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Records of the White House Office of the Chief of Staff to the President (George H. W. Bush Administration)
John Sununu Issues Files
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Originally Processed With FOIA(s):
FOIA Number:
1998-0004-F[2]; 1999-0285-F
S
FOIA
MARKER
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
Series:
Sununu, John, Files
Subseries:
Issues Files
OA/ID Number:
29146
Folder ID Number:
29146-003
Folder Title:
Civil Rights (1 of 2) 1991 [5]
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15
24
7
5
06/04/91
12:14
SEN.DANFORTH
002
Statement by Senator John C. Danforth
June 4, 1991
I am joining today with a number of my colleagues to introduce
civil rights legislation. I am doing so for the following reasons:
First, I do not agree with the decisions by the Supreme Court in
Wards Cove and other cases related to fairness in employment. I
believe the bills we are introducing are good policy and can become
law.
Second, I believe there is a national consensus on fairness in
employment. The American people want the law to ensure that people are
treated fairly in decisions about hiring, promotion and similar
matters. They do not want discrimination against, or in favor of,
people on the basis of race, religion, gender, or disability. They
want a fair chance to right wrongs in court, and they want businesses
to have a fair chance to defend themselves without quotas.
Third, I know the President wants a bill. He tried very hard to
get a bill last year, and continues to want to sign civil rights
legislation. He has sent up his own bill, which reverses many of the
same cases.
Fourth, I believe civil rights should not be fodder for partisan
cannons, and am concerned the debate is headed in that direction.
There are some who argue that being "against quotas" is politically
helpful for Republicans. There are some on the other side, I suppose,
who argue that having a civil rights bill vetoed is politically helpful
for Democrats, and sharpens a charge that Republicans are "against
fairness." If there is an issue where political consultants should get
lost, this is it. Do Americans want an important part of the nation's
commitment to fairness to be an annual partisan jousting match? I
believe they do not.
The time has come to enact legislation. Our purpose today is to
help create the conditions for success. We are introducing bills to
provide, among other things, that hiring will be based on merit; that
victims of discrimination will have redress in the courts; and that
victims of discrimination based on gender, or other factors not related
to race, will have access to damages.
We are introducing three bills. This is because we believe the
issues in last year's bill, which proved to be an indigestible lump,
can be addressed more readily if they are separated into readily
distinguishable areas.
The first bill would reverse five cases on which there is very
little disagreement. This bill should be handled relatively easily,
perhaps in a matter of a few weeks. The second bill reverses Wards
Cove. It would shift back to employers the responsibility to show
business necessity. It would provide that hiring will be on the basis
of merit. It requires as a general rule that plaintiffs specify a
practice or practices they are challenging. The third bill provides
women and others injured by non-racial discrimination with access to
damages, and with caps in certain circumstances.
This proposal will not be difficult to criticize. It is, after
all, intended to find a consensus that moves the law forward. Finding
06/04/91 12:15
SEN. DANFORTH
1003
consensus means the proposal will meet no one's definition of a "pure"
bill. Moving the law forward means passing legislation, so there is no
comfort here for those who want an issue, not a bill.
The time has come to pass solid, bipartisan civil rights
legislation. We have a duty to the American people to make the laws
fairer and better than they are today.
THE WHITE HOUSE
WASHINGTON
May 30, 1991
THE CHIEF of STAFF
has seen
MEMORANDUM FOR GOVERNOR SUNUNU
BOYDEN GRAY
ROGER PORTER
FROM:
FRED MCCLURE
SUBJECT:
Clearance of a Statement of Administration Policy
We have just received the attached draft letter from the
Department of Justice regarding H.R. 1, the Civil Rights and
Women's Equity in Employment Act of 1991. There is a senior
advisors' veto recommendation on this bill.
Because of scheduled debate on this legislation, this letter must
go to the Hill today. Therefore, we would appreciate your
comments by 5:15 p.m. today.
Please direct all comments to my office at x2230.
DRAFT
SERVICE OFFICE FRESDENCY
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
June 3, 1991
(House)
STATEMENT OF ADMINISTRATION POLICY
(THIS STATEMENT HAS BEEN COORDINATED BY OMB WITH THE CONCERNED AGENCIES.)
H.R. 1 - Civil Rights and Women's Equity
in Employment Act of 1991
(Brooks (D) Texas and 169 others)
If H.R. 1 were presented to the President in the form reported by
the House Education and Labor Committee or in the form of the
Brooks-Fish substitute or the Towns-Schroeder substitute, the
President's senior advisers would recommend a veto. The
Administration strongly supports enactment of the Michel
substitute.
H.R. 1
The President vetoed a very similar bill last year because it did
not meet the criteria he announced on May 17, 1990.
Civil rights legislation must operate to obliterate consideration
of factors such as race, color, religion, sex, or national origin
from employment decisions. But H.R. 1 is a quota bill in at
least three respects. The disparate impact sections as drafted
would virtually force employers to adopt quotas and unfair
preferences. Unless an employer's bottom-line numbers are
"correct," he or she will almost certainly face lawsuits in which
a successful defense will be virtually impossible. If a suit is
brought and a sweetheart deal is struck at the expense of
innocent third parties, the Wilks section would then insulate
unlawful quotas from challenge in court. And the Zipes section
will subject plaintiffs unsuccessfully challenging quota
settlements to attorney fees, even where their challenge was not
frivolous and was brought in good faith.
By making it virtually impossible for an employer to prevail, the
disparate impact sections also violate another principle stated
by the President: any bill must reflect the fundamental
principles of fairness that apply throughout our legal system.
In addition, the Wilks section would encourage the settlement of
certain cases at the expense of innocent non-parties; close the
courts to many individuals whose civil rights have been violated;
and insulate consent decrees that impose quotas from appropriate
judicial review. Similarly, one provision would explicitly
shield affirmative action, court-ordered remedies, and
conciliation agreements from the neutral application of the
bill's other provisions.
A civil rights bill should deter workplace harassment, but it
must do so in a manner that is reasonable and does not produce a
2
windfall for lawyers. The damages section would provide for
jury trials and the award of unlimited compensatory and punitive
damages in all Title VII disparate treatment cases. This would
radically transform the employment provisions of the Civil Rights
Act by undermining its carefully balanced system of mediation and
conciliation. This time-tested system would be scrapped and
replaced with a new system modeled on our Nation's tort
litigation -- which is now widely recognized to be in crisis.
The Administration believes that the protections of Title VII
should be extended to employees of Congress in a meaningful way,
which necessarily includes redress in the courts. It is
fundamentally unfair to allow an employer to be the judge of its
own case.
Other objectionable provisions include: ill-advised rules on
attorney's fees; an unclear provision affecting "mixed motive"
discrimination cases; unconstitutional retroactivity provisions;
unreasonable new statutes of limitations; and an improper rule of
construction.
The Brooks-Fish Substitute
The Brooks-Fish substitute fails to address concerns expressed by
the President in vetoing similar legislation in the last
Congress. The language in the amendment purporting to prohibit
quotas would endorse racial preferences, not eliminate them. The
substitute expressly permits plans that use racial preferences as
long as the plans are labelled "voluntary." In addition, the
proposed definition of business necessity would impose an onerous
burden on employers. It would add the requirement that the
relationship between the employment practice and the requirements
for job performance be "significant" as well as manifest.
Moreover, the substitute creates unlimited compensatory damages
in cases of intentional discrimination and creates only a partial
cap on punitive damages. Other amendments amount to only
cosmetic changes which fall far short of rendering the substitute
acceptable.
The Administration's concerns with the substitute were set forth
in detail by the Attorney General in a May 31 report to
Representative Michel.
The Administration's Proposal/Michel Substitute
The Administration's proposal (the Michel substitute) would
strengthen our Nation's civil rights laws without
institutionalizing reverse discrimination or subjecting American
businesses and the victims of discrimination alike to endless and
costly litigation. Like H.R. 1, the Administration's proposal
would overturn the Lorance and Patterson decisions, and would
place on the employer the burden of proving the business
3
necessity (as defined by past Supreme Court decisions) of an
employment practice that has a disparate impact on a class of
workers. The Administration's proposal also makes available new
monetary remedies, with a $150,000 cap, for victims of harassment
in the workplace. In sum, the Administration's bill achieves
every legitimate end of H.R. 1. These important new protections
for American employers should not be held hostage for measures
that will produce quotas, disproportionately disadvantage small
and medium-sized businesses, and unduly enrich the plaintiffs'
bar.
The Towns-Schroeder Substitute
The Towns-Schroeder substitute is similar in many respects to the
Brooks-Fish substitute, but is even more objectionable. In
particular, it would promote expensive and prolonged litigation
by allowing unlimited awards of both compensatory and punitive
damages in cases of intentional discrimination. In addition, its
prohibition of consideration of gender in all contracts would
bar, for instance, private and parochial single-sex schools.
*****
(Not to be Distributed Outside Executive Office of the President)
This draft Statement of Administration Policy was developed by
the Legislative Reference Division (Ratliff), in consultation
with the Departments of Justice (Wise), and Labor (McDaniel),
EEOC (Kyllo), SBA (Dean), White House Counsel (Lund), Office of
Policy Development (McGettigan), TCJ (Silas), and LVE (Wire).
The rule on H.R. 1 makes in order three substitute amendments.
These amendments are addressed below following the description of
the bill as reported by the House Education and Labor Committee.
Differences from Bill Vetoed in 1990
H.R. 1 is identical to S. 2104, a civil rights bill vetoed by the
President in 1990, except for the following new provisions:
Employers would have to demonstrate that challenged
employment practices not involving selection bear a
significant relationship to a "significant business
objective." (S. 2104 required only a "manifest business
objective.")
An employee would only have to identify specific
employment practices that result in a disparate impact if
the court finds that the employee can identify the
practices from reasonably available information. (S. 2104
required this identification unless the court found that
4
the employer destroyed, concealed, refused to produce, or
failed to keep records necessary to make that showing.)
H.R. 1 does not include S. 2104's limit on the amount of
punitive damages that may be awarded for cases of
intentional discrimination.
In the version reported by the Education and Labor
Committee, a "Glass Ceiling Commission" would be required
to be established to study artificial barriers to the
advancement of women and minorities to senior positions of
employment, and the Department of Labor would be directed
to develop a pay-equity program.
Recent Supreme Court Decisions and Related Provisions of H.R. 1
H.R. 1 is designed to reverse six recent Supreme Court decisions.
These decisions and the related provisions of H.R. 1, as ordered
reported by the House Judiciary Committee, are described below.
Wards Cove
Supreme Court Decision. In "disparate impact" cases under
Title VII of the Civil Rights Act, the burden is on
plaintiffs to identify a particular employment practice
and show that the employment practice does not serve "in a
significant way, the legitimate employment goals of the
employer." (A "disparate impact" case is one in which no
intentional discrimination is alleged but an employment
practice is alleged to have an unjustified, though
inadvertent, disparate impact based on race, color,
religion, sex, or national origin.)
H.R. 1 (Sections 3 and 4) overrides the Supreme Court in
three ways. First, it places the burden on the defendant
to demonstrate that an employment practice is "required by
business necessity" if significant numerical disparities
are found. Second, Section 3 contains a lengthy
definition of the term "business necessity" which states
that it is intended to codify the definition of "business
necessity" in the Griggs case and to overrule Wards Cove.
Third, Section 4 would relieve many plaintiffs of the
obligation to identify specific practices and to prove
causation.
-- Price Waterhouse
Supreme Court Decision. Where an employment decision is
proven to have been based in part on race, color,
religion, sex, or national origin, Title VII has not been
violated if a defendant can show that the same decision
5
would have been reached if such factors had not been
considered.
H.R. 1 (Section 5) provides that a violation of Title VII
is proven if a contributing factor in an employment
decision is shown to have been a complainant's race,
color, religion, sex, or national origin. The term
"contributing factor" is not defined, and it may not mean
"causal factor." However, a court could not order a hire,
promotion, or reinstatement if the defendant showed that
complainant would have not been hired, promoted, or
retained even if discrimination had not been a factor.
Wilks
Supreme Court Decision. Persons not party to, but
adversely affected by, consent decrees mandating unlawful
racial preferences can challenge them in court.
H.R. 1 (Section 6) bars challenges to such consent decrees
by non-parties if: (1) they had notice of the proposed
judgment; (2) their interests were "adequately
represented" by another person who challenged the decree;
or (3) a court determines that "reasonable efforts" were
made to provide notice to them.
-- Lorance
Supreme Court Decision. The statute of limitations with
respect to a discriminatory seniority system begins to run
on the date it is adopted by the employer, not the date
the complainant is adversely affected by it.
H.R. 1 (Section 7) specifies that where a seniority system
has been adopted "with the intent to discriminate, the
"application" of the system constitutes an unlawful
practice throughout the period that it is in effect.
Patterson
Supreme Court Decision. The statutory guaranty of the
right to "make and enforce contracts" regardless of race
("Section 1981") applies only during the formation of a
contract.
H.R. 1 (Section 12) specifies that the right to "make and
enforce contracts" regardless of race extends beyond the
formation of the contract to "the enjoyment of all
benefits, privileges, terms and conditions of the
contractual relationship." H.R. 1 would further specify
that the prohibition applies to private as well as
governmental discrimination.
6
Shaw
Supreme Court Decision. Prevailing plaintiffs in job
discrimination cases against the Federal Government may
not recover interest to compensate for delays in obtaining
relief.
H.R. 1 (Section 10) permits plaintiffs prevailing in
Title VII discrimination cases against the Federal
Government to recover "the same interest to compensate for
delay in payment" as would be available in cases involving
non-public parties, "except that prejudgment interest may
not be awarded on compensatory damages.
Other Provisions of H.R. 1
In addition, H.R. 1 would:
-- Amend the current requirement that an employment
discrimination complaint be filed within 180 days after
"the alleged unlawful employment practice occurred" to
permit complaints to be filed within two years after the
practice "occurred or has been applied to affect adversely
the person aggrieved, whichever is later." (Section 7)
Authorize jury trials and compensatory damages for
intentional violations of Title VII and punitive damages
when violations are committed with malice or callous
indifference to the rights of others. (Section 8)
-- Authorize awards of expert witness fees to prevailing
parties in Title VII cases. (Section 9)
Authorize prevailing parties to recover attorneys fees in
addition to other costs, even for work performed after
they have rejected a settlement offer more favorable than
the final judgment. H.R. 1 would also guarantee
plaintiffs' lawyers a fee unless the parties or their
counsel attest that waivers of attorney fees were not
"compelled as a condition of settlement." (Section 9)
Authorize prevailing parties, where judgments or orders
granting relief are subsequently challenged, to recover
from the original defendants the costs of defending (as a
party, intervenor, or otherwise) the judgment or order.
If the party attacking the judgment prevails, then the
defendant must pay those costs. (Section 9)
Lengthen the statute of limitations from 30 to 90 days for
filing suits against the Federal Government following
final agency actions. (Section 10)
7
Specify, with respect to Federal laws protecting the civil
rights of persons, that: (1) all such laws shall be
"broadly construed to effectuate the purpose of such laws
to provide equal opportunity and provide effective
remedies;" (2) that no such laws shall "be construed to
repeal or amend by implication any other Federal law
protecting such civil rights;" and (3) agencies and
courts, in interpreting such laws, shall not use this bill
as "a basis for limiting the theories of liabilities,
rights, and remedies available" under such laws unless the
law has been specifically amended by this bill.
(Section 11)
-- Specify that the bill shall not be construed to "require
or encourage an employer to adopt hiring or promotion
quotas, provided that the bill shall not "be construed to
affect court-ordered remedies, affirmative action, or
conciliation agreements that are otherwise in accordance
with the law. The bill does not forbid quotas.
(Section 13)
-- Provide that H.R. 1 shall apply to Congress, but that the
means for its enforcement shall be determined by each
House. (Section 16)
Administration Bill/Michel Substitute
On March 1, 1991, the Justice Department transmitted an
Administration bill that was subsequently introduced as
H.R. 1375/S. 611. Like H.R. 1, the Administration bill would
place the burden of proof on the employer to demonstrate
"business necessity, " overruling a contrary ruling in Wards Cove.
However, the bill's definition of business necessity would be
closer to the Wards Cove definition than H.R. 1. The bill would
also reverse Lorance and Patterson, consistent with H.R. 1.
The bill does not contain the provision in H.R. 1 that would bar
certain challenges to consent decrees by non-parties. Instead,
the bill expressly provides that the Federal Rules of Civil
Procedure apply in determining who is bound by employment
discrimination decrees.
The bill would make available new monetary remedies for victims
of sexual harassment in the workplace. The provision provides
for bench trials, and caps awards at $150,000. H.R. 1, by
contrast, would grant women and religious minorities the right to
jury trials and unlimited monetary damages for intentional
discrimination.
8
The Brooks-Fish Substitute
The Brooks-Fish substitute closely tracks many provisions of
H.R. 1, including those on expert witness and attorney fees, the
"Glass Ceiling Commission," and the Department of Labor pay-
equity program. The substitute differs from H.R. 1 in the
following principal ways:
Its definition of business necessity would require that a
challenged employment practice bear a "significant and
manifest relationship to the requirements for effective
job performance." Employers would be allowed to rely upon
"relative qualifications or skills" in making employment-
related decisions; but if such reliance resulted in a
disparate impact, the employer would have to demonstrate
that the reliance was required by business necessity.
The substitute would require an employee, after the
completion of the discovery process, to identify the
specific employment practices alleged to have resulted in
a disparate impact. The employee would not be required to
make this demonstration if the court found that the
employee could not do so from the records of the employer.
It provides that a violation of Title VII is proven if a
motivating factor in an employment decision is shown to
have been a complainant's race, color, religion, sex, or
national origin. A court could not order a hire,
promotion, or reinstatement if the defendant demonstrated
that the employee would have not been hired, promoted, or
retained even if discrimination had not been a factor.
It would increase the statute of limitations for filing a
Title VII claim from 180 days to 540 days.
It would allow unlimited awards of compensatory damages in
cases of intentional discrimination. It caps punitive
damages at the greater of $150,000 or "an amount equal to
the sum of compensatory damages awarded and equitable
monetary relief."
It would require that certain employment tests "validly
and fairly" predict the ability of test takers to perform
the job for which the test is used. Section 116 prohibits
the adjustment of test scores on the basis of the race,
color, religion, sex, or national origin of the test
taker.
It states that it shall not be construed "to require,
encourage, or permit" an employer to adopt hiring or
promotion quotas. It also approves the lawfulness of
voluntary or court-ordered affirmative action.
9
The Towns-Schroeder Substitute
Justice advises that the Towns-Schroeder substitute is similar in
most respects to the Brooks-Fish substitute. However, it would
allow unlimited awards of both compensatory and punitive damages
in cases of intentional discrimination.
Administration Position to Date
The Attorney General in a May 31, 1991, report to Representative
Michel stated that he and other senior advisers would also
recommend a veto of the Brooks-Fish substitute. A Justice
Department report of March 12, 1991, on H.R. 1 stated that the
Attorney General "and other senior advisers" would recommend a
veto of the bill.
1990 Presidential Statement
On May 17, 1990, the President stated that he would support civil
rights legislation which met three stated principles. These
principles were restated in the President's October 22, 1990,
veto message.
The first principle was that legislation must operate to
obliterate considerations of factors such as race, color,
religion, sex, or national origin from employment decisions. In
this regard, the President said, "I will not sign a quota bill,"
and expressed concern that quotas could be an unintended
consequence of legislation.
Second, the legislation must reflect fundamental principles of
fairness. Specifically, individuals who believe their rights
have been violated are entitled to their day in court, and an
accused is innocent until proved guilty.
Third, the civil rights laws should provide an adequate deterrent
against workplace harassment. They should not, however, benefit
lawyers by encouraging litigation at the expense of conciliation
or settlement.
The President also stated that Congress "should live by the same
requirements it prescribes for others."
The President affirmed his desire to strengthen employment
discrimination laws "without resorting to the use of unfair
preferences" in the State of the Union address on
January 29, 1991.
10
Scoring for the Purpose of Pay-As-You-Go and the Caps
According to TCJ (Silas), H.R. 1 is not subject to the pay-as-
you-go requirement of the Omnibus Budget Reconciliation Act of
1990 because it would not require any direct spending.
Legislative Reference Division Draft
6/3/91 -- 3:00 P.M.
05/31/91 17:31
SEN. DANFORTH
1
002
MISSOURI
May 31, 1991
Copy to Boy den
The Honorable John H. Sununu
The White House
Washington, D. C. 20500
Dear John:
Enclosed please find a draft of
three Civil Rights bills that I plan to
introduce next Tuesday. I realize that
THE CHIEF of STAFF
they may not contain everything that you
has seen
want, but I urge you to give them careful
scrutiny. I believe that these bills can
and should be passed into law and that
both the civil rights community and the
President should give them their support.
Sincerely,
Dark
Enclosures
001
SEN. DANFORTH
05/31/91 17:44
ALD91.237
S.L.C.
102D CONGRESS
1ST SESSION
S.
IN THE SENATE OF THE UNITED STATES
Mr.
introduced the following bill; which was read twice and re-
ferred to the Committee on
A
BILL
To strengthen and improve Federal civil rights laws, and for
other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assem-
3 bled,
4 SECTION 1. SHORT TITLE.
5
This Act may be cited as the "Civil Rights Restora-
6 tion Act of 1991".
7 SEC. 2. FINDING AND PURPOSE.
8
(a) FINDING.-Congress finds that legislation is neces-
9 sary to provide additional protections against unlawful dis-
10 crimination in employment.
31/91
17:44
SEN. DANFORTH
002
ALD91.237
S.L.C.
2
1
(b) PURPOSE.-The purpose of this Act is to respond
2 to recent decisions of the Supreme Court by expanding the
3 scope of relevant civil rights statutes in order to provide
4 adequate protection to victims of discrimination.
5 SEC. 3. PROHIBITION AGAINST ALL RACIAL DISCRIMINATION IN
6
THE MAKING AND ENFORCEMENT OF CONTRACTS.
7
Section 1977 of the Revised Statutes (42 U.S.C.
8 1981) is amended-
9
(1) by inserting "(a)" before "All persons
10
within"; and
11
(2) by adding at the end the following new sub-
12
sections:
13
"(b) For purposes of this section, the term 'make and
14 enforce contracts' includes the making, performance,
15 modification, and termination of contracts, and the enjoy-
16 ment of all benefits, privileges, terms, and conditions of
17 the contracts.
18
"(c) The rights protected by this section are protected
19 against impairment by nongovernmental discrimination
20 and impairment under color of State law.".
05/31/91
17:44
SEN.DANFORTH
003
ALD91.237
S.L.C.
3
1
SEC. 4. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE CON-
2
SIDERATION OF RACE, COLOR, RELIGION, SEX, OR
3
NATIONAL ORIGIN IN EMPLOYMENT PRACTICES.
4
(a) IN GENERAL.-Section 703 of the Civil Rights Act
5 of 1964 (42 U.S.C. 2000e-2) is amended by adding at the
6 end the following new subsection:
7
"(k) Except as otherwise provided in this title, an un-
8 lawful employment practice is established when the com-
9 plaining party demonstrates that race, color, religion, sex,
10 or national origin was a motivating factor for any employ-
11 ment practice, even though other factors also motivated the
12 practice."
13
(b) ENFORCEMENT PROVISIONS.-Section 706(g) of
14 such Act (42 U.S.C. 2000e-5(g)) is amended-
15
(1) by designating the first through third sen-
16
tences as paragraph (1);
17
(2) by designating the fourth sentence as para-
18
graph (2)(A); and
19
(3) by adding at the end the following new sub-
20
paragraph:
21
"(B) In a case where an individual proves a violation
22 under section 703(k) and a respondent demonstrates that
23 the respondent would have taken the same action in the
24 absence of any discrimination, the court-
05/31/91
17:45
SEN DANFORTH
004
ALD91.237
S.L.C.
4
1
(i) may grant declaratory relief, injunctive
2
relief (except as provided in clause (ii)), attorney's
3
fees, and costs; and
4
"(ii) shall not award damages or issue an order
5
requiring any admission, reinstatement, hiring, pro-
6
motion, or payment, described in subparagraph
7
(A).".
8 SEC. 5. FACILITATING PROMPT AND ORDERLY RESOLUTION OF
9
CHALLENGES TO EMPLOYMENT PRACTICES IM-
10
PLEMENTING LITIGATED OR CONSENT JUDG-
11
MENTS OR ORDERS.
12
Section 703 of the Civil Rights Act of 1964 (42
13 U.S.C. 2000e-2) (as amended by section 4 of this Act) is
14 further amended by adding at the end the following new
15 subsection:
16
"(1)(1)(A) Notwithstanding any other provision of
17 law, and except as provided in paragraph (3), an employ-
18 ment practice that implements and is within the scope of a
19 litigated or consent judgment or order that-
20
"(i) was entered earlier than the date of the en-
21
actment of this subsection; and
22
"(ii) resolves a claim of employment discrimi-
23
nation under the Constitution or Federal civil rights
24
laws,
05/31/91
17:46
SEN.DANFORTH
005
ALD91.237
S.L.C.
5
1 may not be challenged under the circumstances described
2 in subparagraph (B).
3
"(B) A practice described in subparagraph (A) may
4 not be challenged in a claim under the Constitution or Fed-
5 eral civil rights laws-
6
"(i) by a person who, prior to the entry of the
7
judgment or order described in subparagraph (A),
8
had-
9
"(I) actual notice of the proposed judg-
10
ment or order sufficient to apprise such person
11
that such judgment or order might affect the in-
12
terests of such person and that an opportunity
13
was available to present objections to such
14
judgment or order; and
15
"(II) a reasonable opportunity to present
16
objections to such judgment or order;
17
"(ii) by a person whose interests were ade-
18
quately represented by another person who chal-
19
lenged such judgment or order prior to or after the
20
entry of such judgment or order; or
21
"(iii) if the court that entered the judgment or
22
order determines that reasonable efforts were made
23
to provide notice to interested persons.
24
"(2)(A) Notwithstanding any other provision of law,
25 and except as provided in paragraph (3), an employment
05/31/91
17:46
SEN. DANFORTH
006
ALD91.237
S.L.C.
6
I practice that implements and is within the scope of a liti-
2 gated or consent judgment or order that-
3
"(i) was entered not earlier than the date of the
4
enactment of this subsection; and
5
"(ii) resolves a claim of employment discrimi-
6
nation under the Constitution or Federal civil rights
7
laws,
8 may not be challenged under the circumstances described
9. in subparagraph (B).
10
"(B) A practice described in subparagraph (A) may
11 not be challenged in a claim under the Constitution or Fed-
12 eral civil rights laws—
13
"(i) by a person who, during the period of
14
notice regarding the judgment or order described in
15
subparagraph (A)—
16
"(I) was an employee of, former employee
17
of, or applicant to, the respondent; and
18
"(II) prior to the entry of such judgment or
19
order, had actual notice of the proposed judg-
20
ment or order in sufficient detail to apprise such
21
person-
22
"(aa) that such judgment or order
23
might adversely affect the interests and
24
legal rights of such person;
05/31/91
17:47
SEN. DANFORTH
007
ALD91.237
S.L.C.
7
1
"(bb) of any numerical relief in the
2:
proposed judgment or order on the basis of
3
race, color, religion, sex, or national origin
4
for any job, position, or other employment
5
opportunity;
6
"(cc) that an opportunity was avail-
7
able to present objections to such judgment
8
or order by a future date certain; and
9
"(dd) that such person would likely
10
be barred from challenging the proposed
11
judgment or order after such date;
12
"(ii) by a person who, during the period of
13
notice regarding the judgment or order-
14
"(I) was an employee of, former employee
15
of, or applicant to, the respondent; and
16
"(II) prior to the entry of such judgment or
17
order, failed to receive actual notice meeting the
18
criteria described in clause (i)(II) of the judg-
19
ment or order, despite the diligent and best ef-
20
forts of the parties to provide individual notice;
21
or
22
"(iii) by a person whose interests were ade-
23
quately and competently represented by a similarly
24
situated person who had previously challenged the
25
judgment or order on the same legal grounds and
05/31/91
17:47
SEN. DANFORTH
008
ALD91.237
S.L.C.
8
1
with a similar factual situation, unless there has been
2
an intervening change in law or fact.
3
"(3) Nothing in this subsection shall be construed
4 to
5
"(A) alter the standards for intervention under
6
rule 24 of the Federal Rules of Civil Procedure or
7
apply to the rights of parties who have successfully
8
intervened pursuant to such rule in the proceeding in
9
which the parties intervened;
10
"(B) apply to the rights of parties to the action
11
in which the litigated or consent judgment or order
12
was entered, or of members of a class represented or
13
sought to be represented in such action, or of mem-
14
bers of a group on whose behalf relief was sought in
15
such action by the Federal Government;
16
"(C) prevent challenges to a litigated or consent
17
judgment or order on the ground that such judgment
18
or order was obtained through collusion or fraud, or
19
is transparently invalid or was entered by a court
20
lacking subject matter jurisdiction; or
21
"(D) authorize or permit the denial to any
22
person of the due process of law required by the
23
Constitution.
24
"(4) Any action not precluded under this subsection
25 that challenges an employment consent judgment or order
05/31/91
17:48
SEN.DANFORTH
009
ALD91.237
S.I.C.
9
I described in paragraph (1) or (2) shall be brought in the
2 court, and if possible before the judge, that entered such
3 judgment or order. Nothing in this subsection shall pre-
4 clude a transfer of such action pursuant to section 1404 of
5 title 28, United States Code.
6 SEC. 6. DEFINITIONS.
7
Section 701 of the Civil Rights Act of 1964 (42
8 U.S.C. 2000e) is amended by adding at the end the follow-
9 ing new subsections:
10
"(1) The term 'complaining party' means the Com-
11 mission, the Attorney General, or a person who may bring
12 an action or proceeding under this title.
13
"(m) The term 'demonstrates' means meets the bur-
14 dens of production and persuasion.
15
"(n) The term 'respondent' means an employer, em-
16 ployment agency, labor organization, joint labor-manage-
17 ment committee controlling apprenticeship or other train-
18 ing or retraining program, including an on-the-job training
19 program, or Federal entity or head of a Federal entity sub-
20 ject to section 717.".
21 SEC. 7. EXPANSION OF RIGHT TO CHALLENGE DISCRIMINATORY
22
SENIORITY SYSTEMS.
23
Section 706(e) of the Civil Rights Act of 1964 (42
24 U.S.C. 2000e-5(e)) is amended-
05/31/91 17:48
SEN. DANFORTH
010
ALD91.237
S.L.C.
10
1
(1) by inserting "(1)" before "A charge under
2
this section"; and
3
(2) by adding at the end the following new
4
paragraph:
5
"(2) For purposes of this section, an alleged unlawful
6 employment practice occurs-
7
"(A) when a seniority system is adopted, when
8
an individual becomes subject to a seniority system,
9
or when a person aggrieved is injured by the applica-
10
tion of a seniority system or provision of the system;
11
and
12
"(B) if the system is alleged to have been
13
adopted for an intentionally discriminatory purpose,
14
in violation of this title, whether or not that discrimi-
15
natory purpose is apparent on the face of the seniori-
16
ty provision.".
17 SEC. 8. AUTHORIZING AWARD OF EXPERT FEES.
18
Section 706(k) of the Civil Rights Act of 1964 (42
19 U.S.C. 2000e-5(k)) is amended by inserting "(including
20 expert fees)" after "attorney's fee".
21 SEC. 9. PROVIDING FOR INTEREST AND EXTENDING THE STATUTE
22
OF LIMITATIONS IN ACTIONS AGAINST THE FEDER-
23
AL GOVERNMENT.
24
Section 717 of the Civil Rights Act of 1964 (42
25 U.S.C. 2000e-16) is amended—
05/31/91
17:49
SEN. DANFORTH
011
ALD91.237
S.L.C.
11
1
(1) in subsection (c), by striking "thirty days"
2
and inserting "90 days"; and
3
(2) in subsection (d), by inserting before the
4
period and the same interest to compensate for
5
delay in payment shall be available as in cases in-
6
volving nonpublic parties."
7 SEC. 10. NOTICE OF LIMITATIONS PERIOD UNDER THE AGE DIS-
8
CRIMINATION IN EMPLOYMENT ACT OF 1967.
9
Section 7(e)(2) of the Age Discrimination in Employ-
10 ment Act of 1967 (29 U.S.C. 626(e)(2)) is amended to read
11 as follows:
12
"(2) If a charge filed with the Commission is dis-
13 missed or the proceedings of the Commission are other-
14 wise terminated by the Commission, the Commission shall
15 notify the individual referred to in subsection (d). The indi-
16 vidual may bring an action against the respondent named
17 in the charge not earlier than 60 days after the date on
18 which the charge was timely filed and not later than 90
19 days after the date of the receipt of the notice."
20 SEC. 11. COVERAGE OF CONGRESS AND THE AGENCIES OF THE
21
LEGISLATIVE BRANCH.
22
(a) COVERAGE OF THE SENATE.-
23
(1) APPLICATION TO SENATE EMPLOYMENT.-The
24
rights and protections provided pursuant to section
25
1977 of the Revised Statutes (42 U.S.C. 1981), this
31/91
17:49
SEN. DANFORTH
012
ALD91.237
S.L.C.
12
1
Act, and the amendments made by this Act shall,
2
subject to paragraphs (2) through (5), apply with re-
3
spect to any employee in an employment position in
4
the Senate and any employing authority of the
5
Senate.
6
(2) INVESTIGATION AND ADJUDICATION OF
7
CLAIMS.-All claims raised by any individual with
8
respect to Senate employment pursuant to the provi-
9
sions described in paragraph (1) shall be investigated
10
and adjudicated by the Select Committee on Ethics,
11
pursuant to S. Res. 338, 88th Congress, as amended,
12
or such other entity as the Senate may designate.
13
(3) RIGHTS OF EMPLOYEES.-The Committee on
14
Rules and Administration shall ensure that Senate
15
employees are informed of their rights under the pro-
16
visions described in paragraph (1).
17
(4) APPLICABLE REMEDIES.-When assigning
18
remedies to individuals found to have a valid claim
19
under the provisions described in paragraph (1), the
20
Select Committee on Ethics, or such other entity as
21
the Senate may designate, shall to the extent practi-
22
cable apply the same remedies applicable to all other
23
employees covered by the provisions described in
24
paragraph (1). Such remedies shall apply exclusively.
31/91
17:50
SEN. DANFORTH
ALD91.237
S.L.C.
13
1
(5) EXERCISE OF RULEMAKING POWER.-Notwith-
2
standing any other provision of law, enforcement and
3
adjudication of the rights and protections referred to
4
in paragraph (1) shall be within the exclusive juris-
5
diction of the United States Senate. The provisions
6
of paragraphs (2), (3), and (4) are enacted by the
7
Senate as an exercise of the rulemaking power of the
8
Senate, with full recognition of the right of the
9
Senate to change its rules, in the same manner, and
10
to the same extent, as in the case of any other rule
11
of the Senate.
12
(b) COVERAGE OF THE HOUSE OF REPRESENTATIVES.-
13
(1) IN GENERAL.-Notwithstanding any other
14
provision of law, the purposes of this Act shall, sub-
15
ject to paragraph (2), apply with respect to any em-
16
ployee in an employment position in the House of
17
Representatives and any employing authority of the
18
House of Representatives.
19
(2) EMPLOYMENT IN THE HOUSE.-
20
(A) APPLICATION.-The rights and protec-
21
tions under title VII of the Civil Rights Act of
22
1964 (42 U.S.C. 2000e et seq.), the Age Dis-
23
crimination in Employment Act of 1967 (42
24
U.S.C. 621 et seq.), section 1977 of the Revised
25
Statutes, this Act, and the amendments made by
05/31/91
17:51
SEN DANFORTH
014
ALD91.237
S.L.C.
14
1
this Act shall, subject to subparagraph (B),
2
apply with respect to any employee in an em-
3
ployment position in the House of Representa-
4
tives and any employing authority of the House
5
of Representatives.
6
(B) ADMINISTRATION.-
7
(i) IN GENERAL.-In the administration
8
of this paragraph, the remedies and proce-
9
dures made applicable pursuant to the reso-
10
lution described in clause (ii) shall apply
11
exclusively.
12
(ii) RESOLUTION.-The resolution re-
13
ferred to in clause (i) is House Resolution
14
15 of the One Hundred First Congress, as
15
agreed to January 3, 1989, or any other
16
provision that continues in effect the provi-
17
sions of, or is a successor to, the Fair Em-
18
ployment Practices Resolution (House Res-
19
olution 558 of the One Hundredth Con-
20
gress, as agreed to October 4, 1988).
21
(C) EXERCISE OF RULEMAKING POWER.-The
22
provisions of subparagraph (B) are enacted by
23
the House of Representatives as an exercise of
24
the rulemaking power of the House of Repre-
25
sentatives, with full recognition of the right of
5/31/91
17:51
SEN.DANFORTH
015
ALD91.237
S.L.C.
15
1
the House to change its rules, in the same
2
manner, and to the same extent as in the case of
3
any other rule of the House.
4
(c) INSTRUMENTALITIES OF CONGRESS.-
5
(1) IN GENERAL.-The rights and protections
6
under title VII of the Civil Rights Act of 1964, the
7
Age Discrimination in Employment Act of 1967,
8
section 1977 of the Revised Statutes, this Act, and
9
the amendments made by this Act, shall, subject to
10
paragraphs (2) and (5), apply with respect to any
11
employee in an employment position in an instru-
12
mentality of the Congress and any chief official of
13
such an instrumentality.
14
(2) ESTABLISHMENT OF REMEDIES AND PROCE-
15
DURES BY INSTRUMENTALITIES.-The chief official of
16
each instrumentality of the Congress shall establish
17
remedies and procedures to be utilized with respect
18
to the rights and protections provided pursuant to
19
paragraph (1). Such remedies and procedures shall
20
apply exclusively.
21
(3) REPORT TO CONGRESS.-The chief official of
22
each instrumentality of the Congress shall, after es-
23
tablishing remedies and procedures for purposes of
24
paragraph (2), submit to the Congress a report de-
25
scribing the remedies and procedures.
52
SEN. DANFORTH
016
ALD91.237
S.L.C.
16
1
(4) DEFINITION OF INSTRUMENTALITIES.-For pur-
2
poses of this section, instrumentalities of the Con-
3
gress include the Architect of the Capitol, the Con-
4
gressional Budget Office, the General Accounting
5
Office, the Government Printing Office, the Office
6
of Technology Assessment, and the United States
7
Botanic Garden.
8
(5) CONSTRUCTION.-Nothing in this section
9
shall alter the enforcement procedures for individuals
10
protected under section 717 of the Civil Rights Act
11
of 1964 (42 U.S.C. 2000e-16) or section 15 of the
12
Age Discrimination in Employment Act of 1967 (42
13
U.S.C. 633a).
14 SEC. 12. ALTERNATIVE MEANS OF DISPUTE RESOLUTION.
15
Where appropriate and to the extent authorized by
16 law, the use of alternative means of dispute resolution, in-
17 cluding settlement negotiations, conciliation, facilitation,
18 mediation, factfinding, mini-trials, and arbitration, is en-
19 couraged to resolve disputes arising under the Acts amend-
20 ed by this Act.
21 SEC. 13. EFFECTIVE DATE.
22
(a) IN GENERAL-Except as provided in subsection
23 (b), this Act and the amendments made by this Act shall
24 take effect upon enactment.
017
SEN. DANFORTH
05/31/91
17:52
ALD91.237
S.L.C.
17
I
(b) CHALLENGES TO EMPLOYMENT PRACTICES IMPLE-
2 MENTING LITIGATED OR CONSENT JUDGMENTS OR ORDERS.-
3 The amendments made by section 5 shall apply to all pro-
4 ceedings pending on or commenced after June 12, 1989.
5 SEC. 14. SEVERABILITY.
6
If any provision of this Act, or an amendment made
7 by this Act, or the application of such provision to any
8 person or circumstances is held to be invalid, the remain-
9 der of this Act and the amendments made by this Act, and
10 the application of such provision to other persons and cir-
11 cumstances, shall not be affected.
05/31/91
17:53
SEN. DANFORTH
018
ALD91.264
S.L.C.
102D CONGRESS
1ST SESSION
S.
IN THE SENATE OF THE UNITED STATES
Mr.
introduced the following bill; which was read twice and re-
ferred to the Committee on
A
BILL
To provide for damages in cases of intentional employment
discrimination, and for other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assem-
3 bled,
4 SECTION 1. SHORT TITLE.
5
This Act may be cited as the "Civil Rights and Rem-
6 edies Act of 1991".
7
SEC. 2. FINDING AND PURPOSE.
8
(a) FINDING.-Congress finds that additional remedies
9 under Federal law are needed to deter unlawful harassment
10 and intentional discrimination in the workplace.
05/31/91 17:53
SEN. DANFORTH
019
ALD91.264
S.L.C.
2
1
(b) PURPOSE.-The purpose of this Act is to provide
2 appropriate remedies for intentional discrimination and un-
3 lawful harassment in the workplace.
4 SEC. 3. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION IN
5
EMPLOYMENT.
6
The Revised Statutes are amended by inserting after
7 section 1977 the following new section:
8 "SEC. 1977A. DAMAGES IN CASES OF INTENTIONAL DISCRIMINA-
9
TION IN EMPLOYMENT.
10
"(a) RIGHT OF RECOVERY.-
11
"(1) CIVIL RIGHTS.-In an action brought by a
12
complaining party under section 706 of the Civil
13
Rights Act of 1964 (42 U.S.C. 2000e-5(e)) against a
14
respondent who intentionally engaged in an unlawful
15
employment practice prohibited under section 703 of
16
the Act (42 U.S.C. 2000e-2) and engaged in the
17
practice on the basis of the religion, sex, or national
18
origin of an individual, the complaining party-
19
"(A) may recover the compensatory dam-
20
ages described in subsection (b), in addition to
21
any relief authorized by section 706(g) of the
22
Civil Rights Act of 1964, from the respondent;
23
and
05/31/91
17:54
SEN. DANFORTH
020
ALD91.264
S.L.C.
3
1
"(B) may request that a court impose the
2
equitable civil penalty described in subsection
3
(c) against the respondent.
4
"(2) DISABILITY.-In an action brought by a
5
complaining party under the powers, remedies, and
6
procedures set forth in section 706 of the Civil
7
Rights Act of 1964 (as provided in section 107(a) of
8
the Americans with Disabilities Act of 1990 (42
9
U.S.C. 12117(a))) against a respondent who inten-
10
tionally engaged in a practice that constitutes dis-
11
crimination under section 102 of the Act (42 U.S.C.
12
12112), other than discrimination described in para-
13
graph (3)(A) or (6) of subsection (b) of the section,
14
against an individual, the complaining party-
15
"(A) may recover the compensatory dam-
16
ages described in subsection (b), in addition to
17
any relief authorized by section 706(g) of the
18
Civil Rights Act of 1964, from the respondent;
19
and
20
"(B) may request that a court impose the
21
equitable civil penalty described in subsection
22
(c) against the respondent.
23
"(3) NOTICE.--A complaining party who re-
24
quests that a court impose an equitable civil penalty
25
under subsection (c) shall provide notice of the re-
05/31/91
17:54
SEN. DANFORTH
021
ALD91.264
S.L.C.
4
1
quest to the Chairman of the Equal Employment Op-
2
portunity Commission and the Secretary of Health
3
and Human Services.
4
"(b) COMPENSATORY DAMAGES.-
5
"(1) DETERMINATION-A complaining party
6
may recover compensatory damages under subsec-
7
tion (a) if it is determined that the complaining party
8
has demonstrated the existence of injury requiring
9
compensation by clear and convincing evidence.
10
"(2) EXCLUSIONS-Compensatory damages
11
awarded under this section shall not include back
12
pay, interest on back pay, or any other type of relief
13
authorized under section 706(g) of the Civil Rights
14
Act of 1964.
15
"(3) LIMITATIONS.-The amount of compensato-
16
ry damages awarded under this section against a re-
17
spondent who is not a government, government
18
agency, or political subdivision, for emotional pain,
19
suffering, inconvenience, mental anguish, loss of en-
20
joyment of life, and other nonpecuniary losses shall
21
not exceed—
22
"(A) in the case of a respondent who has
23
more than 100 employees in each of 20 or more
24
calendar weeks in the current or preceding cal-
25
endar year, $150,000; and
05/31/91
17:55
SEN. DANFORTH
022
ALD91.264
S.L.C.
5
1
"(B) in the case of a respondent not de-
2
scribed in subparagraph (A), $50,000.
3
"(4) PREJUDGMENT INTEREST.-The court de-
4
scribed in paragraph (1) shall not award prejudgment
5
interest to a complaining party on compensatory
6
damages awarded under this section in an action in
7
which the aggrieved individual is an employee or ap-
8
plicant for employment described in section 717(a)
9
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
10
16(a)).
11
"(c) EQUITABLE PENALTY.-
12
"(1) DETERMINATION.-
13
"(A) IN GENERAL.-A court shall impose
14
an equitable civil penalty on a respondent under
15
subsection (a) if the court finds that-
16
"(i) the respondent engaged in a dis-
17
criminatory practice with malice or with
18
reckless indifference to the federally pro-
19
tected rights of an aggrieved individual;
20
and
21
"(ii) the penalty is necessary to deter
22
the respondent from engaging in such a
23
practice again.
24
"(B) AMOUNT.-The court shall impose an
25
equitable civil penalty sufficient to deter the re-
05/31/91 17:56
SEN. DANFORTH
4.
023
ALD91.264
S.L.C.
6
1
spondent from engaging in a discriminatory
2
practice.
3
"(2) EQUITABLE CONSIDERATIONS.-In making
4
the finding described in paragraph (1)(A), a court
5
may consider-
6
"(A) the nature of the discriminatory prac-
7
tice that is the subject of the action described in
8
subsection (a);
9
"(B) the efforts of the respondent to in-
10
struct the managers, supervisors, and employees
11
of the respondent about legal requirements re-
12
garding employment discrimination;
13
"(C) the nature of compliance programs, if
14
any, established by the respondent to ensure that
15
discriminatory practices do not occur in the
16
workplace;
17
"(D) any lawful affirmative action under-
18
taken by the respondent with respect to the
19
group injured by the discriminatory practice that
20
is the subject of the action described in subsec-
21
tion (a);
22
"(E) the availability to the aggrieved indi-
23
vidual of an internal grievance procedure or re-
24
mediation policy established by the respondent;
05/31/91
17:56
SEN.DANFORTH
024
ALD91.264
S.L.C.
7
1
"(F) whether the respondent made a
2
prompt investigation of the discriminatory prac-
3
tice;
-
4
"(G) the efforts of the respondent to cor-
5
rect the discriminatory practice; and
6
"(H) the size of the respondent and the
7
effect of the equitable civil penalty on the eco-
8
nomic viability of the respondent.
9
"(3) LIMITATIONS.-The amount of an equitable
10
civil penalty imposed under subsection (a) shall not
11
exceed—
12
"(A) in the case of a respondent who has
13
more than 100 employees in each of 20 or more
14
calendar weeks in the current or preceding cal-
15
endar year, $150,000; and
16
"(B) in the case of a respondent not de-
17
scribed in subparagraph (A), $50,000.
18
"(4) RECOVERY OF COSTS.-
19
"(A) AWARD OF FEES.-If a court imposes
20
an equitable civil penalty in a case brought
21
under this section, the court shall award reason-
22
able attorney's and expert witness fees incurred
23
by the complaining party in seeking the penalty.
24
"(B) RELATIONSHIP TO PENALTY.-The
25
court shall not subtract the amount of the fees
05/31/91
17:57
SEN. DANFORTH
025
ALD91.264
S.L.C.
8
1
described in subparagraph (A) from the amount
2
of the equitable civil penalty imposed against a
3
respondent under this section.
4
"(5) APPLICATION OF PROCEEDS OF PENALTY.-
5
"(A) CORRECTION OF DISCRIMINATORY
6
PRACTICES.-If a court determines, in the discre-
7
tion of the court, that an equitable civil penalty
8
imposed under this section is needed to correct
9
discriminatory practices at the place of employ-
10
ment, or in the community, in which the dis-
11
criminatory practice described in subsection (a)
12
occurred, the penalty shall be expended all or in
13
part, as directed by the court, to correct the dis-
14
criminatory practices. The penalty may be ex-
15
pended to undertake actions such as public
or education
16
awareness^programs regarding discrimination on
17
the basis of race, color, religion, sex, or national
18
origin, in order to eliminate future discrimina-
19
tion.
20
"(B) TRUST FUND.-
21
"(i) FULL PAYMENT.-If a court does
22
not make the determination described in
23
subparagraph (A), the penalty shall be de-
24
posited in the Equal Employment Enforce-
25
ment Trust Fund, established in section
05/31/91
17:57
SEN. DANFORTH
026
ALD91.264
S.L.C.
9
1
9511 of the Internal Revenue Code of
2
1986.
3
"(ii) PAYMENT IN PART.-If a court di-
4
rects that part of the penalty shall be ex-
5
pended as described in subparagraph (A),
6
the remainder of the penalty shall be de-
7
posited in the Fund.
8
"(C) DETERMINATION.-In making the de-
9
termination described in subparagraph (A), the
10
court may consider-
11
"(i) antidiscrimination and antiharass-
12
ment policies and procedures established
13
by the respondent, prior to the practice that
14
is the subject of the action described in
15
subsection (a), to ensure that discriminatory
16
practices would not occur;
17
"(ii) corrective actions taken by the
18
respondent on becoming aware of a claim
19
that a discriminatory practice had occurred;
20
and
21
"(iii) policies and procedures estab-
22
lished by the respondent after the claim to
23
ensure that discriminatory practices do not
24
occur again.
25
"(d) JURY TRIAL.-
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1
"(1) IN GENERAL.-If a complaining party seeks
2
compensatory damages under this section, any party
3
may demand a trial by jury.
4
"(2) DETERMINATIONS.-If a party requests a
5
trial by jury in an action brought under this sec-
6
tion-
7
"(A) the jury shall determine all factual
8
issues related to liability; and
9
"(B) if the determination described in sub-
10
section (b)(1) is made-
11
"(i) the jury shall determine the
12
amount of compensatory damages awarded
13
to the complaining party; and
14
"(ii) the court shall not inform the
15
jury of the limitations described in subsec-
16
tion (b)(3).
17
"(e) DEFINITION.-As used in this section:
18
"(1) AGGRIEVED INDIVIDUAL.-The term 'ag-
19
grieved individual' means a person who has been
20
subjected to a discriminatory practice.
21
"(2) COMPLAINING PARTY.-The term 'com-
22
plaining party' means--
23
"(A) in the case of a person seeking to
24
bring an action under subsection (a)(1), a person
25
who may bring an action or proceeding under
05/31/91
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028
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11
1
title VII of the Civil Rights Act of 1964 (42
2
U.S.C. 2000e et seq.); or
3
"(B) in the case of a person seeking to
4
bring an action under subsection (a)(2), a person
5
who may bring an action or proceeding under
6
title I of the Americans with Disabilities Act of
7
1990 (42 U.S.C. 12101 et seq.).
8
"(3) DISCRIMINATORY PRACTICE.-The term 'dis-
9
criminatory practice' means a practice described in
10
paragraph (1) or (2) of subsection (a).".
11 SEC. 4. EQUAL EMPLOYMENT ENFORCEMENT TRUST FUND.
12
(a) ESTABLISHMENT-Subchapter A of chapter 98 of
13 the Internal Revenue Code of 1986 (relating to trust fund
14 code) is amended by adding at the end the following new
15 section:
16 "SEC. 9511. EQUAL EMPLOYMENT ENFORCEMENT TRUST FUND.
17
"(a) CREATION OF FUND.-There is established in the
18 Treasury of the United States a fund to be known as the
19 Equal Employment Enforcement Trust Fund (referred to in
20 this section as the 'Fund'), consisting of such amounts as
21 may be appropriated or credited to the Fund as provided in
22 this section.
23
"(b) TRANSFERS TO FUND.-There are appropriated to
24 the Fund amounts equivalent to the additional revenues re-
25 ceived in the Treasury as the result of the amendments
05/31/91
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12
1 made by section 3 of the Civil Rights and Remedies Act of
2 1991.
3
"(c) EXPENDITURES.-
4
"(1) PURPOSES.-
5
"(A) CIVIL RIGHTS ENFORCEMENT.-Fifty
6
percent of the amounts in the Fund shall be
7
available, to the extent provided in appropria-
8
tion Acts, for the purposes of making expendi-
9
tures to carry out section 706 of the Civil
10
Rights Act of 1964 (42 U.S.C. 2000e-5).
11
"(B) FAMILY VIOLENCE PROTECTION.-Fifty
12
percent of the amounts in the Fund shall be
13
available, to the extent provided in appropria-
14
tion Acts, for the purposes of making expendi-
15
tures to carry out section 303 of the Family Vi-
16
olence Prevention and Services Act (42 U.S.C.
17
10402).
18
"(2) PAYMENTS BASED ON ESTIMATES.-Pay-
19
ments under paragraph (1) shall be made on the
20
basis of estimates by the Secretary of the Treasury.
21
Proper adjustments shall be made in amounts subse-
22
quently transferred to the extent prior estimates were
23
in excess of or less than the amounts required to be
24
transferred.".
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13
1
(b) CONFORMING AMENDMENT-Subchapter A of
2 chapter 98 of the Internal Revenue Code of 1986 is amend-
3 ed in the table of sections by adding at the end the follow-
4 ing new item:
"Sec. 9511. Equal Employment Enforcement Trust Fund.'
5 SEC. 5. COVERAGE OF CONGRESS AND THE AGENCIES OF THE
6
LEGISLATIVE BRANCH.
7
(a) COVERAGE OF THE SENATE.-
8
(1) APPLICATION TO SENATE EMPLOYMENT.-The
9
rights and protections provided pursuant to the
10
amendment made by this Act shall, subject to para-
11-
graphs (2) through (5), apply with respect to any em-
12
ployee in an employment position in the Senate and
13
any employing authority of the Senate.
14
(2) INVESTIGATION AND ADJUDICATION OF
15
CLAIMS.-All claims raised by any individual with
16
respect to Senate employment pursuant to the provi-
17
sions described in paragraph (1) shall be investigated
18
and adjudicated by the Select Committee on Ethics,
19
pursuant to S. Res. 338, 88th Congress, as amended,
20
or such other entity as the Senate may designate.
21
(3) RIGHTS OF EMPLOYEES.-The Committee on
22
Rules and Administration shall ensure that Senate
23
employees are informed of their rights under the pro-
24
visions described in paragraph (1).
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14
1
(4) APPLICABLE REMEDIES.-When assigning
2
remedies to individuals found to have a valid claim
3
under the provisions described in paragraph (1), the
4
Select Committee on Ethics, or such other entity as
5
the Senate may designate, shall to the extent practi-
6
cable apply the same remedies applicable to all other
7
employees covered by the provisions described in
8
paragraph (1). Such remedies shall apply exclusively.
9
(5) EXERCISE OF RULEMAKING POWER.-Notwith-
10
standing any other provision of law, enforcement and
11
adjudication of the rights and protections referred to
12
in paragraph (1) shall be within the exclusive juris-
13
diction of the United States Senate. The provisions
14
of paragraphs (2), (3), and (4) are enacted by the
15
Senate as an exercise of the rulemaking power of the
16
Senate, with full recognition of the right of the
17
Senate to change its rules, in the same manner, and
18
to the same extent, as in the case of any other rule
19
of the Senate.
20
(b) COVERAGE OF THE HOUSE OF REPRESENTATIVES.-
21
(1) IN GENERAL.-Notwithstanding any other
22
provision of law, the purposes of this Act shall, sub-
23
ject to paragraph (2), apply with respect to any em-
24
ployee in an employment position in the House of
05/31/91 18:01
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032
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15
1
Representatives and any employing authority of the
2
House of Representatives.
3
(2) EMPLOYMENT IN THE HOUSE.-
-
4
(A) APPLICATION.-The rights and protec-
5
tions under the amendment made by this Act
6
shall, subject to subparagraph (B), apply with
7
respect to any employee in an employment po-
8
sition in the House of Representatives and any
9
employing authority of the House of Represent-
10
atives.
11
(B) ADMINISTRATION.-
12
(i) IN GENERAL.-In the administration
13
of this paragraph, the remedies and proce-
14
dures made applicable pursuant to the reso-
15
lution described in clause (ii) shall apply
16
exclusively.
17
(ii) RESOLUTION.-The resolution re-
18
ferred to in clause (i) is House Resolution
19
15 of the One Hundred First Congress, as
20
agreed to January 3, 1989, or any other
21
provision that continues in effect the provi-
22
sions of, or is a successor to, the Fair Em-
23
ployment Practices Resolution (House Res-
24
olution 558 of the One Hundredth Con-
25
gress, as agreed to October 4, 1988).
05/31/91
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16
1
(C) EXERCISE OF RULEMAKING POWER.-The
2
provisions of subparagraph (B) are enacted by
3
the House of Representatives as an exercise of
4
the rulemaking power of the House of Repre-
5
sentatives, with full recognition of the right of
6
the House to change its rules, in the same
7
manner, and to the same extent as in the case of
8
any other rule of the House.
9
(c) INSTRUMENTALITIES OF CONGRESS.-
10
(1) IN GENERAL.-The rights and protections
11
under the amendment made by this Act, shall, sub-
12
ject to paragraph (2), apply with respect to any em-
13
ployee in an employment position in an instrumen-
14
tality of the Congress and any chief official of such
15
an instrumentality.
16
(2) ESTABLISHMENT OF REMEDIES AND PROCE-
17
DURES BY INSTRUMENTALITIES-The chief official of
18
each instrumentality of the Congress shall establish
19
remedies and procedures to be utilized with respect
20
to the rights and protections provided pursuant to
21
paragraph (1). Such remedies and procedures shall
22
apply exclusively.
23
(3) REPORT TO CONGRESS.-The chief official of
24
each instrumentality of the Congress shall, after es-
25
tablishing remedies and procedures for purposes of
05/31/91
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17
1
paragraph (2), submit to the Congress a report de-
2
scribing the remedies and procedures.
3
(4) DEFINITION OF INSTRUMENTALITIES.-For pur-
4
poses of this section, instrumentalities of the Con-
5
gress include the Architect of the Capitol, the Con-
6
gressional Budget Office, the General Accounting
7
Office, the Government Printing Office, the Office
8
of Technology Assessment, and the United States
9
Botanic Garden.
10 SEC. 6. SEVERABILITY.
11
If any provision of this Act, or an amendment made
12 by this Act, or the application of such provision to any
13 person or circumstances is held to be invalid, the remain-
14 der of this Act and the amendments made by this Act, and
15 the application of such provision to other persons and cir-
16 cumstances, shall not be affected.
Will get Complete
Copy ON MONDAY.
Document Orig
Attached to
Following Party
05/31/91
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102D CONGRESS
1ST SESSION
S.
IN THE SENATE OF THE UNITED STATES
Mr.
introduced the following bill; which was read twice and referred
to the Committee on
A
BILL
To amend the Civil Rights Act of 1964 to clarify provisions
regarding disparate impact actions, and for other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assem-
3 bled,
4 SECTION 1. SHORT TITLE.
5
This Act may be cited as the "Equal Employment
6 Opportunity Act of 1991".
7 SEC. 2. FINDING AND PURPOSES.
8
(a) FINDING.-Congress finds that the decision of the
9 Supreme Court in Wards Cove Packing Co. v. Atonio, 109
10 S. Ct. 2115 (1989) has weakened the scope and effective-
11 ness of Federal civil rights protections.
05/31/91
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2
1
(b) PURPOSES.-The purposes of this Act are-
2
(1) to overrule the treatment of business neces-
3
sity as a defense in Wards Cove Packing Co. v.
4
Atonio and to codify the meaning of business neces-
5
sity used in Griggs V. Duke Power Co., 401 U.S. 424
6
(1971); and
7
(2) to provide statutory authority and guidelines
8
for the adjudication of disparate impact suits under
9
title VII of the Civil Rights Act of 1964 (42 U.S.C.
10
2000e et seq.).
11 SEC. 3. BURDEN OF PROOF IN DISPARATE IMPACT CASES.
12
(a) IN GENERAL.-Section 703 of the Civil Rights Act
13 of 1964 (42 U.S.C. 2000e-2) is amended by adding at the
14 end the following new subsection:
15
"(k)(1)(A) An unlawful employment practice based
16 on disparate impact is established under this title only if-
17
"(i) a complaining party demonstrates that a
18
particular employment practice or group of employ-
19
ment practices results in a disparate impact on the
20
basis of race, color, religion, sex, or national origin;
21
and
22
"(ii)(I) the respondent fails to demonstrate that
23
the practice or group of practices is required by busi-
24
ness necessity; or
05/31/91 17:32
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1
005
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S.L.C.
3
1
"(II) the complaining party makes the demon-
2
stration described in subparagraph (C) with respect
3
to a different employment practice or group of em-
4
ployment practices.
5
"(B) (i) With respect to an unlawful employment
6 practice based on disparate impact, the complaining
7 party shall identify with particularity the employment
8 practice(s) that are responsible in whole or in significant
9 part for the disparate impact, except that if the complain-
10 ing party can demonstrate to the court, after discovery, that
11 the elements of a decisionmaking process are not capable of
12 separation for analysis, the group of employment practices as
13 a whole may be analyzed as one employment practice.
14
"(ii) If the elements of a decisionmaking process are
15 capable of separation for analysis, the complaining party
16 must identify each element with particularity, and the re-
17 spondent must demonstrate that the element or elements
18 identified that are responsible in whole or in significant
19 part for the disparate impact are required by business ne-
20 cessity. If the respondent demonstrates that a specific em-
21 ployment practice within a group of employment practices
22 is not responsible in whole or in significant part for the
23 disparate impact, the respondent shall not be required to
05/31/91 17:33
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4
006
BAI91.355
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4
1 demonstrate that such practice is required by business ne-
2 cessity.
3
"(C) An employment practice or group of employ-
4 ment practices responsible in whole or in significant part
5 for a disparate impact that is demonstrated to be required
6 by business necessity shall be lawful unless the complain-
7 ing party demonstrates that a different available employ-
8 ment practice or group of employment practices, which
9 would have less disparate impact and make a difference in
10 the disparate impact that is more than merely negligible,
11 would serve the respondent as well.
12
"(2) In deciding whether a respondent has met the
13 standards described in paragraph (1) for business necessity,
14 the court may receive evidence as permitted by the Federal
15 Rules of Evidence, and the court shall give such weight, if
16 any, to the evidence as is appropriate.
17
"(3) A demonstration that an employment practice or
18 group of employment practices is required by business ne-
19 cessity may be used as a defense only against a claim
20 under this subsection.
21
"(4) Notwithstanding any other provision of this title,
22 a rule barring the employment of an individual who cur-
23 rently and knowingly uses or possesses an illegal drug as
24 defined in schedules I and II of section 102(6) of the Con-
25 trolled Substances Act (21 U.S.C. 802(6)), other than the
05/31/91
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5
1 use or possession of a drug taken under the supervision of
2 a licensed health care professional, or any other use or pos-
3 session authorized by the Controlled Substances Act or
4 any other provision of Federal law, shall be considered an
5 unlawful employment practice under this title only if such
6 rule is adopted or applied with an intent to discriminate
7 because of race, color, religion, sex, or national origin.
8
"(5) The mere existence of a statistical imbalance in
9 the work force of an employer on account of race, color,
10 religion, sex, or national origin is not alone sufficient to
11 establish a prima facie case of disparate impact violation.
12
"(6) For purposes of this subsection, a respondent
13 may rely on relative qualifications or skills, as determined
14 by relative performance or degrees of success, of an em-
15 ployee or applicant for employment on a selection factor,
16 criterion or procedure, except that if such reliance results
17 in a disparate impact based on race, color, religion, sex, or
18 national origin, such reliance shall be demonstrated by the
19 respondent to be required by business necessity.".
20
(b) CONSTRUCTION.-Nothing in the amendment made
21 by subsection (a) shall be construed to overrule any exist-
22 ing case concerning whether recovery is available under
23 title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e
24 et seq.) under a comparable worth theory.
05/31/91
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6
1 SEC. 4. PROHIBITION AGAINST THE DISCRIMINATORY USE OF
2
TEST SCORES.
3
Section 703 of the Civil Rights Act of 1964 (42
4 U.S.C. 2000e-2) (as amended by section 3) is further
5 amended by adding at the end the following new subsec-
6 tion:
7
"(1)(1) It shall be an unlawful employment practice
8 for a respondent, in connection with the selection or refer-
9 ral of applicants or candidates for employment or promo-
10 tion, to adjust the scores of, use different cutoff scores for,
11 or otherwise alter the results of, employment-related tests
12 on the basis of race, color, religion, sex, or national origin.
13
"(2) Paragraph (1) shall not apply to a respondent
14 seeking to comply with a court order aimed at remedying
15 past discrimination.".
16 SEC. 5. DEFINITIONS.
17
(a) IN GENERAL.-Section 701 of the Civil Rights Act
18 of 1964 (42 U.S.C. 2000e) is amended by adding at the
19 end the following new subsections:
20
"(1) The term 'complaining party' means the Com-
21 mission, the Attorney General, or a person who may bring
22 an action or proceeding under this title.
23
"(m) The term demonstrates' means meets the bur-
24 dens of production and persuasion.
25
"(n) The term 'group of employment practices'
26 means a combination of distinct employment practices in
05/31/91
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S.L.C.
7
1 which each practice is responsible in whole or in signifi-
2 cant part for an employment decision.
3
"(o) The term 'required by business necessity'
4 means-
5
"(1) in the case of employment practices in-
6
volving selection, that the practice or group of prac-
7
tices bears a manifest relationship to requirements
8
for effective job performance; and
9
"(2) in the case of other employment decisions
10
not involving employment selection practices as de-
11
scribed in paragraph (1), the practice or group of
12
practices bears a manifest relationship to a legitimate
13
business objective of the employer.
14
"(p) The term "requirements for effective job per-
15 formance' includes-
16
"(1) the ability to perform competently the
17
actual work activities lawfully required by the em-
18
ployer for an employment position; and
19
"(2) any other lawful requirement that is impor-
20
tant to the performance of the job, including factors
21
such as punctuality, attendance, a willingness to
22
avoid engaging in misconduct or insubordination, not
23
having a work history demonstrating unreasonable
24
job turnover, and not engaging in conduct or activity
05/31/91
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SEN. DANFORTH
[010
BA191.355
S.L.C.
8
1
that improperly interferes with the performance of
2.
work by others.
3
"(q) The term 'respondent' means an employer, em-
4- ployment agency, labor organization, joint labor-manage-
5 ment committee controlling apprenticeship or other train-
6 ing or retraining program, including an on-the-job training
T program, or Federal entity or head of a Federal entity sub-
8 ject to section 717.".
9
(b) INTERPRETATION-It is the intent of Congress in
10 enacting sections 701(o) and 703(k) of the Civil Rights
11 Act of 1964 (as added by subsection (a) of this section)
12 that the sections codify the meaning of business necessity
13 used in Griggs V. Duke Power Co., 401 U.S. 424 (1971)
14 and overrule the treatment of business necessity as a de-
15 fense in Wards Cove Packing Co. V. Atonio, 109 S. Ct.
16 2115 (1989), with respect to an employment practice or
17 group of employment practices.
18 SEC. 6. COVERAGE OF CONGRESS AND THE AGENCIES OF THE
19
LEGISLATIVE BRANCH.
20
(a) COVERAGE OF THE SENATE.-
21
(1) APPLICATION TO SENATE EMPLOYMENT.-The
22
rights and protections provided pursuant to the
23
amendments made by this Act shall, subject to para-
24
graphs (2) through (5), apply with respect to any em-
05/31/91
17:36
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9
1
ployee in an employment position in the Senate and
2
any employing authority of the Senate.
3
(2) INVESTIGATION AND ADJUDICATION OF
4
CLAIMS.-All claims raised by any individual with
5
respect to Senate employment pursuant to the provi-
6
sions described in paragraph (1) shall be investigated
7
and adjudicated by the Select Committee on Ethics,
8
pursuant to S. Res. 338, 88th Congress, as amended,
9
or such other entity as the Senate may designate.
10
(3) RIGHTS OF EMPLOYEES.-The Committee on
11
Rules and Administration shall ensure that Senate
12
employees are informed of their rights under the pro-
13
visions described in paragraph (1).
14
(4) APPLICABLE REMEDIES.-When assigning
15
remedies to individuals found to have a valid claim
16
under the provisions described in paragraph (1), the
17
Select Committee on Ethics, or such other entity as
18
the Senate may designate, shall to the extent practi-
19
cable apply the same remedies applicable to all other
20
employees covered by the provisions described in
21
paragraph (1). Such remedies shall apply exclusively.
22
(5) EXERCISE OF RULEMAKING POWER.-Notwith-
23
standing any other provision of law, enforcement and
24
adjudication of the rights and protections referred to
25
in paragraph (1) shall be within the exclusive juris-
05/31/91
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10
1
diction of the United States Senate. The provisions
2
of paragraphs (2), (3), and (4) are enacted by the
3
Senate as an exercise of the rulemaking power of the
4
Senate, with full recognition of the right of the
5
Senate to change its rules, in the same manner, and
6
to the same extent, as in the case of any other rule
7
of the Senate.
8
(b) COVERAGE OF THE HOUSE OF REPRESENTATIVES.-
9
(1) IN GENERAL-Notwithstanding any other
10
provision of law, the purposes of this Act shall, sub-
11
ject to paragraph (2), apply with respect to any em-
12
ployee in an employment position in the House of
13
Representatives and any employing authority of the
14
House of Representatives.
15
(2) EMPLOYMENT IN THE HOUSE.-
16
(A) APPLICATION.-The rights and protec-
17
tions under title VII of the Civil Rights Act of
18
1964 (42 U.S.C. 2000e et seq.) and the amend-
19
ments made by this Act shall, subject to sub-
20
paragraph (B), apply with respect to any em-
21
ployee in an employment position in the House
22
of Representatives and any employing authority
23
of the House of Representatives.
24
(B) ADMINISTRATION.-
05/31/91 17:37
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11
1
(i) IN GENERAL.-In the administration
2
of this paragraph, the remedies and proce-
3
dures made applicable pursuant to the reso-
4
lution described in clause (ii) shall apply
5
exclusively.
6
(ii) RESOLUTION.-The resolution re-
7
ferred to in clause (i) is House Resolution
8
15 of the One Hundred First Congress, as
9
agreed to January 3, 1989, or any other
10
provision that continues in effect the provi-
11
sions of, or is a successor to, the Fair Em-
12
ployment Practices Resolution (House Res-
13
olution 558 of the One Hundredth Con-
14
gress, as agreed to October 4, 1988).
15
(C) EXERCISE OF RULEMAKING POWER.-The
16
provisions of subparagraph (B) are enacted by
17
the House of Representatives as an exercise of
18
the rulemaking power of the House of Repre-
19
sentatives, with full recognition of the right of
20
the House to change its rules, in the same
21
manner, and to the same extent as in the case of
22
any other rule of the House.
23
(c) INSTRUMENTALITIES OF CONGRESS.-
24
(1) IN GENERAL.-The rights and protections
25
under title VII of the Civil Rights Act of 1964 and
05/31/91
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12
1
the amendments made by this Act shall, subject to
2
paragraphs (2) and (5), apply with respect to any
3
employee in an employment position in an instru-
4
mentality of the Congress and any chief official of
5
such an instrumentality.
6
(2) ESTABLISHMENT OF REMEDIES AND PROCE-
7
DURES BY INSTRUMENTALITIES-The chief official of
8
each instrumentality of the Congress shall establish
9
remedies and procedures to be utilized with respect
10
to the rights and protections provided pursuant to
11
paragraph (1). Such remedies and procedures shall
12
apply exclusively.
13
(3) REPORT TO CONGRESS.-The chief official of
14
each instrumentality of the Congress shall, after es-
15
tablishing remedies and procedures for purposes of
16
paragraph (2), submit to the Congress a report de-
17
scribing the remedies and procedures.
18
(4) DEFINITION OF INSTRUMENTALITIES.-For pur-
19
poses of this section, instrumentalities of the Con-
20
gress include the Congressional Budget Office, the
21
General Accounting Office, and the Office of Tech-
22
nology Assessment.
23
(5) CONSTRUCTION-Nothing in this section
24
shall alter the enforcement procedures for individuals
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
01. Memo
From Roger Porter to John Sununu
5/30/91
P/L,P/S
Re: Meeting with Hugh Reilly (1 pp.)
Collection:
Open on Expiration of PRA
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
(Document Follows)
By & (NLGB) on 10/28/05
Series:
Sununu, John, Files
Subseries:
Issues Files
WHORM Cat.:
File Location:
Civil Rights (1 of 2) 1991 [5]
Date Closed:
1/3/2005
OA/ID Number:
29146-003
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile
THE WHITE HOUSE
WASHINGTON
May 30, 1991
MEMORANDUM FOR GOVERNOR SUNUNU
RBP
has THE seen CHIEF of STAFF
FROM:
ROGER B. PORTER
SUBJECT:
Meeting with Hugh Reilly
of
On May 29, Marianne McGettigan and I met with Hugh Reilly
to discuss the Beck decision, decided in 1988. That case held
that persons who are not members of a union, may only be
compelled to pay dues to the union to pay for the negotiation
and enforcement of a collective bargaining agreement. Mr.
Reilly has been disappointed with the effort to enforce the
Beck decision, particularly on the part of the NLRB.
There are several recent developments related to that
case, however, that are encouraging to Mr. Reilly.
First, at the time of the meeting, the Supreme Court was
scheduled to decide the case of Lehnert V. Ferris Faculty
Association in the near future. The right outcome in that case
would go a long way toward remedying the problems identified by
Mr. Reilly. The decision was issued today and my office is in
the process of analyzing it.
Second, the counsel of the NLRB has finally brought a
complaint encompassing several cases against the International
Association of Machinists for noncompliance with the Beck case.
Those cases will be heard this summer and are expected to
completed by September. Mr. Reilly will keep us informed of
these and other developments.
These developments are encouraging in the short run. Mr.
Reilly believes that long term improvements in the situation,
however, can only be achieved through the appointment process.
A vacancy on the NLRB will open in August.
We discussed who would be a good candidate for that
position. Mr. Reilly's first choice appears to be Sharon
Prost, counsel to Senator Hatch on the Labor and Human
Resources Committee.
I share Mr. Reilly's enthusiasm for Sharon. We have
worked with her on several issues including the Betts
legislation, striker replacement, and parental leave. She is
bright, knows labor law as well as anyone on the Hill, and is
tenacious. She would bring a thorough knowledge of the issues
and a persuasive voice to the Board.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
02. Memo
From C. Boyden Gray to John Sununu
6/4/91
P/S
Re: New Danforth Civil Rights Bills (2 copies) (12) pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Series:
Sununu, John, Files
Open on Expiration of PRA
Subseries:
Issues Files
(Document Follows)
WHORM Cat.:
By If (NLGB) on 10/28/05
File Location:
Civil Rights (1 of 2) 1991 [5]
Date Closed:
1/3/2005
OA/ID Number:
29146-003
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would-constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile
THE WHITE HOUSE
WASHINGTON
THE CHIEF of STAFF
June 4, 1991
has seen
MEMORANDUM FOR GOVERNOR SUNUNU
FROM:
C. BOYDEN GRAY cmh
SUBJECT:
New Danforth Civil Rights Bills
Attached, pursuant to your request, is a preliminary Justice
Department memorandum evaluating the new civil rights proposal
that Senator Danforth is expected to introduce today. He has
cured a few of the problems in the Democrat bills, but his
proposal is fatally flawed, and it does not solve the quota
problem by any means. The Danforth proposal is divided into
three separate bills:
I.
Disparate Impact Bill
Like all the other Wards Cove provisions to which we have
objected, this thing is complicated and ambiguous.
The "group of practices" section is almost unintelligible,
although it is designed to look at first glance as though it
adopts the "Sununu-Kennedy compromise." It does not. In
fact, this section is enormously problematic and its effects
would almost certainly be virtually identical to the
unacceptable provisions in the Democrat bills.
The definition of business necessity is a strange blend of
H.R. 1 and the Brooks substitute, with some new curlicues.
It features the phony selection/non-selection bifurcation
from H.R. 1, along with new operative language ("manifest
relationship to requirements for effective job
performance"). This language is not the language of Griggs,
and I am not aware of any case in which it has appeared.
"Effective job performance" is defined narrowly, in a way
that excludes many legitimate business practices. Hiring
entry-level employees with the qualifications needed for
promotion to better positions later, for example, would not
be permitted.
The bill also contains extremely pernicious language
asserting that the disparate impact sections "codify the
meaning of business necessity" in Griggs and overrule the
business necessity defense in Wards Cove "with respect to an
employment practice or group of employment practices." This
guarantees enormous confusion in the courts, and in fact
ensures that the confused language in the bill will be
interpreted in a way that will promote quotas.
The bill contains several legally meaningless and
ineffective statements designed to create the impression
that quotas and preferences are disfavored. Some are drawn
from the Democrat bills, and at least one is new. Except
for a provision on race-norming, however, none of them
actually improves the bill or does anything to prevent the
bill from causing quotas.
In sum, this is clearly a quota bill, which contains no
significant improvements over H.R. 1 on the critical issues.
III. Remedies Bill
This bill allows compensatory damages for all intentional
discrimination under Title VII. Awards would be decided by
a jury, and the pain and suffering component of the award
(though not the pecuniary losses component) would be capped
at $50,000 for small businesses (up to 100 employees) and at
$150,000 for larger employers.
The bill also creates a new kind of civil penalty, which is
similar to punitive damages except that the money would go
to the Government instead of the victim; it would have the
same $50,000/$150,000 caps.
This bill is better than H.R. 1 because the caps are more
real (although they are still too high at $100,000/$300,000
plus pecuniary losses). Introducing juries into Title VII,
however, is a very serious flaw in the proposal, and there
is no apparent good reason to create new monetary awards
outside the harassment context.
II. "Miscellaneous" Bill
O
This bill includes several of the non-controversial
provisions included in the President's bill (Patterson,
Lorance, etc.).
The bill, however, also includes an inappropriate override
of Price Waterhouse and an unacceptable override of Martin
V. Wilks. The latter, which is almost the same as the
"compromise" negotiated by Senator Hatch last year, would
insulate many illegal quota schemes from legal challenge.
With the Martin V. Wilks provision included, this is a quota
bill.
Attachments
06/04/91
11:59
202 514 0293
JUSTICE AAG OPC
002
Senator Danforth has drafted three new bills, each of which
makes proposals regarding the issues raised by H.R. 1. As a
general matter, these bills are better than H.R. 1, but are still
critically defective and very inferior to the Administration's
bill.
Equal Employment Opportunity Act of 1991
This bill has two main features: it overturns Wards Cove,
and it contains an anti-quota provision.
The Wards Cove provisions would dispense with the require-
ment that a particular practice be identified as causing the
disparate impact. They would define "business necessity" as
"manifest relationship to requirements for effective job
performance" for "practices involving selection," and as
"manifest relationship to a legitimate business objective" for
non-selection practices.
The current Administration bill, of course, requires the
complainant always to identify the particular practice being
challenged. The particularity language in the Danforth bill
would allow complainants to challenge a practice or group of
practices. While it also contains language drawn in part from
the bill the Administration returned with the President's veto
last October, that language is apparently used to broaden the
definition of an individual practice rather than to narrow the
definition of a group of practices. Accordingly, the most
straightforward reading of the admittedly confusing language in
the bill would be to allow a blunderbuss attack on all the
employer's practices so long as all are listed in the complaint,
so that the limiting language from the earlier Administration
bill becomes meaningless.
The defects with the treatment of "business necessity" are
even more serious, and indeed the definition is essentially the
same as that in the bill the President vetoed. The Danforth bill
-- like H.R. 1 -- would preclude an employer from defending a
selection practice for any non-job performance reason. There-
fore, every business decision affecting employment must be based
on "effective job performance." Furthermore, the definition
again is different from the formulation in Griggs (which is
purportedly codified) : manifest relationship "to requirements
for effective job performance" is both different and stricter
than Griggs' manifest relationship "to the employment in
question. The bill also contains many of the same circular, and
therefore meaningless, reassurances that H.R. 1 includes. It
adds a new and equally meaningless provision that the bill should
not be construed "to prevent an employer from hiring the most
effective individual for a job." This is meaningless because no
court will read this vague exhortation to limit in any way the
explicit defects in the bill, just discussed.
06/04/91
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JUSTICE AAG OPC
003
- 2 -
The anti-quota language is no better. It is stated that
Title VII should not be construed to "require" or "encourage"
quotas. But the word "permit" is missing; the word "quota" is
nowhere defined; and, most fundamentally, the problem is that
employers will be driven to adopt quotas surreptitiously, no
matter how illegal they are. The bill would, moreover,
apparently exclude any currently existing preferences from the
definition of quotas. Even more troubling, it appears to endorse
preferences resulting from "voluntary actions for work force
diversity" -- i.e., quotas. This language is a sharp break with
existing Supreme Court precedent, which has indicated that such
voluntary preferences are allowed only in response to "manifest
imbalance" in "traditionally segregated job categories," Johnson
V. Transportation Agency, 480 U.S. 616, 631 (1987), quoting
Steelworkers V. Weber, 443 U.S. 193, 197 (1979).
Civil Rights and Remedies Act of 1991
The principal feature of this bill is its provision for
damage awards and equitable civil penalties under Title VII of
the Civil Rights Act in cases of intentional discrimination on
the basis of religion, sex, and national origin. Compensatory
damages over and above what is already available in the way of
back-pay are made available in all Title VII disparate treatment
cases. Where these awards are for nonpecuniary losses (pain and
suffering, emotional distress, and the like), they are capped at
$150,000 for private respondents with more than 100 employees and
at $50,000 for private respondents with 100 employees or less.
There is no cap, however, for economic harm, nor is there any cap
at all for governmental respondents. Civil penalties of up to
$150,000 for respondents with more than 100 employees and of up
to $50,000 for respondents with 100 employees or less are also
authorized. Civil penalties, at the court's discretion, can be
expended on correcting the respondent's discriminatory practices,
or can be deposited in a new Equal Employment Opportunity Trust
Fund. Expenditures from the Fund, in turn, are to be split
between improving Title VII enforcement and carrying out the
Family Violence Prevention and Services Act. Any party may
demand a jury trial in cases where compensatory damages are
sought, and the jury is to decide both liability and the amount
of any such award of compensatory damages.
The cap on damages and civil penalties is better in this
bill than in the various versions of H.R. 1. The bill remains
inferior to the Administration bill, however, in two critical
respects. First, the Administration bill characterizes its
monetary awards in such a way that there will be no jury trials;
even if a court requires a jury trial under our bill, our bill
would limit the jury's role to the determination of liability,
and would leave it to the judge to set the amount of the award.
Second, the Danforth bill allows the additional awards in cases
besides harassment, where there is no credible evidence that
06/04/91
12:01
202 514 0293
JUSTICE AAG OPC
00 #
- 3 -
current awards of back-pay have been inadequate. (To be sure,
however, the Administration itself would have allowed additional
monetary awards in non-harassment cases in the bill sent up with
the President's veto last October, with a uniform cap of $150,000
for all businesses.)
Civil Rights Restoration Act of 1991
The third and last bill addresses the remaining issues in
H.R. 1. Some provisions are unobjectionable and are found in the
Administration bill as well: the Patterson and Lorance decisions
are overturned; court awards of expert witness fees (albeit
without the Administration's $300/day cap) are authorized; the
statute of limitations is extended and the award of interest is
authorized in suits against the federal government; and alterna-
tive means of dispute resolution are encouraged. In three
important respects, however, the bill departs from the Adminis-
tration's approach.
First, the Danforth bill would overturn Martin V. Wilks in
virtually the same way as the bill the President vetoed last
year. The Administration bill would not and, of course, we have
stressed that it is H.R.1's anti-Wilks provisions that, along
with its anti-Wards Cove provisions, are principally responsible
for making it a quota bill. (The bill accompanying the
President's veto message last October had a Wilks provision, but
it was much more narrowly limited than the Danforth bill's.)
Senator Danforth's bill would provide that judgments entered
before passage of the bill would bar parties from challenging
illegal quotas in a variety of circumstances where they had no
previous notice or opportunity to be heard. The bill would also
provide for similar preclusive effect, albeit under a slightly
different standard, for judgments entered after passage of the
bill. As we pointed out when Senator Hatch made a similar
proposal as part of his attempted "compromise" last fall, this
bifurcation of constitutional rights is unprecedented. Moreover,
since one hopes that quota decrees are becoming less rather than
more common, and since the victims of existing quotas of course
had no advance notice of the Danforth bill, it makes no sense at
all to make it harder to challenge existing quota decrees than
new ones.
In overturning Price Waterhouse, the Danforth bill does not
differ significantly from H.R. 1. It would hold employers liable
for a Title VII violation even where the employer can demonstrate
that he or she would have taken the same action in the absence of
discrimination, so long as discrimination was "a motivating
factor.' It is not at all clear why there should be liability in
this situation. Indeed, the only real beneficiary would seem to
be the plaintiff's attorney, since the bill makes clear that,
while the "victim" is not entitled to his job, his lawyer is
06/04/91
12:02
202 514 0293
JUSTICE AAG OPC
005
- 4 -
entitled to his fee. The one improvement over H.R. 1 is that
pain and suffering damages are not awardable where the employer
can show that he would have taken the same action in the absence
of discrimination. But this improvement is unimpressive, since
the Administration bill would preclude such awards altogether
except in harassment cases and, of course, would not overturn
Price Waterhouse at all. (Note, however, that we did propose
legislation on Price Waterhouse in our bill last October, and
that it was very similar to the Danforth bill's approach.)
Finally, although the third Danforth bill (like the first
two) would extend coverage of Title VII to Congress, it would not
authorize private rights of action in the courts against that
body. Instead, ultimate authority for enforcing Title VII
against Congress would ultimately reside with Congress itself.
The Administration bill would allow court actions (the bill
accompanying the President's veto last October also left it to
Congress to enforce Title VII against itself, however).
THE WHITE HOUSE
WASHINGTON
June 4, 1991
MEMORANDUM FOR GOVERNOR SUNUNU
FROM:
C. BOYDEN GRAY cmh
SUBJECT:
New Danforth Civil Rights Bills
Attached, pursuant to your request, is a preliminary Justice
Department memorandum evaluating the new civil rights proposal
that Senator Danforth is expected to introduce today. He has
cured a few of the problems in the Democrat bills, but his
proposal is fatally flawed, and it does not solve the quota
problem by any means. The Danforth proposal is divided into
three separate bills:
I.
Disparate Impact Bill
Like all the other Wards Cove provisions to which we have
objected, this thing is complicated and ambiguous.
The "group of practices" section is almost unintelligible,
although it is designed to look at first glance as though it
adopts the "Sununu-Kennedy compromise." It does not. In
fact, this section is enormously problematic and its effects
would almost certainly be virtually identical to the
unacceptable provisions in the Democrat bills.
The definition of business necessity is a strange blend of
H.R. 1 and the Brooks substitute, with some new curlicues.
It features the phony selection/non-selection bifurcation
from H.R. 1, along with new operative language ("manifest
relationship to requirements for effective job
performance"). This language is not the language of Griggs,
and I am not aware of any case in which it has appeared.
"Effective job performance" is defined narrowly, in a way
that excludes many legitimate business practices. Hiring
entry-level employees with the qualifications needed for
promotion to better positions later, for example, would not
be permitted.
The bill also contains extremely pernicious language
asserting that the disparate impact sections "codify the
meaning of business necessity" in Griggs and overrule the
business necessity defense in Wards Cove "with respect to an
employment practice or group of employment practices." This
guarantees enormous confusion in the courts, and in fact
ensures that the confused language in the bill will be
interpreted in a way that will promote quotas.
The bill contains several legally meaningless and
ineffective statements designed to create the impression
that quotas and preferences are disfavored. Some are drawn
from the Democrat bills, and at least one is new. Except
for a provision on race-norming, however, none of them
actually improves the bill or does anything to prevent the
bill from causing quotas.
In sum, this is clearly a quota bill, which contains no
significant improvements over H.R. 1 on the critical issues.
III. Remedies Bill
This bill allows compensatory damages for all intentional
discrimination under Title VII. Awards would be decided by
a jury, and the pain and suffering component of the award
(though not the pecuniary losses component) would be capped
at $50,000 for small businesses (up to 100 employees) and at
$150,000 for larger employers.
The bill also creates a new kind of civil penalty, which is
similar to punitive damages except that the money would go
to the Government instead of the victim; it would have the
same $50,000/$150,000 caps.
This bill is better than H.R. 1 because the caps are more
real (although they are still too high at $100,000/$300,000
plus pecuniary losses). Introducing juries into Title VII,
however, is a very serious flaw in the proposal, and there
is no apparent good reason to create new monetary awards
outside the harassment context.
II. "Miscellaneous" Bill
This bill includes several of the non-controversial
provisions included in the President's bill (Patterson,
Lorance, etc.).
The bill, however, also includes an inappropriate override
of Price Waterhouse and an unacceptable override of Martin
V. Wilks. The latter, which is almost the same as the
"compromise" negotiated by Senator Hatch last year, would
insulate many illegal quota schemes from legal challenge.
With the Martin V. Wilks provision included, this is a quota
bill.
Attachments
06/04/91
11:59
202 514 0293
JUSTICE AAG OPC
002
Senator Danforth has drafted three new bills, each of which
makes proposals regarding the issues raised by H.R. 1. As a
general matter, these bills are better than H.R. 1, but are still
critically defective and very inferior to the Administration's
bill.
Equal Employment Opportunity Act of 1991
This bill has two main features: it overturns Wards Cove,
and it contains an anti-quota provision.
The Wards Cove provisions would dispense with the require-
ment that a particular practice be identified as causing the
disparate impact. They would define "business necessity" as
"manifest relationship to requirements for effective job
performance" for "practices involving selection," and as
"manifest relationship to a legitimate business objective" for
non-selection practices.
The current Administration bill, of course, requires the
complainant always to identify the particular practice being
challenged. The particularity language in the Danforth bill
would allow complainants to challenge a practice or group of
practices. While it also contains language drawn in part from
the bill the Administration returned with the President's veto
last October, that language is apparently used to broaden the
definition of an individual practice rather than to narrow the
definition of a group of practices. Accordingly, the most
straightforward reading of the admittedly confusing language in
the bill would be to allow a blunderbuss attack on all the
employer's practices so long as all are listed in the complaint,
so that the limiting language from the earlier Administration
bill becomes meaningless.
The defects with the treatment of "business necessity" are
even more serious, and indeed the definition is essentially the
same as that in the bill the President vetoed. The Danforth bill
---- like H.R. 1 -- would preclude an employer from defending a
selection practice for any non-job performance reason. There-
fore, every business decision affecting employment must be based
on "effective job performance." Furthermore, the definition
again is different from the formulation in Griggs (which is
purportedly codified): manifest relationship "to requirements
for effective job performance" is both different and stricter
than Griggs' manifest relationship "to the employment in
question. The bill also contains many of the same circular, and
therefore meaningless, reassurances that H.R. 1 includes. It
adds a new and equally meaningless provision that the bill should
not be construed "to prevent an employer from hiring the most
effective individual for a job.' This is meaningless because no
court will read this vague exhortation to limit in any way the
explicit defects in the bill, just discussed.
06/04/91
12:00
202 514 0293
JUSTICE AAG OPC
003
- 2 -
The anti-quota language is no better. It is stated that
Title VII should not be construed to "require" or "encourage"
quotas. But the word "permit" is missing; the word "quota" is
nowhere defined; and, most fundamentally, the problem is that
employers will be driven to adopt quotas surreptitiously, no
matter how illegal they are. The bill would, moreover,
apparently exclude any currently existing preferences from the
definition of quotas. Even more troubling, it appears to endorse
preferences resulting from "voluntary actions for work force
diversity" -- i.e., quotas. This language is a sharp break with
existing Supreme Court precedent, which has indicated that such
voluntary preferences are allowed only in response to "manifest
imbalance" in "traditionally segregated job categories, # Johnson
V. Transportation Agency, 480 U.S. 616, 631 (1987), quoting
Steelworkers V. Weber, 443 U.S. 193, 197 (1979).
Civil Rights and Remedies Act of 1991
The principal feature of this bill is its provision for
damage awards and equitable civil penalties under Title VII of
the Civil Rights Act in cases of intentional discrimination on
the basis of religion, sex, and national origin. Compensatory
damages over and above what is already available in the way of
back-pay are made available in all Title VII disparate treatment
cases. Where these awards are for nonpecuniary losses (pain and
suffering, emotional distress, and the like), they are capped at
$150,000 for private respondents with more than 100 employees and
at $50,000 for private respondents with 100 employees or less.
There is no cap, however, for economic harm, nor is there any cap
at all for governmental respondents. Civil penalties of up to
to $50,000 for respondents with 100 employees or less are also
$150,000 for respondents with more than 100 employees and of up
authorized. Civil penalties, at the court's discretion, can be
expended on correcting the respondent's discriminatory practices,
or can be deposited in a new Equal Employment Opportunity Trust
Fund. Expenditures from the Fund, in turn, are to be split
between improving Title VII enforcement and carrying out the
demand a jury trial in cases where compensatory damages are
Family Violence Prevention and Services Act. Any party may
sought, and the jury is to decide both liability and the amount
of any such award of compensatory damages.
The cap on damages and civil penalties is better in this
bill than in the various versions of H.R. 1. The bill remains
inferior to the Administration bill, however, in two critical
respects. First, the Administration bill characterizes its
monetary awards in such a way that there will be no jury trials;
even if a court requires a jury trial under our bill, our bill
would limit the jury's role to the determination of liability,
and would leave it to the judge to set the amount of the award.
Second, the Danforth bill allows the additional awards in cases
besides harassment, where there is no credible evidence that
06/04/91
12:01
202 514 0293
JUSTICE AAG OPC
- 3 -
current awards of back-pay have been inadequate. (To be sure,
however, the Administration itself would have allowed additional
monetary awards in non-harassment cases in the bill sent up with
the President's veto last October, with a uniform cap of $150,000
for all businesses.)
Civil Rights Restoration Act of 1991
The third and last bill addresses the remaining issues in
H.R. 1. Some provisions are unobjectionable and are found in the
Administration bill as well: the Patterson and Lorance decisions
are overturned; court awards of expert witness fees (albeit
without the Administration's $300/day cap) are authorized; the
statute of limitations is extended and the award of interest is
authorized in suits against the federal government; and alterna-
tive means of dispute resolution are encouraged. In three
important respects, however, the bill departs from the Adminis-
tration's approach.
First, the Danforth bill would overturn Martin v. Wilks in
virtually the same way as the bill the President vetoed last
year. The Administration bill would not and, of course, we have
stressed that it is H.R.1's anti-Wilks provisions that, along
with its anti-Wards Cove provisions, are principally responsible
for making it a quota bill. (The bill accompanying the
President's veto message last October had a Wilks provision, but
it was much more narrowly limited than the Danforth bill's.)
Senator Danforth's bill would provide that judgments entered
before passage of the bill would bar parties from challenging
illegal quotas in a variety of circumstances where they had no
previous notice or opportunity to be heard. The bill would also
provide for similar preclusive effect, albeit under a slightly
different standard, for judgments entered after passage of the
bill. As we pointed out when Senator Hatch made a similar
proposal as part of his attempted "compromise" last fall, this
bifurcation of constitutional rights is unprecedented. Moreover,
since one hopes that quota decrees are becoming less rather than
more common, and since the victims of existing quotas of course
had no advance notice of the Danforth bill, it makes no sense at
all to make it harder to challenge existing quota decrees than
new ones.
In overturning Price Waterhouse, the Danforth bill does not
differ significantly from H.R. 1. It would hold employers liable
for a Title VII violation even where the employer can demonstrate
that he or she would have taken the same action in the absence of
discrimination, so long as discrimination was "a motivating
factor." It is not at all clear why there should be liability in
this situation. Indeed, the only real beneficiary would seem to
be the plaintiff's attorney, since the bill makes clear that,
while the "victim" is not entitled to his job, his lawyer is
06/04/91
12:02
202 514 0293
JUSTICE AAG OPC
- 4 -
entitled to his fee. The one improvement over H.R. 1 is that
pain and suffering damages are not awardable where the employer
can show that he would have taken the same action in the absence
of discrimination. But this improvement is unimpressive, since
the Administration bill would preclude such awards altogether
except in harassment cases and, of course, would not overturn
Price Waterhouse at all. (Note, however, that we did propose
legislation on Price Waterhouse in our bill last October, and
that it was very similar to the Danforth bill's approach.)
Finally, although the third Danforth bill (like the first
two) would extend coverage of Title VII to Congress, it would not
authorize private rights of action in the courts against that
body. Instead, ultimate authority for enforcing Title VII
against Congress would ultimately reside with Congress itself.
The Administration bill would allow court actions (the bill
accompanying the President's veto last October also left it to
Congress to enforce Title VII against itself, however).
THE WHITE HOUSE
WASHINGTON
THE CHIEF of STAFF
June 3, 1991
has seen
MEMORANDUM FOR GOVERNOR SUNUNU
FROM:
ROGER B. PORTER
RBP
SUBJECT:
Danforth Civil Rights Bill
At this morning's Senior Staff meeting you inquired about
the civil rights legislation Senator Danforth has introduced.
I asked Marianne McGettigan, our Associate Director for Legal
Policy, to analyze the legislation.
A copy of her memorandum is attached. It is a concise and
instructive description of what is in the Danforth bills.
Attachment
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
03. Memo
From Marianne McGettigan to John Sununu
6/3/91
P/S
Re: Danforth Civil Rights Bills (3 pp.)
Collection:
Record Group:
Bush Presidential Records
Open on Expiration of PRA
Office:
Chief of Staff, White House Office of
(Document Follows)
Series:
Sununu, John, Files
By
&
(NLGB)
on
10/28/05
Subseries:
Issues Files
WHORM Cat.:
File Location:
Civil Rights (1 of 2) 1991 [5]
Date Closed:
1/3/2005
OA/ID Number:
29146-003
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
June 3, 1991
MEMORANDUM FOR ROGER B. PORTER
FROM:
MARIANNE MCGETTIGAN
SUBJECT:
Danforth Civil Rights Bills
Senator Danforth has developed three bills to respond to
the extension of damages in title VII and the five cases that
are the subject of H.R. 1. It is unclear why he has chosen to
propose three bills in lieu of one.
Reversal of Wards Cove
The first bill overturns Wards Cove in three ways.
1. It places the burden of proving that an employment practice
is required by business necessity on the employer. The
employee, however, must first identify the particular practice
or practices alleged to cause the disparity and demonstrate
that the practice(s result in the disparity.
2. The employee is not required to specify the particular
practice if the employee can demonstrate that the employment
practices that are responsible, in whole or in significant
part, for the disparate impact are not capable of separation
for analysis. In that case, the employment practices may be
analyzed as one employment practice.
It is the lack of requiring particularity in H.R. 1, that
is at the heart of the characterization of that bill as a quota
bill.
3. The definition of "business necessity" in the Danforth bill
is divided into two parts:
for employment practices involving selection, the
practice must bear "a manifest relationship to
requirements for effective job performance, and
for employment decisions not involving selection
practices (such as lay-offs), the practice must bear "a
manifest relationship to a legitimate business objective
of the employer."
-2-
In my view, the definition of "business necessity" in the
Danforth bill is superior to the definition in the
Administration's bill. It recognizes that there may exist "a
legitimate business objective" of the employer. The
Administration's bill recognizes only "employment goals."
Thus, a decision to close a plant for financial reasons not
involving payroll, might not be defensible under the
Administration's bill whereas it is clearly defensible under
the Danforth bill.
The Danforth bill goes on to define "requirements for
effective job performance" to include factors such as
punctuality, attendance, a willingness to avoid engaging in
misconduct or insubordination, not having a history
demonstrating unreasonable job turnover, and the like.
The bill also prohibits race-norming unless required by
court action.
Remedies for Intentional Discrimination
The second Danforth bill addresses the issue of remedies
for intentional discrimination. The Danforth bill is both
broader and narrower than the Administration's bill. It does
not cure the disparity in remedies available to the disabled
and women, however. That reconciliation can only occur if the
remedies for employment discrimination cases under section 1981
are limited in some way.
The Danforth bill is broader than the Administration bill
in that it applies to any unlawful employment practice under
title VII or the ADA. The Administration's bill is limited
only to harassment cases.
The bill is narrower than the Administration's in that
non-economic damages recoverable (at least for harassment) are
capped at $150,000 for companies with more that 100 employees
in each of 20 or more calendar weeks in the current or
preceding calendar year and $50,000 for all other businesses.
Jury trials are available.
In lieu of punitive damages, the bill provides an
equitable penalty for discrimination undertaken with malice or
reckless indifference to the federally protected rights of the
aggrieved party. The same caps as those outlined above apply
to this remedy. No jury trial is provided. Moreover, in
deciding on the amount of equitable penalty there are a number
of factors that the court considers, including, the nature of
the discrimination, the nature of any compliance or educational
programs of the employer, the availability of internal
-3-
grievance procedures, any lawful affirmative action programs of
the employer, whether the employer promptly investigated the
allegation, etc.
Unlike punitive damages, this equitable penalty does not
go to the plaintiff. The court directs it to be used either to
correct discriminatory practices or to a newly created fund in
the Treasury called the Equal Employment Enforcement Trust Fund
(50% of the fund will go to Title VII enforcement, and 50% to
the Family Violence Prevention and Services Act). The court
may also direct that the penalty be used for both purposes.
The incentive for the plaintiff to seek this equitable
penalty is that the attorneys fees associated with seeking the
penalty are recoverable. I doubt in most cases, the penalty
will be sought. It may, however, be pleaded as a negotiating
tool.
The Remaining Cases
The last Danforth bill addresses the remaining cases.
These cases are dealt with generally as they are in the
Administration's bill. I do not believe there will be any
serious disagreement with respect to this bill.
Copy to Boyden Copy 4-23
0121077
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PERSONAL AND CONFIDENTIAL
Honorable John H. Sununu
Chief of Staff
The White House
Washington, D.C. 20500
Dear Governor Sununu:
When Vernon and I met with you at the White House
last week, you asked me what I thought of the Administration's
1991 alternative civil rights bill and I said I thought it did
not meet the needs of the country, including its minorities,
women and business community. I mentioned several specific
problems at the time and would like to follow up my response
with this letter, which more fully describes what I believe
the fundamental shortcomings are in the present White House
proposal.
Some of the fundamental flaws are as follows:
1. It fails to overrule Wards Cove. As you know
from our discussions last year, one of the principal purposes
of any bill which would gain the support of the civil rights
groups and a significant majority of the Congress, is to
codify and restore the meaning of "business necessity" as used
in Griggs and to overrule the Court's treatment of that issue
in Wards Cove. Judge Richard Posner, a Reagan appointee,
stated in Allen V. Seidman, 881 F.2d 375, 377, 381 (7th Cir.
1989), that Wards Cove diluted the "necessity" in the
"business necessity test" and "modified the ground rules that
most lower courts had followed in disparate impact cases."
The Griggs decision itself, in discussing the
employer's burden in a disparate impact case, refers at least
four times to the employer's need to show a connection between
Page 2 - Honorable John H. Sununu - April 18, 1991
a challenged employment practice and job performance.
Therefore, any reasonable bill should require employers to
justify all selection practices which result in disparate
impact by showing that such practices "bear a significant
relationship to successful performance of the job. " The
Administration's proposed bill, however, does not require an
employer under any circumstances to demonstrate business
necessity in terms of successful job performance, nor does it
require any proof of "necessity."
It uses the term "business necessity" in Section 4
but defines it in Section 3 to mean just the opposite. Thus,
even where a company's interests (to quote from the bill) "do
not require" a particular employment practice which acts to
exclude qualified minorities or women, it may continue using
the practice under the White House proposal if the company
merely shows that its "legitimate employment goals are
significantly served by" the challenged practice which
admittedly results in the disparate impact.
This erroneous standard is almost identical to the
Wards Cove standard which most persons agree any reasonable
civil rights bill must be designed to reverse. Indeed, the
Section-by-Section Analysis accompanying the White House
proposal clearly indicates at pages 1 and 3 that the intent of
the bill is to codify the meaning of business necessity as set
forth in Wards Cove. In contrast, any reasonable bill should
include statutory language clearly stating that the bill's
definition section "is meant to codify the meaning of
'business necessity' as a defense as used in Griggs V. Duke
Power Co. (401 U.S. 424 (1971)) and to overrule the treatment
of business necessity as a defense as used in Wards Cove
Packing Co., Inc. V. Atonio (109 S. Ct. 2115 (1989) ) If you
accept Griggs -- and you have said you do -- you cannot at the
same time insist on Wards Cove, which eviscerated Griggs.
Moreover, in our meetings last year you always agreed that the
bill could contain language which specifically said that Wards
Cove was overruled.
What specific problems would result from the White
House/Wards Cove standard? Among other things, the term
"legitimate employment goals" includes community relations,
customer preference, convenience, minor cost savings,
corporate image and many other factors unrelated to job
performance. This would permit blatantly discriminatory
practices such as allowing airlines to hire only young women
as flight attendants due to customer preferences, or
permitting a business in an all-white area to refuse to hire
minority workers because it is better "community relations" to
Page 3 - Honorable John H. Sununu - April 18, 1991
limit hiring to neighborhood residents, or to accommodate the
aversion that some white customers might have to seeing blacks
handle money.
In addition, the Administration proposal dilutes the
business necessity test by permitting employers to prevail if
they show only that the challenged practice "has a manifest
relationship to the employment in question." Unlike Griggs,
this definition is wide open and is not linked in any way to
job performance (or even to legitimate employment objectives).
Qualified minorities and women could be excluded from
employment opportunities by the use of practices that have no
relation to their ability to perform the job.
In short, in response to the question "Should
companies have to show they select workers based on their
ability to perform the job, particularly when such jobs have
traditionally been denied to women and minorities?", the White
House's answer is "no." No responsible person could support
that position because in this country most Americans today.
believe that actual qualifications and merit should determine
who gets hired and promoted -- indeed, that is the very
foundation of the fair employment laws.
The White House bill even goes further than Wards
Cove with respect to the plaintiff's opportunity, as
recognized by such cases as Albemarle Paper, to show that a
practice is unlawful, even if required business necessity,
where there is a lesser discriminatory alternative that would
serve the company as well. The White House language would
limit the consideration of alternatives to those which are
"comparable in cost," effectively overruling Albemarle Paper
by making relatively minor differences in cost an absolute
defense. The bill also limits this rule only to the rare
situation where the employer "refused to adopt such
alternative" even after the plaintiff has demonstrated the
availability of the alternative at trial.
2. Martin V. Wilks and Price Waterhouse are not
addressed at all in the White House proposal. When President
Bush vetoed the Civil Rights Act of 1990, the White House
nevertheless recognized the need to respond to the Supreme
Court's rulings in five key cases -- Patterson, Lorance, Wards
Cove, Wilks and Price Waterhouse -- and proposed legislation
intended to counteract, at least to some extent, the results
of each of these rulings. This year, however, the current
White House bill has removed all provisions related to the
Wilks and Price Waterhouse decisions.
Page 4 - Honorable John H. Sununu - April 18, 1991
The Justice Department is wrong in asserting that
these rulings have not had a substantial adverse impact on the
job protections for women and minorities. Price Waterhouse
made it lawful for firms to engage in intentional
discrimination on the basis of sex, race, religion or national
origin as long as such intentional discrimination is not the
only factor that motivates the employer's conduct. Prior law
said that where a decision was based on two factors -- one
legitimate factor and one intentionally discriminatory factor
-- the worker did not have to be hired or promoted but the
discriminatory conduct itself would be ruled illegal and the
employer could be ordered not to discriminate in the future.
That changed as a result of Price Waterhouse, and even the
most blatant kinds of discrimination have been ruled to be
lawful merely because the employer's discriminatory motive was
accompanied by another, legitimate reason for not hiring, or
not promoting, or for discharging the plaintiff.
The same kind of serious problems have resulted from
the Court's decision in Martin V. Wilks, which allows
previously settled cases to be re-opened almost without
limitation. Like the ruling in Price Waterhouse, the Wilks
case overturned settled case law which prevented untimely re-
openings in cases where the courts had already considered and
fully approved the terms of a consent decree. As a direct
result of Wilks, many previously closed cases have been
attacked by reverse-discrimination challenges which have often
proved to be meritless and always caused great harm and
disruption. The kind of endless and repetitive litigation
that Wilks has generated wastes the resources of the parties
and the courts and makes it more difficult to eliminate
discrimination because of the multiplication of efforts
required to resolve even one case; it jeopardizes the
strongest incentive to settle, which is bringing an end to the
costs and uncertainties of litigation; and it inflames the
emotions of applicants and employees to stir up litigation
which, in many cases, ultimately benefits no one.
I am enclosing sections of a recent analysis that
specifically addresses the substantial adverse impact which
the Wilks and Price Waterhouse decisions are continuing to
have on victims of job discrimination. The current
Administration proposal, abandoning a position taken only
months ago, does nothing to address the considerable damage
caused by these two rulings.
3. Under the White House proposal, disparate impact
cases based on more than one employment practice could no
longer be brought successfully. Wards Cove made it
Page 5 - Honorable John H. Sununu - April 18, 1991
substantially more difficult for workers to bring cases where
a group of several practices or selection factors has a
discriminatory impact on women or minorities, because it
required them for the first time to isolate the precise impact
of each practice or factor within the group. Prior to the
decision in Wards Cove, there was no requirement to isolate
the exact impact of each component within a group of
employment practices so long as it was shown that the totality
of the practices had an adverse effect on minorities or women.
See, e.g., Green V. USX Corp., 843 F.2d 1511, 1520-25 (3rd
Cir. 1988) ; Griffin V. Carlin, 755 F.2d 1516, 1523 (11th Cir.
1985) ; and Segar V. Smith, 738 F.2d 1249, 1270-71 (D.C. Cir.
1984)
Last year I disagreed with the Attorney General on
this issue, because he thought the plaintiffs should lose
whenever they could not identify the impact of each factor,
even if the reason for this was the employer's deliberate
destruction, concealment or failure to keep the relevant
records. The current Administration proposal goes even
further than this by precluding all challenges to a group of
employment practices which result in a disparate impact,
whether or not the plaintiffs can make specific showings.
Thus, even where (1) severe discriminatory impact has resulted
from a combination of only two employment practices, (2)
records are available from the firm to show the impact of both
practices, and (3) the company concedes it has no evidence
whatsoever of business necessity, the complaint would have to
be dismissed under the Administration's bill.
This approach would lead to a complete abandonment
of Griggs in most cases and would thereby limit victims to
bringing cases where discriminatory intent could be proven.
Even the October 20, 1990 White House proposal, which
accompanied the President's veto, permitted disparate impact
challenges to a group of employment practices at least in some
circumstances. Because most Griggs-type cases today challenge
barriers that consist of more than just one employment
practice, this proposal would make the law in this important
area even worse, rather than better, than Wards Cove.
4. The damages provision in the White House
proposal would do little to advance the Administration's goal
of stamping out intentional discrimination The October 20,
1990 White House proposal on damages permitted judges, not
juries, to award a maximum of $150,000 and only in limited
circumstances where other remedies do not provide a
sufficiently strong deterrent and where the award is
"otherwise justified by the equities." The current bill cuts
Page 6 - Honorable John H. Sununu - April 18, 1991
back even further by limiting monetary relief to claims of
harassment and excluding all other types of intentionally
discriminatory employment practices, such as intentional
refusals to hire, denials of promotion, and firings. This
would do little to provide a meaningful remedy in many cases
where women workers suffer tremendous humiliation, mental
distress, physical harm and economic loss as a result of acts
of intentional discrimination. The hearings on this
legislation have provided numerous examples of this kind of
case and of the need to equalize the remedies for all
protected classes.
I also believe the current damages provision in the
White House bill is unconstitutional because it requires
judges and not juries to make the awards. In addition, before
the court may award any amount (which in no case may exceed
$150,000), it must consider a series of factors which would
seem to limit the size of the award to the victim of
intentional discrimination. With all respect, I do not think
this proposal serves the President's commitment to the nation
in his last address to the Congress that his Administration
would fight to stamp out overt bigotry and prejudice.
5. A new defense to liability is created by the
White House proposal in harassment cases. For the first time
since Title VII was enacted in 1964, the White House bill
would give companies a new defense in cases involving
intentional harassment on the basis of race, religion, sex or
national origin. Even where the evidence of this type of
illegal harassment is undisputed, the bill directs the court
"that no such unlawful employment practice shall be found to
have occurred" if the victim "failed to avail himself or
herself of a procedure, of which the [victim] was or should
have been aware, established by the employer for resolving
complaints of harassment in an effective fashion within a
period not exceeding 90 days."
There are absolutely no limits on what procedures
the company may adopt or on the manner in which company
officials could monitor the victim's compliance with such
requirements. For example, victims could be forced, in order
to preserve their harassment claims, to take a month off
without pay "to recover from the incident and reduce tensions
in the workplace." It is no surprise that House Democrats had
a field day attacking this provision during the committee
hearings and mark-ups on H.R. 1.
6. Waiver of the rights to sue. Under Section 12
of the White House bill, companies could probably fire current
Page 7 - Honorable John H. Sununu - April 18, 1991
employees and clearly refuse to hire new workers unless they
agreed to sign a binding statement waiving all rights to file
job discrimination complaints in a federal or state court or
with the Equal Employment Opportunity Commission (EEOC). Ever
since 1964, workers who suffered discrimination on the job
have had the right to file complaints with the EEOC and in
court. This provision would change that by allowing firms to
require workers to sign agreements providing that all job bias
disputes must be decided by a private arbitrator, with no
standards or protections to ensure that procedures are
conducted fairly and that bias victims can obtain adequate
remedies.
This provision is inconsistent with a number of
Supreme Court decisions holding that workers have the right to
go to court, rather than being forced into compulsory
arbitration, to resolve important statutory and constitutional
rights, including employment discrimination cases. See, for
example, Alexander V. Gardner-Denver Co., 415 U.S. 36 (1974)
and McDonald V. City of West Branch, 466 U.S. 284 (1984). It
could limit the rights not only of women and ethnic, religious
and racial minorities, but also of persons with disabilities,
who only recently were extended protection by the Americans
with Disabilities Act. It could prevent many discrimination
issues from ever being considered by a court at any time,
thereby fundamentally changing this area of law. Although
alternative dispute resolution should be encouraged, access to
the courts is critical in some cases and it is the
availability of strong court enforcement that often leads to
successful early resolution of job bias claims.
7. The White House proposal fails to solve
effectively the Lorance problem. Section 7 of the White HOuse
proposal only responds to part of the problem caused by the
decision in Lorance V. AT&T Technologies, Inc., which held
that certain claims may be dismissed as untimely even where
the complaint is filed as soon as the plaintiff is harmed by
the practice, simply because the practice was adopted years
earlier when the plaintiff had no reason to think it would
ever adversely affect her. The Administration's bill limits
the Lorance provision to seniority systems even though the
holding in Lorance has been applied to other types of
employment practices, such as promotion policies. Thus a
female job applicant could continue to be barred from
challenging a discriminatory test even if she filed a charge
the same day she took the test, simply because the test was
adopted more than 180 days earlier.
Page 8 - Honorable John H. Sununu - April 18, 1991
8. The White House bill very strangely provides no
relief for the persons most hurt by the 1989 Supreme Court
decisions. The transition rules proposed by the
Administration would require courts to continue to apply the
decisions in Patterson, Wards Cove, Lorance and the other 1989
Supreme Court decisions for years to come, long after the
effective date of the bill which is intended to reverse those
decisions. Section 14 of the White House bill states that the
amendments "shall not apply to any claim arising before the
effective date of this Act." Because cases often take years
to litigate, hundreds of cases now pending at the EEOC or in
court would under this plan continue to be decided under the
old decisions.
For example, a disparate impact violation which
occurs one day before the effective date of this Act might be
litigated until the year 2000 and during that entire time the
trial and appellate courts would have to apply the legal
standards in Wards Cove, not those in the new Act. This
proposal simply makes no sense. This plan also would provide
no relief at all to victims who lost their case solely because
of the Supreme Court's erroneous decisions in 1989. This
includes the claims of Ms. Brenda Patterson and more than 300
other claims of intentional racial discrimination which have
been dismissed since the Patterson decision in June of 1989.
9. The White House bill would leave in place an
extremely short statute of limitations -- only six months.
Most responsible people feel it should be longer.
I have tried in a non-polemic fashion to point out
some of the major shortcomings of the White House bill. I
feel this is the time for calm in this country. As there is a
political consensus that a Civil Rights Act of 1991 is needed
to change some or all of the effects of the erroneous
decisions in Patterson, Martin V. Wilks, Price Waterhouse,
Lorance and Wards Cove, it is in the public interest that an
appropriate bill be drawn, and, for the reasons stated above,
and others, the White House bill, with all respect, falls far
short.
With kindest regards,
Sincerely,
Bill
William T. Coleman, Jr.
Price Waterhouse V. Hopkins
The Department of Justice's February 7, 1991, memorandum
fails to recognize the serious impact of the Price Waterhouse V.
Hopkins decision. Prior to Price Waterbouse, the courts had
ruled that employers were always liable for intentional
discrimination, even if legitimate considerations were mixed with
unlawful bias in motivating an employment decision, such as the
refusal to promote an employee. While an employee could not
obtain a promotion as a remedy in a job bias case if non-
discriminatory reasons would have caused the same result, courts
in such cases did find the discrimination unlawful and could
order the employer to stop discriminating in the future and to
pay the plaintiff's attorneys fees.' In Price Waterhouse V.
Hopkins, however, the Supreme Court ruled that where an employer
can show that the same decision would have been made for non-
discriminatory reasons, even blatant discrimination is perfectly
legal and courts may award no relief whatsoever.
The Justice Department's review of Price Waterhouse's impact
in the lower courts focuses exclusively on the number of
favorable rulings obtained by individual plaintiffs and
defendants. This numerical survey completely ignores the
fundamental question of whether proven, intentional
discrimination should be condoned by Title VII and unremedied in
the courts. The Justice Department's current position on this
question directly contradicts the earlier positions of both the
Reagan and Bush Administrations. In its Supreme Court brief for
the government in Price Waterhouse itself, the Reagan Justice
Department stated that where non-discriminatory factors would
have produced the same employment action in the absence of
discrimination, the plaintiff is entitled to "an award of
attorney's fees and an injunction against future
discrimination. In vetoing the Civil Rights Act last year,
President Bush also agreed that courts should be able to award
2 See, e.g., Bibbs V. Block, 778 F.2d 1318 (8th Cir. 1985) i
King V. Transworld Airlines, Inc., 738 F.2d 255 (8th cir. 1984) ;
Ostroff V. Employment Exchange, Inc., 638 F.2d 302 (9th Cir.
1982) i Nanty V. Barrows Co., 660 F.2d 302 (9th Cir. 1981) ;
Roberts V. Fri, 29 F.E.P. Cases 1445 (D.C. Cir. 1980) ; see also
EEOC Commission Decision No. 70-925, 72-0591, 72-0606, CCH EEOC
Decisions (1973) Pars. 6158, 6314, 6310; Commission Decision Nos.
75-007 and 75-091, CCH EEOC Decisions (1983) Pars. 6436, 6528
(supporting the position that a finding of invidious motivation
is dispostive of Title VII liability, leaving open only the scope
of appropriate remedy).
3 Brief for the United States as Amicus Curiae at 24, Price
Waterhouse V. Hopkins, 109 S. ct. 1775 (1989) (No. 87-1167)
(citations omitted).
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relief for proven discrimination, and included a provision in his
alternative bill to provide such relief "consistently with the
principles enunciated in other civil rights cases" before Price
Waterhouse. The Justice Department offers no explanation for
its apparent retreat from this position.
In fact, a reading of lower court opinions indicates that
Price Waterhouse has served to legitimate blatant discrimination
in the workplace. For example, in EEOC V. Alton Packaging
Corp., 5 the court found no Title VII liability, despite the fact
that the plaintiff provided direct proof that intentional
discrimination had played a role in the employer's promotion
process. The court found that one of the two persons who decided
not to promote the plaintiff had stated that "if it was his
company, he wouldn't hire any black people, n6 and the other
person making the decision had yelled at another black employee
it, you people can't do a
thing right. "
However, because the employer could show that the plaintiff would
not have been promoted even if the workplace were free from bias,
the defendant escaped all liability for its conduct under Price
Waterhouse, and the plaintiff could not obtain injunctive relief
or attorneys fees. Because of Price Waterhouse, the same two
managers who harbor racial animus can continue to make promotion
decisions that affect black employees.
The Justice Department dismisses the Alton case with the
statement that "the plaintiff would not have received promotion
even if race were not considered." This completely misses the
point. No one has suggested that in such cases the employee
should receive a promotion. The Justice Department analysis,
however, ignores the fact that as a result of Price Waterhouse,
the employer in Alton may continue to discriminate in future
promotions. As courts had ruled before Price Waterhouse, Title
VII and the interests of justice require that courts have the
authority to remedy such blatant discrimination through awarding
attorneys fees and injunctive relief.
Price Waterhouse also legalized invidious discrimination in
Pajic V. CIGNA, a case not even mentioned in the Justice
Department's survey. In Pajic, the plaintiffs, two women, proved
that they had been repeatedly subjected to adverse employment
actions, and ultimately terminated, in connection with their
4
Section By Section Analysis of Proposed Administration
Bill (1990) at 3.
5 901 F.2d 920 (11th cir. 1990).
6 Id. at 922.
7 1990 U.S. Dist. LEXIS 16278 (E.D. Pa. Nov. 30, 1990).
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efforts to obtain pay equity for women. After the company
finally approved the salary adjustments that the plaintiffs had
been requesting for ten years, the defendant's Director of Human
Resources warned the plaintiffs not to act like "shop stewards"
in informing their predominantly female staff that the pay raises
would not be retroactive, and threatened to hold the plaintiffs
personally responsible for any EEOC lawsuits. Another manager
involved in the adverse employment actions against the plaintiffs
had made several discriminatory remarks regarding women
employees, referring to them as "broads, bimbos and glorified
secretaries."
Although the court credited this evidence of discriminatory
motives, it found that legitimate, non-pretextual reasons would
have produced the same employment actions, and relied on Price
Waterhouse V. Hopkins to deny the plaintiffs any remedy
whatsoever. Consequently, the plaintiffs were unable to obtain
attorneys fees or injunctive relief to prevent future
discrimination. Because of Price Waterhouse, the employer in
Pajic succeeded in intentionally discriminating against female
employees without so much as a reprimand from the court.
Price Waterhouse has also forced other courts to ignore
evidence of bias in cases involving racial discrimination against
white as well as minority employees. For example, in Gautier V.
Watkins, 8 the court accepted the EEOC's finding that race played
a role in the determination not to promote a white employee, and
in Brown V. Amoco Production CO., 9 the court found that an
impermissible racial motive may have played some part in the
decision to terminate a black employee. After Price Waterhouse,
however, these impermissible racial criteria will continue to
factor into the decision-making process, because in both cases
the existence of non-discriminatory factors that would have
produced the same employment actions prevented the courts from
responding to the discrimination.
The Justice Department nevertheless asserts that Price
Waterhouse has not had a negative impact because many plaintiffs
have continued to win mixed-motive cases where employers failed
to prove that they would have taken the same action even if they
had not discriminated. This analysis completely misses the
point. It has never been suggested that Price Waterhouse would
make such cases more difficult for plaintiffs to win. However,
where employers can show that they would have taken the same
action absent discrimination, Price Waterhouse legalizes even the
most blatant discrimination, precluding courts from even ordering
the discrimination to cease. In addition, since so many Title
8
747 F. Supp. 82 (D.D.C. 1990).
9
1989 U.S. Dist. LEXIS 8952 (E.D. La. July 31, 1989).
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VII cases involve multiple motives, the risk that Price
Waterhouse will make a court unable to award any remedy-such as
ordering the discrimination to stop or awarding the costs of
bringing the lawsuit--will inevitably deter plaintiffs from
challenging blatant and intentional bias in the workplace.
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Martin V. Wilks
The Justice Department seriously understates the
significant impact of the Martin V. wilks decision. Its analysis
completely misses the point.
The Justice Department is certainly correct that most
of the "reverse discrimination" collateral attacks and interven-
tions under Martin V, Wilks which have been decided to date have
upheld the challenged decrees. This confirms the argument of the
bill's proponents that these challenges are not meritorious, and
that it is best to resolve these questions once and for all at
the time of the adoption of the original decree.
The question is not whether the Wilks decision "would
result in the wholesale disruption of employment discrimination
decrees";1 it is whether the Martin decision would embroil set-
tling plaintiffs and defendants in repetitive, meritless litiga-
tion. There are three principal evils of such endless and
meritless litigation:
It wastes the resources of plaintiffs, defendants, and
the courts and makes it more difficult to eliminate
discrimination because of the multiplication of time
and effort to resolve discrimination lawsuits.
It risks the elimination of the strongest of all incen-
tives to settle a case on mutually agreeable terms:
bringing an end to the costs and uncertainties of
litigation.
It inflames the emotions of applicants and employees to
stir up litigation time and again, to no avail.
It is difficult to compile a comprehensive list of
reverse-discrimination challenges under Wilks until a decision
has been reported. There is no means of collecting information
nationwide on new case filings in State and Federal courts, and
the Equal Employment Opportunity Commission is barred by law from
releasing the names of respondents to any charge of discrimina-
tion, including "reverse discrimination" charges. Unless one
learns of the existence of the charge directly from the charging
party or the respondent, they do not come to public attention
until & case has been filed in court and until the existence of
the case itself somehow comes to public attention. On-line
computerized news databases such as NEXIS are not too useful
because there is no common set of words used in news articles
which would make it possible to collect even published news on
the filing of Wilks-type challenges.
Even with these limitations, however, it is clear that
1 February 7. 1991 Memorandum to the Attorney General at 1.
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an impressive array of challenges to decrees have been brought or
maintained under Wilks:
Birmingham Fire Department, Alabama2
Birmingham Police Department, Alabama
Birmingham Engineering Department, Alabama
Birmingham Streets and Sanitation Department, Alabama
Gadsden Fire Department, Alabama
Jefferson County, Alabama
Jefferson County Sheriff's Department, Alabama
Jefferson County Personnel Board, Alabama
Oakland Fire Department, California
San Francisco Fire Department, California (2 cases)
San Francisco Police Department, California
San Francisco Community College District, California
(3 cases)
San Francisco Unified School District, California
United states Forestry Service, Bay area, California
Albany, Georgia
Chicago Police Department, Illinois
Boston Fire Department, Massachusetts
Boston Police Department, Massachusetts (hiring)
Boston Police Department, Massachusetts (promotions)
Omaha Police Department, Nebraska (at least 5 cases in
court and 9 administrative proceedings)
New York Police Department, New York (2 cases)
Cincinnati Fire Department, Ohio (3 cases)
cincinnati Police Department, Ohio
2 The challenges to the Birmingham and Jefferson County decrees are
multiple.
15
Cleveland Fire Department, Ohio (2 cases)
Toledo Fire Department, Ohio
Youngstown Police Department, Ohio
Pittsburgh Police Department, Pennsylvania (2 cases)
Memphis Fire Department, Tennessee
Memphis Police Department, Tennessee (2 cases)
Many of these cases are still pending in court, and will continue
to tie up --- pointlessly --- the resources of the original
plaintiffs and defendants for years to come. Wilks has clearly
had a substantial negative impact.
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