million U.S.
employers.
10.
Naomi Verdugo, The Effects of Discrimination on the Earnings of Hispanic Workers:
Findings and Policy Implications, Washington, D.C., National Council of La Raza, July
1982.
11.
U.S. Commission on Civil Rights, Unemployment and Underemployment Among Blacks,
Hispanics, and Women, Washington, D.C., November 1982.
12.
Franklin J. James, The Lack of Hispanic Economic Progress During the 1970s:
Preliminary Observations, University of Colorado at Denver, paper delivered at North
American Meetings of the Regional Science Association, November 9, 1984.
13.
Martin Carnoy, Hugh Daley, Raul Hinojosa Ojeda, Latinos in a Changing U.S. Economy:
Comparative Perspectives on the Labor Market Since 1939, Inter-University Program for
Latino Research, New York, Research Foundation of the City University of New York,
1990.
14.
For example, some of the studies control for region; others do not. Some control for a
single broad measure of educational attainment; others use multiple variables. Some
studies control for occupation by using an industry breakdown (e.g., agriculture, mining,
retail trade), while another cites occupational categories (e.g., white collar, blue collar).
One study controls for marital status, while the others do not. This diversity of variables
with consistent results strongly suggests that the findings of discrimination cannot be
attributed to statistical quirks or methodological flaws.
15.
Carnoy, Daley, and Hinojosa Ojeda, op. cit.
16.
NCLR calculations, based on Current Population Survey data for 1988 and 1990. For
example, multiplying the estimated percentage of the total wage gap attributable to
discrimination (approximately 20%, combined male and female) by the total White-
Hispanic wage gap in 1988 ($12,146) produces an estimated income loss due to
discrimination of approximately $11.7 billion.
17.
The 1989 Urban Institute study is reported in U.S. General Accounting Office, op. cit.
18.
U.S. Equal Employment Opportunity Commission's Task Force, Equal Employment
Opportunity and Hispanics: An Analysis of the Equal Employment Opportunity
Commission's Services to Hispanics in the United States, Washington, D.C., December
2, 1983, pp. 7-8.
19.
Ibid., pp. 37-38.
24
20.
Ibid., p. 28.
21.
Ibid., p. 39.
22.
Ibid., p. 27.
23.
U.S. Department of Commerce, Bureau of the Census, The Hispanic Population in the
United States: March 1990, Series P-20, No. 449, Washington, D.C., March 1991.
24.
U.S. Equal Employment Opportunity Task Force, op. cit., pp. 25-26.
25.
Ibid., p. 28.
26.
Ibid., pp. 25-26, Exhibit 4A.
27.
U.S. Equal Employment Opportunity Commission, Combined Annual Report Fiscal Years
1986, 1987, 1988, Washington, D.C., 1990. Thus the 4.9% represents a ceiling or
maximum for these years.
28.
These data should be interpreted with great caution. First, they tend to fluctuate
significantly from year to year, reflecting the small number of suits resolved annually.
Second, the size of the awards is based on factors such the wages and the amount of
work lost by the discrimination victim, which tend to vary greatly from case to case.
Similarly, because the averages represent arithmetic means, a few unusually high or low
awards can significantly skew the group averages.
29.
The caseload percentages from the 1983 Hispanic Charge Study and as calculated by
NCLR are not strictly comparable because of different categorization procedures. For
example, NCLR included "retaliation" in its calculation, which brings all other
percentages down.
30.
Carnoy, Daley, and Hinojosa Ojeda, op. cit., Chapter 3.
31.
See Leticia Miranda and Julia Teresa Quiroz, The Decade of the Hispanic: An Economic
Retrospective, Washington, D.C., National Council of La Raza, March 1990, pp. 16-19.
32.
The Urban Institute, Opportunities Denied, Opportunities Diminished: Discrimination
in Hiring, Washington, D.C., 1991, pp. 28-29. The Urban Institute studies found that
Hispanic applicants encountered unfavorable treatment in the hiring process in 31% of the
hiring audits, compared to 20% for the Black applicants.
33.
"Disparate impact" is a basis of liability by which a claim may be made under Title VII.
The theory provides that an employment practice or a group of practices, which may
appear to be neutral, may be found to be an unlawful employment practice under Title
VII if the practice or practices have a disproportionate and adverse effect (or impact) upon
25
a certain group of people and the employer cannot prove that the practice or practices are
necessary to conduct business.
34.
Denise De La Rosa and Carlyle E. Maw, Ph.D., Hispanic Education: A Statistical
Portrait 1990, Washington, D.C., National Council of La Raza, October 1990, Chapter
6; Leticia Miranda and Julia Teresa Quiroz, op. cit.
35.
Arturo Vargas, Literacy in the Hispanic Community, Washington, D.C., National Council
of La Raza, July 1988.
36.
Ibid., pp. 7-9.
37.
U.S. Commission on Civil Rights (1982), op. cit., PP 9-12, p.22.
38. EEOC Commissioner Tony Gallegos, Letter to Raul Yzaguirre, President, National
Council of La Raza, July 1990.
39.
Internal study conducted by National Council of La Raza, December 1990.
40.
Tomas Martinez, "Advertising and Racism: The Case of the Mexican American,"
Octavio I. Romano, ed., op. cit.
41.
S. Robert Lichter, Linda S. Lichter, Stanley Rothman, and Daniel Amundson, "Prime-
Time Prejudice: TV's Images of Blacks and Hispanics," Public Opinion, July/August,
1987, pp. 13-16.
26
GEORGE BUSH'S QUOTA BILL
The Dismaying Impact of Griggs
TERRY EASTLAND
P resident Bush says he wants to sign a civil rights bill
instance of judicial activism, a unanimous Court, in an
but not a quota bill. Meanwhile, congressional
opinion by Chief Justice Warren Burger, wrote into the
Democrats insist that their civil rights bill is not a quota
statute the equal results standard demanded by "dis-
bill. Obviously, no one in either party wants to be seen
parate impact" theory and its model of proportional
as favoring quotas. But the irony of the current legislative
representation in the workplace.
battle over civil rights is that both President Bush and
Willie Griggs and 12 other black employees at Duke
his liberal opponents in Congress have more in common
Power's Dan River Steam Station near Draper, North
than they are publicly willing to admit. Both bills support
Carolina, charged in a class action that the company had
the dreaded "Q" word: both, to one degree or another,
discriminated against blacks in violation of Title VII.
support quotas. Both the president and congressional
Duke Power had compiled a long record of overt dis-
Democrats would require employers to justify any hiring
crimination, having restricted blacks prior to 1965 to the
or promotion standards that result in less-than-propor-
plant's labor department, where the highest-paying jobs
tionate employment of minorities and women. In so
paid less than the lowest-paying jobs in the four all-white
doing, both accept a 1971 Supreme Court decision called
operating departments. In 1955, in an effort to upgrade
Griggs V. Duke Power Company. For two decades Griggs
the quality of its work force, the company had required
has forced employers to resort to preferential treatment
a high school diploma for initial assignment to any
of minorities and women in order to avoid litigation
department except labor and for transfer from one of
and liability under Title VII of the Civil Rights Act of
the "white" departments (coal-handling) to the three
1964.
other white departments, all of them higher-paying.
In 1989 a Supreme Court concerned about the nega-
When Title VII took effect in the summer of 1965, the
tive impact of Griggs sensibly acted to contain it in Wards
company ended its practice of limiting employment op-
Cove Packing Company V. Atonio. How-not whether-to
portunities for blacks to the labor department and also
revise Wards Cove has led the Bush administration and
extended to employees in that department the high
congressional liberals to fight about quotas. It is a super-
school requirement for transfer to the better jobs else-
ficial battle; whoever really wants to dismantle America's
where, although not for initial employment. Whites
quota culture must not only accept Wards Cove but also
hired before 1955 without high school diplomas, how-
take the bold step of asking for further reform of Griggs.
ever, were exempted from the new educational require-
Whatever its value 20 years ago, Griggs today is bad public
ment. The company also required that anyone seeking
policy, and in an economy facing ever stiffer internation-
a job in any department but labor pass two professionally
al competition, it can only make matters worse.
developed general aptitude tests. Employees without
high school diplomas could qualify for upward transfer
Breathtaking Judicial Activism
by passing the two tests.
Griggs is one of the Supreme Court's most important
Griggs and his colleagues contended that, whatever
civil rights decisions and the most significant of all of
their intent, the company's employment requirements
the Court's decisions concerning employment dis-
had an adverse impact upon blacks and that these re-
crimination. The media have largely neglected Griggs in
quirements did not measure the ability to perform a
their coverage of the now two-year-old effort to pass new
particular job. Duke Power replied that under Title VII
civil rights legislation. But that struggle cannot be un-
ability tests were permitted so long as they were not used
derstood apart from a knowledge of Griggs.
In Griggs the Supreme Court made its first significant
TERRY EASTLAND, resident fellow at the Ethics and Public
interpretation of Title VII of the Civil Rights Act of 1964,
Policy Center, has written extensively on affirmative action. He
which created a federal right to equal employment op-
is co-author with William J. Bennett of Counting by Race:
portunity, free of racial discrimination. In a breathtaking
Equality from the Founding Fathers to Bakke and Weber.
Summer 1991
45
to discriminate on the basis of race.
is prohibited." Duke Power had not met this high stand-
The U.S. Court of Appeals for the Fourth Circuit
ard; by its own testimony it had adopted its educational
rejected the claim of the plaintiffs that requirements not
and testing requirements to improve the overall quality
explicitly job-related violated Title VII because of their
of its work force but without any specific job assignments
disparate impact upon blacks. The appeals court held
in mind.
that for Title VII to have been violated, the plaintiffs had
Burger seemed to accept the company's declaration
to show that Duke Power had in fact intended to dis-
of a lack of discriminatory intent, noting Duke Power's
criminate against blacks when it adopted the diploma
special effort to help its undereducated employees by
and test requirements. There had to be, in other words,
underwriting two-thirds of the tuition for high school
discriminatory purpose.
training. But "good intent," he said, "does not redeem
employment procedures or testing mechanisms that
"Built-in Headwinds"
operate as 'built-in-headwinds" for minority groups and
When the case moved to the Supreme Court the
are unrelated to measuring job capability."
plaintiffs' attorneys focused not on Griggs or any of the
Burger maintained that when Congress wrote Title
other individuals in the class action; indeed they
VII it was concerned about not simply the motivation of
professed not to know which employees, white or black,
employment requirements but also their consequences,
had taken and failed the tests used by Duke Power,
and that, in fact, Congress had placed "on the employer
although some of the plaintiffs had taken and passed
the burden of showing that any given requirement must
them. The lawyers urged the Supreme Court to think of
have a manifest relationship to the employment in ques-
the case in terms of the impact of the employment
tion." At the end of his opinion Burger reiterated: "What
requirements upon blacks as a group. They succeeded.
Congress has commanded is that any tests used must
The Court said that the objective of Title VII was to
measure the person for the job and not the person in
remove "barriers that have operated in the past to favor
the abstract." The Court gave practical guidance by
an identifiable group of white employees over other [i.e.,
approving EEOC guidelines interpreting a section of
non-white] employees." An employment selection prac-
Title VII that authorizes the use of "any professionally
tice or procedure or test can be neutral on its face, "and
developed ability test" that is not "designed, intended,
even neutral in terms of intent," but if it operates to
or used to discriminate because of race." The EEOC
"freeze" the status quo of "past discriminatory employ-
guidelines said that Title VII permitted only the use of
ment practices," it violates Title VII. Basic intelligence,
job-related tests and that employers using such a test
said the Court, cannot manifest itself fairly in a testing
must have available data "demonstrating that the test is
process unless it has "the means of articulation." And
predictive of or significantly correlated with important
blacks as a group do not have this means because they
elements of work behavior which comprise or are
have "long received inferior education in segregated
relevant to the job or jobs for which candidates are being
schools." In a footnote, the Court reported U.S. census
evaluated."
figures for 1960 showing that 34 percent of white males,
but only 12 percent of black males, in North Carolina
Contradicting Title VII
had completed high school. It also noted statistics from
The Griggs decision contradicted both the language
the Equal Employment Opportunity Commission show-
and legislative history of Title VII. The text of Title VII
ing that 58 percent of whites had passed a battery of tests
defines "an unlawful employment practice" as "dis-
including those used by Duke Power, while just 6 percent
criminat[ion] because of [an] individual's race, color,
of blacks had done so. The Court assumed that the
religion, sex, or national origin." In the remedial section
failure of blacks to do better-and presumably on a par
of Title VII, courts are required to find that the defen-
with whites-was "directly traceable to race."
dant has "intentionally engaged in or is intentionally
Blacks, in short, had been the victims of societal
engaged in an unlawful employment practice."
discrimination in regard to education. It no doubt
The legislative history makes clear that Congress
helped the argument in the Court's mind that the par-
rejected racial imbalance, or disparate impact, as a defini-
ticular society in question had been one of Jim Crow.
tion of discrimination. The decision in a 1964 Illinois
Burger, in his opinion, relied on a 1969 voting rights
case, Myart V. Motorola, had worried some members of
case, also from North Carolina, Gaston County V. United
Congress: Under that state's fair employment practices
States, in which the Court had struck down a literacy test
act, a racially neutral test had been invalidated on
for voter registration. In Gaston, while observing that
grounds that it had a disparate impact upon blacks; the
there had been no intentional discrimination, the Court
employer was told he could not use it until he showed
said that the literacy test effectively discriminated against
that it did not cause a racial imbalance within his work
blacks because North Carolina's formerly segregated
force. Senator Clifford Case, one of the leading
inferior education had prevented them from acquiring
authorities on Title VII, assured his colleagues that the
the skills needed to pass the test.
new federal law would not permit Motorola-like cases; a
Burger wrote that Title VII "proscribes not only overt
federal court, he said, could not read Title VII to require
discrimination but also practices that are fair in form,
an employer "to lower or change the occupational
but discriminatory in operation." The touchstone, he
qualifications he sets for his employees simply because
elaborated, is "business necessity." Thus, if an employ-
fewer [blacks] than whites are able to meet them." An
ment practice that operates to exclude blacks "cannot
authoritative Senate memorandum maintained that
be shown to be related to job performance, the practice
bona fide qualifications tests would not have to be aban-
46
Policy Review
doned where, "because of differences in background and
having a "disparate impact" has been immune from legal
education, members of some groups are able to perform
attack based on Griggs: a wide range of recruitment,
better on these tests than members of other groups." An
hiring, assignment, testing, seniority, promotion, dis-
employer "may set his qualifications as high as he likes,
charge, and supervisory selection practices have been
he may test to determine which applicants have these
successfully challenged. Relying on Griggs, a federal
qualifications, and he may hire, assign, and promote on
judge told the Drug Enforcement Administration that it
the basis of test performance."
may not consider previous work experience in promo-
Burger dodged the text and history of Title VII, saying
tion decisions. Similarly, a federal judge in Alabama told
that employers whose employment requirements have a
the Birmingham police department that when hiring
"markedly disproportionate" impact upon minorities
new officers it may not take into account applicants'
must demonstrate their "business necessity," a term
felony conviction records.
found nowhere in Title VII or in previous Court
The disparate impact theory of Griggs also has helped
opinions. In approving the EEOC guidelines, Burger said
promote the trend over the past decade toward race-
they reflected the will of Congress, yet they did no such
norming, in which scores on ability tests free of cultural
thing. The EEOC itself was aware that its enforcement
of Title VII conflicted with congressional intent, as Hugh
Davis Graham points out in The Civil Rights Era: Origins
and Development of National Policy. The EEOC's own Ad-
The Bush administration
ministrative History of 1969 acknowledged that Congress
had defined discrimination as one of "intent in the state
committed a serious strategic
of mind of the actor," and that it did not consider
professionally developed ability tests as discriminatory.
mistake by failing to make a
The EEOC, though, had come to disregard "intent as
crucial to the finding of an unlawful employment prac-
public case for the original
tice" and instead emphasized forms of employer be-
havior that "prove to have a demonstrable racial effect
understanding of Title VII.
without clear and convincing business motive." The
EEOC thought that either Congress would have to
amend Title VII to embrace disparate impact theory or
that the agency would have to change its policy to return
bias are "adjusted" for differences among whites, blacks,
to Congress's model of intentional discrimination.
Hispanics, and other groups. Just a few years after Griggs,
Thanks to Griggs, neither had to occur.
E. F. Wonderlic & Associates, a major marketer of cog-
nitive-ability tests, promoted an "Ethnic Conversion
Race-Norming and Other Evils
Table" by which employers could ensure racially propor-
Griggs was handed down the same year the Court
tionate test scores. Wonderlic sent employers informa-
approved racial busing as a remedy for school segrega-
tion on how to race-norm, with this advice: "Select to fill
tion in Swann V. Mecklenburg (another North Carolina
proper ratios and quotas. Select the best-suited in-
case and another opinion for a unanimous Court by
dividuals by ethnic class."
Chief Justice Burger). Yet down through the years Griggs,
while far less publicized, has perhaps had more influence
Hiring by Numbers
upon both public and private employment than Swann,
No one has yet produced a comprehensive study of
soon constrained by other rulings, has had upon public
the practical impact of Griggs upon the American
education. Griggs ratified the policy direction of the
workplace. Probably some employment requirements
EEOC, which since 1965 has been given the authority to
adopted out of racial prejudice have been scrapped; at
enforce Title VII in private employment. This became
the same time many benign employment requirements
Justice Department policy in 1972 when Congress
have probably also been thrown out. Doubtless, too,
authorized that agency to enforce Title VII in public
some employers have simply hired by the numbers in
employment.
order to avoid litigation. (Of course, there is no merit
Griggs meanwhile inspired private civil rights lawyers
in announcing preferential treatment for certain
to bring disparate impact cases, leading to a series of
minorities, since employers also can face lawsuits from
decisions that further eroded the original intent of Title
those not preferred.) As one personnel officer quoted
VII. In 1975 the Court said in Albemarle Paper Company V.
by Nathan Glazer has revealed:
Moody that even tests having a rational relationship to
job performance are subject to litigation under Title VII
You can avoid violating Title VII and also avoid
if they adversely affect minorities. Significantly, it added
rocking the boat until you have enough hard data
that when an employer does validate his test, the plaintiff
at hand to prove or disprove the actual relevance
still has an opportunity to prove the test was a pretext
of various selection factors to the prediction of job
for discrimination by showing that other measures
performance for all groups. You do it by temporarily
having less of a disparate impact upon minorities would
equalizing the impact of each factor being con-
serve the employer's business purpose.
sidered on each group in the applicant population
By the mid-1970s, Title VII had become a strong
while you study it.
plaintiffs' statute. Virtually no employment practice
For example, our company had been using a
47
Summer 1991
particular test to select employees for one job.
theory "would mean that any employer who had a seg-
Approximately 25 percent of the white males in
ment of his work force that was-for some reason-ra-
the applicant population had been passing the test
cially imbalanced, could be hauled into court and forced
by scoring above a certain score. Now we just make
to engage in the expensive and time-consuming task of
sure that the top 25 percent of the applicants from
defending the 'business necessity' of the methods used
each of the groups protected by Title VII also pass
to select the other members of his work force. The only
that test. We don't worry about what score becomes
practicable option for many employers will be to adopt
the cutoff for the various groups; we stick with the
racial quotas, insuring that no portion of his work force
percentage passing from each group.
deviates in racial composition from the other portions
thereof; this is a result that Congress expressly rejected
This racial hiring by numbers would not occur apart
in drafting Title VII."
from the judicial interpretation of Title VII provided by
No one in Congress has dared propose overturning
Griggs. In fact, this practice is in direct conflict with Title
Wards Cove on this point. It is the Court's next holding
VII, which states: "Nothing in this title shall be inter-
in Wards Cove, however, that congressional liberals aim
preted to require any employer. to grant preferential
to reverse. The Court insisted that a prima facie case of
treatment to any individual or to any group because of
disparate impact cannot be made without attributing the
the race, color, religion, sex, or national origin of such
disparity to one or more employment practices. Thus, a
individual or group on account of an imbalance which
plaintiff must isolate and identify the specific employ-
ment practices said to cause the statistical disparity. He
cannot simply point to the disparity, even when properly
drawn. Here the Supreme Court was correcting lower
Following Griggs, a federal
federal courts that had held that plaintiffs in disparate
impact cases do not have to specify the particular prac-
judge told the Birmingham
tice(s) responsible for the disparity. Justice White ob-
served, correctly, that every one of the Supreme Court's
police department that when
disparate impact cases focused on the impact of a par-
ticular employment practice. Congressional liberals who
hiring new officers it may not
say they merely want to return to Griggs are disingenuous
on this issue; they want the further judicial gloss on Griggs
take into account applicants'
added by some lower courts that the Supreme Court in
Wards Cove erased.
felony conviction records.
Wards Cove also clarified the plaintiff's burden of
proof. The Court held that once a prima facie case of
disparate impact is established with respect to a par-
ticular employment practice, the burden of producing
may exist with respect to the total number or percentage
evidence of a legitimate business justification for that
of persons of any race, color, religion, sex, or national
practice will shift to the employer. The burden of per-
origin of such individual or group." Yet that is exactly
suasion, however, remains with the plaintiff, who must
what Griggs has required employers to do.
disprove an employer's evidence that his practice has a
legitimate business justification. The Court said that what
Wards Cove
is at issue is whether a challenged practice "serves, in a
In 1989, a Supreme Court concerned about ex-
significant way, the legitimate employment goals of the
travagant lower court uses of disparate impact theory
employer."
sensibly acted to contain it in Wards Cove Packing Company
V. Atonio. The case involved Alaskan salmon canneries
Dispute over "Business Necessity"
that employed a mainly white work force in skilled jobs
Both the administration and congressional liberals
and a mainly nonwhite work force in unskilled jobs. The
agree on overturning Wards Cove in respect to burden of
U.S. Court of Appeals for the Ninth Circuit had ruled
proof; both say it should always fall to the employer. The
that this imbalance created a prima facie case of disparate
disagreement concerns the definition of "business neces-
impact against the company, thus obligating it to show
sity." For a challenged practice to serve a "business
that its hiring and employment practices were justified
necessity" under the administration's definition, it must
by business necessity. The Supreme Court disagreed,
bear "a manifest relationship" to the employment in
relying on a 1977 ruling in which it had held that the
question-a term directly from Griggs. But this line from
proper comparison in a disparate impact case is between
Griggs is not enough for the civil rights lobby. It wants
"the racial composition of the qualified persons in the
another, not unreasonable reading of the imprecise
labor market and the persons holding at-issue jobs."
opinion in Griggs, which has been supplied by lower
If the Ninth Circuit's decision of what constitutes a
courts, one that basically requires an employer to
prima facie case of disparate impact had been allowed to
demonstrate the absolute indispensability of a chal-
stand, it would have paved the way for additional Title
lenged practice to the employer's business. In Wards Cove
VII litigation and liability, thus forcing more and more
Justice White was rebuking lower court interpretations
employers to resort to racial preferences. Justice Byron
on this point when he said "there is no requirement that
White, writing for the Court, said that the Ninth Circuit's
the challenged practice be 'essential' or 'indispensable'
48
Policy Review
to the employer's business for it to pass muster." With
Griggs in which racial discrimination had once been the
his eye on the realities in the workplace, White said that
law of the land and Duke Power's own history of pur-
such a high standard would be "almost impossible for
poseful discrimination invited the inference that what
employers to meet" and would "result in a host of evils,"
the Court really objected to was intentional discrimina-
such as racial-preference hiring. Congressional liberals
tion.) The Court's emphasis in Wards Cove that the
have a different view of "business necessity"; they propose
burden of proof in disparate impact cases should at all
that employers must show that their selection practices
times [the Court's italics] remain with the plaintiff sug-
bear "a significant and manifest relationship to successful
gests its possible direction; the burden of proof in dis-
job performance," which is close to another locution in
parate treatment cases has always rested with the
Griggs, that of "a demonstrable relationship to successful
plaintiff.
[job] performance."
If the Bush administration survives the current effort
The legislation preferred by congressional liberals
to codify disparate impact theory, it should rethink its
would increase the pressure upon employers to resort to
civil rights strategy. It may have committed a serious
racial preferences. President Bush is right to say that
strategic mistake by failing to make a public case for the
theirs is a quota bill, yet his alternative is not invulnerable
superiority of the original understanding of Title VII.
to the same charge, because it assumes the validity of
While it is too late to criticize Griggs purely in terms of
disparate impact theory. The reality under Griggs is that
judicial activism, solid policy arguments can be made
any theory of discrimination driven by numbers leads to
against disparate impact and its harmful consequences.
hiring by the numbers. Still, the administration's bill is
Information about the number of minorities hired for
preferable; the legal structure it proposes would not
a certain job is relevant, under a proper understanding
pressure employers to resort to preferences to the same
of Title VII, to an inquiry into whether purposeful dis-
degree as the bill favored by the civil rights lobby.
crimination has occurred; but it cannot be considered
Even at this late date in the legislative debate, the
prima facie evidence of discrimination. Even when the
question that deserves to be addressed is not how Wards
most appropriate statistical comparison is made, it does
Cove should be overturned but whether it should be
not follow that the remaining statistical differences be-
overturned, and beyond that, whether it is not time to
tween or among racial groups can be attributed to racial
think anew about the case that started and provided the
discrimination, whether on the employer's part or
theory for preferential treatment, Griggs V. Duke Power
society's in general; age, location, and education, among
Company. Wards Cove was a badly needed clarification of
other variables, are also explanatory.
judge-made law; if we are going to have disparate impact
theory, we must have the kind of constraints placed on
Attacking High Standards
it by Wards Cove We cannot have law developing in the
The use of disparate impact theory has worked against
lower federal courts that only encourages increasing
the setting of reasonable standards not simply for getting
resort to racial preferences, which after all do violate the
a job but for achievement in life. If an employer may
explicit text of Title VII.
only test for what is "essential," and thus is effectively
When Wards Cove was first handed down, Bush's Jus-
forbidden to test in ways that might demonstrate relative
tice Department indicated its agreement with the
qualifications, then why test at all? And why should those
decision. While allowances can be made for the practical
who take tests have any incentive to do well on them?
demands of politics, President Bush himself would have
Or to study in school? Griggs was written against the
been well advised to have considered taking a strong
backdrop of the Jim Crow South, but the nation cannot
stand in defense of Wards Cove, and against any changes
afford to be saddled with a theory of discrimination that
to it.
has a disparate impact upon minorities today. All
forecasts indicate that by the year 2000 the majority of
Return to Congressional Intent
new entrants in the American work force will be
The great unwritten story about Wards Cove is that,
minorities. If America is to compete effectively in today's
together with a case decided in 1988, Watson V. Fort Worth
international economy, testing must no longer be
Bank & Trust Company, it suggests the Court's willingness
regarded as synonymous with racial discrimination. The
to rethink its Title VII jurisprudence. This is the prospect
anti-high-standards mentality encouraged by Griggs must
congressional liberals fear. Down through the years the
be ended. This is an especially important goal for Presi-
Court has treated two kinds of cases-disparate impact
dent Bush, given his education agenda, which has com-
and disparate treatment, i.e., intentional discrimination,
mitted itself to stiffer testing that prepares students, in
cases-and some members of the Court may want to do
the words of the president, for "productive employment
away with this two-track approach and unify the law of
in our modern economy."
Title VII in terms of its original understanding. Ironical-
In time, unless new civil rights legislation is passed
ly, Griggs might well have been decided in the plaintiffs'
that would prevent it, the Supreme Court itself might
favor on the basis of disparate treatment, thus sparing
reform Griggs, making all but arbitrarily imposed tests
the nation its fateful dalliance with disparate impact and
permissible under a Title VII shorn of disparate impact
proportional representation. (Indeed, as Herman Belz
theory. The superior course would be for Congress and
in his new book, Equality Transformed: A Quarter Century
the president to join hands in legislating this change. It
of Affirmative Action, points out, the southern setting of
is time to go after Griggs.
49
Summer 1991
May 17 '91 14:30
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P. 2
COMMITTEE ON ACADEMIC NONDISCRIMINATION AND INTEGRITY
570 Seventh Avenue
New York, N.Y. 10018
(212) 391-2396
Chairman: Edgar F. Borgatta
MEMBERS (Partial listing) #
CUNY, Queens
Samuel Abrahamsen, CUNY-Brooklyn
Treasurer: Erich Isaac
Howard Adelson, CONY-CONY
CUNY, CCNY
Eugene Bardach, U of Cal., Berkeley
Arnold Beichmen, U. of Mass, Boston
Walter Berns. U. of Toronto
Coordinator: Miro Todoravich
Arthur Bestor, U. of Washington*
CUNY, BCC
Bruno Battelhaim, U. of Chicago"
Ruth A, Bevan, Yeshiva U.
Joseph Bishop Jt., Yale Law School*
Brand Bianshard, Yale U
Daniel J Hoorstin, Smithsonian Institution*
Edger F Borgarts, CUNY-Queens'
May 17, 1991
William W. Brickman, u of Penn.
Karl Brunner, U of Rochester
R.C. Buck, U of Wisconsin"
Robert F Byrnes, Indiana U.*
CR
Nicholas Capaid: CUNY-Queens*
Dr. John H. Sununu
Frank C Darling, De Pauw U.
Andrew Erergedis, Ithecs College
Chief of Staff
Gerald Feinberg, Columbia U.
Paula Sutter Fichtner, CUNY-Brooklyn*
The White House
THE CHIEF of STAFF
Edward Fox, Cornell V.
M.L. Gabriel, CLJNY.Brooklyn
Washington, DC 20500
Richard N. Gardner, Columbia Law School
has seen
Nathan Glever, Harvard U.*
Dear John:
Albert Gold, Rockefeiler U
Oscer Handlin, Harvard U.*
L.G. Heller, CUNY-CONY
Robert M Hexter, U of Minnesota*
All my mental alarms and red lights went on when
George Hildebrand, Cornell U."
Gertrude Himmelfarb, CUNY-Brooklyn
reading the fifth paragraph of the attached White House
Jack Hirshieifer, UCLA*
fact sheet.
Robert Hoffman, CUNY-York
George C Homans, Harvard U.
Sidney Hook NYU Emeritus*
Willerd Hutcheon, CUNY CCNY
Codifying Griggs V. Duke Power Co. is tantamount to
K.D. Iran, CUNY CCNY
Erich Issar, CONY.CONY*
codifying quotas.
Rael J. Isaac, CUNY Brooklyn'
Hang Jones, New School
Thomas M Kando. Cal State-Sacramento
Stanley A Kaplan, Chicago Law School
Apart from the un-American shift in the burden of
Benjamin J Klebaner, CUNY-CONY
Buth Klinnman, CUNY Brooklyn
proof therein, there is no way (and I am reporting a
Millon R Konvitz, Cornell "
twenty-year experience) by which employers "proofs" can
Fred Kort, U of Connecticut
Paul C Kristetter, Columbia U Ementos
avoid being pulverized by judicial grinding sitones.
Paul Kurtz, SUNY-Buffalo*
Abba Lerner, CUNY-Ounens*
Daniel Lerner. MIT*
Aaron evenstein CONY Baruch
When faced with the enormously high cost for
Guenter Lewy. U of Mass. Amherst
J Leon Lichtin, U of Cincinnati
"practice justification," which in turn can hardly
Fritz Maching, NYU'
withstand litigatory mutilation, a wise employer opts
Harvey Mansfield. Jr. Harvant "
Parey Marenko, CUNY Brooklyn Emeritus
for the easy way out, i.e., agrees to quotas.
Joseph A MA//RO, Columbia U
August Meter. Kent State U
Morris Meister, CONY BCC € mentus
Bernard D Melizer, Chicago Law School
Your children and mine will be the victims.
Marvin Mayers, Branders "
Asher Mears, U of New Hampshire
Ernest Nagel Columbia u.
I hope we do not win battles only to lose the war.
Norma I Newmark CONY Lehman
Alian Loyola U of Chicago
Herman C Punchett. " of Cal Santa Barbara
W V Quine, Harvard U
Sincerely,
Bogdan Hadding, Fairleigh kinson U
Olgo Raynish, Columbia U
Marrice Rosenberg, Culumbia I an School
Fugene Holdw, Yein Law School
limi
Filward ,I Royek U of Colorado
Isreet Scheffier, Harvant 0
Payment Schtesinger, CONY Hunter
Miro M. Todorovich
Paul Sectrity. U of Cal, Herkeley
John Searle 0 nt Cal. Berketing*
Malcolen Sherman, SUNY Allany*
Revel Shinnar, CONY CONY
David Sukursky. Columbia 0
Refits Seymont Siegel, JTS
Philip Siegelman Cal State San Francisco*
Marford Spiro " of Cat San Diago
Loward Intorsky, " of Texas Austin
Abraham Lauber Yeshive U'
Morton J Tenver 0 at Connecticut
Miru M Todorovich CONY BCC'
Stephen J Tonsor Stanford U
Frank Trager NYU
Henry H Villard, CUNY CONY
Etisen Vives, Rocktord College
Henry C Waitiels, Yale U
1. Poster Williams, Cornell U'
David A Wilson, DCI A
Jacob Walfowite 0 of
Cyril /ebot. Georgetown U'
11 Zupnick, SUNY Binghamion
# Institutions for identification only
Steering Sub Committee member
May 17 '91 14:31
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P. 3
FACT SHEET ON
ADMINISTRATION CIVIL RIGHTS BILL
The discrimination laws that now exist. These
Administration is committed to strengthening the strong
employment will operate to obliterate consideration of
improvements factors such as race, religion, sex, or national origin from
employment decisions.
A Federal law provides strong new remedies for The
major objective of the Administration is to harassment ensure that
based Administration proposes to create a new monetary remedy, up
on race, sex, religion, or national origin.
to $150,000, for these forms of discrimination.
In to outlaw racial discrimination in the performance
addition, the Administration proposes to extend 42 U.S.C. of
1981 contracts, overruling Patterson V. McLean Credit union, 109
S. ct. 2363 (1989).
The Administration also proposes legislation overturning the
Supreme Court's decision in Lorance V. AT&T Technologies,
Inc., 109 S. Ct. 2261 (1989), which unfairly limits the time
for challenging discriminatory seniority systems.
The administration also proposes to codify the "disparate
impact" cause of action for employment practices that
unintentionally exclude dispreportionate numbers of certain
groups from some jobs. This codifies Griggs V. Duke Power
CO2, 401 U.S. 424 (1971). The Administration bill shifts
the burden of proof to the employer to justify practices
having a disparate impact under the rule of "business
necessity." This overrules the contrary decision in Wards
Cove Packing Co. V. Atonio, 109 S. Ct. 2115, 2126 (1989).
In order to, help curtail unnecessary litigation, the use of
alternative dispute resolution mechanisms will be
encouraged.
The time has come for Congress to bring itself under the
same antidiscrimination requirements it prescribes for
others. This will promote both fair treatment for
congressional employees and a greater appreciation by
congress of the consequences of new legislative initiatives
other improvements, including changes in certain provisions
affecting the statute of limitations and expert witness
fees, will also enhance the administration of Title VII of
the 1964 civil Rights Act.
From:
EDWARD I. KOCH
I thought you would be
interested in the enclosed.
All the best.
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
VINCENT ALFIERI
MICHAEL B. LEVY
(212) 541-2000
SCOTT L. BACH
JEFFREY H. KAPLAN
JAMES M. ALTMAN
HAROLD A. LUBELL
DAVID M. BARSE
DAVID S. KASDAN
ALAN J. B. ARONSOHN
JACK MANDEL
SUZANNE M. BERGER
DEBRA M. KENYON
STANLEY BERMAN
JONATHAN S. MARGOLIS
DAVID G. BLAIVAS
STEVEN D. BLOOM
THOMAS MOERS MAYER
FACSIMILE: (212) 541-4630
STEVEN M. KORNBLAU
LISA BLOOM
JOHN C. MABIE
MICHAEL D. BUTTERMAN
STEVEN MONTEFORTE
RAND G. BOYERS
CHRISTINE c. MARSHALL
WALTER H. CURCHACK
ANDREW L. ODELL
DAVID A. CAHILL
MARGOT J. METZGER
JAY M. DORMAN
GRACE S. ONAGA
DAVID CALABRESE
SUSAN A. MOLDOVAN
BARTLEY F. FISHER
ALAN S. PEARCE
LESLIE W. CHERVOKAS
JUDY 1. PADOW
ERICA R. FORMAN
SAUL PEARCE
PATTI CIARAMELLA
LOWELL PETERSON
JAMES F. GILL
MICHAEL N. ROSEN
KAREN AU CLARO
JUDITH L. POLLER
STUART A. GORDON
BARRY c. ROSS
ERIC 1 COHEN
CRAIG L. REICHER
KENNETH L. HENDERSON
DAVID SCHULDER
LYNDA S. CORWIN
MARK D. RISK
MIRIAM O. HYMAN
ROBERT J. SORIN
ANNETTE FISCH
LEE J. ROSEN
ANDREW IRVING
LAURENCE A. SPELMAN
PETER J. FITZPATRICK
BRUCE M. RUBENSTEIN
SUSAN POWER JOHNSTON
JACQUELINE F. STEIN
KENNETH D. FREUNDLICH
ELLEN R. SABIN
EDWARD 1. KOCH
JULIUS B. SUCHER *
STEPHANIE G. FRIED
STEVEN G. SCHEINFELD
CHARLES M. KOTICK
MARK JON SUGARMAN
AARON FRIEDMAN
KEITH E. SCHUTZMAN
MATTHEW J. LEEDS
ROBERT A. WOLF
RENEE E. FROST
KENNETH P. SINGLETON
JOEL A. LEVIN *
GEORGE B. YANKWITT
MARK V. GIORDANO
ALAN H. SOLARZ
SANDOR A. GREEN
STEVEN M. STIMELL
SUSAN E. HART
SUSAN B. TEITELBAUM
FLORIDA OFFICE:
DOUGLAS HELLER
MILDRED TROUILLOT
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BEATRICE R. KAHN
FACSIMILE: (305) 374-1156
MICHAEL R. ZIENTS
"ALSO ADMITTED IN FLORIDA
WRITER'S DIRECT NUMBER:
June 18, 1991
The Hon. Les Aspin
U. S. House of Representatives
2336 Rayburn House Office Building
Washington, DC 20515-4901
Dear Les:
I have your letter of June 11. I have more than an
"interest" in civil rights. I am a firm believer in securing the
civil rights of all of our citizens, but not through the use of
reverse discrimination. I believe H.R.1 is a bill which
encourages racial, ethnic, religious and gender quotas and,
therefore, should be defeated.
There are legislative changes that are necessary as a result
of recent Supreme Court decisions, but H.R.1 does not solve most
of those problems. What it does do is pressure employers to fill
jobs on the basis of racial, ethnic and religious proportionality
in order to avoid massive backpay and attorneys' fees awards.
The proponents never admit that they support quotas and always
refer to affirmative action in a way that would place them on
record as opposing quotas, even when they acknowledge support of
"goals, timetables and sanctions." Those words are simply
euphemisms for quotas.
What H.R.1 does, and regrettably the President's bill in the
spirit of compromise does the same, is to presume an employer
guilty of racial, ethnic, religious or gender discrimination when
his workforce statistically does not mirror the applicant
workpool or the regional population in the particular job
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
2
category when plaintiffs allege discrimination based not on
intentional discrimination but on the "disparate outcome" of
testing or of the hiring practice. The burden of proof is then
shifted to the employer who must defend his hiring practices.
H.R.1 also effectively eliminates the plaintiff's requirement to
identify the practice causing the disparity and has a brand
new onerous definition of business necessity which exceeds the
definition in Griggs V. Duke Power (1971) and subsequent Supreme
Court cases. Faced with costly lawsuits, monetary damages and
negative publicity, employers will simply throw in the towel and
make certain their workforce reflects the "correct" racial,
ethnic, religious and gender profile, rather than hiring the best
person for the job.
I don't believe that President Bush, in introducing his bill
through Robert Michel (R-I1.), should have compromised on this
issue by including as he did the same presumption of guilt as
H.R.1, but at least his bill retains the two other safeguards
against quotas requiring the plaintiff (s) to identify the
practice causing the discrimination and the Supreme Court's
20-year-old concept of business necessity.
Some suggest there should be compromise on both sides. I
suggest that fundamental positions of morality which we all have,
sometimes on different sides of the same issue, whether it be
with respect to abortion, the death penalty, gay rights, civil
liberties and civil rights, should not be compromised. Are there
many supporters of Roe V. Wade, who would agree to a compromise,
which opponents sometimes offer, to eliminate the right of
abortion on demand up to the second trimester except to save the
life of the mother, and in cases of rape, incest or gross fetal
defects? I doubt that you would vote for such a bill. And
certainly supporters of N.O.W. and many others would not. Would
you suggest that those who are opposed to the death penalty, as
for example New York Governor Mario Cuomo, give up their deeply
held position against it by agreeing to it but only in the case
of someone convicted of killing a police officer in the line of
duty? I doubt it.
There are those in the Congress and on the editorial pages
who have used the fact that both the Anti-Defamation League and
the American Jewish Congress supported H.R.1 as a shield to
criticism. However, subsequent to the bill's passage, both
groups have stated that H.R.1 does indeed have quota
implications, placing their ultimate support of H.R.1 in
question. One reason they take this position is that in an
effort by its sponsors to put themselves on record as opposed to
quotas, H.R.1 now contains language defining "quota" in such a
way as to inferentially protect quotas. How? By defining a
quota as requiring employers to take those who are not qualified
for the job, and making that action illegal. That means that the
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
3
minimally qualified applicant of the "correct" race, ethnicity,
religion or gender needed to avoid lawsuits based on the
presumption of guilt and H.R.1's rewriting of the other elements
of disparate impact lawsuits would be hired rather than the best
applicant and that would be legal and a quota.
I believe H.R.1 is supported by some because they feel
nothing else has worked to end racial discrimination. In fact,
much has been accomplished in breaking down discrimination
against minorities and women, but much more can and should be
done to reduce and eliminate remaining discrimination. We can
point with pride to the fact that of the top ten cities in our
country half have been or currently are governed by a black
mayor. But I do not believe in engaging in reverse
discrimination to cure past or present discrimination except when
a specific individual can show that he or she was the subject of
discrimination in which case that individual should be given
preferential treatment to correct the prior discrimination.
"Race norming" which has been used by the federal government
for nearly 15 years allows testing applicants for jobs solely
within their own race or ethnicity and eliminates scoring the
entire applicant group with the same criteria. This practice
elevates minority applicants over white and Asian applicants
taking the same test and scoring higher. There is a bitterness
amongst many whites, who are 80% of the country's population,
which results from a feeling that their sons and daughters will
suffer reverse discrimination to atone for the earlier and
current discrimination practiced against blacks and Hispanics.
Many believe as I do that David Duke received 60% of the white
vote in Louisiana for U.S. Senate not because those voting for
him support the Ku Klux Klan, but rather because of their anger
against the Democratic party and its support of preferential
treatment and racial and ethnic quotas.
There are many who applaud Senator Kennedy for his
leadership in the fight for H.R.1. These same people attack
President Bush for his continued opposition to the legislation
which he believes encourages quotas and is antithetical to our
historical opposition to the use of such quotas. You know that
better than anyone else, coming from Wisconsin, the state Hubert
Humphrey once represented and where his opposition to quotas is
well-known.
Minnesota
The children of those who are wealthy, in political office
or have access to "networking" will always get jobs and will not
suffer the consequences of the reverse discrimination created by
the passage of H.R.1. The children of our working poor and
middle classes of every ethnic extraction including, but not
limited to, Irish, Italian and Jewish will see their sons and
daughters restricted in their opportunities. Ultimately, they
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
4
will have to accept that they will not rise in an occupation or
profession of their choosing based on their ability but will be
judged by the demographics of race, ethnicity, religion and
gender in employment in the private sector, in government and at
our universities. That is not the America that most of us,
including blacks, Hispanics and women who are the intended
beneficiaries of preferential treatment under H.R.1, have dreamed
of or been made cognizant of during our school careers.
Enclosed is some additional material on the subject
including a statement I made before the American Jewish Committee
and various op-ed articles.
I have gone on at great length knowing that I will not
convince you, but I do believe that I have reasonably,
responsibly and accurately described what H.R.1 will do and have
staked out my position in opposition as a matter of conscience
which I will not compromise.
All the best.
Sincerely,
5d
Edward I. Koch
EIK/mgl
LES ASPIN
HOME OFFICES:
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HOUSE-ARMED SERVICES COMMITTEE
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house of Representatibes
KENOSHA
202-225-3031
414-551-7414
Washington, DC 20515
June 11, 1991
The Honorable Ed Koch
Robinson Silverman Pearce
1290 Ave. Of The Americas, 30th Fl.
New York, New York 10104
Dear Ed:
Knowing of your interest in civil rights, I wanted to let you
know of my support for H.R. 1, the Civil Rights and Women's
Equity in Employment Act of 1991. Three versions, called
substitutes, of this bill were considered by the House of
Representatives on June 4 and 5, 1991.
The first substitute to H.R. 1 was offered by the Congressional
Black Caucus of which I am an associate member. It was
introduced by Representative Edolphus Towns (D-NY) and
Representative Pat Schroeder (D-CO). This measure most closely
mirrored the Civil Rights Bill as reported by the House
Judiciary Committee and House Education and Labor Committee. It
fully overturned all five 1989 Supreme Court decisions which
drastically limited anti-bias court cases. Since the 1989
Supreme Court decisions, employees have experienced great
difficulty in gathering the evidence necessary to prove
discrimination. The substitute would have returned to the
pre-1989 law which required the employer to prove that it did
not discriminate. Furthermore, this measure would have placed
no cap on compensatory or punitive damages which victims of
discrimination could receive. I voted for the Towns-
Schroeder Substitute because it was the most fair and
intellectually honest version of the civil rights bill that the
House considered. Unfortunately, it failed to pass the House by
a vote of 152 to 277.
The next version of this bill that came before the House was the
weakest of the three. It was introduced by Representative
Robert Michel (R-IL) and supported by President Bush. While
claiming to be a civil rights bill, it only overturned one and
partially overturned two of the five 1989 Supreme Court
decisions. Under this substitute, intentional discrimination on
the basis of gender, race, color, religion and national origin
could still be permissible if there were other contributing
factors leading to an employer's decision. I believe that
discrimination on the basis of race, sex, religious affiliation
or ethnic background should never be permitted. Furthermore,
this measure would safeguard employers from compensatory and
punitive damages in certain cases of intentional discrimination.
I voted against the Michel Substitute because I felt it would
significantly water-down the Civil Rights Bill. This substitute
was defeated 162 to 266.
June 11, 1991
Page Two
Finally, the House considered the bipartisan compromise as
introduced by Representative Jack Brooks (D-TX) and Representative
Hamilton Fish (R-NY). Unlike the Michel Substitute, this
legislation fully overturns all five 1989 Supreme Court rulings
that severely undermined a plaintiff's ability to win a
discrimination case. Specifically, it would return the burden of
proving discrimination to the employer from the alleged victim.
Furthermore, it would allow most victims of discrimination to
receive punitive damages of up to $150, 000 or the amount of
compensatory damages, which ever is greater. Victims of racial
discrimination would not be subjected to this cap, since they are
already allowed uncapped punitive damages under an 1886 federal
statute. Although the Towns-Schroeder Substitute was a better
bill, I am pleased that the House passed this measure with my
support by a vote of 264 to 166. Likewise I voted for final
passage of H.R. 1, when it passed the House by a vote of 273 to
158.
The chances of enactment of the Civil Rights Bill remains
uncertain. The Senate is expected to pass a bill similar to the
House's Civil Rights Bill in the near future. However, President
Bush has threatened to veto this historic legislation. Despite
this obstacle, I will continue to support this bill and do all that
I can to ensure that it ultimatel becomes law.
$incerely,
Les Aspin
Member of Congress
LA/meb
STATEMENT BY EDWARD I. KOCH
TO THE AMERICAN JEWISH COMMITTEE
TUESDAY, MAY 28, 1991
So much has been written on the subject of H.R.1. I thought
I would simply provide you with what I think covers the subject
most adequately and supports my view that H.R.1 encourages quotas
and should be opposed.
First, let me describe the annexed documents: The first
document is a letter of May 15, 1991, authored by me and sent to
members of Congress urging their vote against H.R.1. Attached to
that letter is an analysis of H.R.1 and an explanation of "race
norming" and how H.R.1 relates to "race norming." The second,
third and fourth documents are Wall Street Journal op-ed articles
-- the first, authored by me, dated February 5, 1991, which
discusses why H.R.1 would adversely impact on white, Jewish
males; the second, dated February 20, 1991, by Gordon Crovitz
discusses the relevant cases, in particular Griggs and Wards
Cove; the third, dated May 22, 1991, refers to the actions I have
taken in lobbying Congress and others against the civil rights
2
bill and why. The fifth document is a memorandum by Agudath
Israel of America, dated May 3, 1991, which was sent to members
of the U.S. House of Representatives which provides its views on
"several of the most controversial provisions of H.R.1." And the
final document is a memo from C. Boyden Gray, Counsel to the
President, in which he discusses "race norming" and provides a
detailed analysis of H.R.1 with the administration's reasons for
opposing it.
The question to ask yourself is the following: Would you
support legislation that would encourage reverse discrimination
in order to eliminate current racial discrimination? If you
would, then your support for H.R.1 is understandable, because
H.R.1 attempts to do exactly that. However, if you believe that
it is unfair, discriminatory and reverse racism to punish
approximately 80% of the American population which is white by
providing preferential treatment to the 20% who are minorities,
and preferential treatment to women who are a majority then you
3
would agree with me and oppose H.R.1.
Simply put, H.R.1, in affect, by presuming a employer guilty
of having practiced racial, ethnic, religious and gender
discrimination by showing that his workforce in particular jobs
does not statistically reflect either the racial, ethnic,
religious or gender make-up in the regional workforce for those
particular jobs or the applicant work pool for the jobs, places
the burden upon the employer to rebut this presumption of guilt.
The huge backpay and attorney fee awards that could result will
encourage employers to quietly make sure their workforce mirrors
the profile needed in order to avoid problems, even if that means
hiring by quota.
There is a debate raging as to whether or not Griggs V. Duke
Power which created the cause of action alleging that hiring
practices that appear fair can still be unlawful if they
disproportionately harm one group was, in fact, overturned by
Wards Cove. Scholars differ on that issue. Some believe that
4
Wards Cove simply clarified the law and is consistent with
Griggs, to wit, explaining: "(1) Plaintiffs must identify a
specific hiring practice that has an adverse impact on a minority
group; (2) once such a practice is identified, the employer has
the burden of showing that the practice 'serves in a significant
way the legitimate employment goals of the employer'; and (3) if
the employer can show a legitimate justification for the hiring
practice, plaintiffs can still win if they show that the employer
could use other factors that don't disproportionately disqualify
minorities."
Among other things, H.R.1 imposes a new burden on the
employer to prove that the "business necessity" requiring that an
employer's hiring criteria where the workforce doesn't reflect
the required profile "must bear a significant relationship to the
successful performance of the job." This is more stringent than
the standard the Supreme Court used in Griggs and its subsequent
disparate impact decisions. Griggs used language allowing the
5
employer to engage in rational choices with respect to hiring
criteria by requiring that there be a "manifest relationship to
the employment in question." The definition of business
necessity in Wards Cove is that the employment practice "serves,
in a significant way, the legitimate employment goals of the
employer." This is consistent with Griggs as the Supreme Court
made clear in 1979 in its New York Transit Authority V. Beazer
decision. In contrast, H.R.1 defines "business necessity" as
having a "significant relationship to (the) successful
performance of the job." This proposed standard is clearly more
onerous than the Griggs test. Moreover, because H.R.1 refers to
"successful performance," it would prohibit an employer from
raising standards beyond minimal ones to provide better services
if to do so would result in a disparate impact.
Now let me turn to the more parochial issue of the impact on
Jews and others of different religious persuasions. Jews tend to
shy away from any concern that might be referred to as parochial.
6
The fact is that because Jews are only 2% of the population of
the United States and also tend to be in appointed government
positions and university faculty positions in greater numbers
than their percentages of the population and because governments
and universities are subject to H.R.1, anyone minimally qualified
could bring an action against the university or the government
alleging there were more Jews than the profile presumptively
allowed and too few of the religious affiliation of the litigant
represented in the workforce. Few employers would be likely to
want to run the risk of the costly lawsuits that would be
brought. There are very few positions in government that have a
legal professional requirement e.g. doctor, engineer, architect,
and I have rarely met a voter who did not believe that he or she
couldn't do better than any commissioner appointed by any mayor.
At universities it would be hard to justify that it was
significantly related to successful job performance that there be
the advanced degrees and published articles by applicants now
7
required for faculty positions to carry out ones duties. And the
"presumed statistical profile" will become the subtle norm rather
than hirings based on merit and scholarship.
There is now a willingness on the part of some large
corporations to give up their opposition to the legislation in
exchange for a limit to their liability by a cap on monetary
damages. Under existing law only those who establish
discrimination based on race may sue for compensatory and
punitive damages other than two years back pay. Unlike the
version of last year, this year's version of H.R.1 eliminates the
cap of $150,000 imposed on all but those who suffered
discrimination based on race. And there is an ongoing effort to
put back the cap. I believe this approach is wrong. I believe
that where intentional discrimination is established, the victim,
whether white or female or black or Hispanic or Asian, and of
whatever religious persuasion, should be entitled to compensatory
and punitive damages and treated equally before the law. I do
8
believe, however, that when you create a new cause of action
particularly where passions can become inflamed, you can provide
that these cases shall by heard and decided solely by a judge,
and I would support such an outcome. This expansion of liability
is, in fact, a change on my part; equality before the law demands
it.
There are two 1989 Supreme Court decisions Congress ought to
overturn. First, in Patterson, the court ruled that Section
1981, banning racial discrimination in making and enforcing
contracts, does not cover the terms and conditions of contracts.
Thus, racial harassment on the job is not illegal under Section
1981. Congress should close that loophole. Second, Congress
should overturn the Lorance decision which makes it more
difficult to challenge certain intentionally discriminatory
seniority systems.
These changes can be made without enacting H.R.1 with all of
its other provisions encouraging quotas.
9
Also, let me state for the record my position on affirmative
action. There are two forms of affirmative action. I support
the following: Reaching out and encouraging minorities and women
to apply for positions which historically have not been open to
them or where the environment is seemingly hostile to them and
encouraging them to apply. Particularly in the case of
minorities because of historical failures in our education system
I support providing mentoring services for those who need them.
But when the position is filled it should be done solely on the
merits with no bonus for being a member of a minority group or
for being female and no handicap as a result of being white
and/or male. The alternative form of affirmative action which I
oppose is euphemistically described as goals, timetables and
sanctions. I see no difference between that method and the use
of quotas.
I have done what I said I wouldn't do -- discuss the bill in
some detail rather than leave it to the accompanying documents,
10
but it is not possible to do otherwise and have an intelligent
discussion.
I urge you to reconsider your position and withdraw your
support for H.R.1
THE WALL STREET JOURNAL
February 5, 1991
Civil Rights Bill: The Way to Religious Quotas
By EDWARD I. Koch
such a law employers probably will have
the burden of proof falls upon the employer
Why is the newly introduced Civil
to justify why there are more Jews on a
to justify hiring practices.
Rights Bill still a quota bill?
percentage-basis in a particular job than in
It is not "immoral" to be for quotas,
Because, like the 1990 version known as
the applicant job pool.
nor is it "immoral" to oppose them. New
Kennedy-Hawkins, the legislation finds
To defend themselves from suits, em-
York Mayor David Dinkins publicly sup-
that an unlawful employment practice is
ployers would have to justify the disparate
ports quotas, as do many other New York
established when complaining party
impact. Surely that would mean keeping
City leaders; they think the benefits out-
demonstrates that an employment practice
statistics on the number of Jews, Catho-
weigh the costs. But there is much more to
(or group of practices) results in a dispa-
lics, Protestants, Muslims, etc. It might
be said in support of the position that this
rate impact on the basis of race, color, re-
even mean keeping track of all the subdivi-
bill would create reverse discrimination
ligion, sex. or national origin, and the re-
sions-such as Jehovah's Witnesses and
and would be bad for America as a
spondent fails to demonstrate that such
Seventh Day Adventists; Sunni and Shiite
whole.
practice- is required by business neces-
Muslims; Orthodox, Conservative and Re-
form Jews-as well.
During November's election campaign,
sity."
The proposed law would particularly
many editorials around the country de-
The employer would have the burden of
proving that the hiring practice or group of
create a misplaced incentive for govern-
nounced Sen. Jesse Helms's ad depicting a
ments and universities to hire on the basis
white worker losing his job as a result of
practices bear a "significant relationship
of race, color, religion, gender or national
quota preferences. What if his opponent,
to successful performance of the job." Con-
Harvey Gantt, had run an ad that showed
trary to the claims of the legislation's sup-
origin. They would feel intense pressure to
porters, this standard is more stringent
select the lesser-qualified individual of a
two black hands and commentary saying,
than the standard consistently applied in
group not adequately represented from a
"Is it unfair for us to be given preferential
treatment to catch up from the burden of
this area by the Supreme Court. The court
statistical standpoint-both to avoid the
slavery?" Would that ad have been de-
says that employers may justify hiring
"disparate impact" and exposure to costly
nounced? I doubt it.
practices if they bear a "manifest relation-
lawsuits they would be likely to lose, as
ship to the employment in question.
well as to avoid student unrest, picket lines
Will the supporters of this bill attack
and adverse publicity. They will hire the
those of us who oppose it as racists be-
Under the Supreme Court test, em-
statistically correct. (In New York City,
cause we honestly believe that it will foster
ployers can justify many hiring practices
those who would suffer disproportionately
quotas? Unfairly, they will probably do SO
as bearing a "manifest relationship" to the
would be white Jewish males.)
again this year, as they did last year.
employment. Under the bill's proposed
Few employers, would be likely to want
False charges of racism are the refuge of
test, it is unlikely that employers would be
to run the risk of costly lawsuits, attor-
those who cannot argue on the merits.
able to prove that a challenged job re-
neys' fees and massive back-pay awards.
Civil-rights groups have been seeking a
quirement bears a "significant relation-
The mere filing of a lawsuit could hurt
fig-leaf compromise with some opponents
ship" to "successful" job performance. To
sales and public acceptance of the com-
of the bill to facilitate an override of any
avoid potential liability under such a
pany's product.
presidential veto. Their latest ploy has
murky standard, employers would, of ne-
Nationwide, the percentage of blacks is
been to approach some big businesses with
cessity, resort to quota hiring.
12%; Hispanics about 8%; Asians about
a new offer. These civil-rights groups are
Cases under the disparate-impact stan-
2%. Among whites, those who are Jew-
hoping that if the damages available under
dard have focused on racial and gender
ish would still suffer the most because they
the bill for intentional discrimination are:
discrimination. But under the bill, dispa-
are only 2% of the population.
reduced, the businesses will agree to lan-
rate impact will be SO easy to prove that it
Many who support this bill deny they
guage that, while ostensibly "solving" the
will be applied to alleged religious discrim-
support quotas, but acknowledge support-
quota problem, does not do SO. But SO long
ination, and employers will react defen-
ing affirmative-action programs requiring
as this bill encourages quotas, and it does,
sively to the threat of such lawsuits.
goals, timetables and sanctions; they
it should not be acceptable no matter what
Proponents of the bill note that some
claim that these programs do not entail
compromise is offered.
Jewish organizations, traditionally opposed
preferences and reverse discrimination.
to quotas, endorse the legislation. I suggest
But goals and timetables quickly become
Mr. Koch, former mayor of New York,
that Jewish organizations haven't alerted
de facto quotas when employers face sanc-
writes a weekly column for the New York
their memberships to the fact that under
tions if they don't achieve them, and when
Post and is in private legal practice.
THE WALL STREET JOURNAL WEDNESDAY, FEBRUARY 20, 1991
Defenders of the Civil-Rights Bill Doth Protest Too Much
Actor Playing the Queen: Both here and
To understand what's at stake here,
clarify the rules for numbers-based law-
hence pursue me lasting strife; If, once.
severe here because the bill would reverse
note that the country has come so far since
suits: (1) Plaintiffs must identify a specific
widow, ever I be wife!
the usual due-process rules to presume
the 1964 Civil Rights Act that Intentional
hiring practice that has an adverse impact
that the defendant Is guilty until and unless
Hamlet: Madam, how like you this
discrimination is not the issue. The origi-
on a minority group: (2) once such a prac-
play?
he can prove himself Innocent. If in doubt.
nal law banned what civil-rights lawyers
tice is identified, the employer has the bur-
a defendant is guilty of "discrimination."
The Queen, his mother. The lady doth
call "disparate treatment"; by now, most
den of showing that the practice "serves in
No employer can prove that every re-
protest too much, methinks.
litigation is Instead about "disparate im-
a significant way the legitimate employ-
quirement for a job is necessary for suc-
Shakespeare, whose wisdom did not end
pact." This refers to the expansion of the
ment goals of the employer"; and (3) if
cessful performance. No Wall Street law
with first, let's kill all the lawyers, knew
civil-rights laws by the Supreme Court in
the employer can show a legitimate justifi-
firm can prove that only lawyers from Ivy
that people who issue the loudest claims
the 1971 case of Griggs v. Duke Power,
cation for the hiring practice, plaintiffs can
League-type schools can possibly do the
also often know best that they're false. So
which said that hiring practices that ap-
still win if they show that the employer
job, for example. The law would also cover
pear fair can still be unlawful if they dis-
Rule of Law
could use other factors that don't dispro-
religion, SO employers would have to hire
proportionately harm one group, such as
portionately disqualify minorities.
enough-but not too many-Catholics, Bap-
where a utility company required educa-
The plaintiffs in Wards Cove lost, but
tists, Jews, Muslims.
By L. Gordon Crovitz
tional degrees held by many fewer blacks
worthy cases have won under its three-part
The proposed bill also goes beyond the
than whites.
test. John Dunne, head of the Justice De-
1964 civil-rights law, Griggs or Wards CoDe
Wards Cove did not overturn Griggs.
partment's civil-rights division, told Con-
by replacing the ideal of mediation with
it is with the din of assurances by its pro-
The justices still welcome disparate-im-
gress this month about several of the win-
the divisiveness of jury trials and punitive
ponents that the Civil Rights Act of 1991
pact cases based on statistical evidence
damages. This year's bill as introduced by
could never ever result in race, sex and re-
without any evidence of intentional dis-
Employers would have
Rep. Jack Brooks even put back the provi-
ligious quotas.
crimination. What Wards Cove did was
sion dropped last year that would allow-un-
There is a lull before the battle resumes
clarify that trial judges can recognize
on the legislation President Bush vetoed
there are statistics and then there are sta-
to hire enough-but not
limited punitive damages. The bill's sec-
tion calling for punitive damages comes
last year as a quota bill and "lawyers' bo-
tistics-and that only relevant numerical
too
many-Catholics,
under the heading of damages for "inten-
nanza." It's a good time to stand back and
evidence can prove "disparate impact."
parse some of the legal technicalities to
Wards Cove Itself showed the slipperi-
Baptists, Jews, Muslims.
tional discrimination," but in fact no inten-
tion Is required. All that's needed is "indif-
see why the reintroduced legislation would
ness of numbers games. The family-owned
ference to the federally protected rights of
still force employers to choose between
firm hired seasonal workers to process and
ning cases. A teacher in Alabama was re-
others," whatever that means.
quotas and ruinous lawsuits.
pack salmon in Its Alaska plants. Several
instated when a court found that minoritles
Employers would be left in the position
The civil-rights groups say they want to
minority workers, including Frank Atonio,
disproportionately failed a teacher-certifi-
that Justice Sandra Day O'Connor warned
reverse five recent Supreme Court rulings.
a Samoan, claimed discrimination. Their
cation test, an almost all-white New Jersey
against in a recent case limiting disparate-
The Bush administration is happy to over-
evidence was that half of the plant's un-
town had to drop its residents-only rule for
impact cases. "If quotas and preferential
rule two cases, which excluded some law-
skilled workers were minorities, but that
public employees and Jacksonville, Fla.,
treatment become the only cost-effective
suits over promotions and seniority. Mr.
one-quarter of the skilled workers were ml-
had to change its exam for firefighters.
means of avoiding expensive litigation and
Bush says It would be unfair to reverse
norities. They argued that half the skilled
The proposed civil-rights bill would go
potentially catastrophic liability, such
Martin U. Wilks, which said that people
workers should also be minorities.
far beyond reversing Wards Cove. Plain-
measures will be widely adopted."
who were not parties to consent decrees
There were several problems with this
tiffs would not have to identify any single
During the debate on the 1964 Civil
can sue If they suffer from resulting racial
claim. For one thing, the relevant labor
factor in hiring or promotion that the em-
Rights Act, Hubert Humphrey said that the
quotas. There's also no reason to reverse
market in Alaska was 10% minorities. Un-
ployer could then try to defend. The em-
law guaranteed equal opportunity, and that
Price Waterhouse v. Hopkins, which said
der a strict statistical approach, Wards
ployer instead would have the entirely new
no court could "require hiring, firing of
an employer can somehow try to convince
Cove Packing probably hired "too many"
task of proving the "business necessity"
promotion of employees to meet a racial
a court that It would have made the same
skilled and unskilled minorities already.
that all the objective and subjective re-
'quota.' After all the lawsuits demanding
promotion decision even if It hadn't used
Also, many of the seasonal unskilled
quirements for employment "must bear a
goals, timetables and set-asides, any civil-
an unlawful factor such as sex.
workers were hired through a minority-run
significant relationship to successful per-
rights bill should pass a simple test: Con-
The quota-inspiring change comes in
local of a union, which might explain the
formance of the job." The phrase "suc-
gress should be bound by Its provisions. As
provisions that civil-rights lawyers say
Irony of minority overrepresentation as the
cessful performance" Is especially vague.
the bill now stands, Congress is the only m-
would "only" reverse the case of Wards
basis for a discrimination lawsuit.
Uncertain standards always promote 11.
stitution in the country that Congress
Cove Packing Co. v. Atonio.
The Supreme Court used the case' to
tigiousness, but the problem is especially
would exempt.
THE WALL STREET JOURNAL WEDNESDAY, MAY 22, 1991
Hizzoner Goes to Washington to Fight the Quota Bill
You might ask, how can it be that I,
legal term inviting quotas. Under a 1971
preferences, but this means that innocent
"Over the years those who now advo-
your former colleague who voted for every
Supreme Court case, plaintiffs can prove
white people are going to suffer. I do not
cate" this civil-rights bill, Mr. Koch said,
civil-rights bill when in Congress and as a
discrimination even when there is no evi-
accept that."
"concealed the impact of some of the legis-
young lawyer in 1964 went to Mississippi to
dence of intentional discrimination. Only
After he began to speak out, several
lation, court decisions and administrative
defend black and white civil-rights workers
lawyers could dream up an offense called
Jewish groups also reconsidered their typi-
agency rulings which in the past have en-
who were registering voters, could take
non-intentional discrimination, but here's
cally unblinking support for any legislation
couraged quotas by referring to those
such a position? The answer is simple.
how it works: If an employer's work force
that calls itself a civil-rights bill. The
measures benignly as affirmative action. I
H.R. 1 is not a civil-rights bill. It is a bill
does not precisely mirror the area's labor
groups that now most strongly oppose the
support affirmative action when it is de-
which will encourage quotas based on
pool of minorities, presto, the defendant is
bill represent Orthodox Jews, whose mem-
fined as reaching out and encouraging mi-
race, ethnicity, religion and gender.
presumed guilty.
bers follow strict dietary, dress and Sab-
norities to apply for a position or con-
Again, only lawyers could claim that
bath observance rules that set them apart.
tract," he said, "providing them with men-
Ed Koch is a Democrat mugged by
only discrimination prevents every com-
They understand that the bill invites em-
toring services where needed but always
quotas. The former How'm I Doin'? mayor
pany in every industry from hiring the sta-
ployers to start keeping track of the reli-
filling the position or awarding the con-
of New York City and former liberal U.S.
tistically correct number of Hispanics,
gion of workers and tempts them to hire
tract solely on merit and never excluding
representative has lobbied Congress
Methodists, Ukrainian-Americans. In a
and fire to come as close as possible to re-
any group on the basis of race, ethnicity,
against the civil-rights bill, jawboned lead-
non-lawyer's world, of course, it would be
flecting the makeup
religion or gender."
a fluke if the employees of any single com-
of the local commu-
Most Americans probably agree with
Rule of Law
pany anywhere managed to reflect per-
nity. Yet even ask-
Mr. Koch's praise for voluntary affirma-
fectly every conceivable subgroup.
ing someone's reli-
tive action. Nor is there any serious oppo-
To be fair to the Democrats, the White
gion is now rightly
By L. Gordon Crovitz
sition to laws that prohibit intentional dis-
House version of the bill would also con-
considered out of
crimination-that is, what non-lawyers call
tinue the use of statistics alone to establish
bounds.
discrimination. The paradox for politicians
"discrimination." The big difference is
Mr. Koch's out-
who want a new civil-rights bill is that no
ers of Jewish groups and planned strategy
that with punitive damages and other lures
spokenness against
law can go beyond this prohibition against
with White House lawyers.
for contingency-fee lawyers, the Demo-
the bill won him an
discrimination to also capture all the nu-
Mr. Koch's reaction against the bill is
crats' bill would create enormous incen-
invitation to the
ances of encouraging minorities without
one reason why it will make no difference
tives for companies to lock in quotas as the
White House. Mr.
discriminating against whites. This is why
that Democrats in Congress have tempo-
best and perhaps only defense to accusa-
Koch told Boyden
we ended up with a sterile and legalistic
rarily withdrawn their bill. After two years
tions of disparate impact. The bill would
Gray, the presi-
debate about statistics.
of claiming this is not a quota bill, the
also water down defenses to lawsuits by
dent's counsel, that
Ed Koch
week or so the Democrats plan for going
making the definition of terms such as
race-norming was
The best civil-rights bill now probably is
back to the blackboard will not produce a
"business necessity" even more vague
the smoking gun of quotas. This is the
no civil-rights bill. If there are problems
non-quota bill.
than the courts have left them.
practice of grading test scores on a race
prosecuting people who discriminate, let's
Mr. Koch recalls that he first began to
Mr. Koch, soft-spoken as always, ex-
and ethnic curve; a 300 on one aptitude
have a bill that deals with the issue. We do
look closely at the bill after he read an ar-
plained that his former Democratic col-
test is reported to potential employers as a
not need to legally mandate the all-but-im-
ticle in November in the Forward, a na-
leagues in Congress "got out of touch be-
79 for a black applicant, a 62 for an His-
possible requirement of perfectly matching
tional Jewish weekly, that described how
cause they are SO frightened by militant
panic and a 39 for a white or Asian.
the race, sex, religious and ethnic makeup
the bill would force employers for the first
black and white leadership in the civil-
Democrats now say they might try to
of the available labor pool.
time either to hire by religious quotas or
rights groups." Mr. Koch said, "It's the
limit test scoring by race-norming. They
There is an alternative to expanding the
risk legal liability. Joseph Morris of the
politically correct position that blacks need
forget that the reason race-norming was
imperial reach of lawyers, lawsuits and
Chicago-based Lincoln Legal Foundation
help, Hispanics need help, even Jews with
invented in the first place in the early
judges. This is to encourage voluntary af-
wrote that the bill would outlaw "disparate
Spanish surnames need help, but Asian-
1970s was as a defense to the then-new dis-
firmative action by people of good will. Put
impact" not just by race and sex but also
Americans don't. I happen to think that is
parate-impact lawsuits. Any civil-rights
it this way. The civil-rights groups that
by religion and national origin. Counting
insane.
bill that increases the exposure of em-
support this bill believe that the way to ac-
by religion sounded a warning.
"You get dragged along. Everyone
ployers to lawsuits based simply on statis-
complish harmony is to encourage more
As Mr. Koch wrote in a Feb. 5 article on
wants to do the right thing, but you find
tics will only encourage race norming and
lawyers to bring more lawsuits. As the de-
the Journal editorial page, disparate-im-
that it's the wrong thing." he said. "The
other sleights of hand to meet quotas with-
bate over this bill shows, lawsuits and har-
pact analysis is best understood as a fancy
easy right thing to do is to give groups
out admitting the deed.
mony remain an unlikely combination.
N
LES ASPIN
HOME OFFICES:
1661 DOUGLAS AVENUE
1ST DISTRICT, WISCONSIN
RACINE, WI 53404
CHAIRMAN,
414-632-4446
HOUSE ARMED SERVICES COMMITTEE
WASHINGTON OFFICE:
Congress of the United States
20 S. MAIN STREET
JANESVILLE, WI 53545
608-752-9074
2336 RAYBURN BUILDING
WASHINGTON, DC 20515
house of Representatives
KENOSHA
202-225-3031
414-551-7414
Washington, DC 20515
June 11, 1991
The Honorable Ed Koch
Robinson Silverman Pearce
1290 Ave. Of The Americas, 30th Fl.
New York, New York 10104
Dear Ed:
Knowing of your interest in civil rights, I wanted to let you
know of my support for H.R. 1, the Civil Rights and Women's
Equity in Employment Act of 1991. Three versions, called
substitutes, of this bill were considered by the House of
Representatives on June 4 and 5, 1991.
The first substitute to H.R. 1 was offered by the Congressional
Black Caucus of which I am an associate member. It was
introduced by Representative Edolphus Towns (D-NY) and
Representative Pat Schroeder (D-CO). This measure most closely
mirrored the Civil Rights Bill as reported by the House
Judiciary Committee and House Education and Labor Committee. It
fully overturned all five 1989 Supreme Court decisions which
drastically limited anti-bias court cases. Since the 1989
Supreme Court decisions, employees have experienced great
difficulty in gathering the evidence necessary to prove
discrimination. The substitute would have returned to the
pre-1989 law which required the employer to prove that it did
not discriminate. Furthermore, this measure would have placed
no cap on compensatory or punitive damages which victims of
discrimination could receive. I voted for the Towns-
Schroeder, Substitute because it was the most fair and
intellectually honest version of the civil rights bill that the
House considered. Unfortunately, it failed to pass the House by
a vote of 152 to 277.
The next version of this bill that came before the House was the
weakest of the three. It was introduced by Representative
Robert Michel (R-IL) and supported by President Bush. While
claiming to be a civil rights bill, it only overturned one and
partially overturned two of the five 1989 Supreme Court
decisions. Under this substitute, intentional discrimination on
the basis of gender, race, color, religion and national origin
could still be permissible if there were other contributing
factors leading to an employer's decision. I believe that
discrimination on the basis of race, sex, religious affiliation
or ethnic background should never be permitted. Furthermore,
this measure would safeguard employers from compensatory and
punitive damages in certain cases of intentional discrimination.
I voted against the Michel Substitute because I felt it would
significantly water-down the Civil Rights Bill. This substitute
was defeated 162 to 266.
June 11, 1991
Page Two
Finally, the House considered the bipartisan compromise as
introduced by Representative Jack Brooks (D-TX) and Representative
Hamilton Fish (R-NY). Unlike the Michel Substitute, this
legislation fully overturns all five 1989 Supreme Court rulings
that severely undermined a plaintiff's ability to win a
discrimination case. Specifically, it would return the burden of
proving discrimination to the employer from the alleged victim.
Furthermore, it would allow most victims of discrimination to
receive punitive damages of up to $150,000 or the amount of
compensatory damages, which ever is greater. Victims of racial
discrimination would not be subjected to this cap, since they are
already allowed uncapped punitive damages under an 1886 federal
statute. Although the Towns-Schroeder Substitute was a better
bill, I am pleased that the House passed this measure with my
support by a vote of 264 to 166. Likewise I voted for final
passage of H.R. 1, when it passed the House by a vote of 273 to
158.
The chances of enactment of the Civil Rights Bill remains
uncertain. The Senate is expected to pass a bill similar to the
House's Civil Rights Bill in the near future. However, President
Bush has threatened to veto this historic legislation. Despite
this obstacle, I will continue to support this bill and do all that
I can to ensure that it ultimately becomes law.
Sincerely,
Les Aspin
Member of Congress
LA/meb