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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
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29147-001
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Civil Rights (2 of 2) 1991 [3]
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15
24
7
6
Because your letter deals with the proper way to interpret a
judicial opinion, the Attorney General will respond in
writing.
We hope his letter will be ready by C.O.B. today.
As I understand it, the basic problems with your proposal
are (1) that it would overturn 20 years of settled precedent
on the meaning of business necessity, and (2) that it would
make it impossible for employers to defend a wide range of
legitimate employment practices.
Can you explain what's wrong with the definition that the
Supreme Court (and the Administration) have adopted?
THE ATLANTIC MONTHLY
When the official subject
is presidential politics, taxes, welfare,
crime, rights, or values
the real subject is
BY
THOMAS BYRNE EDSALL WITH MARY D. EDSALL
ACE IS NO LONGER A STRAIGHTFORWARD,
between rich and poor over the past fifteen years. Race-
R
morally unambiguous force in American
coded images and language changed the course of the
politics; instead, considerations of race are
1980, 1984, and 1988 presidential elections and the 1990
now deeply imbedded in the strategy and
elections for the governorships of California and Ala-
tactics of politics, in competing concepts of
bama, the U.S. Senate in North Carolina, and the post of
the function and responsibility of government, and in
Texas secretary of agriculture. The political role of race is
each voter's conceptual structure of moral and partisan
subtle and complex, requiring listening to those whose
identity. Race helps define liberal and conservative ide-
views are deeply repellent to some and deeply resonant
ologies, shapes the presidential coalitions of the Demo-
for others. The debate over racial policy has been skewed
cratic and Republican parties, provides a harsh new di-
and distorted by a profound failure to listen.
mension to concern over taxes and crime, drives a wedge
"You could classify me as a working-class Democrat, a
through alliances of the working classes and the poor, and
card-carrying union member," says Dan Donahue, a Chi-
gives both momentum and vitality to the drive to estab-
cago carpenter who became active in the campaign of a
lish a national majority inclined by income and demogra-
Republican state senator in 1988. "I'm not a card-carry-
phy to support policies benefiting the affluent and the
ing Republican-yet. We have four or five generations of
upper-middle class. In terms of policy, race has played a
welfare mothers. And they [Democrats] say the answer to
critical role in the creation of a political system that has
that is we need more programs. Come on. It's well and
tolerated, if not supported, the growth of the disparity
good we should have compassion for these people, but
MAY 1991
ILLUSTRATIONS BY IVAN CHERMAYEFF
53
THE ATLANTIC MONTHLY
your compassion goes only so far. I don't mind helping,
of specific groups; and, finally, whites against blacks.
but somebody has got to help themselves, you've got to
Public policies backed by liberals have driven these new
pull. When you try to pick somebody up, they have to
alignments. In particular, busing, affirmative action, and
help. Unfortunately, most of the people who need help
much of the rights revolution in behalf of criminal defen-
in this situation are black and most of the people who are
dants, prisoners, homosexuals, welfare recipients, and a
doing the helping are white. We [white Cook County
host of other previously marginalized groups have, for
voters] are tired of paying for the Chicago Housing Au-
many voters, converted the government from ally to ad-
thority, and for public housing and public transportation
versary. The simultaneous increase, over the past two
that we don't use. They [taxpayers] hate it [the school-
and a half decades, in crime, welfare dependency, illegit-
board tax] because they are paying for black schools that
imacy, and educational failure have established in the
aren't even educating kids, and the money is just going
minds of many voters a numbing array of "costs"-per-
into the Board of Education and the teachers' union."
ceived and real-of liberalism.
Moderate-income voters like Donahue pose a central
Major elements of the Republican Party have exploit-
dilemma for the Democratic Party. They are essential if
ed and inflated the costs of liberal policies. Republican
the party is to have an economically coherent base, and if
strategists and ideologues have furthermore capitalized
the party is legitimately to claim to represent not only the
on these costs to establish a new and evolving ideology:
poor but also the average working man and woman.
conservative egalitarianism, opposed to special prefer-
These voters have, however, been caught up in an explo-
ences whether for blacks, unions, or any other liberal in-
sive chain reaction of race, rights, values, and taxes
terest. Liberal Democratic support for preferential hiring
which has propelled significant percentages of them out
on the shop floor and in the schoolroom-to make up for
of the Democratic Party in presidential elections and into
past discrimination-has enabled a conservative Repub-
the "unreliable" column in state and local contests. Rac-
lican Party to lay claim to the cause of equal opportunity,
The new polarization drives a wedge
right through the heart of the old Democratic
presidential coalition, and threatens to undermine
genuine advances in racial equality.
ism and racial prejudice fail to explain such voter defec-
once the rallying cry of the civil-rights movement. In the
tion adequately, and Democratic liberals' reliance on
wake of sustained group and individual conflicts over
charges of racism guarantees political defeat and, more
rights, preferences, and government benefits, an egali-
important, guarantees continued ignorance of the dy-
tarian populism of the right has emerged, one so strong
namics at the core of presidential politics.
that it was not only accessible to George C. Wallace in
1968 but remained available twenty years later to a scion
The Costs of Liberalism
of the old guard of the Northeast, George Herbert Walk-
er Bush. Conservative populism has permitted the Re-
HE PAST TWO DECADES HAVE SEEN A SIGNIFI-
publican Party to replace in the minds of many voters the
T
cant enlargement of the ideological and value-
idea of an "establishment" ruled by business interests
based underpinnings of political conservatism
with a hated new liberal establishment, adversarial to the
and, to a large extent, of the Republican Party.
common man: an elite-of judges, bureaucrats, newspa-
Race, rights, and taxes have become key forces behind
per editors, ACLU lawyers, academics, Democratic poli-
this enlargement, helping to bring about a new polariza-
ticians, civil-rights and feminist leaders-determined to
tion of the electorate, a polarization that has effectively
enact racially and socially redistributive policies demand-
replaced the New Deal coalition structure of presidential
ing the largest sacrifices from the white working and low-
contests.
er-middle classes.
This polarization is built on mutually reinforcing divi-
This new polarization drives a wedge right through the
sions of the electorate: taxpayers against tax recipients;
heart of the old Democratic presidential coalition, and
those who emphasize responsibility against those who
threatens to undermine the genuine advances in racial
emphasize rights; proponents of deregulation and an un-
equality which have occurred in the years since the pas-
fettered free market against supporters of the regulatory
sage of the 1964 Civil Rights Act. Race relations in Amer-
state and of policies protecting or advancing the interests
ica are, in fact, moving on two tracks. On one there has
54
MAY 1991
THE ATLANTIC MONTHLY
been-an extraordinary integration of the races, a striking
expansion of the black middle class, and a powerful con-
tribution from blacks to the mainstream culture.
American society is undergoing a
transformation that may ultimately
destroy many of the racial stereotypes
that drive prejudice. In the years
before the outbreak of
the Second World
War, 73 percent of
all black college
graduates became
ministers or teachers,
almost all serving ex-
clusively black con-
stituencies. In 1940 only
187,520 blacks held
white-collar jobs, and over
100,000 of them were
clergymen, teachers, or the
owners of generally small,
ghetto-based retail stores pro-
ducing marginal incomes. By
1990, 1.91 million blacks held
managerial and professional jobs.
From 1950 to 1990 the black popu-
the inherent distributional conflicts im-
lation doubled but the number of
bedded in liberal policies. After the 1984 election the
blacks holding white-collar jobs in-
Democratic National Committee commissioned a $250,000
creased by 920 percent.
voter study by CRG Communications, only to quash its
On the second track, racial progress has run into major
release because it made explicit controversial sources of
roadblocks: crime, welfare dependency, illegitimacy,
dissent from liberal orthodoxy. The study, drawn from a
drug abuse, and a generation-disproportionately
poll of 5,000 voters and thirty-three focus groups, found
black-of young men and women unwilling either to
that Democratic defectors among white urban ethnics
stay in school or to take on menial labor, a group that has
and white southern moderates believed that
collided with a restructuring of the American economy
and a dramatic loss of well-paid entry-level jobs. The
the Democratic Party has not stood with them as they
worsening of the symptoms of social dysfunction over the
moved from the working to the middle class. They have a
whole set of middle-class economic problems today,
past three decades has become a driving force in politics,
and their party is not helping them. Instead it is helping
for the symptoms are perceived as an unacceptable cost
the blacks, Hispanics and the poor. They feel be-
of liberalism not only in the neighborhoods of southwest
trayed
[These voters] view gays and feminists as
Chicago but also, increasingly, in the more affluent sec-
outside the orbit of acceptable social life. These groups
tions of suburbia and in the business cores of cities.
represent, in their view, a social underclass.
[White
urban ethnics] feel threatened by an economic under-
A New Lease on Prejudice
class that absorbs their taxes and even locks them out of
the job, in the case of affirmative action. They also fear
IBERAL ELITES HAVE HAD MAJOR DIFFICULTY
a social underclass that threatens to violate or corrupt
L
recognizing the costs both of racial conflict and
their children. It is these underclasses that signify their
present image of the Democratic Party.
The
of the broader rights revolution in behalf of
groups as diverse as women, the mentally dis-
Democrats are the giveaway party. Giveaway means too
much middle-class money going to blacks and the poor.
abled, prison inmates, and immigrants from developing
countries. Liberal elites have in addition disregarded the
In some communities, such as the white working-class
effects of burdensome taxes on working-class and mid-
suburbs of Detroit, positive assessments of the Demo-
dle-class voters, who may see themselves as being forced
cratic Party have been washed out altogether by anger
to finance a revolution challenging their own values and
and discontent that are open, unabashed, and extremely
often undermining their hard-won security. Democratic
harsh. Voters from such communities have been crucial
liberalism has shown a consistent reluctance to confront
to the outcome of presidential elections for the past two
MAY 1991
55
THE ATLANTIC MONTHLY
decades-they are the silent majority of the 1970s and
related AIDs, crack babies, and inner-city joblessness.
the Reagan Democrats of the 1980s. Their votes expand-
"The stereotype is not a stereotype anymore," says
ed the Republican coalition to produce election-year ma-
Kenneth S. Tollett, a black professor of education at
jorities, and their abandonment of the Democratic Party
Howard University. "The behavior pattern in the under-
in presidential elections undermined the coalition of the
class is not stereotypical in the pejorative sense, but it is a
have-nots and affirmed the ascendancy of a coalition of
statement of fact. A stereotype is an overgeneralization.
the haves, as disaffected moderate-income white voters
"This is the way people are,' and then we say all are like
joined forces with traditional Republicans. The views of
that. The behavior of black males in the underclass is
working-class defectors from the Democratic Party were
now beginning to look like the black stereotype. The
examined in a 1985 study of suburban Detroit by Stanley
statements we have called stereotypes in the past have
Greenberg, the president of the Analysis Group, a
become true."
Democratic polling firm. The study found that
Social dysfunction, and crime in particular, have trag-
these white Democratic defectors express a profound
ically served over the past two and a half decades to rein-
distaste for blacks, a sentiment that pervades almost ev-
force racial prejudice. Statistics suggest the widespread
erything they think about government and politics.
problems among the black underclass.
Blacks constitute the explanation for their [white defec-
In a nation that is 12 percent black and 84 percent
tors'] vulnerability and for almost everything that has
white, there were in 1986, according to the Department
gone wrong in their lives; not being black is what consti-
of Justice, more black prison inmates than white or His-
tutes being middle class; not living with blacks is what
panic. There were in 1988, according to the Department
makes a neighborhood a decent place to live.
These
of Health and Human Services, more black welfare re-
sentiments have important implications for Democrats,
cipients than white. By the late 1980s, according to the
as virtually all progressive symbols and themes have
Bureau of the Census, a majority of black families were
been redefined in racial and pejorative terms.
The special status of blacks is perceived by almost all
headed by single or separated women. At the same time,
of these individuals as a serious obstacle to their person-
according to the National Center for Health Statistics,
al advancement. Indeed, discrimination against whites
more than 60 percent of all black children were born out
has become a well-assimilated and ready explanation
of wedlock. Among black male high school dropouts
for their status, vulnerability and failures.
aged twenty to twenty-four, according to the Bureau of
The bitterness and anger of the white Detroit voters is
Labor Statistics, the proportion who had not worked at
one consequence of a central tragedy of the past twenty-
all during the previous year rose from 15.1 percent in
five years: the drive to achieve racial equality and the
1974 to a staggering 39.7 percent in 1986. The compara-
striking advances of the black middle class have coin-
ble figures for young white dropouts were 9.1 percent in
cided with a significant worsening of social dysfunction
1974 and 11.8 percent in 1986, and for young Hispanic
in the bottom third of the black community. Social dys-
dropouts 8.8 percent and 9.6 percent. According to fig-
function-crime, welfare dependency, joblessness, and
ures compiled by the Department of Justice in criminal-
illegitimacy-wreaks havoc, crushing recognition of the
victimization surveys from 1979 to 1986-the surveys
achievements of liberalism. When it is disproportionately
considered by law-enforcement professionals to contain
associated with one group or race, social dysfunction as-
the most reliable data on race-an annual average of 44.3
saults efforts to eliminate prejudice. Gordon W. Allport
out of every 1,000 blacks were victims of a violent crime,
wrote in The Nature of Prejudice,
with much higher rates in very poor areas, as compared
with 34.5 out of every 1,000 whites. At the same time,
Prejudice
may be reduced by equal status contact
however, a far higher percentage of the crimes commit-
between majority and minority groups in the pursuit of
ted by blacks than of the crimes committed by whites
common goals. The effect is greatly enhanced if this
were interracial. In 1986 and 1987 whites committing
contact is sanctioned by institutional supports
and
crimes of violence-robbery, rape, and assault-chose
provided it is of the sort that leads to the perception of
white victims 97.5 percent of the time and black victims
common interests and common humanity between
members of the two groups.
2.5 percent of the time in those incidents in which the
victim could identify the race of the offender. Blacks
The contact between whites and the black underclass
committing violent crimes chose white victims 51.2 per-
has routinely violated every standard necessary for the
cent of the time and black victims 48.8 percent of the
breakdown of racial stereotypes. Most white contact with
time. For the specific crime of robbery the figures are
the underclass is through personal experience of crime
similarly striking. In 1986-1987, of those robberies in
and urban squalor, through such experience related by
which the race of the offender was identified by the vic-
friends and family, or through the daily reports about
tim, 95.1 percent of robberies committed by whites had
crime, drugs, and violence which appear on television
white victims and 4.9 percent had black victims; 57.4
and in newspapers. The news includes, as well, periodic
percent of robberies committed by blacks had white vic-
reports on out-of-wedlock births, welfare fraud, drug-
tims and 42.6 percent had black victims.
56
MAY 1991
THE ATLANTIC MONTHLY
The Races Polarize
get rid of it.
We cannot accept the fact that they
Over What's Gone Wrong
think black people have become a permanent under-
class
If we have become useless in a racist society,
IOLENCE, JOBLESSNESS, DRUG ABUSE, AND FAM-
then you must know that not public policy but a covert
V
ily disintegration have not only functioned to re-
policy is being already formulated to get rid of that
inforce racial prejudice; they have also led to
which is useless, since the economy is going down and
widely differing interpretations of what has
the world is going down. Follow me, brothers and sis-
gone wrong. Significant numbers of blacks, both middle-
ters. According to demographers, if the plummeting
class and poor, see malevolent white power behind the
birth rate of white people in America continues, in a
disruption and dislocation in black neighborhoods. Take
few years it will reach zero population growth. As for
blacks, Hispanics, and Native Americans, if their pres-
drug abuse. "It's almost an accepted fact," says Andrew
ent birth rate continues, by the year 2080, demogra-
Cooper, the publisher of the City Sun, a black weekly
phers say, blacks, Hispanics, and Native Americans will
Brooklyn newspaper, echoing ideas often heard on black
conceivably be 50 percent or more of the United States
radio talk shows and in other all-black forums. "It's a
population.
If things continue just birthwise, we
deep-seated suspicion. I believe it. I can't open my desk
could control the Congress, we could control the Su-
drawer and say, 'Here it [the evidence] is.' But there is
preme Court, we could control state legislatures, and
just too much money in narcotics. People really believe
then 'Run, Jesse, run,' or 'Run, Jesse Junior, run,' or
they are being victimized by The Man. If the govern-
'Run, Jesse the Third, run."
ment wanted to stop it, it could stop it." Louis Farra-
The emergence of predominantly black underclass
khan, the leader of the Nation of Islam, brought an entire
neighborhoods rife with the worst symptoms of social
auditorium of black politicians, intellectuals, and orga-
pathology has proved to be one of the most disturbing de-
nizers-men and women on the left of the political spec-
velopments in the United States, both for city residents
trum, but by no means on the outer fringes-to their feet
and for residents of surrounding areas. In his book Canar-
during a 1989 speech in New Orleans which clearly cap-
sie, the Yale sociologist Jonathan Rieder described the
tured elements of a black world view. He said,
climate of opinion he found in the late seventies in one of
The black man and woman in America is of no further
Brooklyn's white urban ethnic enclaves:
use to the children of our former slavemasters and when
a thing loses its use or utility, it loses its value. If your
Canarsie's image of ghetto culture crystalized out of all
shoes wear out, you don't keep them around; if an old
the visual gleanings, fleeting encounters, and racist
dress becomes old, you don't keep it around. Once it
presumptions. Lower-class blacks lacked industry,
loses utility, you move to
lived for momentary erotic pleasure, and, in their mys-
tique of soul, glorified the fashions of a high-stepping
street life. The hundreds of thousands of female-head-
ed minority households in New York City, and the spi-
raling rate of illegitimate
births, reinforced the im-
pression that ghetto wom-
en were immoral.
When provincial Jews and
Italians recoiled from the
riven families of the ghet-
to, they were prisoners of
ancient notions of right as
well as vituperative pas-
sion. "The blacks have
ten kids to a family," the
Italian wife of a city work-
er observed
"Bring
up a few, give them love
and education."
It is
hard to exaggerate the be-
wilderment Canarsians
felt when they considered
the family patterns of the
ghetto. To be without a family
in southern Italy "was to be
truly a non-being, un saccu vacante (an
empty sack) as Sicilians say, un nuddu
miscatu cu nenti (a nobody mixed with nothing)."
58
MAY 1991
THE ATLANTIC MONTHLY
The Values Barrier
charged matters-ranging from crime to sexual responsi-
bility to welfare dependency to drug abuse to standards
HE INTENSITY OF PUBLIC REACTION TO THE
of social obligation-has for more than two decades cre-
T
world of the underclass has coincided with a
ated a values barrier between Democratic liberals and
larger conflict in America over values. This
much of the electorate. Insofar as many voters feel that
conflict has evolved, in complex ways, from
their cherished policies and practices have been routed,
one of the major struggles of the twentieth century: the
the values barrier has been a major factor in fracturing a
struggle between so-called traditional values and a com-
once deeply felt loyalty to a liberal economic agenda.
peting set of insurgent values. Traditional values general-
When rank-and-file white voters characterize the value
ly have been seen to revolve around commitments to the
structure of the underclass as aberrant, white liberals are
larger community-to the family, to parental responsibil-
not alone in their angry response. In segments of the
ity, to country, to the work ethic, to sexual restraint, to
black community the response is often a wounded out-
self-control, to rules, duty, authority, and a stable social
rage so extreme that it precludes all debate.
order. The competing set of insurgent values, the focus
Bernard Boxill, a black scholar at the University of
of rights-oriented political ideologies, of the rights revo-
North Carolina, has, for example, argued that the grow-
lution, and of the civil-rights movement, has been largely
ing problems of the underclass may be used by the white
concerned with the rights of the individual-with free-
community as "an excuse to undo the legal, social and
dom from oppression, from confinement, from hierarchy,
economic advances made by the black middle class,
from authority, from stricture, from repression, from rigid
plunge the country into a race war, and worst of all, be a
rule-making, and from the status quo.
pretext for genocide."
On a level essentially ignored by liberal elites-but a
Dr. Frances Welsing, a black psychiatrist, was loudly
level, nonetheless, of stark reality to key voters-the val-
applauded at a predominantly black "town meeting" or-
Stigmatization as "racist" or as
"in bad faith" of open discussion of values-charged
matters has created a values barrier between
liberals and much of the electorate.
ues debate has become conflated with racial politics.
ganized and televised in 1989 by ABC-TV and Ted Kop-
Among Democrats and liberals the stigmatization of rac-
pel when she argued that whites bear responsibility for
ism in the 1960s had the unintended and paradoxical con-
whatever disorders there may be in black ghettos:
sequence of stigmatizing the allegiance of many voters to
Racism is a behavior system that is organized because
a whole range of fundamental moral values. In the late
white people are a minority on the planet.
If we un-
1960s and early 1970s the raising of the "traditional val-
derstand the white fear of genetic annihilation, which is
ues" banner over such issues as law and order, the family,
why Willie Horton [the Massachusetts prisoner who
sexual conduct, joblessness, welfare fraud, and patrio-
committed rape and assault while on furlough] could be
tism was seen by liberals and blacks-with some accura-
used as a very profound symbol by the Republican Par-
cy-as an appeal to racist, narrow-minded, repressive, or
ty to win this election, then we will understand what is
xenophobic instincts, designed to marshal support for re-
happening to the black male in this society. The black
male is a threat to white genetic annihilation. And so he
actionary social policies. The conflation by the political
is profoundly attacked in this society.
right of values with attempts to resist racial integration, to
exclude women from public life, and to discredit the ex-
tension of constitutional rights to minorities fueled an of-
The Roots of
ten bitter resistance by the left and by blacks to the
Our Race-Charged Politics
whole values package.
The result was that liberal Democrats often barred
N THE GULF BETWEEN FRANCES WELSING AND DAN
from consideration what are in fact legitimate issues for
I
Donahue one can see evidence of a political struggle
political discourse, issues of fundamental social and mor-
that goes back to the 1960s. When one looks at re-
al concern which must be forthrightly addressed by any
cent political history through the prism of our cur-
national candidate or party. This stigmatization as "Γac-
rent race-charged politics, familiar events take on a new
ist" or as "in bad faith" of open discussion of values-
significance. From the perspective of 1991, for example,
61
MAY 1991
THE ATLANTIC MONTHLY
the presidential election of 1964 stands out as a turning
1967 there were 164 "disorders," eight of them ranked as
point in the politics of race in the United States. That
"major" on the grounds that they involved "many fires,
election forced race, already a volatile national issue, into
intensive looting, and reports of sniping; violence lasting
the partisan competition between the Democratic and
more than two days; sizeable crowds; and use of National
Republican parties. The 1964 contest pitted the Demo-
Guard or federal forces as well as other control forces."
crat Lyndon Johnson, the leading supporter of the re-
More than eighty people were killed, nearly 90 percent
cently passed Civil Rights Act (which granted full U.S.
of them black civilians and 10 percent policemen, fire-
citizenship rights to blacks for the first time in history),
men, and other public officials. More than three quarters
against the Republican Barry Goldwater, an ideological
of the deaths were in two cities, Detroit (forty-three) and
conservative and a strong opponent of the bill. By Elec-
Newark (twenty-three). During the five-year period
tion Day, 1964, an exceptional 75 percent of the elector-
1964-1968, according to one estimate, 329 significant
ate knew that Congress had that year passed the bill,
outbreaks of violence took place in 257 cities. Seventy-
with a striking 96 percent of those voters aware that John-
two percent of rioters in Newark surveyed by the Kerner
son had backed the measure and 84 percent aware that
Commission said they agreed with the statement "Some-
Goldwater had opposed it.
times I hate white peo-
The Democratic and Republican nominees' polarized
ple"-a finding painful to
positions on civil rights immediately transformed public
white liberals.
perceptions of the two parties. Two years before the 1964
The sea change in Ameri-
election, polls conducted by National Election Studies
can presidential politics-
showed virtually no difference in the public assessment
the replacement of a liberal
of whether the Democratic or the Republican Party
majority with a conserva-
would be "more likely to see to it that Negroes get fair
tive majority-involved
treatment in jobs and housing." Of those polled in the
the conversion of a rela-
1962 survey, 22.7 percent identified the Democrats as
tively small proportion of
more likely to protect black interests, 21.3 percent iden-
voters: the roughly five
tified the Republicans, and the remaining 56 percent
to ten percent of the
said either that there was no difference between the par-
electorate, made up pri-
ties or that they had no opinion. By 1964, however, fully
marily of white work-
60 percent identified the Democratic Party as more likely
ing-class voters, em-
to help blacks get fair treatment in seeking jobs, and only
powered to give ma-
seven percent identified the Republican Party-the par-
jority status to either
ty of Abraham Lincoln.
political party. Alaba-
By 1964 the Democrats had become the party of racial
ma Governor George
liberalism and the Republicans had become the party
C. Wallace was the
of racial conservatism. It was the first and last presi-
politician who showed
dential election in which racial liberalism was politically
the Republicans how to
advantageous.
seize lower-income white vot-
The event most strikingly associated with the decline
ers. Running as a third-party candi-
in political support for Democratic liberalism was the riot
date in 1968, Wallace capitalized on the
that broke out on August 11, 1965, in the Watts section of
huge defection of white Democrats, par-
Los Angeles. Blacks throwing rocks and bottles at police-
ticularly in the South, as the Democratic Party formally
men shouted, "Burn, baby, burn!" as television cameras
repudiated segregation. He won just under 14 percent
rolled. By August 16, after the National Guard had been
of the vote. Wallace and Nixon together that year won
called in and order slowly restored, there were thirty-four
57 percent of the vote, however, establishing what would
dead, more than 1,000 injured, over 800 buildings dam-
become the conservative presidential majority. This
aged or destroyed, and nearly 4,000 arrests. Even Martin
majority carried every presidential election but one
Luther King, Jr., the leader of black protests since the
over the next twenty years-the exception being South-
Montgomery bus boycott in 1955, was unprepared for
em Baptist Jimmy Carter's victory in the wake of Water-
Watts. Stunned by the scope of anger among rioters, and
gate, the worst Republican scandal in history.
by their perception that the civil-rights movement had
The strength of Wallace's appeal in 1968 went beyond
been largely irrelevant to improving conditions in the
white backlash. Wallace defined a new right-wing popu-
ghetto, King "was absolutely undone" after visiting
lism, capitalizing on voter reaction to the emergence of
Watts, his close associate Bayard Rustin recalled.
racial, cultural, and moral liberalism. Wallace demonized
A succession of other violent eruptions followed over
an elite Democratic establishment, providing a desper-
the next three years. According to the Kerner Commis-
ately sought-after moral justification to those whites who
sion, appointed to investigate the causes of rioting, in
saw themselves as victimized and displaced by the black
62
MAY 1991
THE ATLANTIC MONTHLY
struggle for civil rights and by broader social change. For
ica and the rich. Wallace effectively portrayed this
these voters, Wallace portrayed the civil-rights move-
Democratic establishment as bent on imposing a liberal,
ment not as the struggle of blacks to achieve equality-a
authoritarian, statist agenda on an unwilling electorate.
goal impossible to challenge on moral grounds-but as
To voters resentful of the heavy hand of the new
the imposition of intrusive "social engineering" on work-
liberal establishment, Wallace said, "You are one man
ing men and women by a coercive federal government in
and one woman, and your thoughts are just as good as
the hands of a liberal cabal: lawyers, judges, editorial
theirs."
writers, government bureaucrats, and intellectuals.
Richard Nixon set out to win the Wallace vote. Nixon
"They have looked down their noses at the average man
was among the first Republicans to understand how
on the street too long," Wallace told disaffected voters.
the changing civil-rights agenda could be manipulated
"They've looked down at the bus driver, the truck driver,
to construct a new conservative majority. His strategy
the beautician, the fireman, the policeman, and the
effectively straddled the conflict between increasing
steelworker, the plumber, and the communications work-
public support for the abstract principle of racial
er, and the oil worker, and the little businessman, and
equality and intensified public opposition to govern-
they say, 'We've gotta write a guideline. We've gotta tell
ment-driven enforcement mechanisms. Nixon found a
you when to get up in the morning. We've gotta tell you
message that encompassed the position of the growing
when to go to bed at night.'" Wallace laid the ground-
majority of white Americans who had come to believe
work for the Republican assault
that the denial of basic citizenship rights to blacks was
wrong, but who were at the same time opposed to the
prospect of forced residential and educational integra-
tion, directed by the courts and the federal regulatory
bureaucracy.
When, in October of 1969, the Supreme Court re-
jected an Administration attempt to postpone
the desegregation of Mississippi's
schools, Nixon declared, "We
will carry out the law," but he
stressed that he did "not feel ob-
ligated to do any more than the
minimum the law required." The
Court ruling, Nixon warned, should
not be viewed by "the many young
liberal lawyers [in the Justice Depart-
ment]
as a carte blanche for them to
run wild through the South enforcing com-
pliance with extreme or punitive require-
ments they had formulated in Washington."
On the campaign trail in 1972 Nixon declared,
There is no reason to feel guilty about wanting
to enjoy what you get and get what you earn,
about wanting your children in good schools close
to home, or about wanting to be judged fairly
on your ability. Those are not values to be ashamed
on "reverse discrimination." "You
of; those are values to be proud of. Those are values
know who the biggest bigots in the world are-they're
that I shall always stand up for when they come under
the ones who call others bigots," he declared at a Mil-
attack.
waukee rally, as he struggled to be heard over the shouts
of protesters. In another campaign speech he said, "It's a
sad day in the country when you can't talk about law and
The Republican Racial Strategy
order unless they want to call you a racist. I tell you that's
CENTRAL IRONY OF THE NIXON ADMINISTRATION
not true."
Perhaps most important for long-range Republican
A
was that the development of a Republican alter-
native-"black capitalism"-to the traditional
strategy, Wallace brought into mainstream presidential
civil-rights agenda created a critical vulnerabil-
politics a new political symbol, a vilified Democratic es-
ity for Democrats in the 1980s. Under black capitalism
tablishment that replaced as an enemy of lower-income
the federal government began actively to promote three
voters the Republican establishment of corporate Amer-
racial-preference programs that would soon become con-
MAY 1991
63
THE TIC MONTHLY
troversial: a minority contracting program known as
This scenario grew out of a seemingly minor develop-
"8-a," which set aside fixed percentages of federal con-
ment at the 1968 Democratic convention. As a token ges-
tracts for minority-owned businesses; the Office of Mi-
ture of appeasement to the forces of Eugene McCarthy
nority Business Enterprise, established within the De-
and Robert Kennedy, Democratic Party regulars allowed
partment of Commerce to assist minority business in
the creation of a special Commission on Party Structure
securing government contracts; and, most important, the
and Delegate Selection, to ensure that "all feasible ef-
so-called Philadelphia Plan, designed to increase black
forts have been made to assure that delegates are select-
access to high-paying union jobs.
ed through party primary, convention, or committee pro-
The Philadelphia Plan established the authority of the
cedures open to public participation within the calendar
federal government to require companies doing business
year of the National Convention."
with the government to set up "goals and timetables" for
No one, neither Democratic Party regulars nor the
the hiring and promotion of minority members. The plan
press, had any notion of the scope of what had been set in
set specific percentage "ranges" for blacks and other mi-
motion. "There was not much attention to the Rules
nority groups for craft-union jobs. For example, plumb-
Committee reports," Max Kampelman, one of Hubert
ers and pipefitters, of whom only twelve out of 2,335 in
Humphrey's major strategists, recalled later. "Our objec-
Philadelphia were black (0.5 percent), were given a hir-
tive was to get a nominee.
We said to ourselves, if
ing goal of five to eight percent in 1970, a range that
you are going to study it, you can control it. If you get the
would rise to 22 to 26 percent by 1973. The goals-and-
nomination; you'll have control of the DNC [Democratic
timetables mechanism was incorporated in 1970 into the
National Committee]. If you have the DNC, then you'll
regulations governing all federal procurement and con-
control any study. A study commission could be a way of
tracting-affecting a universe of corporations that em-
harmonizing the issue." Few political judgments have
ployed more than a third of the nation's work force.
proved more incórrect.
Nixon in 1969 did not anticipate that the affirmative-
The liberal-reform wing of the Democratic Party-in
action provisions of his Philadelphia Plan would become,
part made up of veterans of the civil-rights and student
in the course of the next twenty years, essential to a Re-
anti-war movements-dominated the party-structure
publican strategy of polarizing the electorate along lines
commission and achieved a radical alteration of the presi-
of race-and thus be vital to constructing a presidential
dential-delegate selection process. The new rules shifted
partisan realignment. It did not take him long to learn,
the power to nominate presidential candidates from the
however: by the 1972 election Nixon was campaigning
loose alliance of state and local party structures, which
against the quota policies that his own Administration
had in the past been empowered to use their control of
had largely engendered.
the party to pick delegates, to the universe of activists,
It was Nixon's re-election campaign that developed a
often rights-oriented liberal reformers, who were now
relatively comprehensive Republican racial strategy
granted direct access to the machinery of delegate selec-
stressing whenever possible the costs of remedies for dis-
tion. "Before reform," Byron Shafer wrote in his book
crimination, especially in the cases of busing and affirma-
describing the party rules changes, Quiet Revolution,
tive action. On March 17, 1972, Nixon escalated his as-
sault on busing. The school bus, "once a symbol of
there was an American party system in which one party,
the Republicans, was primarily responsive to white-col-
hope," had become a "symbol of social engineering on
lar constituencies and in which another, the Democrats,
the basis of abstractions," he said. Seeking to reap politi-
was primarily responsive to blue-collar constituencies.
cal rewards from the growing stockpile of blue-collar re-
After reform, there were two parties each responsive to
sentment, Nixon turned against his own Philadelphia
quite different white-collar coalitions, while the old
Plan: "When young people apply for jobs
and
find
blue-collar majority within the Democratic Party was
the door closed because they don't fit into some numeri-
forced to try to squeeze back into the party once identi-
cal quota, despite their ability, and they object, I do not
fied predominantly with its needs.
think it is right to condemn those young people as insen-
In other words, those who unquestionably lost power
sitive or even racist."
in the Democratic presidential-nomination process were
the white working- and lower-middle-class voters who
The Democrats Become a
were already leaving the party in droves because they felt
White-Collar Party
the heaviest burdens of the civil-rights revolution had
been placed on their shoulders.
N DEVISING A POLITICAL STRATEGY FOR CAPTURING
I
Party reforms produced a substantive ideological up-
white working-class and southern voters, the Nixon
heaval. Before 1972, Democratic presidential delegates
Administration in 1972 would have had difficulty
were only slightly more liberal than the public at large,
designing a scenario more advantageous to the Re-
according to delegate surveys, while Republican dele-
publicans, and more damaging to the Democratic Party,
gates were considerably more conservative than the elec-
than the one the Democrats devised for themselves.
torate. Delegates to the 1972 Democratic convention,
66
MAY 1991
THE FIC
however, were significantly further to the political left of
form.
Anybody who would reform Chicago's Demo-
the electorate at large than the Republican delegates that
cratic Party by dropping the white ethnic would prob-
year were to the right.
ably begin a diet by shooting himself in the stomach.
No development better summarizes the shift in intra-
party power than the decision by the McGovern forces at
After the credentials committee voted seventy-one to
the 1972 convention to oust the fifty-nine-member Cook
sixty-one to oust the Daley delegation, Frank Man-
County delegation under the control of Chicago Mayor
kiewicz, a spokesman for the McGovern campaign, dryly
Richard Daley. Since 1932 the Chicago organization had
noted, "I think we may have lost Illinois tonight."
been more important to the success or failure of Demo-
In the 1972 general election,
cratic presidential candidates than any other city ma-
George McGovern lost not
chine. Without Daley in 1960, for example, John F. Ken-
only Illinois but forty-eight
nedy would not have carried Illinois by an 8,858-vote
other states, being defeated
margin.
by 61 percent to 38 per-
The Cook County delegation, elected in a March 21
Illinois primary, was vulnerable to
challenge because Daley's machine
had slated candidates in closed
meetings, and because the composi-
tion of the Chicago delegation did
not include the required proportions
of women and blacks.
Pro-McGovern reformers success-
fully voted out the Daley delegates
and replaced them with a slate "chosen
no one knew quite how," according to
Theodore H. White. White wrote,
In the 1st Congressional District of
Chicago, for example, a group of peo-
ple had met at the home of one James
Clement and decided that only ten of
those present might vote for an alter-
nate to Mayor Daley's slate; those ten
had chosen 7 delegates, including the
Reverend Jesse Jackson. This rival
hand-picked alternate slate offered the
BENS
exact proportion of women, blacks and
youth required by the McGovern reform
rules. Yet the elected slate in the 1st
Congressional had been voted in by the
people of Chicago, and these had not.
In an open letter to Alderman William
Singer, the leader of the Chicago reform-
ers, the Chicago Sun-Times columnist
Mike Royko wrote,
cent, or 18
I just don't see where your delegation is
million votes. For the long-
representative of Chicago's Demo-
run future of the capacity of the Democratic
crats.
About half of your delegates
are women. About a third of your delegates are black.
Party to nominate and elect Presidents, the central issue
Many of them are young people. You even have a few
was not just the magnitude of McGovern's defeat. It was
Latin Americans. But as I looked over the names of
the inability of the Democratic Party to absorb competing
your delegates, I saw something peculiar.
There's
factions and to mediate the differences among them.
only one Italian there. Are you saying that only one out
The new rules removed from the presidential-nomina-
of every 59 Democratic votes cast in a Chicago election
tion process those white elected and party officials who
is cast by an Italian? And only three of your 59 have Pol-
were closer to the racial and cultural conflicts plaguing
ish names.
Your reforms have disenfranchised Chi-
the party than the liberal reformers who dominated
cago's white ethnic Democrats, which is a strange re-
the proceedings. Among those who did not attend the
68
MAY 1991
THE ATLANTIC MONTHLY
1972 convention were 225 of 255 Democratic congress-
men, the Democratic mayors of Los Angeles, Detroit,
The Civil Rights
Agenda Becomes Redistributive
Boston, Philadelphia, and San Francisco, Mayor Daley
and his Chicago loyalists, and uncounted city council-
S THE WHITE WORKING-CLASS VOTERS WHO HAD
:o
men, state legislators, and leaders of Democratic ward
A
formed the core of the New Deal coalition be-
organizations.
gan to lose clout within the Democratic Party,
These leaders represented white voters who were on
the economy began to falter. Steady economic
the front lines of urban housing integration; who were
growth, which had made redistributive government poli-
the subjects of busing orders; who were competitors for
cies tolerable to the majority electorate, came to a halt in
jobs as policemen and firemen
the mid-1970s. With stagnation the threat to Democratic
liberalism intensified. Just as the civil-rights movement
reached its height, high-paying union jobs and big-city
patronage-which had served to foster upward mobility
for each succeeding immigrant generation-began to dry
up. Many blacks lost even a toehold on the ladder, while
whites slipped down, sometimes just a rung, sometimes
all the way to the bottom.
The end of vigorous post-Second World War economic
growth came in 1973. Hourly earnings, which had grown
every year since 1951 in real, inflation-adjusted dollars,
fell by 0.1 percent in 1973, by 2.8 percent in 1974, and
by 0.7 percent in 1975. Weekly earnings fell more sharp-
ly, by 4.1 percent in 1974 and by 3.1 percent in 1975.
Median family income, which had grown from $20,415
(in 1985 inflation-adjusted dollars) in 1960 to $29,172 in
1973, began to decline; family income fell to $28,145 in
1974 and then to $27,421 in 1975.
In a whipsaw action the middle-class tax burden rose
with inflation while the economy and real income growth
slowed. The tax system was losing its progressivity, plac-
ing a steadily increasing share of the cost of government
on middle- and lower-middle-class voters, vital constitu-
encies for the Democratic Party. In 1953 a family making
the median family income was taxed at a rate of 11.8 per-
cent, while a family making four times the median was
taxed at 20.2 percent, nearly double. By 1975 the figures
had become 22.7 percent for the average family and 29.5
percent for the affluent family. In other words, for the af-
fluent family the tax burden increased by 46 percent
from 1953 to 1976, while for the average family it in-
and union crafts-
creased by 92.4 percent.
men which were governed by affirma-
As the job market, income patterns, and growing pres-
tive-action consent decrees; who regarded as incompre-
sure from many groups for spending on the poor created a
hensible many liberal Supreme Court decisions on
competition for government funds in which there were
criminals' rights, abortion, sexual privacy, school prayer,
more losers than winners, the civil-rights agenda itself
busing, and obscenity. These voters and their political
became increasingly redistributive. In order to remedy
representatives were, and still are, largely relegated to
past and present discrimination in both employment and
peripheral status in the Democratic presidential-primary
education, the courts and the federal regulatory structure
process. With the withdrawal of socially conservative
turned to tough affirmative-action policies. Federal direc-
white voters from the nomination process, Democratic
tives and regulations-developed in part by the Equal
presidential candidates have negotiated that process in
Employment Opportunity Commission and endorsed by
the context of an artificially liberal primary electorate
the Supreme Court in 1971 in Griggs V. Duke Power Co.
that puts the candidates outside the ideological main-
and in later decisions-sharply restricted hiring and pro-
stream and provides them with virtually no training in
motion procedures that adversely affected blacks.
the kinds of accommodation and bargaining essential to
The most aggressive efforts to provide jobs for blacks
general-election victory.
were directed at the most besieged white Democratic
MAY 1991
69
THE ATLANTIC MONTHLY
man was hired. Richard Arrington, Birmingham's first
black mayor, was elected in 1979. and two years
later the city agreed to a consent decree
providing that every white hire
or promotion would be
matched, one for
one, by a black hire
or promotion, as long
as blacks were avail-
able who had fulfilled
basic test requirements.
In 1983 James Henson,
a white fireman, and Carl
Cook, a black fireman, both
took the Birmingham Fire De-
partment test for lieutenant.
Both passed, but Henson ranked
sixth among all who took the test,
with a score of 192, while Cook
constituencies:
ranked eighty-fifth, with a score of
the building-trades un-
122. Under the consent decree Cook
ions and police and fire de-
was promoted to lieutenant and Hen-
partments. White men working as
son was not.
carpenters, plumbers, sheet-metal work-
Henson became part of a group of
ers, iron workers, steamfitters, cops, and firemen
whites attempting to challenge the consent degree. He
became the focus of the anti-discrimination drive waged
argued, "I can understand that blacks had been histori-
by the Civil Rights Division of the Justice Department.
cally discriminated against. I can also understand why
The dilemma inherent in using racial preference to
people would want to be punitive in correcting it. Some-
remedy past discrimination is sharply reflected in Justice
body needs to pay for this. But they want me to pay for it,
William Brennan's 1976 majority opinion upholding the
and I didn't have anything to do with it. I was a kid when
award of retroactive seniority to blacks in Franks V. Bow-
all this went on."
man Transportation Co., Inc., and in the dissenting opin-
Cook countered, "Say your father robs a bank, takes
ion of Justice Lewis Powell.
the money and buys his daughter a Mercedes, and then
Brennan wrote that retroactive seniority was essential
buys his son a Porsche and his wife a home in the high-
for the victim of discrimination, because without it he
rent district. Then they discover he has embezzled the
will never obtain his rightful place in the hierarchy of
money. He has to give the cars and house back. And the
seniority according to which these various employment
family starts to cry: 'We didn't do anything.' The same
benefits are distributed. He will perpetually remain
thing applies to what the whites have to say. The fact is,
subordinate to persons who, but for the illegal discrimi-
sometimes you have to pay up. If a wrong has been com-
nation, would have been, in respect to entitlement to
mitted, you have to right that wrong."
these benefits, his inferiors.
The Birmingham case represents an extreme: pitting
Powell, on the other hand, contended that the award of
white and black workers against each other in a competi-
retroactive seniority would penalize "the rights and ex-
tion for government-controlled jobs and employment
pectations of perfectly innocent employees. The eco-
benefits. Over time these racial divisions reverberated in
nomic benefits awarded discrimination victims would be
Birmingham's political system. Once, every elected offi-
derived not at the expense of the employer but at the ex-
cial in this city was a Democrat; now racial conflict has
pense of other workers."
begun to translate into a local partisan realignment. By
The intensity of the conflict over affirmative action can
the end of the 1980s Jefferson County, which encom-
be seen in less abstract terms in Birmingham, Alabama.
passes Birmingham, had its eighteen seats in the state
Not until 1968-103 years after the end of the Civil
House of Representatives split between blacks and
War-did the Birmingham fire department hire its first
whites. In partisan terms there were eight black Demo-
black fireman. Throughout all those years blacks were
crats, one white Democrat, and nine white Republicans.
systematically denied the opportunity not only of em-
Among the white Republican state representatives
ployment but also of building seniority and learning the
was Billy Gray, a former president of the Firefighters
promotional ropes. Legal proceedings were initiated
Union. Race had become central to establishing partisan
against the city in 1974, the year the second black fire-
difference.
70
MAY 1991
THE ATLANTIC MONTHLY
The same zero-sum element of affirmative action in
ty"-the original clarion call of the civil-rights move-
employment is applicable to higher education. "We are
ment-became the center-right position, the core of the
committed to a program of affirmative action, and we
new conservative egalitarian populism. Republican and
want to make the university representative of the popula-
Democratic differences over what "equal opportunity"
tion of the state as a whole," James A. Blackburn, the
meant reflected, in part, differences in the opinions of
dean of admissions at the University of Virginia, said in
whites and blacks. By the 1980 election the ideological
1988. "That means fewer spaces for the traditional main-
divergence had extended beyond issues of civil rights to
stream white students who have come here from around
basic questions about the role and responsibilities of the
the country.
If you were looking at the academic cre-
federal government. In 1980 blacks who believed that it
dentials, you. would say Virginia has it upside down. We
was the responsibility of government to provide jobs out-
take more in the groups with weaker credentials and
numbered those who contended that "government
make it harder for those with stronger credentials."
should just let every person get ahead on his own" by a
margin of 70-30, according to National Election Studies
Reagan and Race
poll data. Whites, however, split in the opposite direc-
tion, contending by a 62-38 margin that government
XPLOSIVE FORCES-STAGNANT INCOMES, DECLIN-
should just let "everyone get ahead on his own" rather
E
ing numbers of manufacturing jobs, inflation-
than guaranteeing work.
driven increases in marginal tax rates, sharply
Responses to this question also revealed the extent to
accelerating welfare dependency, skyrocketing
which ideology, voting patterns, and race had become
crime, soaring illegitimacy, and affirmative-action com-
commingled. In addition to polarizing blacks and whites,
petition for jobs and college placement-began to reach
the question was found to polarize Reagan and Carter
the point of combustion in the mid-to-late 1970s. Demo-
voters, with Carter getting 80 percent of those who most
Nixon's re-election campaign
developed a relatively comprehensive Republican
racial strategy stressing whenever possible the
costs of remedies for discrimination.
crats failed to recognize the threat these forces represent-
strongly supported government intervention to provide
ed; leaders of the party were given false comfort by the
work, and Reagan winning 79 percent of those most
belief that Watergate had done irreparable harm to the
strongly opposed to such intervention.
Republicans.
In a parallel split, Carter received 93 percent of the
The importance of race in the chain of events that
vote from those citizens, white and black, who most
brought Ronald Reagan to the White House-from the
strongly supported government efforts "to improve the
Great Inflation of the 1970s to the California tax revolt-
social and economic position of blacks," while Reagan
cannot be overestimated. Reagan, echoing Goldwater
got 71 percent of those who felt most adamantly that "the
from sixteen years before, strengthened the image of the
government should not make any special effort to help
Republicans as the party of racial conservatism. Under
because they should help themselves."
Reagan in 1980 the percentage of voters who said the Re-
Race, ideology, and partisanship had become inex-
publican Party was "not likely" to help minorities shot up
tricably linked, a linkage that empowered the Republi-
to 66 percent (from 40 percent in 1976), while those who
can Party in its new populism. Lee Atwater, who ran
said that the party would help minorities collapsed to 11
southern operations for the 1980 campaign and managed
percent (from 33 percent). Unlike Goldwater in 1964,
George Bush's 1988 campaign, has argued, "In the 1980
however, Reagan in 1980 demonstrated that racial con-
campaign we were able to make the establishment, inso-
servatism was no longer a liability-that in fact it was a
far as it is bad, the government. In other words, big gov-
clear asset-as his party made gains at every level of
emment was the enemy, not big business. If the people
electoral competition from state legislative seats to the
are thinking that the problem is that taxes are too high
White House.
and government interferes too much, then we are doing
Under Reagan the Republican Party in 1980 was able
our job. But if they get to the point where they say the
to stake out a conservative civil-rights stand that won
real problem is that rich people aren't paying taxes, that
strong majority support. Advocacy of "equal opportuni-
Republicans are protecting the realtors and so forth, then
73
MAY 1991
THE ATLANTIC MONTHLY
I think the Democrats are going to be in pretty good
conventional Democratic themes, like opportunity and
shape. The National Enquirer readership is the exact vot-
fairness, are now invested with all the cynicism and rac-
er I'm talking about. There are always some stories in
ism that has come to characterize these sessions [focus
there about some multimillionaire that has five Cadillacs
groups]. In effect, the themes and Party symbols have
been robbed of any meaning for these Democratic de-
and hasn't paid taxes since 1974, or so-and-so Republican
fectors. On hearing the term "fairness," these voters re-
congressman hasn't paid taxes since he got into Congress.
call, on the one hand, "racial minorities" or "some
And they'll have another set of stories of a guy sitting
blacks kicking up a storm," and on the other hand,
around in a big den with liquor saying so-and-so fills his
"only politics" or politicians who are "lying." It never
den with liquor using food stamps." So what determines
occurred to these voters that the Democrats were refer-
whether conservative or liberal egalitarianism is ascen-
ring to the middle class.
dant, Atwater says, is "which one of those establishments
the public sees as a bad guy."
Similar views abound among white voters in such com-
Reagan focused on the right-wing populist strategy de-
munities as Boston, Philadelphia, New Orleans, Chica-
scribed by Atwater, playing on the combustible mix of
go, and rural East Texas. These views are particularly
race, big government, and white working-class anger.
devastating to the Democratic Party because fairness has
One of Reagan's favorite anecdotes was the inflated story
become a central Democratic theme. The 1980 Demo-
of a Chicago "welfare queen" with "eighty names, thirty
cratic platform declared, "In all of our economic pro-
addresses, twelve Social Security cards" whose "tax-free
grams, the one overriding principle must be fairness." The
income alone is over $150,000." The food-stamp pro-
platform of four years later asserted, "A nation is only as
gram, in turn, was a vehicle to let "some young fellow
strong as its commitment to justice and equality. Today, a
ahead of you buy T-bone steak" while "you were stand-
corrosive unfairness eats at the underpinnings of our soci-
ing in a checkout line with your package of hamburger."
ety." (Emphases added.)
Such implicitly race-laden images, and the values con-
In addition, fairness remains a strong and legitimate is-
flict associated with welfare and food stamps, furthered
sue for the legions of black Democratic voters. "The is-
the Republican Party's efforts to expand beyond its tradi-
sues that concern working-class minorities comprise the
tional base and establish a sustained policy majority-
traditional 'fairness' agenda of jobs, housing, welfare,
which supported the first major retrenchment of the lib-
and education," the voter study by CRG Communica-
eral government policies of the 1930s and the 1960s,
tions found. "They want more
ranging from assaults on labor to a broad attempt to dis-
benefits for themselves and
mantle the civil-rights regulatory structure and to over-
their children. [They] strongly
turn court rulings favoring minorities. In direct contrast
assert the validity of the 'fair-
to the "bottom-up" coalition of the New Deal Democrat-
ness' theme. They believe
ic Party, the new Republican presidential majority was-
that they are entitled to cer-
and is-a "top-down" coalition.
tain governmental benefits
and view the diminishment
What "Fairness"-to Whom?
of those benefits as a be-
traval of a trust."
HILE THE REAGAN ADMINISTRATION REPEAT-
The association in the
W
edly stressed the costs to white America of
minds of many white vot-
civil-rights enforcement, especially affirma-
tive-action remedies, the Democratic Party,
deliberately or inadvertently. continued to find itself
identified with those costs. Throughout the 1984 cam-
paign Walter Mondale was repeatedly enmeshed in nego-
tiations with Jesse Jackson, with organized labor, with
feminist groups, and, most damaging of all, with those
seeking to raise taxes to fuel what many voters saw as an
intrusive federal government. The vulnerability of the
Democratic Party was reflected in the deeply hostile
public reaction to Mondale's proposal to raise $30 billion
in new revenues to "promote fairness."
The Democratic "fairness" message in 1984 was
viewed by a crucial sector of the white electorate through
the prism of race. The Analysis Group, reporting on the
views of white Democratic defectors in Macomb County,
Michigan, found that
76
MAY 1991
THE ATLANTIC MONTHLY
ers of "fairness" with "fairness to minorities" has made it
and got sent back to the neighborhood and told, 'Get on
very difficult for the Democratic Party to capitalize on
unemployment.' All it takes is two or three of them.
the striking increase in the disparity of income over the
Would you define them as Republican precinct captains?
past decade not only between rich and poor but also be-
No. Is it advantageous for the Republicans to watch a
tween the working and lower-middle classes and the rich.
guy like that sitting in a tavern drinking his beer and tell-
During the 1980s the top one percent saw after-tax family
ing the story about how he got bumped? And then all of a
income grow by 87 percent, from $213,675 in 1980 to
sudden it's six o'clock and [on TV] it's Jesse. It's bad and
$399,697 in 1990 (both figures in 1990 dollars); families
it ain't going to get better."
just above the median, in the sixth decile, saw their after-
tax income grow by only three percent, from $25,964 in
1980 to $26,741 in 1990.
The Signal of "Crime"
In the 1988 election no one knew better than Michael
N 1988 THE BUSH CAMPAIGN ASSEMBLED AND DE-
Caccitolo, the Republican committeeman of Chicago's
I
ployed a range of symbols and images designed to
23rd Ward, the difficulty of the Democratic Party's strug-
tap into voters' submerged anxieties about race, cul-
gle to revive the issue of fairness among the once-Demo-
ture, rights, and values-the anxieties that had
cratic voters of southwest Chicago. "Every night I sit at
helped to fuel the conservative politics of the post-civil-
home and watch the news," he said. "I see Jesse [Jack-
rights era. The symbols of the Bush campaign-Willie
son] up there talking about 'black empowerment, our
Horton, the ACLU, the death penalty, the Pledge of Al-
people,' and that's sending a message out there that no
legiance, the flag-and rhetoric such as "no new taxes,"
Democratic precinct captain can possibly overcome.
the "L-word," and "Harvard boutique liberal" conjured
When the Dan Ryan [Expressway] was being built, the
up the criminal defendants'- and prisoners'-rights move-
old lady from Operation Push [Rev. Willie Barrow. at that
ments, black crime, permissive liberal elites, a revenue-
time the president of Jackson's Operation Push} comes
hungry state, eroding traditional values, tattered patrio-
out and says, 'We are going to close the Dan Ryan down
tism, and declining American prestige.
unless we get more blacks on construction.' The people
Willie Horton represented, for crucial sectors of the
in the neighborhood remember that. Nobody threatened
electorate, the consequences of an aggressively expan-
to close the Dan Ryan down to get Polish people on. And
sive liberalism-a liberalism running up against majority
they [city and state officials] backed down and they gave
public opinion, against traditional values, and, to a cer-
a bunch of black guys
tain degree, against common sense. Horton came to
entry-level jobs. And
stand for liberalism's blurring of legitimate goals, such as
helping prisoners judged suitable for rehabilitation (pris-
oners, for example, without long records of violence),
look LESS who they threw off
with the illegitimate goal, in the majority view, of "cod-
dling" violent and dangerous criminals whom much of
society judges irredeemable.
Republican strategists recognized that the furloughing
of Willie Horton epitomized an evolution of the far-
reaching rights movement, an evolution resented and
disapproved of by significant numbers of voters. These
voters saw crime as one of a number of social and moral
problems aggravated by liberalism. The evolving rights
movement was seen as extending First Amendment
privileges to hard-core pornography, as allowing welfare
recipients to avoid responsibility for supporting their
children, as fostering drug use, illegitimacy, homosexual
promiscuity, and an AIDS epidemic. All these led, in
turn, to demands on taxpayers to foot skyrocketing so-
cial-service and health-care bills.
"Crime" became a shorthand signal, to a crucial group
of white voters, for broader issues of social disorder,
evoking powerful ideas about authority, status, morality,
self-control, and race. "On no other issue is the dividing
line so clear, and on no other issue is my opponent's phi-
losophy so completely at odds with mine, and I would say
with the common-sense attitudes of the American peo-
ple, than on the issue of crime," Bush declared in an Oc-
MAY 1991
77
THE ATLANTIC MONTHLY
tober 7, 1988, campaign speech to police officers in
courts treat whites and blacks evenhandedly, 56 percent
Xenia, Ohio, adding,
of white New Yorkers in a 1988 WCBS-Nere York Times
poll said they believed that the system was fair and 27
There are some-and I would list my opponent among
them-who have wandered far off the clear-cut path of
percent said the system favored one race over another,
common sense and have become lost in the thickets of
with that 27 percent evenly split between those who saw
liberal sociology. Just as when it comes to foreign poli-
black favoritism and those who saw white favoritism.
cy. they always "Blame America First," when it comes
Among black New Yorkers only 30 percent saw the sys-
to crime and criminals, they always seem to "Blame So-
tem as fair, and 49 percent saw it as unfair, with the over-
ciety
First." [Criminal justice under Dukakis is] a
whelming majority of those who perceived unfairness
"Twilight Zone" world where prisoners' "right of priva-
seeing a bias in favor of whites.
cy" has more weight than the citizen's right to safety.
Such highly controversial cases as the 1987 allegations
of rape by Tawana Brawley and the 1984 shooting by the
The Racial Chasm
"subway vigilante" Bernhard Goetz of four black teen-
agers provoked sharply divergent views from blacks and
HE DIVISIVE POWER OF RACE AND RACE-INFUSED
from whites. After a grand jury determined in 1988 that
T
preoccupations with values, class, and social
Brawley had fabricated her story, 73 percent of white
disorder endured throughout the 1980s, rever-
New Yorkers polled by WCBS-New York Times said she
berating across the electorate. Differences of
lied, while only 33 percent of blacks were prepared to
opinion between blacks and whites intensified over the
make that judgment (18 percent said she told the truth,
decade. A 1989 voter study conducted by KRC Research
14 percent said she didn't know what happened to her,
and Consulting for Democrats For the 90's, a private or-
and 35 percent were unwilling to express an opinion). In
ganization affiliated with the Democratic Party, revealed
the case of Goetz, the WCBS-Nere York Times poll found
the extent to which key white Democratic voters "take
in 1985 that the proportion of whites describing them-
issue with the Democratic rhetoric of representing the
selves as supportive of the shooting, relative to those who
'middle class and the poor.' These [voters] perceive
were critical, was 50-37, as compared with 23-59 among
themselves to be neither rich nor poor, and they do not
blacks. Whites felt that Goetz was innocent of attempted
like being referred to in the same breath as 'the poor.'
murder by a margin of 47-18 (with the rest undecided),
They describe themselves as 'working people." Black
while blacks said that he was guilty by a margin of 42-19.
urban Democratic voters, conversely, "feel that the coun-
(Hispanics sided more with whites than with blacks, fa-
try and the Democratic Party are increasingly racist and
voring innocence over guilt at 41-23.)
that the party cares little for their needs and interests."
Underlying these differences in public opinion is a pro-
Divisions between the races have emerged on a host of
found gulf between blacks and whites over the cause of
fronts. On the basic question of whether judges and
contemporary differences between the races. In seeking
to clarify these differences of opinion, Ron Walters, a
black political scientist at Howard University, has argued
that the fundamental issue in the contemporary politics
BONSAI
of race is "Who is responsible for our condition?" He
says, "Once you draw the line on that, you draw the line
Old man, precarious
on a lot of other race-value issues. Whites see blacks as
on splayed feet,
generally responsible for their own situation, which
means that whites refuse to take responsibility. Blacks
see it differently. They believe there ought to be a con-
leaning over the rim
tinuing assumption of responsibility for their condition
of the known world,
by the government, in addition to what they do for them-
selves. And therein lies a lot of the difference."
gnarled, angled
This racially loaded confrontation over the issue of re-
(as we imagine age),
sponsibility, both historical and contemporary, is perhaps
best illustrated by the views of the political analysts Rog-
er Wilkins and Patrick Buchanan. Wilkins, a black pro-
short of breadth,
fessor of history at George Mason University and a well-
he speaks of the past,
known commentator who served as an assistant attorney
general in the Johnson Administration and was an editori-
knowing in his roots
al writer for The New York Times and The Washington Post,
many tall stories.
has written,
The issue isn't guilt. It's responsibility. Any fair reading
-Leonard Cochran
of history will find that since the mid-seventeenth cen-
MAY 1991
78
THE ne MONTHLY
tury whites have oppressed some blacks so completely
Can America Afford Affirmative Action?
as to disfigure their humanity. Too many whites point
to the debased state of black culture and institutions
HE CONFLICT REPRESENTED BY WILKINS AND
as proof of the inferiority of the blacks they have man-
gled
[The logical implication] is simple: black
people simply need to pull up their socks. That idea is
T
Buchanan is driven not only by a fundamental
difference over values and responsibility but
wrong and must be resisted.
Like it or
also by economic and demographic forces.
not, slavery, the damage from legalized
These forces are helping to make the political struggle
oppression during the century that fol-
for public resources and benefits increasingly
lowed emancipation, and the racism
bitter and increasingly irreconcilable. In
that still infects the entire nation
many respects these forces are
follow a direct line to ghetto life
working in tandem to make
today.
the process of incorporating
On the other side, Buchan-
new groups into the main-
an, an Irish Catholic who was
stream of American society
a ranking conservative strat-
more difficult. They include
egist for the Nixon and
the globalization of the econ-
Reagan administrations
omy, the growing disparity
and remains a widely fol-
between the wages paid to the
lowed political columnist
college-educated and the
and television commen-
wages paid to those with a high
tator of the hard right.
school diploma or less, the drop
has written,
in college entry by blacks, and
the emergence of a
Why did liberalism fail
black America? Because
it was built on a myth,
the myth of the Kerner
Commission, that the
last great impediment
to equality in America
was 'white racism.
That myth was rooted
in one of the oldest of
self-delusions: It is be-
cause you are rich that
I am poor. My prob-
lems are your fault. You owe me!
There was a time when white rac-
ism did indeed block black progress in America, but by
the time of the Kerner Commission ours was a nation
committed to racial justice
The real root causes of the crisis in the underclass are
twofold. First, the old character-forming. conscience-
forming institutions-family, church, and school-
have collapsed under relentless secular assault; sec-
suburban vot-
ond, as the internal constraints on behavior were lost
ing majority.
among the black poor, the external barriers-po-
The globalization of the
lice. prosecutors, and courts-were systematically
economy constitutes a
undermined.
fundamental attack on the mechanisms
What the black poor need more than anything to-
traditionally relied upon to integrate
day is a dose of the truth. Slums are the products of the
people who live there. Dignity and respect are not
new untrained and poorly educated groups into the
handed out like food stamps; they are earned and
mainstream of American life. Before the internationaliza-
won.
tion of manufacturing, policies and practices ranging
The first step to progress, for any group. lies in the
from widespread political patronage to legislation creat-
admission that its failures are, by and large, its own
ing the pro-union National Labor Relations Board forced
fault, that success can come only through its own ef-
the incorporation of immigrant groups into the work
forts, that, while the well-intentioned outsider may
force.
help, he or she is no substitute for personal sacrifice.
The threat represented by overseas competition has
80
MAY 1991
THE ATLANTIC MONTHLY
thrust American companies into a battle for survival in
ployment prospects of blacks and Hispanics has been
which there is little or no room to accommodate the
documented in two book-length studies, Ability Testing
short-term costs of absorbing blacks and other previously
(1982) and Fairness in Employment Testing (1989), by the
excluded minority groups into the labor force. And while
National Research Council. On almost all ability tests
affirmative action performs for blacks and other minor-
studied, the council found (without engaging the unre-
ities the same function that patronage performed for
solved issue of causes), blacks scored substantially below
waves of immigrants from Ireland and southern Europe,
whites, and Hispanics scored somewhere in between.
it also imposes costs that place American companies at a
One study found, for example, that on average, if hiring
disadvantage in international competition.
were done strictly on the basis of ability-test scores, an
These costs lie at the core of the debate over the civil-
employer selecting from a pool of 100 whites and 100
rights bill of 1991. Although the issue of quotas has domi-
blacks would take only three blacks in the first twenty-
nated public discussion of the civil-rights bill, the real
three applicants chosen, and only six blacks in the first
battle is over legislating the precise cost to companies
thirty-six. The differences in test-score results are re-
that affirmative-action programs will involve. In an at-
duced, but remain substantial, for blacks and whites of
tempt to overturn recent conservative rulings by the Su-
similar income and education.
preme Court (now dominated by Republican appoin-
The contemporary conflict over affirmative action is root-
tees), the Democratic leadership of Congress has
ed in the issue of test scores. Everywhere from college ad-
proposed legislation strictly limiting the use of ability
missions to hiring for jobs, tests have become a primary
tests and other hiring procedures with potentially dis-
instrument for determining personal status, income, and
criminatory impact, even in the absence of discrimina-
security. On one side of the debate it is argued. that the
tory intent. If hiring or promotion procedures are found
unrestricted use of ability tests imposes an extraordinary
to have "adverse impact" on blacks-that is, if dispro-
burden on blacks, Hispanics, and other minorities; on
portionately more blacks (or other minorities) than
the other that prohibiting ability testing imposes costs on
whites are rejected-employers must demonstrate that
the economy in terms of lost productivity and efficiency.
such tests are essential for business operation and meet a
stringent "business necessity" standard. The legislation
The New Segregation
would in effect overturn a 1989 Supreme Court decision,
Wards Cove Packing Co. V. Atonio, that allowed companies
HILE LOW-SKILL, ENTRY-LEVEL JOBS HAVE
to use ability tests and other hiring criteria that ad-
W
moved overseas to low-wage countries, the
versely affect blacks and Hispanics if such
domestic job market has changed in ways
criteria met the far less stringent
that work to enlarge, rather than to lessen,
standard of "business jus-
disparities in the incomes of whites and of blacks. The
tification." Wards
growing demand for college-educated workers and the
Cove explicitly de-
decline in demand for low-skill manual workers have in
clared that "there is
recent years substantially changed wage patterns.
no requirement that
From 1975 to 1988 the average earnings of entry-level
the challenged practice
workers with college or more-advanced degrees rose from
be 'essential' or 'indis-
about 130 percent to about 180 percent of the earnings of
pensable' to the employ-
workers with high school diplomas. This shift was inher-
er's business."
ently damaging to blacks: in 1988, 13.1 percent of blacks
Such seemingly arcane
between the ages of twenty-five and thirty-four had col-
and legalistic phrases as
lege degrees, as compared with 24.5 percent of whites.
"business necessity" and
Compounding this disparity is a second development:
"business justification" can
just as the value of a college education has skyrocketed,
have profound consequences.
the percentage of blacks between the ages of eighteen
If, for example, companies were
and twenty-four who go on to college and get a degree
permitted to use scores on ability
has fallen. From 1976 to 1988 the percentage of blacks
tests as a hiring criterion, it would
aged eighteen to twenty-four enrolled in college fell from
at present be a major setback to the
22.6 to 21.1, while the percentage of whites rose from
hiring of blacks and Hispanics-un-
27.1 to 31.3.
less scores were adjusted for differ-
The effect of these two trends has been to undermine
ences among whites, blacks, Hispan-
what was a powerful drive toward economic and educa-
ics, and other groups (a scoring process
tional equality between the races. In the ten years imme-
termed "within-group scoring," "within-group adjust-
diately following the passage of the 1964 Civil Rights
ment," or "race-norming").
Act, the economy pushed the earnings of both blacks and
The importance of restricted ability testing for the em-
whites who were in the work force steadily upward.
MAY 1991
81
THE ATLANTIC MONTHLY
There was a strong convergence of shared prosperity
The 1992 election will be the first in which the subur-
and growing racial equality. From 1963 to 1973 average
ban vote, as determined from U.S. Census data, will be
weekly earnings for everyone grew from $175.17 to
an absolute majority of the total electorate. From 1968 to
$198.35, in 1977 inflation-adjusted dollars. As wages rose
1988 the percentage of the presidential vote cast in sub-
for whites and blacks, income differentials were sharply
urbs grew from 35.6 percent to 48.3 percent, and there
reduced: from 1963 to 1977-1978 the difference between
will be a gain of at least two percent by 1992 under cur-
black and white wages dropped from the 45 percent
rent trends.
range down to the 30 percent range, a drop of about one
Suburban growth will in all likelihood profoundly
percentage point a year. For younger. well-educated work-
change national politics, and will further deepen schisms
ers the gap had almost disappeared by the mid-1970s.
between the public-policy interests of the two races. Al-
Starting in the late 1970s and continuing into the early
though opinion polls show increasing support for govern-
1980s, however, the situation began to change radically.
ment expenditures on education, health, recreation, and
While the income of college graduates continued to rise,
a range of other desired public services, a growing per-
the income of high school graduates began to fall. At the
centage of white voters are discovering that they can be-
same time that the so-called "college wage premium"
come fiscal liberals at the local suburban level while re-
rose, the wage levels for job categories that employ dis-
maining conservative about federal spending. These
proportionately more whites (professionals, managers,
voters can satisfy their need for government services
and sales personnel) grew substantially faster than wage
through increased local expenditures, guaranteeing the
levels for those categories employing disproportionate
highest possible return to themselves on their tax dollars,
numbers of blacks (machine operatives and clerical, ser-
while continuing to demand austerity at the federal level.
vice, and household workers).
Suburbanization has permitted whites to satisfy liberal
The result has been a striking shift in racial wage pat-
ideals revolving around activist government while keep-
"Crime" became a shorthand
signal for broader issues of social disorder,
evoking powerful ideas about authority, status,
morality, self-control, and race.
terns. Starting at the end of the 1970s the convergence
ing to a minimum the number of blacks and poor people
between the incomes of working blacks and whites-a
who share in government largesse.
convergence that had the potential in the long run to en-
For example, the residents of Gwinnett County, Geor-
large the economic common ground between the races-
gia, which is one of the fastest-growing suburban juris-
came to a halt. In the late 1970s black wages abruptly
dictions in the United States, heavily Republican (76
stopped catching up to white wages, with the differential
percent for Bush), affluent, and predominantly white
stagnating at roughly 30 percent.
(93.6 percent)-have been willing to tax and spend on
For a Democratic Party seeking to build a majority co-
their own behalf as liberally as any Democrats. County
alition aligning the interests of blacks and whites, this
voters have in recent years approved a special recreation
was a grave blow. The failure of the trend toward wage
tax; all school, library, and road bond issues; and a one
equality to continue has encouraged the conflict between
percent local sales tax.
black and white world views, in which black gains are
The accelerated growth of the suburbs has made it
seen as a cost to whites, and white advantages are seen as
possible for many Americans to pursue certain civic
a manifestation of racism.
ideals (involvement in schools, cooperation in communi-
ty endeavors, a willingness to support and to pay for pub-
Race and the Suburbs
lic services) within a smaller universe, separate and apart
from the consuming failure (crime, welfarism, decay) of
UST AS WAGE AND EDUCATION PATTERNS ARE WORK-
the older cities.
J
ing to undermine what was a trend toward economic
If a part of the solution to the devastating problems of
equality between the races, the dominant demo-
the underclass involves investment in public services,
graphic trend in the nation-suburbanization-is
particularly in the public school systems of the nation's
working to intensify the geographic separation of the
major cities, the growing division between city and sub-
races, particularly of whites from poor blacks.
urb lessens white self-interest in making such an invest-
84
MAY 1991
THE ATLANTIC MONTHLY
ment. In 1986 fully 27.5
percent of all black
schoolchildren, and 30
percent of all Hispanic
schoolchildren,
were enrolled in
the twenty-five
largest central-city
school districts.
Only 3.3 percent of
all white students
were in these same
twenty-five districts.
In other words, 96.7
percent of white chil-
dren are educated out-
side these decaying
the Democratic Par-
school systems.
Even within major cities
ty continues a pro-
there is a growing diver-
cess damaging to the vitality of the
gence of interest between
American political system.
blacks and whites. Many of
Fissures resulting from racial conflict, and
the more affluent citizens in
fissures resulting from tensions over rights,
racially mixed cities are turn-
culture, and values, separate the national Democratic
ing to private service provid-
Party from many of its former constituents. Such fissures
ers, including independent and
have forced the party to increase its dependence on
parochial schools, private police and security services,
special interests in order to maintain its congressional
proliferating private recreational clubs, and private trans-
majority.
portation companies.
Without the resource of plurality voter loyalty, Demo-
cratic members of the House of Representatives-the
The End of the Democratic Party?
seemingly unshakable bastion of Democratic power in
Washington-have come to rely increasingly on an es-
N. POLITICAL TERMS RACE CLEARLY REMAINS A RE-
sentially corrupt system of campaign finance, on the per-
I
publican trump card, while racial fissures within
quisites of incumbency, on pork-barrel spending, and on
the Democratic Party leave it weakened and
the gerrymandering of districts in order to thwart con-
vulnerable.
tinuing demographic and ideological shifts favoring their
On a broad strategic scale the Republican Party over
opponents.
the past two years has taken steps to capture the fairness
As recently as the mid-1970s the Democratic Party was
issue and to defuse charges of Republican racism, initiat-
able to portray itself as the party of political reform, bat-
ing an aggressive drive to win the support of affluent
tling a Republican Party dominated by moneyed inter-
blacks and even running, on occasion, fully competitive
ests. Now Democrats in the House of Representatives
black candidates. Income trends in the black community
are more dependent on institutionalized special-interest
suggest a reservoir of prospective Republican support:
groups than are their Republican adversaries. In 1990 the
the income of the top fifth of black families has over the
majority-52.6 percent-of the campaign contributions
past two decades been growing at a significantly faster
received by Democratic incumbent House members run-
rate than the income of the top fifth of white families.
ning for re-election came from political-action commit-
Trends among the well-to-do of both races have led to in-
tees, while the percentage of support from individual do-
creasing racial equality of income, in sharp contrast to
nors represented a steady decline, from 44.8 percent in
trends among the least affluent blacks and whites: the
1984 to 38.0 percent in 1990. Republican House incum-
bottom fifth of the black community is falling steadily
bents, in contrast, received 50.9 percent of their financial
further behind the bottom fifth of the white community.
support from individuals in 1988, and 41.1 percent from
Insofar as the Republican drive to win support among
PACs, in a pattern virtually the mirror image of the Demo-
affluent middle-class blacks is successful, and insofar as
crats'. In 1988 not only did labor PACs follow tradition by
the party is able to insulate itself from charges of racism,
giving far more to Democratic House incumbents ($16.7
it will further isolate the national Democratic Party as the
million) than to Republican incumbents ($1.9 million),
party of poor, underclass black America. The isolation of
but corporate PACs-the contemporary version of "mon-
85
MAY 1991
THE 111. no
eyed interests"-gave more money to Democratic
duce a strong labor movement, that extended basic rights
House incumbents ($15.7 million) than to their Republi-
to all citizens, and that has nurtured free political and ar-
can counterparts ($13.5 million). While helpful to incum-
tistic expression-has lost the capacity to represent ef-
bents in the short term. this kind of contribution pattern
fectively the allied interests of a biracial, cross-class coali-
weakens any claim the Democratic Party may make to
tion. Liberalism, discredited among key segments of the
provide popular representation.
electorate, is no longer a powerful agent of constructive
The Democratic reliance on special interests in fact
change. Instead, liberal values, policies, and allegiances
extends beyond Congress to a second party stronghold,
have become a source of bitter conflict among groups
the nation's major cities. The public's ability to direct es-
that were once common beneficiaries of the progressive
sential services-most important, the public school sys-
state.
tem-has been lost in varying degrees to institutional-
The failures of Democratic liberalism pose a larger
ized bureaucracies. Within urban school systems faced
problem. With the decline of liberal hegemony, conser-
with declining tax bases and lessened federal support, as-
vatism has gained control over national elections and, to a
sociations and unions representing teachers, principals,
significant degree, over the national agenda. No matter
administrators, clerical staff, custodians, carpenters, and
what its claims, conservatism has served for much of the
security guards have become politically influential in pro-
twentieth century as the political and philosophical arm
tecting their members' tenure while carefully limiting
of the affluent. Entrusting the economic interests of the
their responsibility for meeting the larger goal-that of
poor and the working class to such a philosophy risks seri-
producing well-educated students.
ous damage to both groups.
Democratic vulnerability on this terrain is perhaps no-
That conservatism represents the interests of the well-
where better reflected than in Detroit-possibly the
to-do is to be expected-and even respected-as part of
most Democratic municipality in the nation. a city with
the system of representation in American democracy. A
one of the nation's worst school systems and perhaps the
far more threatening development is that as liberalism
worst delivery of public services. In recent years Detroit
fails to provide effective challenge, the country will lack
voters elected a black Republican school-board president
the dynamism that only a sustained andivibrant insurgen-
and a black Republican city councilman. Both were
cy of those on the lower rungs can provide. Such an insur-
elected on platforms of promises to break through bu-
gency, legitimately claiming for its supporters an equal
reaucratic ossification and revive competitive market
opportunity to participate and to compete and to gain a
forces, through parental choice in school assignments,
measure of justice, is critical, not only to the politics and
through private alternatives to public services, and
the economics of the nation but also to the vitality of the
through the transfer of power and responsibility from ad-
broader culture and to democracy itself.
ministrators downtown to principals and teachers in the
Over the past twenty-five years liberalism has avoided
trenches.
confronting, and learning from, the experience of voter
The congressional wing of the Democratic Party has
rejection, as institutional power and a sequence of ex-
become locked into an alliance with the forces of reac-
traneous events-ranging from Watergate to the 1981-
tion-with interests and bureaucracies conducting large-
1982 recession-have worked to prop up the national
ly futile efforts to resist, among other things, the conse-
Democratic Party. For the current cycle to reach closure,
quences of international economic change. The
and for there to be a breakthrough in stagnant partisan
Democratic Party has, in many respects, discovered that
competition, the Democratic Party may have either to
survival depends on the creation of a congressional party
suffer a full-scale domestic defeat, including (to deal in
entrusted by the people to look after parochial inter-
the extremes of possibility) loss of control of the Senate
ests-from water projects to rice subsidies to highways to
and the House, or at the very least to go through the kind
health care for the elderly. However. to the degree that
of nadir-intraparty conflict, challenge to ideological
presidential elections have become referenda on the nex-
orthodoxy, in short, a form of civil war-experienced by
us of social, moral, racial, and cultural issues in the broad-
the Republican Party and the right in the 1960s. The
est sense, the Democratic Party has in five of the past six
original strength of Democratic liberalism was its capac-
elections been at a competitive disadvantage.
ity to build majorities out of minorities-a strength that
The losers in this process are not only the Democratic
comes only from a real understanding of what it means to
Party and liberalism but also the constituencies and alli-
be out of power, from direct engagement in the struggle
ances they are obliged to represent. The fracturing of the
to build a majority, and from an understanding of what is
Democratic coalition has permitted the moral, social, and
worth fighting for in this struggle. Recapturing the ability
economic ascendance of the affluent in a nation with a
to build a winning alliance requires learning the full
strong egalitarian tradition, and has permitted a diminu-
meaning of defeat, and developing a conscious awareness
tion of economic reward and of social regard for those
of precisely what the electorate will support politically,
who simply work for a living, black and white. Democrat-
what it will not, and when-if ever-something more
ic liberalism-the political ideology that helped to pro-
important is at stake.
86
MAY 1991
THE WHITE HOUSE
washington
July 11, 1991
NOTE FOR THE CHIEF OF STAFF:
Please find attached a letter
from Senator Danforth which
the President asked be sent
directly to him and treated
as a private communication.
Thank you.
Pail
Phillip D. Brady
UNITED STATES SENATE
WASHINGTON, D.C.
JOHN C. DANFORTH
MISSOURI
July 10, 1991
The President
The White House
Washington, D.3.C. 20500
Dear Mr. President:
Many thanks for your phone call and for your
willingness to visit with me about the civil rights
legislation when you return from Europe. I think we
are now at the point where the resolution of one
policy question is the key to concluding the civil
rights debate. Here is the question:
Should it be lawful for an employer to use job
qualifications which are unrelated to ability to
perform the job and which have the effect of
screening women or minorities from employment?
Examples of such job qualifications might
include the possession of a high school diploma as a
condition of employment as a janitor, or a rule that
an employer will not hire single parents. In both
cases, the qualifications would be unrelated to
ability to perform the job, and would have the
practical effect of screening out minorities or
women.
Exactly this question was decided by the Supreme
Court in the case of Griggs V. Duke Power Co. In
Griggs, the Court held that an employer could not
require a high school diploma as a qualification for
a job where the diploma had no relationship to
ability to perform the job and where the practical
effect was to screen out blacks. This remained the
law from 1971 until the Supreme Court decided the
Wards Cove case in 1989.
Throughout the lengthy discussions of the civil
rights legislation, the Administration has taken the
position that we should restore the Griggs decision.
In fact, the Administration has said that the exact
- 2 -
wording of Griggs should be included in the statutory
language. Both Republican and Democratic Senators
who have been working on the legislation have
accepted the Griggs language insisted on by the
Administration.
EEOC Chairman, Evan Kemp, has stated that an
employer's requirement of academic credentials might
further the Administration's education program.
However, such a policy, even if justified on the
basis of education, 1 would contradict Griggs unless
the academic credentials are related to ability to
perform the job. To endorse such a policy would be
viewed as a negative statement on civil rights and a
reversal of the Administration's support of the
Griggs case.
Mr. President, if you agree that the Griggs case
was decided correctly, and that qualifications
unrelated to ability to perform the job should not be
lawful where they are used to screen women or
minorities from employment, I believe we are a short
step from reaching a successful conclusion to the
civil rights debate.
Sincerely,
Jack
U.S. Chamber of Commerce
LEGISLATIVE AND POLITICAL AFFAIRS
1615 H Street, N.W. Washington, D.C. 20062 202/463-5600 Fax 202/887-3430
Ted Maness
Senate Liaison
THE CHIEF of STAFF
July 31, 1991
has seen
The Honorable John H. Sununu
Chief of Staff to the President
First Floor, West Wing
The White House
Washington, D.C. 20500
Dear Govenor Sununu:
The enclosed U.S. Chamber of Commerce letter, with
attachment, was recently sent to the full Senate. The Chamber
remains firmly committed to the President's bill and opposed
to S. 1407, S. 1408 and S. 1409.
Sincerely,
Me
Ted Maness
OF
Join the U.S. Chamber.
INTERPRISE #U.S. COMMERCE CHARGES
Because the fight goes on.
OF
U.S. Chamber of Commerce
LEGISLATIVE AND PUBLIC AFFAIRS
1615 H Street, N.W. Washington, D.C. 20062 202/463-5406 Fax 202/463-3173
July 26, 1991
Donald J. Kroes
Vice President
The Honorable Brock Adams
United States Senate
Washington, D.C. 20510
Dear Senator Adams:
As you know, last month the House passed H.R. 1, the Civil Rights Act of 1991. The
vote, 273-158, is insufficient to override a promised veto. The U.S. Chamber of Commerce
urged opposition to H.R. 1 because, among other things, it called for complete revision of the
20-year-old definition of "business necessity" articulated by the Supreme Court in Griggs V.
Duke Power Co. It also introduced an entirely new damages provision allowing jury trials and
unlimited punitive and compensatory damages in addition to the "make-whole" relief already
provided in Title VII. These provisions, combined with other objectionable sections, certainly
would have forced an employer to make decisions based upon the number of covered
individuals in his work force. The bill's antiquota language was virtually meaningless in light
of its definition of "quota." H.R. 1 failed to meet the stated objectives of its proponents and
promised only a bonanza for lawyers.
Senator Danforth has introduced a series of bills, S. 1407, S. 1408, and S. 1409, with the
expressed hope of striking a balance between proponents and opponents of H.R. 1. The
Chamber commends Senator Danforth for his efforts to forge a compromise on this difficult
and critical issue. However, these proposals, like H.R. 1, remain very troublesome. Among
the concerns the Chamber has with the Danforth proposals are the following:
Despite the fact that "business necessity" is now defined as
it was in Griggs, a plaintiff can still allege in a general way that
all or some of the employer's practices caused a disparity. This
violates a basic tenet of American jurisprudence -- that the
plaintiff not only show he suffered a harm, but also what, in
particular, caused the harm.
Although the Danforth proposal says that nothing in the bill
"requires or encourages an employer to adopt quotas," this
language does nothing to alleviate the problem of quotas. The
Chamber never claimed that these or any other civil rights
proposals would require quotas, only that quotas would be the
SPIRIT
OF
INTERPRISE
Join the U.S. Chamber.
Because the fight goes on.
CHAMBER
COMMERCE
OF
result. Forced to choose between hiring by a de facto quota
system or facing the prospect of extended, frequent, and
expensive lawsuits, employers will take the quotas option every
time.
Jury trials are still available under the Danforth proposal.
Although Senator Danforth is to be commended for trying to
limit available damages, two problems remain. First, there exist
loopholes in the language that allow damages to exceed the cap.
Second, one only has to look at medical malpractice and
product liability cases to know what happens when these cases
go to a jury.
To explain our concerns in greater detail, particularly the "group of practices"
problem, attached is an analysis prepared by James C. Paras. Mr. Paras is a senior partner
in the San Francisco office of Morrison and Foerster and has extensive experience in
employment law.
Again, the efforts of Senator Danforth to strike a compromise on this issue are
appreciated. However, the Chamber strongly believes that the proposal set forth by the
Bush Administration, and embodied in Senator Dole's bill, S. 611, addresses the concerns
of both the proponents and opponents of the civil rights bill that was passed by the House
this year.
Thank you for your consideration of our views. If I can provide further information,
please do not hesitate to contact me.
Sincerely,
Donald
Attachment
MORRISON & FOERSTER
LOS ANGELES
ATTORNEYS AT LAW
NEW YORK
ORANGE COUNTY
WASHINGTON, D.C.
WALNUT CREEK
345 CALIFORNIA STREET
LONDON
PALO ALTO
SAN FRANCISCO, CA 94104-2675
HONG KONG
DENVER
TELEPHONE (415) 677-7000
TOKYO
TELEFACSIMILE (415) 677-7522
TELEX 34-0154 MRSN FOERS SFO
DIRECT DIAL NUMBER
July 22, 1991
(415) 677-7087
Peter J. Eide, Esq.
Manager, Labor Law
Labor & Human Resources Department
U.S. Chamber of Commerce
1615 H Street, N.W.
Washington, D.C. 20062
Dear Peter:
At your request, we have reviewed Senator Danforth's
recently-introduced civil rights bills (S 1407, S 1408 and
S 1409) and have concluded that, although they constitute an
improvement over the provisions contained in HR 1, they still
do not resolve certain fundamental problems that have been at
the heart of the controversy surrounding earlier legislative
proposals. More specifically, it has been the contention of
the proponents of civil rights reform that legislation is
needed to restore the law to the state at which it existed
prior to the Supreme Court's 1988-89 term. Senator Danforth's
bills, as is the case with the recently passed House bill,
do not merely seek a restoration of preexisting law. Instead,
they contain provisions that would constitute a major
expansion of the civil rights laws, under any interpretation
accepted by the Supreme Court during the last two and one-half
decades. No justification for such an expansion of the civil
rights laws has ever been offered or established.
Although S 1407 and S 1409 retain several features to
which we have previously stated our objections, e.g., the
unwise injection of compensatory/punitive damages and jury
trials into Title VII cases and the wholly unnecessary
reversal of Justice Brennan's mixed-motive decision in Price
Waterhouse V. Hopkins, 109 S. Ct. 1775 (1989), our principal
concern remains the modified disparate impact analysis that
would be created by S 1408.
MORRISON & FOERSTER
Peter J. Eide, Esq.
July 22, 1991
Page Two
In analyzing the disparate impact language in S 1408,
it is useful to recall specifically what the Supreme Court
held in Griggs V. Duke Power Co., 401 U.S. 424 (1971). First,
the Court noted that "[d]iscriminatory preference for any
group, minority or majority, is precisely and only what
Congress proscribed." Id. at 431. With this in mind, the
Court concluded that Title VII requires "the removal of
artificial, arbitrary, and unnecessary barriers to employment
when the barriers operate invidiously to discriminate on the
basis of racial or other impermissible classification." Id.
In Griggs and each succeeding Supreme Court disparate impact
case, the Court required a plaintiff to identify and establish
a causal relationship between each specific challenged
practice and the alleged disparate impact in order to
establish a prima facie case. See, e.g., New York City
Transit Authority V. Beazer, 440 U.S. 568, 548 (1979)
("A prima facie violation of the Act may be established by
statistical evidence showing that an employment practice has
the effect of denying the members of one race equal access to
employment opportunities. Once such a prima facie showing
is made, the defendant has been required to show that each
specific practice challenged by plaintiff has "a manifest
relationship to the employment in question." Griggs, 401 U.S.
at 423.
Unlike Griggs and its progeny, S 1408 fails to
require a plaintiff to prove that any specific employment
practice caused, or even significantly contributed to, an
imbalance in the workforce. Instead, under Section 3 of
S 1408 a plaintiff may, and in the typical case would, subject
an entire "decision-making process" to a disparate impact
attack.
As written, S 1408 in effect states that a plaintiff
must show a causal relationship between a specific employment
practice or practices and an underlying workforce imbalance,
unless plaintiff cannot satisfy this basic element of proof.
This renders the specific identification and causation
"requirement" of S 1408 entirely illusory. The elimination of
the specific identification and causation requirement from
established Title VII law shifts the focus solely to an
employer's bottom line statistics. It is at this point that
the threat of quotas, however described, becomes manifest.
MORRISON & FOERSTER
Peter J. Eide, Esq.
July 22, 1991
Page Three
In a widely cited case, the Fifth Circuit
persuasively rebuffed an effort to convert disparate impact
analysis from an evaluation of specific practices to an
evaluation of an employer's employment statistics alone. In
Pouncy V. Prudential Insurance Co. of America, 668 F. 2d 795
(5th Cir. 1982), the court reiterated that a prima facie case
of disparate impact requires "identification of a neutral
employment practice coupled with proof of its discriminatory
impact." Id. at 800. The court concluded that "[t]he
discriminatory impact model of proof
is not, however,
the appropriate vehicle from which to launch a wide ranging
attack on the cumulative effect of a company's employment
practices." Id. The reason for this conclusion is a
consideration of basic fairness within the context of the
litigation process. "We require proof that a specific
practice results in a discriminatory impact on a class in an
employer's work force in order to allocate fairly the parties'
respective burdens of proof at trial. The aggrieved party
must prove a disparate impact due to the selection procedure.
The employer then has the burden of proving that the selection
procedure is justified by a legitimate business reason
Identification by the aggrieved party of the specific
employment practice responsible for the disparate impact is
necessary so that the employer can respond by offering proof
of its legitimacy." Id. at 800-801.
Under S 1408, however, plaintiff will generally be
free to challenge the entire employment process without
identifying any specific practice that is allegedly an
arbitrary obstacle to employment opportunities. Indeed, if
neither the plaintiff nor the defendant can determine which
factors may contribute to a bottom line imbalance, the
employer may be found liable based solely upon that imbalance
and the parties inability to determine, much less justify, the
factors contributing to that imbalance. This is not only
manifestly unfair, but a dramatic shift in Title VII law.
In summary, S 1408, as well as S 1407 and S 1409,
fail to conform to the purposes allegedly underlying the push
for civil rights legislation, i.e., a restoration of prior
law. S 1408's repeal of the requirement that specific
practices be shown to constitute arbitrary barriers to
the advancement of protected groups, in particular,
alters long-standing Supreme Court precedent. In short,
MORRISON & FOERSTER
Peter J. Eide, Esq.
July 22, 1991
Page Four
Senator Danforth's proposals suffer from the same defect as
the bills introduced by the original proponents of this
legislation. Contrary to their claim, the so-called Wards
Cove amendments do not result in a return to Griggs, rather
they constitute an unwarranted legislative expansion of
adverse impact liability which can only result in making
employers "quota conscious" in their employment decisions.
Very truly yours,
James C. Paras
F31191
Copy to Boyden/ clure
SLADE GORTON
COMMITTEES
WASHINGTON
APPROPRIATIONS
730 HART SENATE OFFICE BUILDING
(202) 224-3441
COMMERCE. SCIENCE,
TOLL FREE ISSUES HOTLINE
United States Senate
AND TRANSPORTATION
1-800-282-8095
INDIAN AFFAIRS
TDD 202-224-8273
WASHINGTON, DC 20510-4701
INTELLIGENCE
July 26, 1991
The Honorable John Sununu
The White House
THE CHIEF of STAFF
8
Washington, D.C. 20500
has seen
Re: Civil Rights
Dear John:
Last night during a vote on the Senate floor I approached
Jack Danforth in order to compliment him on the way in which he
has managed the Thomas nomination, after a 30 minute visit with
the two of them in my office earlier in the afternoon. As I'm
sure you know, I am strongly in support of Clarence Thomas and
have already made a floor speech on his behalf, a copy of which I
enclose.
As I approached, Senator Danforth was discussing the Civil
Rights bill with Senator Chafee. Senator Danforth reported that
he had had a one on one visit with the President, presumably
yesterday, and that he had told the President that only one
question with respect to the Civil Rights bill remained
unresolved. He said that he had told the President that it was a
policy matter which was relatively easy to decide.
As Senator Danforth characterized it, an employer should not
be permitted to consider imposing qualifications greater than
those necessary capably to perform the job in question, should
hiring the more capable candidate create a racial or other
imbalance. He said that he could not understand why anyone could
argue that proposition, and Senator Chafee agreed.
I do not agree, and I cannot conceive that you do either.
In fact, that seems to me to be as profoundly destructive a
philosophy as any policy making body could impose upon American
society.
The Army recruiting slogan is "Be all that you can be." The
civil rights community slogan seems to be "Be the least that you
can be and still get away with it." Presumably, under that
proposal, if an employer had ten candidates for a job and seven
were determined to be capable of performing it adequately, the
3206 JACKSON FEDERAL BUILDING
130 FEDERAL BUILDING
697 U.S. COURT HOUSE
MORRIS BUILDING, Room 119
915 SECOND AVENUE
500 WEST 12TH STREET
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(509) 353-2507
(509) 663-2118
PRINTED ON RECYLED PAPER
The Honorable John Sununu
July 26, 1991
Page 2
employer would be required to hire the seventh best candidate if
hiring any of the six better candidates would create a racial
imbalance. It is a prescription for mediocrity, the further loss
of American competitiveness, and bitter and justified
resentment.
I also believe that it is a characterization which can be
blown out of the water in the course of any debate. I hope that
hand. you will strongly encourage the President to reject it out of
Sincerely,
Shele
SLADE GORTON
United States Senator
SG:v
Enclosure
1
SPEECH ON CLARENCE THOMAS
SENATOR SLADE GORTON
"I firmly insist that the
Constitution be interpreted in a
colorblind fashion. It is futile to
talk of a colorblind society unless
this constitutional principle is
first established. ***
"I don't believe in quotas.
America was founded on a philosophy
of individual rights, not group
rights. The civil rights movement
was at its greatest when it
proclaimed the highest principles on
which this country was founded --
principles such as the Declaration of
Independence, which were betrayed in
2
the case of blacks and other
minorities."
These are the words of Judge
Clarence Thomas who is black, the
grandson of a sharecropper, educated
in Catholic schools, a conservative.
He is decidedly not politically
correct. And that is why he is now
at the heart of the furious attacks
upon him after his nomination for the
Supreme Court.
What is politically correct?
An administrator at the University of
Pennsylvania redlined a student's
phrase referring to her
"regard for the individual"
and added:
3
"the word 'individual' is a red
flag phrase today which is
considered by many to be
racist."
The administrator went on to warn of
the inequities that result from
championing individual over group
rights.
The "politically correct"
believe that American society is
sick. Their attitude is expressed
clearly by Kirkpatrick Sale, the
author of "The Conquest of Paradise:
Christopher Columbus and The
Columbian Legacy". He says that
American civilization:
"*** is founded on a set of
ideas that are fundamentally
4
pernicious, and they have to do
with rationalism and humanism
and materialism and nationalism
and science and progress. These
are, to my mind, just pernicious
concepts."
If these are pernicious,
consider then their opposites --
emotionalism, anti-intellectualism,
incomprehensibility, sophistry,
anti-humanism, anarchy, superstition
and regression. These are -- to
my mind-- pernicious concepts, and
these are, indeed, the foundations,
the walls, and the cornerstone of
political correctitude.
William Phillips, for more than
50 years the editor of the Partisan
5
Review, and hardly a right-winger,
summarizes this "politically correct"
philosophy as
"*** a vague but inauthentic
radical outlook [that] still
dominates the culture of the
academy, the media, and the
educated classes.***
[That culture includes] a
belief in a widespread
relativism in moral, political,
and philosophical matters; *** a
general rejection of the
existing social system; a
radical revision of academic
curricula; with an atmosphere of
leftism and anti-Americanism
permeating the whole."
6
The "politically correct"
reject the concept of individual
rights and believe that one's race,
gender, ethnic background, sexual
preference and the like are more
important than our common humanity or
American citizenship. They ignore or
are indifferent to the fact that
lesser tribalism has destroyed half
the emerging nations in Africa and is
about to destroy Yugoslavia -- has
divided Canada and is at the root of
the ethnic hatreds and divisions that
so plague Eastern Europe and the
Soviet Union. And tribalism is the
future that the politically correct
promise the United States.
Because he does not share their
terribly destructive views the
"politically correct" seek to destroy
Clarence Thomas. They fully
understand that the next Supreme
Court Justice will be a conservative
-- at least as conservative as
Clarence Thomas -- but they react to
the prospect of a black conservative
with special fury. Because Clarence
Thomas, by his very life and
attitudes, destroys the thesis upon
which their culture has built its
castles -- fortresses of division,
mistrust and hatred. But the fact
that the grandchild of a black
sharecropper, who has felt, and
continues to decry, racism in our
8
society, should nevertheless believe
in the promises on which this nation
was founded in 1776 --
"that all men are created equal,
and are endowed by their creator
with certain unalienable
rights" --
illustrates more clearly than a
thousand essays the moral bankruptcy
of the "politically correct."
For many reasons, not least his
great courage and independence of
mind, Clarence Thomas richly deserves
to be confirmed by the Senate of the
United States. He represents the
redemption of the true promise of
America, that all Americans are
created free and equal and that any
9
American can surmount the
circumstances of birth, to arise,
like Clarence Thomas himself, with a
sense of history and pride, and with
eyes open to the light ahead.
#
#
#
06/27/91 18:43
SEN. DANFORTH
001
2
COMMITTEES:
JOHN C. DANFORTH
COMMERCE. SCIENCE.
MISSOURI
AND TRANSPORTATION
FINANCE
INTELLIGENCE
United States Senate
WASHINGTON, DC 20510-2502
DATE: 6/27/91
FAX TRANSMISSION SHEET
TO:
Governor Sununu
FROM:
Senator Tack Danforth
TOTAL NUMBER OF PAGES (INCLUDING COVER SHEET) :
COMMENTS:
06/27/91
18:43
SEN. DANFORTH
002
additions from last draft
outlined in blue.
102D CONGRESS
1st SESSION
S.
To provide for damages in cases of intentional employment
discrimination, and for other purposes.
IN THE SENATE OF THE UNITED STATES
June 1 1991
A BILL
1
To provide for damages in cases of intentional employment
2
discrimination, and for other purposes.
3
4
BE IT ENACTED IN THE SENATE AND HOUSE OF REPRESENTATIVES OF
5
THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED,
6
7
SECTION I. SHORT TITLE.
8
9
This Act may be cited as the "Civil Rights and Remedies Act of
10
1991."
11
12
SEC. 2. FINDING AND PURPOSE.
13
14
(a) FINDING. Congress finds that additional remedies under
15
Federal law are needed to deter unlawful harassment and
16
intentional discrimination in the workplace.
17
18
(b) PURPOSE. The purpose of this Act is to provide
19
appropriate remedies for intentional discrimination and unlawful
20
harassment in the workplace.
21
22
SEC. 3. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION
23
24
The Revised Statutes are amended by inserting after section
25
1977 the following new section:
26
27
"SECTION 1977A DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION IN
28
EMPLOYMENT.
29
30
" (a) RIGHT OF RECOVERY.-
31
32
"(1) CIVIL RIGHTS. In an action brought by a
33
complaining party under section 706 of the Civil Rights Act
34
of 1964 (42 USC 2000e-5 (e)) against a respondent who
35
intentionally engaged in an unlawful employment practice
36
prohibited under section 703 or 704 of the Act (42 U.S.C.
37
2000e-2, 2000e 3) and engaged in the practice on the basis
38
of the religion, or sex, or national origin of an
39
individual, the complaining party, and provided that the
06/27/91
18:44
SEN. DANFORTH
003
1,
1
1
complaining party cannot recover under section 1977 of the
2
Revised Statutes (42 U.S.C. 1981), the complaining party
3
4
(A) may recover the compensatory and punitive damages
5
described as allowed in subsection (b), in addition to
6
any relief authorized by section 706 (g) of the Civil
7
Rights Act of 1964, from the respondent.; and
8
9
(B) may request that a court impose the equitable
10
civil penalty described in subsection (c) against the
11
respondent.
12
13
" (2) DISABILITY. -- In an action brought by a
14
complaining party under the powers, remedies, and procedures
15
set forth in section 706 of the Civil Rights Act of 1964 (as
16
provided in section 107 (a) of the Americans with
17
Disabilities Act of 1990 (42 U.S.C. 12117 (a) )) against a
18
respondent who intentionally engaged in a practice that
19
constitutes discrimination under section 102 of the Act (42
20
U.S.C. 12112), other than discrimination described in
21
paragraph (3) (A) or (6) of subsection (b) of the section,
22
subsection (b) paragraphs (3) (A) RED other than
23
discrimination described in subsection (b) paragraph
24
6) except for practices intended to screen out individuals
25
with disabilities against an individual, the complaining
26
party -
27
28
"(A) may recover the compensatory and punitive damages
29
described as allowed in subsection (b), in addition to
30
any relief authorized by section 706(g) of the Civil
31
Rights Act of 1964, from the respondent.; and
32
33
(B) may request that a court impose the equitable
34
civil penalty described in subsection (c) against the
35
respendent.
36
37
If (3) NOTICE. a complaining party who requests that a
38
court impose an equitable civil penalty under subsection (c)
39
shall provide notice of the request to the Chairman of the Equal
40
Employment Opportunity Commission and the Secretary of Health and
41
Human Services. REASONABLE ACCOMODATION AND GOOD FAITH EFFORT
New
42
In cases where a violation involves the provision of a reasonable
43
accommodation persuant to section 102(b)(5), damages may not be
44
awarded where the covered entity demonstrates good faith efforts,
45
in consultation with the person with the disability who has
46
informed the covered entity that accommodation is needed, to
47
dentify and make E reasonable accommodation that would provide
48
such individual with an equally effective opportunity and would
49
not cause an undue hardship on the operation of the business
50
51
It (b) COMPENSATORY AND PUNITIVE DAMAGES --
52
2
06/27/91
18:46
SEN. DANFORTH
004
1
(1) DETERMINATION OF PUNITIVE DAMAGES. A complaining
2
party may recover compensatory damages under subsection (a)
3
if it is determined that the complaining party has
4
demonstrated the existence of injury requiring compensation
5
by clear and convincing evidence A complaining party may
6
recover punitive damages under this subsection if the
7
complaining party demonscrates that-
8
9
(^) the respondent engaged in a discriminatory
10
practice or discriminatory practices with malice
11
or with reckless indifference to the federally
12
protected rights of an aggrieved individual. and
13
14
(B) the award of punitive damages is necessary to
15
deter the respondent from engaging in such a
16
discriminatory practice or discriminatory
17
practices in the future
18
19
20
(2) EXCLUSIONS FROM COMPENSATORY DAMAGES --
21
Compensatory damages awarded under this section shall not
22
include back pay, interest on back pay, or any other type of
23
relief authorized under section 706 (g) of the Civil Rights
24
Act of 1964.
25
26
(3) LIMITATIONS The sum of the amount of
27
compensatory damages awarded under this section against a
28
respondent who is not a government, government agency, or
29
political subdivision, for future pecuniary losses
30
emotional pain, suffering, inconvenience, mental anguish,
31
loss of enjoyment of life, and other nonpecuniary losses
32
and the amount OF punitive damages awarded under this
33
section shall not exceed --
34
35
(A) in the case of a respondent who has more than
36
100 or fewer employees in each of 20 or more calendar
37
weeks in the current or preceding calendar year,
38
New
650 000
and
39
40
(B) in the case of a respondent not described in
41
subparagraph (A), who has more than 100 and fewer than
42
501 employees in each of 20 or more calendar weeks in
43
the current or preceding calendar year $100,000; and New
44
45
(C) in the case OF a respondent who has more than
46
500 employees in each of 20 or more calendar weeks in
47
the current or preceding calendar year, $300,000
New
48
49
(4) PREJUDGMENT INTEREST. The court described in
50
paragraph (1) shall not award prejudgment interest to a
51
complaining party on compensatory damages awarded under this
52
section in an action in which the aggrieved individual is an
3
06/27/91
18:47
SEN. DANFORTH
005
1
employee or applicant for employment described in section
2
717 (a) of the Civil Rights Act of 1964 (12 U.S.C. 2000e
3
16(a)) CONSTRUCTION. - Nothing in the amendments made by
4
this section shall be construed to limit the scope of, or
New
5
the relief available under, section 1977 of the Revised
6
5 tatutes (42 U.S.C. 1981).
7
8
" (c) EQUITABLE PENALTY DETERMINATION
9
10
(A) IN GENERAL. A sourt shall impose an equitable
11
civil penalty on a respondent under subsection (a) if the
12
court finds that
13
14
"(i) the respondent engaged in a discriminatory
15
practice or discriminatory practices with malico or
16
with reckless indifference to the federally protected
17
rights of an aggrioved individual, and
18
19
"(ii) the penalty is necessary to deter the
20
respondent from engaging in such a discriminatory
21
practice or such discriminatory practices in the
22
future.
23
24
(B) AMOUNT The court shall impose an equitable
25
civil penalty sufficient to deter the respondent from
26
engaging in such a discriminatory practice or discriminatory
27
practices in the futuro.
28
29
(2) EQUITABLE CONSIDERATIONS In making the finding
30
described in paragraph (1) (A), a court may consider
31
32
(A) the nature of the discriminatory practice or
33
practices that are the subjects of the action described
34
in subsection (a),
35
36
" (B) the offorts of the respendent to instruct the
37
managers, supervisors, and employees of the respondent
38
about legal requirements regarding employment
39
disorimination;
40
41
(C) the nature of compliance programs, if any,
42
established by the respondent to ensure that
43
discriminatory practices de not occur in the workplace;
44
45
(D) any lawful affirmative action under taken by the
46
respendent with respect to the group injured by the
47
discriminatory practice or practices that are the
48
subject of the action described in subsection (a),
49
50
" (E) the availability to the aggrieved individual of an
51
internal grievance procedure or remediation policy
52
established by the respondent;
4
06/27/91
18:48
SEN. DANFORTH
006
:-
1
"(F) whether the respondent made a prompt investigation
2
of the discriminatory practice or discriminatory
3
practices;
4
5
" (C) the efforts of the respondent to correct the
6
discriminatory practice OF practices; and
7
8
" (H) the size of the respondent and the effect of the
9
equitable civil penalty on the economic viability of
10
the respondent
11
12
(3) LIMITATIONS The amount of an equitable civil
13
penalty imposed under subsection (a) shall not exceed
14
15
(A) in the case of a respendent who has more than
16
100 employees in each of 20 or more calendar weeks in
17
the current or preceding calendar year, $[insert
18
amount]; and
19
20
(3) in the case of a respondent not described in
21
subparagraph (Ω), $[insert amount].
22
23
(1) RECOVERY OF COSTS.
24
25
" (A) AWARD OF FEES.
If a court imposes an
26
equitable civil penalty in a case brought under this
27
section the court shall award reasonable attorneys' and
28
export witness fees incurred by the complaining party
29
in seeking the penalty.
30
31
" (B) RELATIONSHIP TO PENALTY The sourt shall
32
not subtract the amount of the fees described in
33
subparagraph (A) from the amount of the equitable civil
34
penalty imposed against a respondent under this
35
section.
36
37
(5) APPLICATION OF PROCEEDS OF PENALTY.
38
39
(A) CORRECTION OF DISCRIMINATORY PRACTICES If
40
a court determines, in the discretion of the court,
41
that an equitable civil ponalty imposed under this
42
section is needed to correct discriminatory practices
43
at the place of employment, or in the community, in
44
which the discriminatory practice described in
45
subsection (a) occurred, the penalty shall be expended
46
all or in part, as directed by the court, to correct
47
the discriminatory practices. The penalty may be
48
expended to undertake actions such as public awareness
49
or education programs regarding discrimination on the
50
basis of race, color, religion, sex, or national
51
origin, in order to eliminate future dissrimination
52
5
06/27/91
18:49
SEN. DANFORTH
007
:,
1
" (B) TRUST FUND
2
3
" (i) FULL PAYMENT. If a court does not make the
4
determination described in subparagraph (A) the
5
penalty shall be deposited in the Equal Employment
6
Enforcement Trust Fund, established in section
7
9511 of the Internal Revenue Code of 1986
8
9
" (ii) PAYMENT IN PART. If a court directs that
10
part of the penalty chall be expended as described
11
in subparagraph (A), the remainder of the penalty
12
shall be deposited in the Fund
13
14
(C) DETERMINATION. In making the dotormination
15
described in subparagraph (A), the court may consider
16
17
" (1) anti discrimination and anti harassment
18
policies and procedures established by the
19
respendent, prior to the practice that is the
20
subject of the action described in subsection (a)
21
to ensure that discriminatory practices would not
22
occur;
23
24
(ii) corrective actions taken by the respondent
25
on becoming aware of a claim that a discriminatory
26
practice had occurred; and
27
28
" (iii) policies and procedures established by the
29
respondent after the claim to ensure that
30
discriminatory practices de not occur again.
31
32
(d) JURY TRIAL --
33
34
" (1) IN GENERAL. -- (A) If a complaining party seeks
35
compensatory or pun we damages under this section, any
36
party may demand a trial by jury.
37
38
39
"(2) DETERMINATIONS If a party requests a trial by
40
jury in an action brought under this section
41
42
(A) the jury shall determine all factual issues
43
related to liability; and
44
45
(B) if the determination described in subsection
46
(b) (1) is made
47
48
"(i), the jury shall determine the amount of
49
compensatory damages awarded to the complaining
50
party, and
51
52
(ii)
B
Tthe court shall not inform the
6
06/27/91 18:50
SEN.DANFORTH
008
:,
.3
1
jury of the limitations described in subsection
2
(b) (3)
3
4
"(c)
d
DEFINITION. -As used in this section:
5
6
if (1) ACCRIEVED INDIVIDUAL. The torm `aggrieved
7
individual' means a person who has boon subjected to a
8
discriminatory practice.
9
10
"(2) COMPLAINING PARTY.-The term `complaining party'
11
means-
12
" (A) in the case of a person seeking to bring an
13
action under subsection (a) (1) 8 a person who may bring
14
an action or proceeding under title VII of the Civil
15
Rights Act of 1964 (42 U.S.C. 2000e et seq. ); or
16
17
"(B) in the case of a person seeking to bring an
18
action under subsection (a) (2), a person who may bring
19
an action or proceeding under title I of the Americans
20
with Disabilities Act of 1990 (42 U.S.C. 12101 et
21
seq.).
22
23
"(3) (2) DISCRIMINATORY PRACTICE The term
24
`discriminatory practice' means a practice described in
25
paragraph (1) or (2) of subsection (a)
26
27
28
"SEC. 4. EQUAL EMPLOYMENT ENFORCEMENT TRUST FUND.
29
30
(a) ESTABLISHMENT. Subchapter A of shapter 98 of the
31
Internal Revenue Code of 1986 (relating to trust fund code) is
32
amended by adding at the end the following now section:
33
34
SEC. 9511 EQUAL EMPLOYMENT ENFORCEMENT TRUST FUND
35
36
"(a) CREATION OF FUND. There is established in the
37
Treasury of the United States a fund to be known as the Equal
38
Employment Enforcement Trust Fund (referred to in this section as
39
the `Fund'), consisting of such amounts as may be appropriated or
40
credited to the Fund as provided in this section.
41
42
(b) TRANSFERS TO FUND There are appropriated to the Fund
43
amounts equivalent to the additional revenues received in the
44
Treasury as the result of the amendments made by section 3 of the
45
Civil Rights and Remedies Act of 1991
46
47
(c) EXPENDITURES
48
49
(1) PURPOSES
50
51
18 (A) CIVIL RICHTS ENFORCEMENT Fifty percent of
52
the amounts in the Fund shall be available, to the
7
06/27/91
18:51
SEN. DANFORTH
009
1,
1
extent provided in appropriation Acts, for the purposes
2
of making expenditures to carry out section 706 of the
3
Civil 21 Rights Act of 1964 (42 ( U.S.C. 2000c 5)
4
5
(B) FAMILY VIOLENCE PROTECTION. Fifty percent
6
of the amounts in the Fund shall be available, to the
7
extent provided in appropriation Acts, for the purposes
8
of making expenditures to carry out section 303 of the
9
Family Violence Provention and Services Act (12 U.S.C.
10
10402).
11
12
(2) PAYMENTS BASED ON ESTIMATES. Payments under
13
paragraph (1) shall be made on the basis of estimates by the
14
Secretary of the Treasury. Proper adjustments shall be made
15
in amounts subsequently transferred to the extent prior
16
estimates were in excess of or loss than the amounts
17
required to be transferred."
18
19
(b) CONFORMING AMENDMENT Subchapter A of chapter 98 of
20
the Internal Revenue Code of 1986 is amended in the table of
21
sections by adding at the end the following new itoms
22
23
"Sec. 9511. Equal Employment Enforcement Trust Fund."
24
25
Sec. 4. ATTORNEYS' FEES
26
27
The last sentence of Section 722 of the Revised Statutes (42
28
USC 1988) is amended by inserting ", 1981A" after "1981".
29
30
31
SEC. 5. COVERAGE OF CONGRESS AND THE AGENCIES OF THE LEGISLATIVE
32
BRANCH.
33
34
(a) COVERAGE OF THE SENATE
35
36
(1) APPLICATION TO SENATE EMPLOYMENT. The rights and
37
protections provided pursuant to the amendment made by this
38
Act shall, subject to paragraphs (2) through (5), apply with
39
respect to any employee in an employment position in the
40
Senate and any employing authority of the Senate.
41
42
(2) INVESTIGATION AND ADJUDICATION OF CLAIMS All
43
claims raised by any individual with respect to Senate
44
employment pursuant to the provision described in paragraph
45
(1) shall be investigated and adjudicated by the Select
46
Committee on Ethics, pursuant to S. Res. 338, 88th Congress,
47
as amended, or such other entity as the Senate may
48
designate.
49
50
(3) RIGHTS OF EMPLOYEES. The Committee on Rules and
51
Administration shall ensure that Senate employees are
52
informed of their rights under the provisions described in
8
06/27/91
18:51
SEN. DANFORTH
010
&
1
paragraph (1).
2
3
(4) APPLICABLE REMEDIES. When assigning remedies to
4
individuals found to have a valid claim under the provisions
5
described in paragraph (1), the Select Committee on Ethics,
6
or such other entity as the Senate may designate, shall to
7
the extent practicable apply the same remedies applicable to
8
all other employees covered by the provisions described in
9
paragraph (1). Such remedies shall apply exclusively.
10
11
(5) EXERCISE OF RULEMAKING POWER Notwithstanding any
12
other provision of law, enforcement and adjudication of the
13
rights and protections referred to in paragraph (1) shall be
14
within the exclusive jurisdiction of the United States
15
Senate. The provisions of paragraphs (2), (3), and (4) are
16
enacted by the Senate as an exercise of the rulemaking power
17
of the Senate, with full recognition of the right of the
18
senate to change its rules, in the same manner, and to the
19
same extent, and to the same extent, as in the case of any
20
other rule of the Senate.
21
22
(b) COVERAGE OF THE HOUSE OF REPRESENTATIVES
23
24
(1) IN GENERAL. - Notwithstanding any other provision of
25
law, the purposes of this Act shall, subject to paragraph
26
(2), apply with respect to any employee in an employment
27
position in the House of Representatives and any employing
28
authority of the House of Representatives.
29
30
(2) EMPLOYMENT IN THE HOUSE
31
32
(A) APPLICATION. The rights and protections under
33
the amendment made by this Act shall, subject to
34
subparagraph (B), apply with respect to any employee in
35
an employment position in the House of Representatives
36
and any employing authority of the House of
37
Representatives.
38
39
(B) ADMINISTRATION.
40
41
(i) IN GENERAL. In the administration of
42
this paragraph, the remedies and procedures made
43
applicable pursuant to the resolution described in
44
clause (ii) shall apply exclusively.
45
46
47
(ii) RESOLUTION The resolution referred to
48
in clause (1) is House Resolution 15 of the One
49
Hundred First Congress, as agreed to January 3,
50
1989, or any other provision that continues in
51
effect the provisions of, or is a successor to,
52
the Fair Employment Practices Resolution (House
9
06/27/91
18:52
SEN. DANFORTH
011
Resolution 558 of the One Hundredth Congress, as
2
agreed to October 4, 1988).
3
4
(C) EXERCISE OF RULEMAKING POWER The provisions
5
of subparagraph (B) are enacted by the House of
6
Representatives as an exercise of the rulemaking power
7
of the House of Representatives, with full recognition
8
of the right of the House to change its rules, in the
9
same manner, and to the same extent as in the case of
10
any other rule of the House.
11
12
(c) INSTRUMENTALITIES OF CONGRESS
13
14
(1)
IN GENERAL The rights and protections under the
15
amendment made by this Act, shall, subject to paragraph (2),
16
apply with respect to any employee in an employment position
17
in an instrumentality of the Congress and any chief official
18
of such an instrumentality.
19
20
(2) ESTABLISHMENT OF REMEDIES AND PROCEDURES BY
21
INSTRUMENTALITIES. -- The chief official of each
22
instrumentality of the Congress shall establish remedies and
23
procedures to be utilized with respect to the rights and
24
protections provided pursuant to paragraph (1). Such
25
remedies and procedures shall apply exclusively.
26
27
(3) REPORT TO CONGRESS. -- The chief official of each
28
instrumentality of the Congress shall, after establishing
29
remedies and procedures for purposes of paragraph (2),
30
submit to the Congress a report describing the remedies and
31
procedures.
32
33
(4) DEFINITION OF INSTRUMENTALITIES
For purposes of
34
this section, instrumentalities of the Congress include the
35
Architect of the Capitol, the Congressional Budget Office,
36
the General Accounting Office, the Government Printing
37
Office, the Office of Technology Assessment, and the United
38
States Botanic Garden.
39
40
SEC. 6. SEVERABILITY
41
42
If any provision of this Act, or an amendment made by this
43
Act, or the application of such provision to any person or
44
circumstances is held to be invalid, the remainder of this Act
45
and the amendments made by this Act, and the application of such
46
provision to other persons and circumstances, shall not be
47
affected.
10
religion, sex or national origin.
II (2) Paragraph (1) shall not apply to a respondent seeking to
comply with a court order aimed at remodying past discrimination.
SEC. 5. DEFINITIONS.
(a) IN GENERAL Section 701 of the Civil Rights Act of 1964
(42 U.S.C. 2000e) is amended by adding at the end the following new
subsections:
"(1) The term `complaining party' means the Commission, the
Attorney General, or a person who may bring an action or proceeding
under this title.
"(m) The term `demonstrates' means meets the burdens of
production and persuasion.
"(n) The term `group of employment practices' means a
combination of particular employment practices in which each
practice is responsible in whole or in significant part for an
employment decision.
(0) The term `required by business necessity' means-
(1) in the case of employment practices involving
selection, that the practice or groups of practices bears a
manifest relationship to requirements for effective job
performance, and
(2) in the case of other employment decisions not
involving employment selection as described in paragraph (1), the
practice of group of practices bears a manifest relationship to a
legitimate business objective of the employer.
(1) in the case of employment practices that are used as
job qualifications or used to measure the ability to perform the
job, the challenged practice must bear a manifest relationship to
the employment in question.
# (2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the employer.
(o) "(P) The term requirements for effective job
performance' includes,-
(1) the ability to perform competently the actual work
activities lawfully required by the employer for an employment
position, and
(2) any other lawful requirement that is important to
the performance of the job, including, but not limited to, factors
such punctuality, attendance, a willingness to avoid engaging in
misconduct or insubordination, not having a work history
demonstrating unreasonable job turnover, and not engaging in
conduct or activity that improperly interferes with the performance
of work by others.
The term employment in question' means-
(1) the performance of actual work activities required
by the employer for a job or class of jobs; or
« (2) ( any requirement related to behavior that is
important to the job, but may not comprise actual work activities
(q) (p) The term respondent' means an employer, employment
agency, labor organization, joint labor-management committee
controlling apprenticeship or other training or retraining program,
2
If (m) The term 'demonstrates' means meets the burdens of
production and persuasion.
" (n) The term 'justified by business necessity' means
that the challenged practice has a manifest relationship to
the employment in question or that the respondent's
legitimate employment goals are significantly served by,
even if they do not require, the challenged practice.
(o) The term 'respondent' means an employer,
employment agency, labor organization, joint labor-
management committee controlling apprenticeship or other
training or retraining programs, including on-the-job
training programs, or those Federal entities subject to the
provisions of section 717 (or the heads thereof).
"(p) (1) The term 'harass' means, in cases involving
discrimination because of race, color, religion, sex, or
national origin, the subjection of an individual to conduct
that creates a working environment that would be found
intimidating, hostile or offensive by a reasonable person.
"(2) The term 'harass' also means, in cases involving
discrimination because of sex, (i) making the submission to
unwelcome sexual advances by an employer a term or condition
of employment of the individual; or (ii) using the rejection
of such advances as a basis for employment decisions
adversely affecting the individual; or (iii) making
unwelcome sexual advances that create a working environment
(1) in the case of employment practices used to measure
job qualifications or ability to do the job, the term
"employment in question" means job performance.
(2) in the case of employment practices not described in
paragraph (1), the term "employment in question" means a
legitimate business objective of the employer.
The term "job performance" includes--
(1) the performance of actual work activities required
by the employer for a job or class of jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
PROPOSAL SENT TO DOJ 6/24
DANFORTH PROPOSAL
The term "required by business necessity" means--
(1) in the case of employment practices primarily
measuring qualifications for or ability to do the job, the
challenged practice must bear a manifest relationship to the
requirements for effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
DOLE STAFF RECOMMENDATION
(Comot subsective arcent standard become 6)
The term "required by business necessity" means--
(1) in the case of practices that are used by the
employer because they are relevant to job performance, the
challenged practice must bear a manifest relationship to the
requirements for effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
DOLE STAFF RECOMMENDATION MODIFIED
The term "required by business necessity" means--
(1) in the case of practices that are used as conditions
of employment in or transfer to jobs, the challenged practice
must bear a manifest relationship to the requirements for
effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
MODIFICATION II
The term "required by business necessity" means--
(1) in the case of practices that are used as conditions
of employment in or transfer to jobs, the challenged practice
must bear a demonstrable relationship to successful
performance of the jobs for which it was used.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
DEFINITION OF BUSINESS NECESSITY
OPTION A
The term "required by business necessity" means--
(1) in the case of employment practices that are used to
measure ability to perform the job, the challenged practice must
bear a manifest relationship to the employment in question.
(2) in the case of employment practices not described in (1)
above, the challenged practice must bear a manifest relationship
to a legitimate business objective of the employer.
The term "employment in question" includes, but is not limited
to-- (1) the performance of actual work activities required by
the employer for a job or class jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
DEFINITION OF BUSINESS NECESSITY
OPTION A
The term "required by business necessity" means--
(1) in the case of employment practices that are used to
measure ability to do the job, the challenged practice must bear
a manifest relationship to the employment in question.
(2) in the case of employment practices not described in (1)
above, the challenged practice must bear a manifest relationship
to a legitimate business objective of the employer.
The term "employment in question" includes, but is not limited
to-- (1) the performance of actual work activities required by
the employer for a job or class jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
OPTION B
The term "required by business necessity" means--
the challenged practice must bear a manifest relationship to the
employment in question.
(1) in the case of employment practices used to measure
ability to do the job, the term "employment in question" means
job performance.
(2) in the case of employment practices not described in
paragraph (1), the term "employment in question" means a
legitimate business objective of the employer.
The term "job performance" includes, but is not limited to--
(1) the performance of actual work activities required by
the employer for a job or class of jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
EDUCATION OF BLUC ATION
NITED STATES DEPARTMENT OF EDUCATION
THE SECRETARY
UNITED STATES OF AMERICA
September 23, 1991
MEMORANDUM TO JOHN SUNUNU
FROM:
LAMAR ALEXANDER
SUBJECT:
CIVIL RIGHTS LEGISLATION
This is a response I could send to Danforth's August 2 letter
to the President. It would keep the civil rights bill from
outlawing employers' use of the American Achievement Test.
Jeff Martin, our General Counsel, has done the work on this.
Would you like for us to do anything?
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202
Honorable John C. Danforth
United States Senate
Washington, DC 20510
Dear Jack:
President Bush asked me to review your August 2 letter concerning
the pending civil rights legislation. He, as well as I,
appreciate your recognition of the educational concerns that we
have raised. The President wants a civil rights bill, and I am
sure none of us wants a collision between efforts to advance
education and efforts to advance civil rights.
In that spirit, I am writing to suggest an approach for avoiding
that collision. Under the proposal outlined below, employers
would be permitted to consider applicants' or employees'
educational achievements, but only if such achievements have a
manifest relationship to legitimate business objectives of the
employer. Thus, under this test, employers could not set
inappropriate educational prerequisites that have the effect of
screening out minorities for "dead-end jobs. For example, a
janitor who always wanted to be a janitor could not be required
to show a diploma.
*
The Administration does not want to overrule the Supreme Court's
Griggs decision. It does not want to authorize employers to
impose arbitrary education requirements that bear no relationship
to legitimate business objectives and that have a disparate
racial impact. However, when many American school children are
not learning what they need to know and do to succeed in today's
world, we should not send a message that educational achievement
does not count in the "real" world. In today's increasingly
technical and competitive marketplace -- where jobs and the skill
requirements change rapidly and where employers need to hire
employees who know how to think and adapt to changing
conditions -- employers should not be deterred by the prospect of
litigation from having genuinely high educational expectations
for their workforce. Reform of our educational system depends on
creating incentives for all American school kids to work harder
in school. In the long run, this is the best way for
disadvantaged Americans to move to the front of the line.
Under your bill, as I understand it, "business necessity" --
which represents an employer's defense to a finding that a hiring
or other employment practice has a disparate racial impact --
would be defined more narrowly than in the Administration's bill,
so that an employment practice used as a job qualification or to
measure ability to perform a job must bear a manifest
relationship to the job in question. I believe that it may be
possible for the Administration to join in your definition of
"business necessity,' if appropriate provisions can be formulated
that address our specific educational concerns.
monifest relatively x 506
to leart bus
ThyectN
Page 2 - Honorable John C. Danforth
In that regard, we have no difficulty with the second provisio
stated in your letter defining the term "class of jobs" to
include jobs for which an applicant or employee may reasonably be
expected to be considered for promotion or transfer within a
reasonable period of time. (A conforming amendment to your bill
related to this proviso is suggested in the attachment.)
However, the first proviso specifically relating to education is
too narrow in one respect and too broad in another. It only
authorizes an employer to refuse to hire applicants under the age
of 18 because they do not have a high school diploma or have not
prouse
passed a high school equivalency exam. The educational concerns
that I have raised are not limited to persons under the age of 18
or to the acquisition of high school diplomas. In today's
technical and competitive world economy, increasingly rapid
changes in jobs and employment resources require employees with
learning and communication skills that enable them to adjust to
changing conditions and requirements in their current jobs, as
well as in jobs to which they may be promoted. Employers should
be able to consider applicants' or employees' capacities to meet
these needs. I therefore believe that your proviso needs to be
broadened to include (1) degrees other than a high school
diploma; (2) applicants' and employees' educational records
reflecting their educational achievement, ability to learn, and
diligence; (3) promotions as well as hiring decisions; and (4)
applicants or employees without an age limitation. On the other
hand, the broadening of the education proviso should be
accompanied by the limitation that these education factors may be
used by the employer if they have a disparate impact only if they
have a manifest relationship to a legitimate business objective
of the employer. Non-education-related employment practices used
as job qualifications would be governed by the narrower test in
your bill.
I have taken the liberty to attach a draft of such a proviso.
Obviously, I would be pleased to hear your suggestions on it. I
am confident that a proviso along these lines would not give
employers broad authority to impose arbitrary or unnecessary
educational requirements. However, it would recognize the
general importance of education in today's and our future economy
and send the important signal to students of all ages that it is
important to work hard at education.
Sincerely,
Proposed Modification of First Proposed Proviso
in Senator Danforth's August 2, 1991 Letter
Nothing in this Act shall be construed to prevent an employer, in
making a hiring or other employment decision, from considering an
applicant's or employee's educational achievements, including the
applicant's or employee's diploma or degrees or academic
performance, including test scores, if such consideration has a
manifest relationship to a legitimate business objective of the
employer.
Conforming Amendment to Danforth bill, consistent with the
Second Proposed Proviso in his August 2, 1991 letter
In Section 5, in paragraph (2) of the definition of the term,
"employment in question," add the words "or class of jobs" after
the word, "job."
010010
6
Sin
UNITED STATES SENATE
WASHINGTON, D. c.
JOHN C. DANFORTH
MISSOURI
August 2, 1991
The President
The White House
Washington, D. C. 20500
Dear Mr. President:
Thanks so much for your more than generous
comments in your Rose Garden press conference this
morning. I especially appreciate your invitation to
further communication on the civil rights issue.
Here are my thoughts on how you might resolve this
matter.
You have said that the specific problem with the
legislation I have proposed is that it discourages
employers "from relying on educational effort and
achievement." In addition, Dick Thornburgh has
raised the concern that employers should be able to
hire people not only for the immediate job at hand,
but for positions to which an employee might be
promoted.
I propose that the legislation address each of
these concerns, but not in the overly broad way
suggested by the Administration.
This could be accomplished by using the same
"business necessity" definition in my bill, but
including two provisos.
The first would state that:
Nothing in this act shall be construed to
prevent an employer from refusing to hire
applicants under the age of 18 because they do
not have a high school diploma or have not
passed a high school equivalency exam.
avi VIVEIN
- 2 -
The second would state:
The term "class of jobs" means jobs to
which an employee or applicant may reasonably be
expected to be promoted or transferred within a
reasonable period of time.
If you could propose these provisos as addenda
to my definition of business necessity, I am
convinced that I could gain acceptance for the
proposal and that we could get this matter behind us.
In addition, I have several other specific
suggestions for compromising the other outstanding
issues that are between us. I have shown these to
Dick Thornburgh, but there has been no response.
Mr. President, I cannot overstate how important
I think it is to the country, and more particularly
to our party, to resolve the civil rights dispute.
before it reaches the Senate floor. The present
position of the Administration is truly a turning
back of the clock on civil rights. It is in direct
contradiction to the Supreme Court's 1971 Griggs
decision. I am convinced that your objectives can be
met in the manner outlined above without doing
violence to civil rights law.
Suraly, it cannot serve the cause of education
for civil rights and education to be put in conflict
with one another. There is no doubt in my mind that
your education objectives can be squared with
existing civil rights law.
Please know my high-regard for you. It has
never flagged in the slightest throughout this long
controversy.
Sincerely,
Dark
DANFORTH GILL
JUNE 27, 1991 0 PM
102D CONGRESS
1408
1st SESSION
S.
To amend the Civil Rights Act of 1964 to clarify provisions
regarding disparate impact actions, and for other purposes.
IN THE SENATE OF THE UNITED STATES
JUNE 1 1991
A BILL
To amend the Civil Rights Act of 1964 to clarify provisions
regarding disparate impact actions, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Equal Employment Opportunity Act
of 1991"
SEC. 2. FINDING AND PURPOSES.
(a) FINDING.-Congress finds that the decision of the Supreme
Court in Wards Cove Packing Co. V. Atonio, 109 S. Ct. 2115 (1989)
protections. has weakened the scope and effectiveness of Federal civil rights
(b) PURPOSES. The purposes of this Act are--
(1) to overrule the treatment of business necessity as
defense in Wards Cove Packing Co. V. Atonio and to codify the
meaning of business necessity used in Griggs 11. Duke Power Co., 401
U.S. 424 (1971), and
(1) to overrule the proof burdens and meaning of business
necessity in Wards Cove Packing Co. V. Atonio and to codify the
proof burdens and the meaning of business necessity used in Griggs
V. Duke Power Co., 401 U.S. 424 (1971) and
(2) to confirm provide statutory authority and provide
statutory guidelines for the adjudication of disparate impact suits
under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et
seq.).
SEC. 3. BURDEN OF PROOF IN DISPARATE IMPACT CASES.
(a) IN GENERAL. Section 703 of the Civil Rights Act of 1964
(42 U.S.C. 2000e--2) is amended by adding at the end the following
new subsection:
" (k) (1) (A) An unlawful employment practice based on disparate
impact is established under this title only if--
(i) a complaining party demonstrates that a particular
employment practice or group of employment practices results in a
disparate impa on the basis of race, color, religion, sex, or
national origin, and
(ii) (I) the respondent fails to demonstrate that the
practice or groups of practices is required by business necessity,
or
"(II) the complaining party makes the demonotration
described in subparagraph (C) with respect to a different
employment practice or group of employment practices.
(1) a complaining party demonstrates that a particular
employment practice or particular employment practices (or
decision-making process as described in (B) (1)) cause a disparate
impact on the basis of race, color, religion, sex, or national
origin; and
*(ii)(I) the respondent fails to demonstrate that the
practice or practices are required by business necessity; or
"(II) the complaining party makes the demonstration
described in subparagraph (C) with respect to a different
employment practice and the respondent refuses to adopt such
alternative employment practice.
"(B)(i) With respect to an unlawful employment practice based
on disparate impact as described subsection (A), the complaining
party shall identify with particularity each employment practice
that is responsible in whole or in significant part for the
disparate impact, except that if the complaining party can
demonstrate to the court, after discovery, that the elements of a
respondent's docisionmaking process are not capable of separation
for analysis, the group of employment practices as a whole may be
analyzed as one employment practice.
"(ii) If the elements of a decisionmaking process are capable
of coparation for analysis, the complaining party must identify
each element with particularity, and respondent must demonstrate
that the element or elements identified that are responsible in
whole or in significant part for the disparate impact are required
by business necessity. If the respondent demonstrates that a
specific employment practice within a group of practices is not
responsible in whole or in significant part for the disparate
impact, the respondent shall not be required to demonstrate that
such practice is required by business necessity.
(B)(1) With respect to demonstrating that a particular
employment practice or particular employment practices cause a
disparate impact as described in subsection (A) (i), the complaining
palty shall demonstrate that the particular employment practice
causes in whole or in significant part the disparate impact, except
that if the complaining party can demonstrate to the court that the
elements of a respondent' decision-making process are not capable
of separation for analysis, the decision-making process may be
analyzed as one employment practice.
(ii) If the respondent demonstrates that a specific
employment practice is not responsible in whole or in significant
part for the disparate Impact, the respondent shall not be required
necessity. to demonstrate that such practice is required by business
"(C) An employment practice responsible in whole or in
significant part for a disparate impact that is demonstrated to be
required by business necessity shall be lawful unless the
complaining party domonstrates that a different available
employment practice or group of employment practices, which would
have less disparato impact and make a difference in the disparato
impact that is more than meroly negligible, would serve the
respondent as well.
(C) An employment practice which causes in whole or in
significant part a disparate impact that is demonstrated to be
required by business necessity shall be unlawful if the complaining
party demonstrates that a different available employment practice,
which would have less disparate impact and make a difference in the
disparate impact that is more than negligible, would serve the
respondent's legitimate interests as well and the respondent
refuses to adopt such alternative employment practice.
(2) In deciding whether a respondent has met the standards
described in paragraph (1) for business necessity, the court may
receive evidence as permitted by the Federal Rules of Evidence, and
the sourt shall give such weight, if any, to the evidence as is
appropriato.
"(3) A demonstration that an employment practice or group of
employment practices is required by business necessity may not be
used as a defense only against a claim under this subsection of
intentional discrimination under this title.
(1) (3) Notwithstanding any other provision of this title, a
rule barring the employment of an individual who currently and
knowingly uses or possesses an illegal drug as defined in schedules
I and II of section 102(6) of the Controlled Substances Act (21
U.S.C. 802(6)), other than the use or possession of a drug taken
under the supervision of a licensed health care professional, or
any other use or possession authorized by the Controlled Substances
Act or any other provision of Federal law, shall be considered an
unlawful employment practice under this title only if such rule is
adopted or applied with an intent to discriminate because of race,
color, religion, sex, or national origin.
(5) The mere existence of a statistical imbalance in the work
ferce of an employer on account of race, color, religion, sex, or
national origin is not alono sufficient to establish a prima facio
case of disparate impact violation.
(b) CONSTRUCTION. Nothing in the amendment made by subsection
(a) shall be construed to overrule any existing case concerning
whether is available under title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.) under a comparable worth
theory.
SEC. 4. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST SCORES.
Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as
amended by section 3) is further amended by adding at the end the
following new subsection:
"(1)(1) It shall be an unlawful employment practice for a
respondent, in connection with the selection or referral of
applicants or candidates for employment or promotion, to adjust the
scores of, use different cutoff scores for, or otherwise alter the
results of, employment related tests on the basis of race, color,
religion, sex or national origin.
(2) Paragraph (1) shall not apply to a respondent seeking to
comply with a sourt order aimed at remodying past discrimination.
SEC. 5. DEFINITIONS.
(a) IN GENERAL. Section 701 of the Civil Rights Act of 1964
(42 U.S.C. 2000e) is amended by adding at the end the following new
subsections:
"(1) The term `complaining party' means the Commission, the
Attorney General, or a person who may bring an action or proceeding
under this title.
(m) The term `demonstrates' means meets the burdens of
production and persuasion.
(n) The term 'group of employment practices' means &
combination of particular employment practices in which each
practice is responsible in whole or in significant part for an
employment decision
(0) The term `required by business necessity' means
"(1) in the case of employment practices involving
selection, that the practice or groups of practices bears a
manifest relationship to requirements for effective job
performance; and
"(2) in the case of other employment decisions not.
involving employment selection as described in paragraph (1), the
practice of group of practices boars a manifest relationship to &
legitimate business objective of the employer.
(1) in the case of employment practices that are used as
job qualifications or used to measure the ability to perform the
job, the challenged practice must bear a manifest relationship to
the employment in question.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the employer.
(o) "(P) The term requirements for effective job
performance includes,
(1) the ability to perform competently the actual work
activities lawfully required by the employer for an employment
position, and
"(2) any other lawful requirement that is important to
the performance of the job including, but not limited to faste
such punctuality, attendance, a willingness to avoid engaging in
misconduct or insubordination, not having a work history
demonstrating unreasonable job turnover, and not engaging in
conduct or activity that improperly interferes with the performance
of work by others.
The term employment in question' means
"(1) the performance of actual work activities required
by the employer for a job or class of jobs; or
(2) any requirement related to behavior that is
Important to the job, but may not comprise actual work activities
"fg) (p) The term respondent' means an employer, employment
agency, labor organization, joint labor-management committee
controlling apprenticeship or other training or retraining program,
EDUCATION OF EDUC ATION DEPA
UNITED STATES DEPARTMENT OF EDUCATION
THE SECRETARY
*
UNITED STATES OF AMERICA
September 23, 1991
MEMORANDUM TO JOHN SUNUNU
FROM:
LAMAR ALEXANDER
SUBJECT:
CIVIL RIGHTS LEGISLATION
This is a response I could send to Danforth's August 2 letter
to the President. It would keep the civil rights bill from
outlawing employers' use of the American Achievement Test.
Jeff Martin, our General Counsel, has done the work on this.
Would you like for us to do anything?
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202
Honorable John C. Danforth
United States Senate
Washington, DC 20510
Dear Jack:
President Bush asked me to review your August 2 letter concerning
the pending civil rights legislation. He, as well as I,
appreciate your recognition of the educational concerns that we
have raised. The President wants a civil rights bill, and I am
sure none of us wants a collision between efforts to advance
education and efforts to advance civil rights.
In that spirit, I am writing to suggest an approach for avoiding
that collision. Under the proposal outlined below, employers
would be permitted to consider applicants' or employees'
educational achievements, but only if such achievements have a
manifest relationship to legitimate business objectives of the
employer. Thus, under this test, employers could not set
inappropriate educational prerequisites that have the effect of
screening out minorities for "dead-end jobs.' For example, a
janitor who always wanted to be a janitor could not be required
to show a diploma.
*
The Administration does not want to overrule the Supreme Court's
Griggs decision. It does not want to authorize employers to
impose arbitrary education requirements that bear no relationship
to legitimate business objectives and that have a disparate
racial impact. However, when many American school children are
not learning what they need to know and do to succeed in today's
world, we should not send a message that educational achievement
does not count in the "real" world. In today's increasingly
technical and competitive marketplace -- where jobs and the skill
requirements change rapidly and where employers need to hire
employees who know how to think and adapt to changing
conditions -- employers should not be deterred by the prospect of
litigation from having genuinely high educational expectations
for their workforce. Reform of our educational system depends on
creating incentives for all American school kids to work harder
in school. In the long run, this is the best way for
disadvantaged Americans to move to the front of the line.
Under your bill, as I understand it, "business necessity" --
which represents an employer's defense to a finding that a hiring
or other employment practice has a disparate racial impact --
would be defined more narrowly than in the Administration's bill,
so that an employment practice used as a job qualification or to
measure ability to perform a job must bear a manifest
relationship to the job in question. I believe that it may be
possible for the Administration to join in your definition of
"business necessity, if appropriate provisions can be formulated
that address our specific educational concerns.
Page 2 - Honorable John C. Danforth
In that regard, we have no difficulty with the second provisio
stated in your letter defining the term "class of jobs" to
include jobs for which an applicant or employee may reasonably be
expected to be considered for promotion or transfer within a
reasonable period of time. (A conforming amendment to your bill
related to this proviso is suggested in the attachment.)
However, the first proviso specifically relating to education is
too narrow in one respect and too broad in another. It only
authorizes an employer to refuse to hire applicants under the age
of 18 because they do not have a high school diploma or have not
passed a high school equivalency exam. The educational concerns
that I have raised are not limited to persons under the age of 18
or to the acquisition of high school diplomas. In today's
technical and competitive world economy, increasingly rapid
changes in jobs and employment resources require employees with
learning and communication skills that enable them to adjust to
changing conditions and requirements in their current jobs, as
well as in jobs to which they may be promoted. Employers should
be able to consider applicants' or employees' capacities to meet
these needs. I therefore believe that your proviso needs to be
broadened to include (1) degrees other than a high school
diploma; (2) applicants' and employees' educational records
reflecting their educational achievement, ability to learn, and
diligence; (3) promotions as well as hiring decisions; and (4)
applicants or employees without an age limitation. On the other
hand, the broadening of the education proviso should be
accompanied by the limitation that these education factors may be
used by the employer if they have a disparate impact only if they
have a manifest relationship to a legitimate business objective
of the employer. Non-education-related employment practices used
as job qualifications would be governed by the narrower test in
your bill.
I have taken the liberty to attach a draft of such a proviso.
Obviously, I would be pleased to hear your suggestions on it. I
am confident that a proviso along these lines would not give
employers broad authority to impose arbitrary or unnecessary
educational requirements. However, it would recognize the
general importance of education in today's and our future economy
and send the important signal to students of all ages that it is
important to work hard at education.
Sincerely,
Proposed Modification of First Proposed Proviso
in Senator Danforth's August 2, 1991 Letter
Nothing in this Act shall be construed to prevent an employer, in
making a hiring or other employment decision, from considering an
applicant's or employee's educational achievements, including the
applicant's or employee's diploma or degrees or academic
performance, including test scores, if such consideration has a
manifest relationship to a legitimate business objective of the
employer.
Conforming Amendment to Danforth bill, consistent with the
Second Proposed Proviso in his August 2, 1991 letter
In Section 5, in paragraph (2) of the definition of the term,
"employment in question," add the words "or class of jobs" after
the word, "job."
010010
6
Sin
UNITED STATES SENATE
WASHINGTON, D. C.
JOHN C. DANFORTH
MISSOURI
August 2, 1991
The President
The White House
Washington, D. C. 20500
Dear Mr. President:
Thanks so much for your more than generous
comments in your Rose Garden press conference this
morning. I especially appreciate your invitation to
further communication on the civil rights issue.
Here are my thoughts on how you might resolve this
matter.
You have said that the specific problem with the
legislation I have proposed is that it discourages
employers "from relying on educational effort and
achievement." In addition, Dick Thornburgh has
raised the concern that employers should be able to
hire people not only for the immediate job at hand,
but for positions to which an employee might be
promoted.
I propose that the legislation address each of
these concerns, but not in the overly broad way
suggested by the Administration.
This could be accomplished by using the same
"business necessity" definition in my bill, but
including two provisos.
The first would state that:
Nothing in this act shall be construed to
prevent an employer from refusing to hire
applicants under the age of 18 because they do
not have a high school diploma or have not
passed a high school equivalency exam.
010010
0
- 2 -
The second would state:
The term "class of jobs" means jobs to
which an employee or applicant may reasonably be
expected to be promoted or transferred within a
reasonable period of time.
If you could propose these provisos as addenda
to my definition of business necessity, I am
convinced that I could gain acceptance for the
proposal and that we could get this matter behind us.
In addition, I have several other specific
suggestions for compromising the other outstanding
issues that are between us. I have shown these to
Dick Thornburgh, but there has been no response.
Mr. President, I cannot overstate how important
I think it is to the country, and more particularly
to our party, to resolve the civil rights dispute.
before it reaches the Senate floor. The present
position of the Administration is truly a turning
back of the clock on civil rights. It is in direct
contradiction to the Supreme Court's 1971 Griggs
decision. I am convinced that your objectives can be
met in the manner outlined above without doing
violence to civil rights law.
Surely, it cannot serve the cause of education
for civil rights and education to be put in conflict
with one another. There is no doubt in my mind that
your education objectives can be squared with
existing civil rights law.
Please know my high
for you. It has
never flagged in the slightest throughout this long
controversy.
Sincerely,
Dark
DANFORTH BILL
JUNE 27, 1991 1:00 PM
102D CONGRESS
1408
1st SESSION
S.
To amend the Civil Rights Act of 1964 to clarify provisions
regarding disparate impact actions, and for other purposes.
IN THE SENATE OF THE UNITED STATES
JUNE 1 1991
A BILL
To amend the Civil Rights Act of 1964 to clarify provisions
regarding disparate impact actions, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Equal Employment Opportunity Act
of 1991".
SEC. 2. FINDING AND PURPOSES.
(a) FINDING. -Congress finds that the decision of the Supreme
Court in Wards Cove Packing Co. V. Atonio, 109 S. Ct. 2115 (1989)
has weakened the scope and effectiveness of Federal civil rights
protections.
(b) PURPOSES. The purposes of this Act are--
(1) to overrule the treatment of business necessity as
defense in Wards Cove Packing Co. V. Atonio and to codify the
meaning of business necessity used in Criggs V. Duke Power Co., 401
U.S. 424 (1971) and
(1) to overrule the proof burdens and meaning of business
necessity in Wards Cove Packing Co. V. Atonio and to codify the
proof burdens and the meaning of business necessity used in Griggs
V. Duke Power Co., 401 U.S. 424 (1971) ; and
(2) to confirm provide statutory authority and provide
statutory guidelines for the adjudication of disparate impact suits
under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et
seq.).
SEC. 3. BURDEN OF PROOF IN DISPARATE IMPACT CASES.
(a) IN GENERAL.--Section 703 of the Civil Rights Act of 1964
(42 U.S.C. 2000e--2) is amended by adding at the end the following
new subsection:
" (k) (1) (A) An unlawful employment practice based on disparate
impact is established under this title only if--
(i) a complaining party demonstrates that a particular
employment practice or group of employment practices results in a
disparate impact on the basis of race, color, religion, sex, or
national origin, and
"(ii)(I) the respondent fails to demonstrate that the
practice or groups of practices is required by business necessity,
or
"(II) the complaining party makes the demonstration
described in cubparagraph (C) with respect to a different
employment practice or group of employment practices.
(1) a complaining party demonstrates that a particular
employment practice or particular employment practices (or
decision-making process as described in (B) (i)) cause a disparate
impact on the basis of race, color, religion, sex, or national
origin; and
(ii) (I) the respondent fails to demonstrate that the
practice or practices are required by business necessity; or
(II) the complaining party makes the demonstration
described in subparagraph (C) with respect to a different
employment practice and the respondent refuses to adopt such
alternative employment practice.
(B) (i) With respect to an unlawful employment practice based
on disparate impact as described subsection (A), the complaining
party shall identify with particularity each employment practice
that is responsible in whole or in significant part for the
disparate impact, except that if the complaining party can
demonstrate to the court, after discovery, that the elements of a
respondent's decisionmaking process are not capable of separation
for analysis, the group of employment practices as a whole may be
analyzed as one employment practice.
"(ii) If the elements of a decisionmaking process are capable
of separation for analysis, the complaining party must identify
each element with particularity, and respondent must demonstrate
that the element or elements identified that are responsible in
whole or in significant part for the disparate impact are required
by business necessity. If the respondent demonstrates that a
specific employment practice within a group of practices is not
responsible in whole or in significant part for the disparate
impact, the respondent shall not be required to demonstrate that
such practice is required by business necessity.
(B) (1) With respect to demonstrating that a particular
employment practice or particular employment practices cause a
disparate impact as described in subsection (A) (i), the complaining
palty shall demonstrate that the particular employment practice
causes in whole or in significant part the disparate impact, except
that 1f the complaining party can demonstrate to the court that the
elements of a respondent's decision-making process are not capable
of separation for analysis, the decision-making process may be
analyzed as one employment practice.
(ii) If the respondent demonstrates that a specific
employment practice is not responsible in whole or in significant
part for the disparate Impact, the respondent shall not be required
to demonstrate that such practice is required by business
necessity.
(C) An employment practice responsible in whole or in
cignificant part for a disparate impact that is demonstrated to be
required by business necessity shall be lawful unless the
complaining party demonstrates that a different available
employment practice or group of employment practices, which would
have less disparate impact and make a difference in the disparate
impact that is moro than merely negligible, would serve the
respondent as well
(C) An employment practice which causes in whole or in
significant part a disparate impact that is demonstrated to be
required by business necessity shall be unlawful if the complaining
party demonstrates that a different available employment practice,
which would have less disparate impact and make a difference in the
disparate impact that is more than negligible, would serve the
respondent's legitimate interests as well and the respondent
refuses to adopt such alternative employment practice.
"(2) In deciding whether a respondent has met the standards
described in paragraph (1) for business necessity, the court may
receive evidence as permitted by the Federal Rules of Evidence, and
the court shall give such weight, if any, to the evidence as is
appropriate.
(3) A demonstration that an employment practice or group of
employment practices is required by business necessity may not be
used as a defense only against a claim under this subsection of
intentional discrimination under this title.
(4) (3) Notwithstanding any other provision of this title, a
rule barring the employment of an individual who currently and
knowingly uses or possesses an illegal drug as defined in schedules
I and II of section 102(6) of the Controlled Substances Act (21
U.S.C. 802(6)), other than the use or possession of a drug taken
under the supervision of a licensed health care professional, or
any other use or possession authorized by the Controlled Substances
Act or any other provision of Federal law, shall be considered an
unlawful employment practice under this title only if such rule is
adopted or applied with an intent to discriminate because of race,
color, religion, sex, or national origin.
(5) The mere existence of a statistical imbalance in the work
force of an employer on account of race, color, religion, sex, or
national origin is not alone sufficient to establish a prima facio
case of disparate impact violation
(b) CONSTRUCTION Nothing in the amendment made by subsection
(a) shall be construed to overrule any existing case concerning
whether in available under title VII of Rights
Act of 1964 (42 U.S.C. 2000c et seq.) under a comparable worth
theory
SEC. 4. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST SCORES.
Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as
amended by section 3) is further amended by adding at the end the
following new subsection:
(1) It shall be an unlawful employment practice for a
respondent, in connection with the selection or referral of
applicants or candidates for employment or promotion, to adjust the
scores of, use different cutoff scores for, or otherwise alter the
results of, employment related tests on the basis of race, color,
religion, sex or national origin.
'(2) Paragraph (1) shall not apply to a respondent seeking to
comply with a sourt order aimed at remodying past discrimination.
SEC. 5. DEFINITIONS.
(a) IN GENERAL. Section 701 of the Civil Rights Act of 1964
(42 U.S.C. 2000e) is amended by adding at the end the following new
subsections:
(1) The term `complaining party' means the Commission, the
Attorney General, or a person who may bring an action or proceeding
under this title.
(m) The term `demonstrates' means meets the burdens of
production and persuasion.
"(n) The term `group of employment practices' means a
combination of particular employment practices in which each
practice is responsible in whole or in significant part for an
employment decision.
(0) The term `required by business necessity' means--
'(1) in the case of employment practices involving
selection, that the practice or groups of practices bears a
manifest relationship to requirements for effective job
performance; and
'(2) in the case of other employment decisions not
involving employment selection as described in paragraph (1), the
practice of group of practices bears a manifest relationship to a
legitimate business objective of the employer.
(1) in the case of employment practices that are used as
job qualifications or used to measure the ability to perform the
job, the challenged practice must bear a manifest relationship to
the employment in questions
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship " to a legitimate business objective of the employer.
(o) "(P) The term requirements for effective job
performance includes,
(1) the ability to perform competently the actual work
activities lawfully required by the employer for an employment
position; and
(2) any other lawful requirement that is important to
the performance of the job, including, but not limited to, facte
such punctuality, attendance, a willingness to avoid engaging in
misconduct or insubordination, not having a work history
demonstrating unreasonable job turnover, and not engaging in
conduct or activity that improperly interferes with the performance
of work by others
The term `employment in question' means-
"(1) the performance of actual work activities required
by the employer for a job or class of jobs; or
("(2) any requirement related to behavior that is
important to the job, but may not comprise actual work activities
"(q) (P) The term respondent' means an employer, employment
agency, labor organization, joint labor-management committee
controlling apprenticeship or other training or retraining program,
news from
Senator Jack Danforth
- Missouri
Contact: Steve Hilton
For Immediate Release
202-224-6154
September 24, 1991
DANFORTH ADOPTS ANTI-BIAS LANGUAGE FROM LAW SIGNED BY PRESIDENT
U.S. Senator Jack Danforth (R-MO) announced today that civil
rights legislation to be debated soon in the Senate will carry key
worker protection language from the new law that assures equal
employment opportunities for disabled Americans.
The law used as a model for the key anti-bias section of the
Senate bill is the widely-acclaimed Americans with Disabilities Act
(ADA). President Bush signed the ADA into law in July 1990, citing
it as a "landmark" and an "historic new civil rights act."
The bill introduced today by Danforth and other Republican
Senators would extend the ADA standard of job protection to women and
minorities, whose ability to challenge unfair employment practices
was undermined by the Supreme Court's ruling in the Wards Cove case
(1989). The Republican civil rights bill also would make damages
available, under caps, to women and disabled people who are victims
of intentional discrimination, and would reverse or modify several
other recent Supreme Court cases.
Danforth stated:
"We are introducing civil rights legislation because we believe
that decisions by the Supreme Court in Wards Cove and other cases
have turned back the clock on fairness in employment.
"There is a national consensus on civil rights. It is shared by
Congress, the Administration, and, most importantly, the American
people. Americans expect the law to ensure that people are treated
fairly in hiring, promotion and similar matters. They do not favor
preferences against, or in favor of, people on the basis of race,
gender, disability or religion.
"Until this summer, discussion of civil rights legislation was
dominated by a destructive and pointless debate over 'quotas.' This
debate was bad for the country because it threatened to obscure the
national consensus on equal employment opportunities. Fortunately,
that debate has ended.
"At this point, it is understood by all parties that the key to a
bill supported by the President is the 'business necessity' issue:
If an employment practice screens out women and minorities, should
the employer show that the practice is related to a person's ability
to do the job? I believe the answer should be yes. Such practices
should be unlawful unless they are related to the employment in
-- more --
GOP Civil Rights Bill
First, last add
question. Examples of this are a height requirement for police
officers which excludes most women or a residency requirement in a
suburban area which denies opportunity to minorities from the city.
"Ability to do the job was the standard set by a unanimous
Supreme Court in 1971. Hiring on merit was the law of the land until
the Wards Cove decision, which lowered the standard. A person's
ability to do the job, of course, is a touchstone of the Americans
with Disabilities Act.
"It is time to enact legislation. In order to break the impasse
over 'business necessity,' we have decided to adopt the language of
the ADA to bar employment discrimination. Specifically, the ADA bars
'qualification standards, employment tests or other selection
criteria' that screen out disabled individuals, unless the practices
are job-related. This is the standard of protection for disabled
Americans. Our legislation would extend it to women, minorities and
others.
"The bill also would reverse five cases on which there is little
disagreement, and provide women and others injured by non-racial
discrimination with access to damages, with caps in certain
circumstances.
"This past Labor Day, Chairman of the EEOC Evan Kemp said of the
the ADA, 'For all the rancor this year over a civil rights bill, we
should take some lessons from the ADA, a civil rights bill that
Congress passed with lopsided margins
[T]he ADA does not
require, encourage or permit preferences or quotas for those with
disabilities
Proponents of civil rights bills of the future
should look to the ADA.
"When it was suggested to me that we follow the ADA to settle the
'business necessity' issue, I was surprised that no one had suggested
this approach during the discussions with the Administration.
Ninety-one Senators voted for the Americans with Disabilities Act.
In the House, the vote was 377-28. The President rightly views the
law as a centerpiece of his domestic accomplishments. The ADA's
affirmation of hiring on merit is a solid assurance of fairness in
the workplace for the disabled. I believe this assurance should and
will be extended to all Americans."
The Senate vote of 91-6 to pass the Americans with Disabilities
Act was on July 13, 1990. The House of Representatives passed the
measure 377-28 on July 12, 1990.
Attachments, including synopsis of bill
practice by the court. This approach is similar to the President's
recommendation set forth in the veto message on the Civil Rights Act
of 1990.
The bill establishes as law that an employer may consider all
elements that relate to the employment in question, such as the
ability to perform actual duties as well as other behavior that is
important to the job (such as punctuality, the ability to work with
others, and other more intangible qualities.)
With respect to employment aptitude tests, which is not a Wards
Cove issue, the bill prohibits the adjustment, or "norming," of test
scores by racial or other groupings.
Other Principal Sections, Civil Rights Act of 1991:
In the Patterson case (1989), the Court held that the Civil
Rights Act of 1866, which bars intentional discrimination in
contracts, applies only to the formation and enforcement of
contracts, and therefore does not prohibit racial harassment or other
forms of discrimination on the job. It is generally agreed that this
case should be overturned. The bill is modeled on the language of
the Conference Report that accompanied the Civil Rights Act of 1990.
In Price Waterhouse (1989), the Court held that the defendant in
a gender-related case may avoid liability by showing that the
employment decision would have been made in the absence of
intentional discrimination, even when the plaintiff has proven that
gender was a motivating factor in the decision. The bill makes it
unlawful for gender to be a motivating factor in an employment
decision. The bill does not provide damages, nor reinstatement,
should the employer show the same decision would have been made,
absent reliance on gender as a motivating factor. In such
circumstances, the plaintiff would be entitled to declaratory relief
or an injunction. Attorney's fees would be available only for work
directly attributable to pursuit of a "Price Waterhouse" claim. This
approach is similar to the President's recommendation in his veto
message on the CRA of 1990.
In Martin V. Wilks (1989), the Court held that white firefighters
were not bound by a court-approved consent decree entered into by the
City of Birmingham, AL, even though they had actual notice and an
opportunity to intervene. The bill reverses the case. It provides
that individuals can be bound by a judgment or consent decree if they
had actual notice that the decree could adversely affect their
interests and had an opportunity to object to the decree, or if their
interests were fairly represented in court by a previous litigant on
the same legal grounds and in a similar factual situation.
In Lorance (1989), the Court held that the statute of limitations
for challenges to the fairness of seniority plans begins when the
plan is adopted, not when it is applied to the plaintiff. The bill
reverses the case.
In Shaw (1986), the Court held that interest on delayed payment
was not available to plaintiffs who secured a judgment against the
Federal government. Such interest is available when a judgment is
won against a private party. The bill reverses the case, providing
that the Federal government must pay interest on delayed payments.
Summary of Civil Rights Act of 1991
September 24, 1991
Republican Senators introduced legislation today to address
rulings by the Supreme Court with respect to equality of employment
opportunity and fairness in the work place. Today's bill reflects
revisions to legislation proposed by Senator Danforth and others on
June 4. The revisions have been made primarily to accommodate
concerns expressed by the Administration.
Section 5 of Civil Rights Act of 1991:
The bill affords to women, religious minorities and the disabled
damages for intentional discrimination. These are new remedies;
therefore, this bill is not "restorative." The bill is a compromise
between the positions of Democrats in Congress, civil rights groups,
business groups, and the Administration. The bill provides damages
without caps for back pay and other past out-of-pocket costs. The
bill also sets overall caps on future pecuniary damages; pain and
suffering, and punitive damages. For employers with 100 or fewer
employees, this cap is $50,000. For employers with between 101 and
500 employees, the cap on damages is $100,000. For businesses with
more than 500 employees, the cap on damages is $300,000. Juries will
be available to decide liability and amount of damages.
Sections 7 and 8, Civil Rights Act of 1991:
The bill reverses Wards Cove (1989), in which the Court made it
more difficult for plaintiffs to prove a claim of disparate impact.
A disparate impact claim is intended to insure that hiring and
promotion practices truly measure whether an individual can perform a
job. Employers may not use practices with no manifest relationship
to the employment in question if the practices have the effect of
excluding minorities, women, or religious minorities.
The bill is a compromise between the positions of Democratic
Senators and Representatives and civil rights groups, on one hand,
and the Administration, on the other. With respect to specific
issues:
The bill defines "business necessity" to be an employment
practice that "bears a manifest relationship to the employment in
question." The bill includes exact language from the Americans with
Disabilities Act to define which employment practices are subject to
the "manifest relationship" test. Thus, the bill states that
practices used as "qualification standards, employment tests or other
selection criteria must bear a manifest relationship to the
employment in question.'
The bill also includes a standard for practice( not used as
"standards, employment tests or other selection criteria"; such
practice must bear a manifest relationship to a legitimate
business objective.
The bill calls upon plaintiffs to specify the practice (s)
("particularity") that cause in whole or in significant part the
disparate impact. Particularity is not required when a plaintiff
shows that a decision-making process cannot be separated for
analysis; such an inseparable process will be treated as a single
Emphasis supplied
The Washington Times MONDAY, SEPTEMBER 2, 1991 / PAGE F3
EVAN KEMP JR.
Opportunity for the disabled
T
his Labor Day will,
groups being affected; approval for
Finally, none of these develop-
thankfully, be the last one
the ADA rests on other grounds,
ments would have been possible if
that will not be just another
which should be examined by those
the ADA had not drawn its strength
day for millions of Amer-
who want another civil rights bill.
from this nation's belief in the fun-
icans who are kept out of work by
artificial barriers.
First of all, the whole premise of
damental principle of equal opportu-
the ADA is to bring individuals into
nity. At long last, this ideal will em-
The Americans With Disabilities
brace. those with disabilities. A
Act (ADA), a revolutionary law
the mainstream of American soci-
ety; to end job, housing and public
moral consensus, which is surely
signed by President Bush on July 26
a year ago, not only brings persons
accommodations segregation. Rath-
built on the civil rights movement,
underlies the ADA.
with disabilities into the workforce
er than emphasizing the differences
The lessons to be drawn seem
but also serves as a model for future
civil rights legislation.
very plain. Proponents of civil rights
bills of the future should look to the
For all the rancor this year over a
Rather than
civil rights bill, we should take some
ADA. They must ask themselves: Is
lessons from the ADA, a civil rights
emphasizing the
this civil rights bill going to bring
bill that Congress passed with lop-
Americans closer together? Will it
sided margins.
differences of persons
reduce workplace frictions and
This long overdue legislation pro-
those throughout society? Or will it
with disabilities, our
foster resentment?
claims that "the nation's proper
goals regarding individuals with dis-
Does the bill encourage people to
abilities are to assure equality of
newest civil rights law
get the most out of their education?
opportunity, full participation, inde-
seeks common ground
Does it reward those who have the
pendent living and economic self-
incentive to complete training pro-
sufficiency for such individuals"
between them and
grams? Can employers feel they can
with disabilities. The ADA thus
hire the most qualified - without
guarantees that places of public ac-
those who are fully
fear of lawsuit?
commodation, transportation, tele-
able-bodied.
Are the remedies the civil rights
communications and, above all, em-
bill offers appropriate to the viola-
ployment will be accessible to those
tion? Can employees believe they are
with disabilities, such as people who
being treated fairly in hiring and
are blind, wheelchair users, those
of persons with disabilities, our new-
promotions and have adequate re-
with hearing and speech impedi-
est civil rights law seeks common
course when they must sue for their
ments and others who have a major
ground between them and those who
rights? Are we really compensating
life activity that is substantially im-
are fully able-bodied. The disability
the victim adequately if we require
paired.
rights movement is one of those rare
quotas or their euphemisms, goals
This legislation, which will take
groups whose logic requires it to dis-
and timetables? (I look forward to
effect for most businesses on July
seeing a damages provision.) What
appear.
26, 1992, will obviously require fun-
Second, the ADA does not require
good does it do a victim of discrimi-
businesses to hire just any person
nation to hire others of his or her
damental changes in the way we re-
gard the workplace and its employ-
with disabilities; they must be qual-
particular class? A desirable civil
ees. Though opponents wildly
ified. The ADA requires only that
rights bill would allow tough rem-
exaggerated the costs of reasonable
employers offer the opportunity to
edies that at the same time aid spe-
accommodation of qualified indi-
work, and if the accommodation (for
cific victims of discrimination.
viduals with disabilities, this law
example, a reader for a blind at-
Finally, proponents of civil rights
will make a world of difference to
torney) required for the business is
must ask themselves how their legis-
those individuals seeking work and
too expensive, then it cannot be
lation addresses the moral consen-
all its benefits.
forced upon them. The ADA is not an
sus on civil rights that goes back to
Why the contrasting reception
entitlement program.
the Declaration of Independence.
with the other civil rights bills cur-
Thus, the ADA does not require
We must take civil rights back from
rently being debated? Let me focus
encourage or permit preferences or
the domain of interest groups and
on the employment provisions of the
quotas for those with disabilities.
lawyers and restore it in the lan-
ADA, since these are the parts of the
Accommodation of people who use
guage and tone of the family dinner
civil rights bill that are currently
wheelchairs (widening an aisle) is
table. We need to revive the connec-
most in dispute. The difference is far
different from acommodation for
tion between civil rights and funda-
more than a matter of the specific
someone who is hearing-impaired
mental moral principles.
(providing a telephone relay sys-
The ADA passed these tests. Any
tem). The action an employer takes
civil rights bill that does so will be-
Evan Kemp Jr. is chairman of the
must be individual and not just ad-
come law. Like our holidays, such a
U.S. Equal Employment Opportunity
dressed to a mass labeled as "the
law will be another occasion for all
Commission, which enforces federal
disabled." Remedies are thus tai-
Americans to rejoice in their com-
employment discrimination laws.
lored to the individual.
mon heritage.
Weekly Compilation of
Presidential
Documents
Remarks on Signing the Americans with
Disabilities Act of 1990
July 26, 1990
Evan, thank you so much. And welcome
to every one of you, out there in this splen-
did scene of hope, spread across the South
Lawn of the White House. I want to salute
the Members of the United States Congress,
Monday, July 30, 1990
the House and the Senate who are with us
Volume 26-Number 30
today-active participants in making this
Pages 1137-1170
day come true. This is, indeed, an incredi-
ble day. Especially for the thousands of
people across the Nation who have given so
much of their time, their vision; and their
courage to see this act become a reality.
You know, I started trying to put togeth-
er a list of all the people who should be
mentioned today. But when the list started
looking a little longer than the Senate testi-
mony for the bill, I decided I better give
up, or that we'd never get out of here
before sunset. So, even though so many de-
serve credit, I will single out but a tiny
handful. And I take those who have guided
me personally over the years: of course, my
friends Evan Kemp and Justin Dart, up
here on the platform with me; and of
course-I hope you'll forgive me for also
saying a special word of thanks to two from
the White House, but again, this is personal,
so I don't want to offend those omitted-
two from the White House, Boyden Gray
and Bill Roper, who labored long and hard.
And I want to thank Sandy Parrino, of
course, for her leadership. And I again-it is
very risky with all these Members of Con-
gress here who worked to hard, but I can
say on a very personal basis, [Senator] Bob
Dole has inspired me.
This is an immensely important day, a
day that belongs to all of you. Everywhere I
Emphasis supplied
Administration of George Bush, 1990 / July 26
look, I see people who have dedicated
that they hope to enact now similar legisla-
themselves to making sure that this day
tion.
would come to pass: my friends from Con-
Our success with this act proves that we
gress, as I say, who worked so diligently
are keeping faith with the spirit of our cou-
with the best interest of all at heart, Demo-
rageous forefathers who wrote in the Decla-
crats and Republicans; members of this ad-
ration of Independence: "We hold these
ministration-and I'm pleased to see so
truths to be self-evident, that all men are
many top officials and members of my Cab-
created equal, that they are endowed by
inet here today who brought their caring
their Creator with certain unalienable
and expertise to this fight; and then, the
rights." These words have been our guide
organizations-so many dedicated organiza-
for more than two centuries as we've la-
tions for people with disabilities, who gave
bored to form our more perfect union. But
their time and their strength; and perhaps
tragically, for too many Americans, the
most of all, everyone out there and others-
blessings of liberty have been limited or
across the breadth of this nation are 43 mil-
even denied. The Civil Rights Act of '64
lion Americans with disabilities. You have
took a bold step towards righting that
made this happen. All of you have made this
wrong. But the stark fact remained that
happen. To all of you, I just want to say your
people with disabilities were still victims of
triumph is that your bill will now be law, and
segregation and discrimination, and this was
that this day belongs to you. On behalf of our
intolerable. Today's legislation brings us
nation, thank you very, very much.
closer to that day when no Americans will
Three weeks ago we celebrated our na-
ever again be deprived of their basic guar-
tion's Independence Day. Today we're here
antee of life, liberty, and the pursuit of hap-
to rejoice in and celebrate another "Inde-
piness.
pendence Day," one that is long overdue.
This act is powerful in its simplicity. It
With today's signing of the landmark Amer-
will ensure that people with disabilities are
icans for Disabilities Act, every man,
given the basic guarantees for which they
woman, and child with a disability can now
have worked so long and so hard: independ-
pass through once-closed doors into a bright
ence, freedom of choice, control of their
new era of requality, independence and
lives, the opportunity to blend fully and
freedom. As I look around at all these
equally into the rich mosaic of the Ameri-
joyous faces, I remember clearly how many
can mainstream. Legally, it will provide our
years of dedicated commitment have gone
disabled community with a powerful expan-
into making this historic new civil rights act
sion of protections and then basic civil
a reality. It's been the work of a true coali-
rights. It will guarantee fair and just access
tion, a strong and inspiring coalition of
to the fruits of American life which we all
people who have shared both a dream and
must be able to enjoy. And then, specifical-
a passionate determination to make that
ly, first the ADA ensures that employers
dream come true. It's been a coalition in
covered by the act cannot discriminate
the finest spirit: a joining of Democrats and
against qualified individuals with disabil-
Republicans, of the legislative and the exec-
ities. Second, the ADA ensures access to
utive branches, of Federal and State agen-
public accommodations such as restaurants,
cies, of public officials and private citizens,
hotels, shopping centers and offices. And
of people with disabilities and without.
third, the ADA ensures expanded access to
transportation services. And fourth, the
This historic act is the world's first com-
ADA ensures equivalent telephone services
prehensive declaration of equality for
for people with speech or hearing impedi-
people with disabilities-the first. Its pas-
ments.
sage has made the United States the inter-
These provisions mean so much to so
national leader on this human rights issue.
many. To one brave girl in particular, they
Already, leaders of several other countries,
will mean the world. Lisa Carl, a young
including Sweden, Japan, the Soviet Union,
Washington State woman with cerebral
and all 12 members of the EEC [European
palsy, who I'm told is with us today, now
Economic Community], have announced
will always be admitted to her hometown
1163
July 26 / Administration of George Bush, 1990
theater. Lisa, you might not have been wel-
this: You've called for new sources of work-
come at your theater, but I'll tell you-wel-
ers. Well, many of our fellow citizens with
come to the White House. We're glad
disabilities are unemployed. They want to
you're here. The ADA is a dramatic renew-
work, and they can work, and this is a tre-
al not only for those with disabilities but for
mendous pool of people. And remember,
all of us, because along with the precious
this is a tremendous pool of people who will
privilege of being an American comes a
bring to jobs diversity, loyalty, proven low
sacred duty to ensure that every other
turnover rate, and only one request: the
American's rights are also guaranteed.
chance to prove themselves. And when you
Together, we must remove the physical
add together Federal, State, local, and pri-
barriers we have created and the social bar-
vate funds, it costs almost $200 billion annu-
riers that we have accepted. For ours will
ally to support Americans with disabilities—
never be a truly prosperous nation until all
in effect, to keep them dependent. Well,
within it prosper. For inspiration, we need
when given the opportunity to be inde-
look no further than our own neighbors.
pendent, they will move proudly into the
With us in that wonderful crowd out there
economic mainstream of American life, and
are people representing 18 of the daily
that's what this legislation is all about.
Points of Light that I've named for their
Our problems are large, but our unified
extraordinary involvement with the dis-
heart is larger. Our challenges are great,
abled community. We applaud you and
but our will is greater. And in our America,
your shining example. Thank you for your
the most generous, optimistic nation on the
leadership for all that are here today.
face of the Earth, we must not and will not
Now, let me just tell you a wonderful
rest until every man and woman with a
story, a story about children already work-
dream has the means to achieve it.
ing in the spirit of the ADA-a story that
really touched me. Across the Nation, some
And today, America welcomes into the
mainstream of life all of our fellow citizens
10,000 youngsters with disabilities are part
with disabilities. We embrace you for your
of Little League's Challenger Division.
Their teams play just like others, but-and
abilities and for your disabilities, for our si-
milarities and indeed for our differences,
this is the most remarkable part-as they
play, at their sides are volunteer buddies
for your past courage and your future
from conventional Little League teams. All
dreams. Last year, we celebrated a victory
of these players work together. They team
of international freedom. Even the strong-
up to wheel around the bases and to field
est person couldn't scale the Berlin Wall to
grounders together and, most of all, just to
gain the elusive promise of independence
play and become friends. We must let these
that lay just beyond. And so, together we
children be our guides and inspiration.
rejoiced when that barrier fell.
I also want to say a special word to our
And now I sign legislation which takes a
friends in the business community. You
sledgehammer to another wall, one which
have in your hands the key to the success of
has for too many generations separated
this act, for you can unlock a splendid re-
Americans with disabilities from the free-
source of untapped human potential that,
dom they could glimpse, but not grasp.
when freed, will enrich us all. I know there
Once again, we rejoice as this barrier falls
have been concerns that the ADA may be
for claiming together we will not accept,
vague or costly, or may lead endlessly to
we will not excuse, we will not tolerate dis-
litigation. But I want to reassure you right
crimination in America.
now that my administration and the United
With, again, great thanks to the Members
States Congress have carefully crafted this
of the United States Senate, leaders of
Act. We've all been determined to ensure
whom are here today, and those who
that it gives flexibility, particularly in terms
worked so tirelessly for this legislation on
of the timetable of implementation, and
both sides of the aisles. And to those Mem-
we've been committed to containing the
bers of the House of Representatives with
costs that may be incurred.
us here today, Democrats and Republicans
This act does something important for
as well, I salute you. And on your behalf, as
American business, though-and remember
well as the behalf of this entire country, I
1164
Administration of George Bush, 1990 / July 26
now lift my pen to sign this Americans with
Disabilities Act and say: Let the shameful
wall of exclusion finally come tumbling
down. God bless you all.
Note: The President spoke at 10:11 a.m. on
the South Lawn of the White House. In his
opening remarks, he referred to Evan
Kemp, Chairman of the Equal Opportunity
Employment Commission; Justin Dart,
Chairman of the President's Committee for
Employment of People With Disabilities; C.
Boyden Gray, Counsel to the President; Wil-
liam L. Roper, Deputy Assistant to the Presi-
dent for Domestic Policy and Director of the
Office of Policy Development; and Sandy
Parrino, chairperson of the National Council
of Disabilities. A tape was not available for
verification of the content of these remarks.
S. 933, approved July 26, was assigned Pub-
lic Law No. 101-336.
Bredden call Camil Homey
Call Byed reB-2
Lott (George
On the record:
Administration officials have been discussing the civil
rights bill with Sen. Danforth for quite some time. These
discussions have not yet produced an agreement. If Sen.
Danforth's decision to introduce a new bill means that he is
no longer seeking an agreement, we are disappointed. The
Administration will present its views of the new bill after
it has been carefully reviewed.
On background:
essentially
The new bill appears to contain many of the same
fundamental flaws as H.R. 1 (the bill passed by the House of
Representatives) and last year's Kennedy-Hawkins bill (which
was vetoed by the President.
The new bill does not appear to solve the most serious
problems with the previous bills: (1) they would drive
employers to adopt quotas by radically changing the law of
disparate impact; (2) they would protect existing quotas
from legal challenge by slamming the courthouse door in the
face of those who have been victimized by quotas in consent
decrees; and (3) they would transform civil rights
litigation into a tort-style system with juries awarding
compensatory and punitive damages.
The new bill does not contain a definition of "business
necessity" from the Americans with Disabilities Act.
Indeed, it could not do any such thing since "business
necessity" is used in the ADA as an undefined term.
Copy to Boydent mc cluse
UNITED STATES SENATE
WASHINGTON, D.C.
JOHN C. DANFORTH
MISSOURI
June 20, 1991
Honorable John Sununu
Chief of Staff to the President
The White House
Washington, D. C. 20500
Dear John:
Yesterday, you said that everyone agrees that
the objective of civil rights legislation should be
to return to the Supreme Court's decision in Griggs
V. Duke Power Co., and that the definition of
"business necessity" should be lifted verbatim from
that decision. I think that your suggestion is very
important, and that it offers the possibility of a
real breakthrough in resolving this problem.
The issue dealt with in Griggs is explained by
Chief Justice Burger in the first sentence of the
Court's opinion:
We granted the writ in this case to resolve
the question whether an employer is prohibited
by the Civil Rights Act of 1964, Title VII, from
requiring a high school education or passing of
a standardized general intelligence test as a
condition of employment in or transfer to jobs
when (a) neither standard is shown to be
significantly related to successful job
performance, (401 U.S. at 425-426, emphasis
supplied)
The Court then proceeds to analyze the
employment standards before it. With respect to two
tests administered to employees, the Court finds
that:
Neither was directed or intended to measure
the ability to learn to perform a particular job
or category of jobs. (401 U.S. at 428)
The Court then analyzes Title VII as follows:
- 2 -
The touchstone is business necessity. If
an employment practice which operates to exclude
Negroes cannot be shown to be related to job
performance, the practice is prohibited.
On the record before us, neither the high
school completion requirement nor the general
intelligence test is shown to bear a
demonstrable relationship to successful
performance of the jobs for which it was
used. Both were adopted, as the Court of
Appeals noted, without meaningful study of their
relationship to job-performance ability.
Rather, a vice president of the Company
testified, the requirements were instituted on
the Company's judgment that they generally would
improve the overall quality of the work force.
The evidence, however, shows that employees
who have not completed high school or taken the
tests have continued to perform satisfactorily
and make progress in departments for which the
high school and test criteria are now used.
(401 U.S. at 431-432, emphasis supplied)
Further interpreting Title VII, the Court quotes
the following EEOC guidelines as "expressing the will
of Congress:"
The Commission accordingly interprets
"professionally developed ability test" to mean
a test which fairly measures the knowledge or
skills required by the particular job or class
of jobs which the applicant seeks, or which
fairly affords the employer a chance to measure
the applicant's ability to perform a particular
job or class of jobs. (401 U.S. 433 n. 9,
emphasis supplied)
Finally, at the end of the opinion, the Court
summarizes its holding.
What Congress has forbidden is giving these
devices and mechanisms controlling force unless
they are demonstrably a reasonable measure of
job performance. Congress has not commanded
that the less qualified be preferred over the
- 3 -
better qualified simply because of minority
origins. Far from disparaging job qualifica-
tions as such, Congress has made such
qualifications the controlling factor, so that
race, religion, nationality, and sex become
irrelevant. What Congress has commanded
is that any tests used must measure the person
for the job and not the person in the abstract.
(401 U.S. at 436, emphasis supplied)
John, as you can see, a fair reading of Griggs
is not a matter of lifting one isolated sentence out
of context. From the beginning of the opinion to the
end, Griggs is about job performance. Therefore, it
is clear to me that the Court best defines business
necessity at 401 U.S. 431. Using Griggs language
verbatim, the legislation could provide that:
The term "required by business necessity"
means--shown to be related to job performance.
Let me know what you think.
Sincerely,
Dark
CC: Senator Robert Dole
UNITED STATES SENATE
WASHINGTON, D. C.
JOHN C. DANFORTH
MISSOURI
June 20, 1991
Honorable John Sununu
Chief of Staff to the President
The White House
Washington, D. C. 20500
Dear John:
Yesterday, you said that everyone agrees that
the objective of civil rights legislation should be
to return to the Supreme Court's decision in Griggs
V. Duke Power Co., and that the definition of
"business necessity" should be lifted verbatim from
that decision. I think that your suggestion is very
important, and that it offers the possibility of a
real breakthrough in resolving this problem.
The issue dealt with in Griggs is explained by
Chief Justice Burger in the first sentence of the
Court's opinion:
We granted the writ in this case to resolve
the question whether an employer is prohibited
by the Civil Rights Act of 1964, Title VII, from
requiring a high school education or passing of
a standardized general intelligence test as a
condition of employment in or transfer to jobs
when (a) neither standard is shown to be
significantly related to successful job
performance, (401 U.S. at 425-426, emphasis
supplied)
The Court then proceeds to analyze the
employment standards before it. With respect to two
tests administered to employees, the Court finds
that:
Neither was directed or intended to measure
the ability to learn to perform a particular job
or category of jobs. (401 U.S. at 428)
The Court then analyzes Title VII as follows:
- 2 -
The touchstone is business necessity. If
an employment practice which operates to exclude
Negroes cannot be shown to be related to job
performance, the practice is prohibited.
On the record before us, neither the high
school completion requirement nor the general
intelligence test is shown to bear a
demonstrable relationship to successful
performance of the jobs for which it was
used. Both were adopted, as the Court of
Appeals noted, without meaningful study of their
relationship to job-performance ability.
Rather, a vice president of the Company
testified, the requirements were instituted on
the Company's judgment that they generally would
improve the overall quality of the work force.
The evidence, however, shows that employees
who have not completed high school or taken the
tests have continued to perform satisfactorily
and make progress in departments for which the
high school and test criteria are now used.
(401 U.S. at 431-432, emphasis supplied)
Further interpreting Title VII, the Court quotes
the following EEOC guidelines as "expressing the will
of Congress:"
The Commission accordingly interprets
"professionally developed ability test" to mean
a test which fairly measures the knowledge or
skills required by the particular job or class
of jobs which the applicant seeks, or which
fairly affords the employer a chance to measure
the applicant's ability to perform a particular
job or class of jobs. (401 U.S. 433 n. 9,
emphasis supplied)
Finally, at the end of the opinion, the Court
summarizes its holding.
What Congress has forbidden is giving these
devices and mechanisms controlling force unless
they are demonstrably a reasonable measure of
job performance. Congress has not commanded
that the less qualified be preferred over the
- 3 -
better qualified simply because of minority
origins. Far from disparaging job qualifica-
tions as such, Congress has made such
qualifications the controlling factor, so that
race, religion, nationality, and sex become
irrelevant. What Congress has commanded
is that any tests used must measure the person
for the job and not the person in the abstract.
(401 U.S. at 436, emphasis supplied)
John, as you can see, a fair reading of Griggs
is not a matter of lifting one isolated sentence out
of context. From the beginning of the opinion to the
end, Griggs is about job performance. Therefore, it
is clear to me that the Court best defines business
necessity at 401 U.S. 431. Using Griggs language
verbatim, the legislation could provide that:
The term "required by business necessity"
means--shown to be related to job performance.
Let me know what you think.
Sincerely,
Sank
CC: Senator Robert Dole
UNITED STATES SENATE
WASHINGTON, D.C.
JOHN C. DANFORTH
MISSOURI
June 19, 1991
Honorable John Sununu
Chief of Staff to the President
The White House
Washington, D. C. 20500
Dear John:
This afternoon you asked me to provide you with
verbatim quotes from the Griggs decision, which
define "business necessity."
The seven instances in which the Griggs decision
defines business necessity are listed below:
The practices must:
A) "be significantly related to successful job
performance", 401 U.S. 424, 426.
B) "be shown to be related to job performance",
401 U.S. 424, 431.
C) "bear a demonstrable relationship to
successful performance of the jobs for which it was
used. = 401 U.S. 424, 431.
D) " [not be] unrelated to measuring job
capability." 401 U.S. 424, 432.
E) "have a manifest relationship to the
employment in question." 401 U.S. 424, 432.
F) "measure the applicant's ability to perform
a particular job or class of jobs. " 401 U.S. 424, 433
n.9.
G) "[be] demonstrably a reasonable measure of
job performance." 401 U.S. 424, 436.
Our problem has been that definitions A, B, C,
D, F, and G are acceptable to the civil rights
- 2 -
community, and only definition E is acceptable to the
White House legal counsel. This is why we have tried
to satisfy both points of view with a bifurcated
definition.
If the White House could accept definitions A,
B, C, D, F or G, I am sure that we could pass a bill
in short order. I do not believe that it would be
possible to convince supporters of the legislation to
accept only definition E as being the heart of the
Griggs decision.
We believe that the holding in Griggs with
respect to business necessity is best expressed in
the following passage:
"The touchstone is business necessity. If an
employment practice which operates to exclude Negroes
cannot be shown to be related to job performance, the
practice is prohibited." 401 U.S. 424, 431.
Please let me know what you think.
Sincerely,
Dacr
UNITED STATES SENATE
WASHINGTON, D.C.
JOHN C. DANFORTH
MISSOURI
June 19, 1991
Honorable John Sununu
Chief of Staff to the President
The White House
Washington, D. C. 20500
Dear John:
This afternoon you asked me to provide you with
verbatim quotes from the Griggs decision, which
define "business necessity."
The seven instances in which the Griggs decision
defines business necessity are listed below:
The practices must:
A) "be significantly related to successful job
performance", 401 U.S. 424, 426.
B) "be shown to be related to job performance",
401 U.S. 424, 431.
C) "bear a demonstrable relationship to
successful performance of the jobs for which it was
used." 401 U.S. 424, 431.
D) " [not be] unrelated to measuring job
capability." 401 U.S. 424, 432.
E) "have a manifest relationship to the
employment in question.' 401 U.S. 424, 432.
F) "measure the applicant's ability to perform
a particular job or class of jobs." 401 U.S. 424, 433
n.9.
G) "[be] demonstrably a reasonable measure of
job performance." 401 U.S. 424, 436.
Our problem has been that definitions A, B, C,
D, F, and G are acceptable to the civil rights
- 2 -
community, and only definition E is acceptable to the
White House legal counsel. This is why we have tried
to satisfy both points of view with a bifurcated
definition.
If the White House could accept definitions A,
B, C, D, F or G, I am sure that we could pass a bill
in short order. I do not believe that it would be
possible to convince supporters of the legislation to
accept only definition E as being the heart of the
Griggs decision.
We believe that the holding in Griggs with
respect to business necessity is best expressed in
the following passage:
"The touchstone is business necessity. If an
employment practice which operates to exclude Negroes
cannot be shown to be related to job performance, the
practice is prohibited.' 401 U.S. 424, 431.
Please let me know what you think.
Sincerely,
Dack