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U.S. Civil Rights Members' Swearing-In 5/17/90 [OA 6898] [2]
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U.S. Civil Rights Members' Swearing-in 5/17/90 [OA 6898] [2]
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01. Speech draft
Presidential Remarks: National Commission on Civil Rights,
05/14/90
Thursday, May 17, 1990 (9 pp.)
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U.S. Civil Rights Members' Swearing-In, 5/17/90 [2] [OA/ID 06898]
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good
but
somethe eal in 0 say be Flarly:
quotas ve are Nig wrong. where They or male ma seia Ameica Dear.
(Lange/Cawley)
May 14, 1990
11:30 A.M.
[AFFIRM.DOC]
PRESIDENTIAL REMARKS: NATIONAL COMMISSION ON CIVIL RIGHTS
[ 450 OEOB ]
THURSDAY, MAY 17, 1990
[ TIME ]
Thank you all. Arthur Fletcher, Mary Frances Berry, Esther
Gonzalez-Arroyo Buckley, Blandina Cardenas Ramirez, Russell
Redenbauch; Dick Thornburg, Secretary Cavazos; Regional directors
and State Advisory Committee Members
It's an honor to have you here today. We meet on an
auspicious day -- the anniversary of the landmark Brown V. Board
of Education decision. And we meet at a very hopeful moment
worldwide. A time when the thundering cry for freedom is being
heard and answered from Johannesburg to Panama to Warsaw
We cannot know how future generations will interpret this
wondrous time. But if it fell to me to advise tomorrow's
historians, I'd hope this might be known as a new age of freedom
-- when the world was witness to the full deliverance of
democracy's promise.
Hopeful times, to be sure. But also hazardous -- as
exciting and unsettling as the world has ever known Because the
outcomes of this new age are not ordained -- they are ours to
decide.
Around the world, people wary of state control, economies
are
weary of bureaucratic central planning, all look ng to America as
reason for hope -- the brighte star to follow as they chart
their course to freedom.
2
So it's all the more crucial now, that we look carefully to
the kind of country we are -- to the state of democracy here in
Whatever
the land of its birth. We are called upon to ensure that however
about
the nations of the world decide to make their futures, this
democracy means opportunity, for all who call it home.
No one in America -- no one -- has worked harder to deliver
the promise of democracy, to make an enduring dream a living
reality, than the men and women in this room today.
From its earliest origins, the Commission on Civil Rights
has been an independent, bipartisan voice for justice. The
Commissioners, Directors, and volunteers who serve on Advisory
Committees, all share an intellectual caliber, a moral
conviction, and a cultural diversity that are truly America's
best. These men and women have earned our admiration. Today,
they deserve our thanks.
[
In particular, I hope you'll join me in congratulating three
new Commissioners: the new chairman, Arthur A. Fletcher; in
absentia, Carl Anderson; and Russell G. Redenbaugh.
]
Over the last few days I've met with leaders representing
America's brilliant tapestry of cultural, religious, and ethnic
rich
diversity. I got, as I knew I would, a great deal of sound
advice -- and as I imagined I would, just a little constructive
criticism.
But these leaders, this Commission, and this Administration,
all share a common conviction, profoundly felt for equal
opportunity. It's a responsibility I have always taken very
3
seriously -- and it's especially serious now, when our most vital
export to the world is democracy.
We must make sure that we as a nation lead by example. We
must see that affirmative action is not reduced to a slogan --
and that the principle of equal opportunity has real, living
meaning, for all Americans.
My hope, as we begin the last decade of this century, is
that the 1990's might be a more thoughtful decade an era more
committed to community. I want Americans to think about the
goals and values they share -- not the superficial distinctions
and differences that divide them.
The commonwealth and well-being of this nation have always
relied on the strength of shared principles. Because behind the
false barriers, beneath appearances, beyond the heat of politics,
we all want the same things: A just society. Peace. Prosperity.
A better life for our children than we've had for ourselves.
So just as the world turns a hopeful face toward freedom,
here at home we need a renewed sense that government exists to
empower people. If America's best hope is the talent she's had
all along, at every step in this evolving experiment we call
democracy we should be asking ourselves, what are we doing
and, does it work?
To the Civil Rights leadership assembled here today: I have
offered you my hand, and my word, that together we will make
America "open and equal to all." Today I want to explore in
greater depth our commitment to equal opportunity.
are you insulting
an
Daniel X Entit Moynihan
4
To begin with, this administration is committed to action
that is truly affirmative -- positive action, in every sense --
to strike down all barriers to advancement, of every kind, for
all people. We will tolerate no barriers, no bias, no SO called
'benign neglect No inside tracks, no two-tiered systems, no
glass ceilings, and no rungless ladders.
\\
Now, let me tell you what we're against.
\\
We're against any action or lack of action that would
perpetuate or exacerbate injustice. And I know the leadership in
the legislature Consums shares this conviction.
This nation's progress against prejudice -- from the 1964
Civil Rights Act, to the Voting Rights Act, to the Fair Housing
Act, to the Age Discrimination in Employment Act -- it has all
hinged on the principle that no one in this country should be
excluded from opportunity.
That's why I remain firmly committed to the enactment this
year of landmark legislation to extend protections to those
Americans with disabilities. \\ And we're committed to new
measures, like the Hate Crimes Statistics Act, fair housing
initiatives, and revitalized enforcement of restrictions against
employment bias.
Perhaps softer this- males see like his goals we don't
Many of this administration's proposals, in fact, share
registration 100ml
common ground goals with the legislation being offered by Senator
Kennedy and Representative Hawkins. We've supported efforts to
ensure an individual's ability to challenge discrimininatory
seniority systems. We've also moved to stiffen the penalties for
goals - define
5
racial discrimination in setting or applying the terms and
conditions of employment.
Today, as we work to ensure that America represents
democracy's highest expression, I want to offer four principles
that ought to inform guide any amendments to our civil rights laws.
?
These principles are firmly rooted in the spirit of our
current laws -- and after the extensive discussions we've had
this week, I think they're principles on which we all of us --
including the leadership on the Hill -- can agree. So I will
enthusiastically support legislation that meets these principles.
First, civil rights legislation must operate to obliterate
consideration of race, color, religion, sex, nation of origin,
age, or disability from employment decisions. As you know, Title
VII encourages hiring on the basis of ability and qualifications,
not race or religion.
Some provisions of the Kennedy-Hawkins bill, with the best
of intentions, still have an unintended consequence: they
encourage employers to make decisions on the basis of these
irrelevant characteristics. In spite of recent amendments, the
bill continues to encourage employers to base hiring decisions on
the very considerations our civil rights laws direct them to
red
flag
3
consentives
-
ignore.
this
why elternive, not say nowless
So we seek civil rights legislation that is more
effective
comprehensive, not less. Because the focus of employers in this
country must be on providing equal opportunity for all workers
6
-- not on developing strategies for avoiding litigation --
strategies that are likely to result in quota schemes violating
the most basic principles of our civil rights tradition, and the
promise of democracy.
The surest, most insidious symptom of the perpetuation of
Neknewor
injustice was well understood by Martin Luther King in 1962. when
infact,
American
ofall
he wrote, that "tokenism can now be seen not only as a useless
walks of
goal, but as a genuine menace. It is a palliative which relieves lifeknow today,
a
emotional distress, but leaves the disease and its ravages
that grotas
unaffected.' Asas are
arearong.
We want to eradicate the disease. And America's minority
communities deserve more than symptomatic relief. They deserve
systematic solutions -- through strategies that transcend
statistics and quotas.
Rather than perpetuate the demoralizing stigma of
preferential distinctions, we should empower and ennoble our
minority communities. Rather than sowing the seeds of self-
doubt and questions of competence in anyone's heart, we should
seek systematic change that allows every American to excel
individually and as
We should seek dignity without question marks or asterisks.
Rather than asking statistics to be the arbiters of justice
rather than dividing by group -- we should empower as a whole.
And I'm confident the leadership will work with me to craft a
bill, in the spirit of our record of unbiased civil rights
legislation, that moves us toward this goal.
7
Second, civil rights legislation must reflect fundamental
principles of fairness: individuals who believe their rights
have been violated are entitled to their day in court, and an
accused is innocent until proven quilty. In every case of civil
rights dispute, constitutional protections must be preserved.
e
X
There may be no raparation sufficient to the kind of
injustice suffered through and still being overcome by America's
minority communities. But the sense that this country recognizes
past wrongs can, and must be matched with an equal determination
to set them right We must hold ourselves to the highest
standards and not let past injustice distort present potential
and future achievements. The Constitution was written to protect
the individual. And so must every one of us protect it.
Third, Congress must subject itself to the same requirements it
prescribes for others. In 1972, the Civil Rights Act of 1964 was
justly applied to executive agencies and state and local
governments. Congress, however, is not yet covered. This
inconsistency must be remedied, to give Congressional employees
and applicants the full protection of the law. These people,
too, are entitled to their rights in court, and the Congress
pin the Executive Bronch
should be setting an example for employers in the private sector.
And fourth, Federal law should provide an adequate
+
deterrence to sexual or religious harassment on the basis of
disability in the workplace, and ensure a speedy end to such
discriminatory practices. In improving the remedies, however,
our civil rights laws should not be turned into a bonanza for
8
lawyers, encouraging litigation at the expense of conciliation,
mediation, or settlement. Ultimately, cooperation will serve the
interests of all parties far better than litigious conflicts.
Arthur Fletcher said recently, "I'm looking for a more
comprehensive response. You can't go a quarter-mile in this time
in our nation's history when the full mile is needed." I agree.
A moment ago, I spoke of my conviction that America's minority
communities deserve more than symptomatic relief. I believe they
deserve systematic solutions -- an agenda of change that
transcends statistics and quotas.
We seek strategies that work -- putting power where it
belongs: in the hands of people. And that means new ideas, like
school vouchers to give poor parents the power of an alternative,
and choice in where to send their kids -- so that all can have
access to the best.
It means more tenant control and ownership of public
housing. Tax credits for child care without restrictions of any
kind, to give parents more flexibility and choice. And policies
that underwrite prosperity, by encouraging capital flow to build
more businesses in poor neighborhoods.
Affirmative action and equal opportunity must be more than
issues of social responsibility, and more than matters of legal
compulsion. Because as labor markets tighten, people of every
walk of life, of every kind, all will be in growing demand in
this new decade.
9
All will be needed. In any field, those who know how to
apply sources of talent once left untapped; who know how to
recruit, how to train, re-train, and retain talent; how to
educate, how to motivate, and promote -- those with that
knowledge will prosper.
This broader agenda must be part of a more comprehensive
effort of affirmative action. The interests of economics and
justice are coinciding now like never before. The door is
opening wider now than it has ever been -- and we can open it
still wider.
Now is the time to extend a hand to all that struggle on the
to
other side -- and devote our energies to a broader agenda of
m this new of fuctom,
empowerment, that all might join the rolling thunder of ma jority.
Let us look past the superficial differences that divide us,
to the shared principles and better natures we have within us DR
that none among us will be homeless, that no lives will be
hopeless, that no children will be left in loveless, lonely rooms
or stand in crowded doorways on dangerous streets.
Let us hear the call for justice, and lend a hand to one
another -- that no American will want for the advantages unique
to America. In this new age of freedom, let there be no
minorities. Let us usher America to a new age of ma jority
Thank you, and fod bless you.
# # #
harmony betwee
He races.
AFFIRM. ACT
WF 2000
over the last two days I've heard from X
and y.
Got, as I imagined I would, sound advice and yes, just a
little constructive criticism.
pursue & prosecute
that is why I've pledged to support, and will sign into law, a
measure to gain all the information we can on crimes motivated by
religious, racial, or ethnic animosity -- the Hate Crimes Bill.
And it's why I'm
Affirm
reducetto
any
deeply This felt, Commission and it S and a responsibility this administration I take share very a seriously conviction
to
assure that equal opportunity has real meaning -- and that we as
a nation lead by example.
I take very seriously our responsibility
affirmative action is no longer just a matter of social
responsibility. It's not just a matter of legal compulsion.
It's an (( idea whose time has come )).
So today I'll be focusing on affirmative action in every sense of
that phrase. Not merely through the traditional social
perspective, though America is nothing if not compassionate. Not
merely through the altruistic impulse, though
The disabled, women, veterans, minorities, older workers -- all
in growing demand like never before -- must be enabled and
prepared for jobs now being created by technology and economic
growth.
Nobody talks much about it, but the interests of economics
d
justice are coinciding. The door is opening wider now than it
has ever been. Now is the time to extend a hand to all still
struggling on the other side, to help them through that door to
an opportunity called tomorrow that waits more urgently than
ever, on the other side.
in demand. Needed.
In the future, the market economy will make it a fact of life --
because the success or failure of American enterprise, like the
American experiment itself, will depend on the quality of those
engaged. Like any enterprise, those who know how apply sources
of talent once left untapped; how to recruit, how to train, re-
train, and retain talent; how to educate, motivate, and promote
save
Atevery stephe should be asking
ourselves, what works. Because there's never "one answer" to the
challenges we face in America. There are many creative solutions
and we have to be willing to try them all.
STRIKE Down AK BARRIERS DO ADVANCEMENT, Fore ALL PEOPLE
That means new ideas, like school vouchers to give poor
We are
parents the power of an alternative, and choice in where to send
commi Hedto
their kids. More tenant control and ownership of public housing.
new hand
Tax credits for child care without restrictions of any kind,
to give parents more flexibility and choice.
hank people
of choice that engroph in
Here at home, we don't need more government. We don't need
less government. We need capable government -- and a renewed
sense that government exists to empower people. America's best
A
hope is the creative talent she's had all along -- through a
revitalized democracy that applies the forces of the free market
choice and decentralization -- emphasizing what works.
We come from a tradition that seeks power to give it away
to states, localities private enterprise, community groups,
citizens of every kind It's a tradition that goes back 200
years A legacy our founding fathers left us that the world has
re-learned only recently Democracy. is another way of saying
opportunity.
property
contributed
to
No BARRIERS to
NO
INSIDE PACKS, THO-TIERED
M.S.,
injustices ave by MAY a
NO
onts CEILING
together,
No
TOKENISM, FAVORI RSM
BIAS SENISAX
RUNGLESS LADDERS
in a Guide to the Perplered
SAVE l Rold w/ A Ahlosopher of the 12th C,
who said Anticipate clarity by
Mich
preving perrly
pinople Mitchell allow
-- those with that knowledge will prevail. And that broad agenda
-- the agenda of empowerment -- must be part of a more
comprehensive goal for affirmative action.
For the legal profession -- for so long, so effective at
squeezing justice out of the clash of opposing views --- I think
some of the best new opportunities will lie in crafting ways to
facilitate cooperation.
dive offered hand Aromiser Demindyou today:
we oppose discrimination and bias of every kind, in any form,
against anyone.
There's a natural tradition that distrusts bureaucracy.
Just compare the time you spend in your local fastfood restaurant
to the time you spend in your nearby government agency, and
you'll know what I'm talking about
In the 1980's we faced extremes of greed on Wall Street and the
homeless on mainstreet. And we struggled to overcome obstacles
less tangible but no less troubling than the Berlin Wall: false
divisions and barriers between left and right have's and have
nots, black and white.
now, for
I want Americans to think about the goals and values they
share -- not the differences that divide them. The commonwealth
and well-being of our nation demand that we find strength in
shared principles. Because behind the false barriers, beyond the
heat of politics, we all want the same things: A just society.
Opportunity. Prosperity.
with hope, that the 1990's might be a thoughtful decade, more
committed to community. It is time to reaffirm the values we
share.
Like many before,
I sought the Presidency for a single purpose -- and believe
that government has a singular responsibility -- to use power to
help people. America transcends adversity, and finds her highest
expression and greatest power, in diversity.
Ours is a nation of imagination. Of principle, and
SAVE
tolerance. Of quiet strength. Faith. And freedom.
So the government of such a nation should be active -- but
!
not invasive. Democratic -- but not bureaucratic. And it should
show restraint and a healthy humility -- for if the crumbling of
centralized bureaucracies and the collapse of dictators has
reminded us of anything, it is this: The center of power is not
an entrenched bureaucratic elite -- it is the people. And the
best government does not rule -- it serves.
'90-05-01 12:23 DOUG GAMBLE
P.2
2
DOUG GAMBLE
TO: STEPHANIE LAUDNER - GOP DALLAS (CONT'D)
THERE'S A COUNTRY & WESTERN SONG CALLED "MOMMA, DON'T LET YOUR BABIES GROW
UP TO BE COWBOYS." WHAT IT DOESN'T TELL YOU IS THAT A COWBOY CAN GROW UP
TO BE GOVERNOR OF TEXAS.
I'M AFRAID THE DEMOCRATS AREN'T GOING TO LIKE WHAT CLAYTON WILL DO TO THE
TRUTH IN THIS CAMPAIGN. HE'S GOING TO TELL IT.
I HAVE A MESSAGE FOR ANYONE OUT THERE WHO THINKS THE NEXT GOVERNOR X OF THIS STATE
WILL BE A WHITE-HATRED GRANDMOTHER WITH A FE-ISTY PERSONALITY AND A GOOD SENSE
OF HUMOR: BARBARA BUSH HAS NO INTEREST IN ELECTIVE OFFICE.
IF THE DEMOCRATS WIN THIS ELECTION. IT WILL BE "OK" TO HIGHER TAXES AND "OK"
TO MORE GOVERNMENT SRENDING. THE LAST THING TEXAS NEEDS IS TO HAVE THE GOVERNOR'S
OFFICE TURNED INTO THE "OK CORRAL."
see Hoops on G.B.
John Jacks
Whateverg young
Boy drown
Bush bas to support afferia. action
Ring
define it:
and
full eg. undr law
200tas cloud the issue.
astigna
>
~
A blird society
is not one flirt fogustice
Magorty of fach And are Sport to garotar
there is no digiting in injustive.
oplandiess Nilam
don't discredit the ashievements
of black Ami.
end discrim fall kinds
no asterishs
not by inducing it against afew
We should rotdinde by group -- class division.
do it by numbers
Confonering be all Ave, not impoverishing
Haiting / not dividing in a paint by #3 game
statistice are not the arbiters of girstice
Walabe sure that roble intertis don't Paye united
3144
CONGRESSIONAL RECORD - SENATE
March 26, 1990
looking at a trade deficit on oil alone
But we know otherwise. Rather than
Mr. HATCH. I am glad to have been
of $100 billion.
be crushed, we know that the courage
present to hear his remarks today
Mr. President, the Senator from
of Gustavo and Sebastian will one day
Mr. GRAHAM. I express my appre-
Alaska intends, over an extended
crush Castro and his dictatorial
ciation to the Senator from Utah. I
period of time, to speak on this danger
regime.
know of his deep interest in human
that is moving at 8 very rapid rate. I
I ask unanimous consent that a copy
rights and especially issues affecting
will be proposing some alternatives to
of a letter I intend to send to U.N. Sec-
the civil rights and human rights of
initiate exploration domestically so
retary General Perez de Cuellar be
the citizens of Cuba
that we may have some independence,
printed in the RECORD.
Mr. HATCH I thank the distin-
because as sure as I am standing here,
There being no objection, the letter
guished Senator from Florida. I wish
one of these days in the not too dis-
was ordered to be printed in the
to associate myself with his remarks I
tant future we are again going to be
RECORD, as follows:
think Castro has done some awful
held hostage by the Mideast, and the
U.S. SENATE,
things ever since he has been there
public will come to the Halls of Con-
Washington, DC, March 26, 1990.
and a lot of commentators in this
gress and blame those of us who have
Hon JAVIER PEREZ DE CUELLAR,
Secretary General, the United Nations
country have allowed him to do so.
not seen fit to make adequate allow-
New York, NY.
That happened right up until the time
ances for the inevitable Mr. President,
DEAR MR. SECRETARY GENERAL: Fidel
Armando Valladares wrote his book
the handwriting is, indeed, on the
Castro within the last two weeks has re
Against All Hope." Having served
wall.
newed his harsh crackdown on human
more than 20 years in Castro prisons
I thank the Chair I yield the floor
rights activists in Cuba, many of whom co-1
and describing the hideous conditions
The PRESIDING OFFICER (Mr.
operated with the United Nations in its
that exist there, I think we are all in-
first-ever investigation of Cuban human
BRYAN). The Senator from Florida
rights in 1988.
debted to people like Armando Valla-
[Mr: GRAHAM] is recognized
We are writing to request that you move
dares. I think we are indebted to the
Mr. GRAHAM. I thank the Chair.
quickly on the latest resolution approved by
distinguished Senator from Florida for
the U.N. Human Rights Commission on
the work he is doing in this area.
March 6 calling on the Government of Cuba
HUMAN RIGHTS ABUSES IN
to honor Its repeated guarantees not to sub-
CUBA
ject these individuals to "reprisals, deten-
CIVIL RIGHTS ACT OF 1990
tion, or negative consequences of any nature
Mr. GRAHAM. Mr. President,
whatsoever.'
Mr. HATCH. Mr. President, I believe
within the last several weeks, Castro
In the latest crackdown, Castro rounded
the Civil Rights Act of 1990 is funda-
has begun a new and harsh crackdown
up 11 activists in early morning raids on
mentally flawed. We have held four
on human rights advocates in Cuba.
March 12. Mobs of youths also surrounded
hearings, Mr. President, in the Labor
He has thrown 11 dissidents into jail,
the houses of two of the most prominent
Committee on S. 2104; the so-called
and he has set loose his thugs to
human rights leaders in Cuba, Sebastian
Civil Rights Act of 1990. The hearings
and Gustavo Arcos:
harass and intimidate others All be-
The latest arrests brings to 31 the number
have made it very, very clear that this
cause some of them had the temerity
of people who have detained without trial
bill goes far beyond merely overturn-
to, send a letter congratulating the
or been charged with political crimes since
ing a few Supreme Court decisions
U.S. delegation to the United Nations
U.N: investigators visited Cuba in Septem-
from 1989. It overturns numérous deci-
Human Rights Commission. The Com
ber 1988.
sions; both the Supreme Court and
mission on March 6. approved a United
The recently approved resolution also
lower court deicisons, some stretching
States-sponsored resolution criticizing
called on you to provide the texts and re-
back to the 1970's And its proponents
Cuba's human rights record and call-
sults of the oral and written contacts you
do not even claim that it is aimed at
have maintained with the Castro govern-
ing for a reexamination next year At
ment on this question. We would appreciate
merely :overturning the Supreme
a time when Nelson Mandela has been
meeting with you to discuss your findings.
Court decisions from last year, in any
set free in South Africa and when
In the meantime, we urge the U.N. to do
event
playwright Vaclav Havel is leading
everything in its power to gain the release
As the Daily Labor Reporter, a non-
Czechoslovakia toward democracy.
of those who took such grave risks to ad-
partisan newsletter, aptly said in its
Castro remains a political dinosaur.
vance the cause of human rights.
February 9, 1990, issue, the bill "goes
People around the world are demand-
Sincerely,
far beyond addressing recent Supreme
ing democracy. Their leaders are lis-
Mr. GRAHAM. Mr. President, I wel-
Court rulings and amounts to a virtua
tening and responding. But not Castro.
come cosigners, I call on the Secretary
wish list for plaintiffs in employmen
He refuses to. He called the latest U.N.
General to act on most recently ap-
discrimination litigation."
resolution disgusting.
proved U.N. resolution calling on
The bill will work fundamenta
What is disgusting is that Castro
Castro to respect human rights. Many
shifts in title VII of the 1964 Civ:
continues to abuse and intimidate the
of those arrested in the recent crack-
Rights Act. it will transform title VI
citizens of Cuba.
down cooperated with the United Na-
from a statute aimed at conciliation
One of those citizens is Sebastian
tions. in its first-ever investigation of
administrative resolution, settlement
Arcos, a human rights leader who once
Cuban human rights in 1988. Despite
and placing a victim of discriminatio
fought alongside of Castro but was
guarantees to the contrary, Castro has
in his or her rightful place in the wor
later imprisoned for :counterrevolu-
been harassing these individuals ever
force into a statute in which conflic
tionary activities In other words, he
since.
in the workplace will be exacerbate
opposed Castro and communism. For
The United Nations has a special ob-
Protracted: costly litigation will be th
that, he and his brother Gustavo, who
ligation to those who took grave risks
weapon of first. resort. The bill wi
also fought at Castro's side in the rev-
and paid a steep price to bring before
simply be a bonanza for lawyers.
olution, have been subjected to endless
the world Castro's systematic abuses
Further, the bill. will convert tit
harassment by the Castro government.
of human rights. These individuals de-
VII from a statute guaranteeing equ:
As part of the latest crackdown,
serve. the United Nation's continuing
opportunity for individuals, into
thugs recently surrounded Gustavo's
involvement, commitment and protec-
statute virtually compelling quo:
home in Havana, presumably because
tion. The Secretary General should
hiring by all public and private er
human rights leaders were meeting to
act immediately to gain their release.
ployers of 15 or more persons. Eve
form a united front.
The PRESIDING OFFICER. The
the Washington Post acknowledge
They painted Gustavo's house with
Senator from Utah [Mr. HATCH] is rec-
this concern in a March 16, 1990, ec
slogans like "Death to the Worms"
ognized.
torial wherein the Post said:
and "Socialism or Death." Castro calls
Mr. HATCH. Mr. President, I ask
That issue-quotas-should be taken se
Gustavo and Sebastian cockroaches
the Senator to put me on as a cospon-
ously. It is not just the false fear or red h-
and VOWS that the people will crush
sor. I will be glad to sign that letter
ring that civil rights groups too readily C
them
Mr. GRAHAM. I appreciate it.
miss It as being.
March 26, 1990
CONGRESSIONAL RECORD SENATE
3145
In addition, this bill will severely re-
Over the past 25 years, a rich and broad
strict access to court for ¿certain per-
mosaic of federal civil rights laws, ranging
practices, a great victory for civil rights
sons seeking to assert their most fun-
from employment, public accommodations,
plaintiffs. She then went on to say, basical-
federally aided programs, to housing, insti-
ly. everything I said in my opening state-
damental right to equal protection of
ment:
the laws and the right to be free of
tutionalized persons, and more, have been
put in place. I have no doubt that more
We agree that the inevitable focus on
the invidious discrimination in viola-
needs to be done to combat the evil of dis-
statistics in disparate impact cases could put
tion of Federal statutes. It will deny
crimination in our society and hope that we
undue pressure on employers to adopt inap-
certain persons the opportunity for a
can work together to achieve this important
propriate prohphylactic measures. It is com-
full trial on the merits of such a claim
goal.
pletely unrealistic to assume that unlawful
with the full right of discovery and
The Civil Rights Act of 1990 is designed to
discrimination is the sole cause of people
the right to appeal.
overturn several recent Supreme Court
failing to gravitate to jobs and employers in
That is abominable. People have to
cases. In fact, it overhauls two federal stat-
accord with the laws of chance. It would be
start reading this bill and look at what
utes, throws out years of Supreme Court
equally unrealistic to suppose that employ-
and appellate court decisions, and conflicts
ers can eliminate; or discover and explain,
it does.
directly with several core concepts of Ameri-
the myriad of innocent causes that may lead
I want to quote a few sentences of
can justice.
to statistical imbalances in the composition
the testimony of James Henson, a Bir-
Some areas of the legislation have merit.
of their work forces. Congress has specifical-
mingham, AL, firefighter. Mr. Henson
For example: I have concluded that Section
ly provided that employers are not required
1981 should be amended to ban racial dis-
to avoid "disparate impact' as such;" citing a
ranked sixth on a promotion list, but
crimination in the terms and conditions of
specific provision of Title VII (Section
was passed over because of his race in
703(j))
favor of someone ranked 85th, in order
contracts, as well in their formation and en-
Preferential treatment and the
forcement. Thus, the Patterson case, in my
use of quotas by public employers subject to
to implement a consent decree in a
view, should be overturned. Moreoever, I be-
Title VII can violate the Constitution, and it
case to which Mr. Henson had not
lieve that Title VII should be amended so
has long been recognized that legal rules
been a party. In addition, Mr. Henson
that persons can challenge allegedly dis-
leaving any class of employers with 'little
had done a number of things to edu-
criminatory seniority systems at the time a
choice' but to adopt such measures would be
cate and train himself and to get ad-
person is aggrieved by such 8 system. Thus,
'far from the intent of Title VII,' quoting
vanced understanding and experience
the Lorance decision should, in my view, be
Justice Blackmun. Albemarle Paper Co., 422
that the other candidate had not done.
overturned. I have introduced legislation,
U.S., at 449, 95 S.Ct., at 2390 (Blackmun, J.,
prepared and supported by the Admininis-
concurring in judgment).
Mr. Henson said:
tration, which achieves these salutary objec-
Thus, Justice O'Connor acknowledged
I am a working class man. I am not re-
tives.
that: "extending disparate impact analysis
sponsible for any past discrimination by the
On the other hand, Mr. Chairman, I don't
to subjective employment practices has the
city of Birmingham. I did not cause any dis-
believe we have to overhaul the American
potential to create a Hobson's choice for
crimination and should not have to pay the
legal system to ensure equality. We don't
employers and thus to lead in practice to
price for it. The city of Birmingham should
have to award some groups more legal
perverse results. If quotas and preferential
pay the price for its own wrongs. I am not a
rights than others to guarantee the civil
treatment become the only cost-effective
lawyer, but I think I can tell when I have
rights of all Americans. We don't have to
means of avoiding expensive litigation and
been treated unfairly.
make quotas the only legal employment
potentially catastrophic liability, such meas-
policy in order to provide equal opportunity.
ures will be widely adopted. The prudent
Mr. Chairman, all I am seeking is a day in
employer will be careful to ensure that its
court to show I am a victim of unlawful dis-
The major problem ares in the bill are as
crimination. I filed suit promptly after I was
follows:
programs are discussed in euphemistic
denied a promotion [on the basis of my
1. This bill is a litigation bonanza for law-
terms, but will be equally careful to ensure
that the quotas are met. Allowing the evolu-
race] I am pleased that the Supreme
yers.
tion of disparate impact analysis to lead to
Court has ruled that I am entitled to a day
2. Sections III and IV so dramatically
this result would be contrary to Congress'
in court. I urge this committee not to take
change Title VII that the only way to avoid
being sued is to hire solely by numbers, to
clearly expressed intent"-at least until Ieg-
away my opportunity to show that I have
islation like S. 2104 becomes law, if it ever
been discriminated against.
use quotas for hiring and promotion.
does it should not be the effect of our
Mr. Henson happened to be a white
3. Under Sections III and IV of this bill,
decision today.
hiring the most qualified applicant may no
firefighter. He was denied this promo-
We. recognize, however, that today's
longer be an acceptable defense to a charge
tion solely because he was white. And
of discrimination.
extension of [the disparate impact] theory
the promotion went to a man who was
into the context of subjective selection prac-
4. Sections III and IV of the bill conflict
tices could increase the risk that employers
79 positions below him on the list for
with the fundamental principle that one is
will be given incentives to adopt quotas or to
this job. He was sixth. The other man
innocent until proven guilty. The bill for
engage in preferential treatment. Because
was 85th. Though black; that was the
the first time will shift the burden of proof
sole reason why he was chosen over
from the plaintiff to the defendant in dis-
Congress has so clearly and emphatically
expressed its intent that Title VII not lead
parate impact cases.
Mr. Henson.
5. Section VI conflicts with the fundamen-
to this result, 42 U.S.C. Section 2000e-2(j),
Mr. President, had Mr. Henson par-
we think it imperative to explain in some
tal principle that every American should
ticipated in discrimination, I would
detail why the evidentiary standards that
have the same right to his or her day in
apply in these cases should serve as ade-
have no sympathy for him. But he ab-
court.
quate safeguards against the danger that
solutely had nothing to do with it, and
6. This bill would even overturn a Justice
Congress recognized."
his testimony showed that: Nobody
Brennan decision as to what constitutes in-
And then Justice O'Connor, in her four
can deny it.
tentional discrimination.
member plurality opinion, laid out the
Mr. President, I ask unanimous con-
Mr. Chairman, I want to compliment you
standards for proving a disparate impact
for holding four days of hearings on this
sent that Mr. Henson's testimony and
case. These are the very same standards
bill. I look forward to working with you on
the testimony of some of the other
adopted by a majority of the Court, with
the other days of hearings to ensure that we
witnesses, along with my opening
the addition of Justice Kennedy, in Wards
have the benefit of all available expertise. S.
Cove.
statements at the hearings be printed
2104 is an extremely complicated bill that
In Wards Cove, the Court held:
in the RECORD at this point.
will affect millions of Americans. We must
In order to use statistical evidence to es-
There being no objection, the mate-
not legislate by label but take all the steps
tablish a prima facie of disparate impact,
rial was ordered to be printed in the
necessary to understand the legal ramifica-
you must make a comparison between the
RECORD, as follows:
tions of what is being proposed.
percentage of qualified minorities in the rel-
OPENING STATEMENT ON S. 2104, THE CIVIL
evant labor pool and the percentage of mi-
ADDENDUM TO SENATOR HATCH'S OPENING
RIGHTS AcT OF 1990, SENATOR ORRIN G.
norities in the job in question. To compare
STATEMENT
the percentage of minorities in an employ-
HATCH, FEBRUARY 23, 1990
In the Watson V. Fort Worth Bank and
er's unskilled jobs to their percentage in
Mr. Chairman, all of us agree that one of
Trust case, decided in 1988, Justice O'Con-
skilled jobs, is "nonsensical," as Justice
the most important functions of govern-
nor warned us about the real risk of impos-
White said.
ment is to guarantee equal opportunity
ing quotas on the American people if the
A plaintiff must then demonstrate that
under the law. Discrimination on the basis
Title VII disparate impact theory is mis-
the disparity results form the employment
of race, ethnicity; religion, handicap, and
used. In that case, the Supreme Court actu-
practice(s) he or she is challenging. not
gender is immoral and contrary to the most
ally extended the application of the dispar-
merely assert that the employer's entire set
fundamental ideals of our country
ate impact theory to subjective employment
of hiring practices results in an imbalance.
3146
CONGRESSIONAL RECORD SENATE
March 26, 1990
This seems an-obvious requirement for a
cannot support wholesale changes in our es-
overturning the Wards Cove V1 Atonio deci-
prima facie case. As Justice White said, "To
sential civil rights laws when such changes,
hold otherwise would result in employers
sion, and "jimmying" the rules of proving a
in effect; overturn many time-honored prin-
case of disparate impact discrimination, S.
being potentially liable for 'the myriad of
ciples-principles which are dear to every
2104 would work a radical transformation of
innocent causes that may lead statistical im-
American.
Title VII. It would convert Title VII from 8
balances in the composition of their work
This legislation would shift the burden of
statute focusing on equal opportunity for
forces.
proof to defendants- in disparate impact
individuals to one presumptively requiring,
Once the plaintiff makes a prima facie
cases, meaning that one is guilty until
indeed virtually compelling, quota-type
case by showing a relevant disparity result-
proven innocent. This legislation would se-
hiring and promotion for groups.
ing form the employer's practice(s), the em-
verely limit the right of certain workers af-
Under Sections 3 and 4 of S. 2104; all a
ployer has the burden of producing evidence
fected by a consent decree, to challenge that
plaintiff needs to do to win a Title VII law-
of a legitimate reason for the employment
decree in court when they claim to be
suit is to show that an employer has a
practices in question.
harmed by it. This would deny Americans
racial, ethnic, or gender imbalance in a job-
That is, the employer's burden is to
their equal right to their day in court. By
without identifying any particular employ-
produce evidence that its challenged
introducing punitive and compensatory
ment practice as having caused the imbal-
practice(s) serves in a significant way legiti-
damages and jury trials to Title VII, the leg-
ance. Period. For example, suppose that
mate employment goals; the employer need
islation provides a windfall for attorneys
20% percent of the accountants in a labor
not produce evidence that the practice is
and creates an incentive to engage in
market are members of a particular racial or
necessary or essential to effective job per-
lengthy litigation rather than to settle dif-
ethnic group. Suppose further that only
formance. The latter is an impossible
ferences. I submit to my colleagues here in
10% percent of the accountants in an ac-
burden for employers to meet. It would
the Senate that this incentive moves our
counting firm in that labor market are from
cause an erosion of standards and force em-
nation no further toward the kind of society
that group: That business is going to be
ployers to adopt quotas in order to avoid li-
we seek-one in which irrelevant factors
found guilty of racial discrimination unless
ability.
such as race play no role in employment de-
the business can not only prove its inno-
The burden of persuasion in these cases
cisions.
cence, but do so under a virtually impossible
remains with the plaintiff-an elementary
Some of the aspects of this bill which will
standard. An employer could only avoid li-
part of how our civil justice system works.
be covered today are of particular interest.
ability if he meets a burden of persuasion
The plaintiff under Title VII must prove
With the exception of the Patterson case,
that all of his job criteria either did not con-
discrimination has occurred, the defendant
which we both agree warrants redress. the
tribute to the imbalance or are essential to
is not required to prove his innocence, i.e.
significant changes contained in Sections 5
effective job performance. This burden
that he has not discriminated. Thus, once
and 8 of this bill do not even purport to be a
would be virtually impossible to meet, and
the employer produces evidence of the legit-
"restoration" of the law to where It was
one which finds no precedent in Supreme
imacy of the practice in question. the plain-
before the Supreme Court's 1989 term.
Court decisions.
tiff must show that the proffered business
They clearly represent a substantial depar-
In order to avoid liability under this ex-
justification is a pretext or otherwise not le-
ture from the Civil Rights Act of 1964.
traordinary burden, employers would have
gitimate. This is how the federal rules of
Section 5 of this bill would overrule Price
to hire and promote on a quota basis to
evidence operate. Federal Rule of Evidence
Waterhouse D. Hopkins, a plurality decision
avoid these disparate impact lawsuits-to
301.
written by Justice Brennan which was a vic-
avoid, in short, what Justice O'Connor
Even then, if the plaintiff cannot prevail
tory for civil rights plaintiffs. This section
called "expensive litigation and potentially
on the business justification question, he or
goes further than that opinion by reversing
catastrophic liability." This precise concern
she may still prevail by coming forward
the general rule that, in employment cases,
was expressed by Justices White, O'Connor,
with alternative employment criteria that
a plaintiff must show that the defendant's
and others in several cases, including Wards
reduce the disparate impact of existing em-
unlawful conduct caused the injury. The
Cove V. Atonio and Watson V. Forth Worth
ployment practices. But these alternatives
change here is significant. This bill would
Bank and Trust.
must be equally effective in serving the em-
allow punitive and compensatory damages
In short, rather than requiring nondis-
ployer's legitimate employment goals.
and attorneys fees even in cases where an
crimination and equal opportunity, Title
There is nothing unusual about this. It
employer has proven that it would have
VII's touchstone would become proportional
has all been said by the Court before. E.g.
made the same decision for nondiscrimina-
representation and equal results on the
New York Transit Authority v. Beazer, 440
tory reasons.
basis of race, ethnicity, and gender-in
U.S. 568, 587 n.31 (1979); Albermarle Paper
Section 8 of this bill proposes, though not
other words, quotas, however surreptitious-
Co. v. Moody, 422 U.S. 405. 413 and n.7,. 425
in response to any Supreme Court decision,
ly adopted or euphemistically described.
(1975); Griggs v. Duke Power Co., 401 U.S.
to expand Title VII to make punitive and
I believe the Administration is dedicated
424, 431, 432 (1971); See also Watson v. Ft.
compensatory damages, including damages
to preventing this terrible result, and I join
Worth Bank and Trust, 108 S.Ct. 2777, 2787-
for pain and suffering, available in disparate
them in that resolve. Attorney General
2791 (1988); NAACP v. Medical Center, 657
treatment cases.
Thornburgh said on February 7, 1990: "The
F.2d 1322, 1334-1336 (3rd Cir. 1981).
I am concerned that this would change
Administration's firm commitment to elimi-
These standards reflect prior Supreme
Title VII from a statutory scheme aimed at
nate employment discrimination also means
Court precedent in each particular, includ-
conciliation and the administrative resolu-
that we continue to oppose racial quotas.
ing Griggs, not a departure from precedent.
tion of allegations into one in which litiga-
Discrimination is wrong no matter at whom
They implement the disparate impact
tion is the first, not last, resort. To change
it is directed. The Administration, there-
standard in a sensible way, they do not over-
the Act in a way that would discourage
fore. opposes any legislation aimed at over-
turn it.
rather than encourage the prompt and equi-
turning three Supreme Court deci-
table resolution of employment disputes
sions," including Wards Cove Packing Co. v.
OPENING STATEMENT, SECOND HEARING ON
could, in the long run. heighten rather than
Atonio The Attorney General described this
CIVIL RIGHTS Acr OF 1990, SENATOR ORRIN
lessen racial and other conflicts in the work-
decision and two others, including Martin V.
G. HATCH, FEBRUARY 27, 1990
place. Indeed, one provision of the bill, sec-
Wilks, as "decisions rooted in the Court's
I join the Chairman of the Committee in
tion 9, makes it illegal to condition settle-
opposition to racial quotas, which we share.
extending appreciation and welcome to our
ments on the waiver of attorneys fees, thus
We urged the Court to reach the decisions it
witnesses this morning. We will be hearing
overturning yet another Supreme Court de-
did in each of these cases; we agree with
from Mr. Donald Ayer. Deputy Attorney
cision in Evans v. Jeff D. This will make it
them. and will oppose any legislation that
General of the United States, several
even more difficult to settle cases; this will
seeks to overturn them."
former members of the Equal Employment
delay, not foster, simple justice.
As Stuart Taylor, Jr., observed in a recent
Opportunity Commission, and others re-
Mr. Chairman. I reiterate that we both
issue of Legal Times: "Under [this] bill
garding this legislation.
seek equality of opportunity in the work-
the beneficiaries of disparate-impact suits
None of us will argue that discrimination
place. Unfortunately, there are certain prin-
would not necessarily be victims of discrimi-
does not exist today. We have all seen its
ciples of justice which would be turned on
nation. And the defendants would not nec-
ugly head. We need strong and effective im-
their heads if this legislation were enacted
essarily be guilty of anything but hiring and
plementation of our civil rights laws. Where
in its present form. I find it discouraging
promoting the people they consider the best
there is a need to improve civil rights en-
that we are asked to overturn these funda-
qualified."
forcement, I will be a strong advocate for
mental rights of citizens in order to prove
No one should be fooled by irrelevant lan-
such improvement.
our support for equal opportunity. This is
guage in the bill intended to camouflage its
We agree, Mr. Chairman, that some
strictly an unfair exchange for everyone.
import. Sections three and four are the op-
change in these laws is desirable. I have in-
erative provisions of the bill. Those-sections
troduced legislation prepared and supported
OPENING STATEMENT OF SENATOR ORRIN G.,
overturn Wards Cove by stacking the rules
by the Bush Administration to overturn the
HATCH, MARCH 1, 1990
of proving a disparate impact against em-
Supreme Court's decisions in the Patterson
Thank you, Mr. Chairman. Today we con-
ployers in the manner I mentioned earlier.
and Lorance cases. But, Mr. Chairman, I
sider the Wards Cove V. Atonio decision. By
The concern in this bill is not about court-
March 26, 1990
CONGRESSIONAL RECORD SENATE
3147
ordered remedies or conciliation agree-
ments. It is the radical revision in the stand-
decree or judgment. That is wrong Let
those innocent nonparty employees have a
the list. When the Chief interviewed me for
ard of disparate impact liability and misuse
of statistics that create the severe quota
chance to bring their subsequent claim, too.
a promotion he said that would not be pro-
This transparent double standard is an
moted because I am white. The Chief said
threat of S. 2104. The bill's denial that it ad-
unedifying example of the extent to which
that he had no choice in the matter because
dresses "affirmative action," which is not
modern American liberalism has departed
50% of the promotions had been set aside
defined in any event, is irrelevant. The oper-
ative language of sections three and four
from the principle of equal justice under
for blacks under the Consent Decree the
law.
City had entered into 2 years earlier.
create the problem I described.
I might add that Wards Cove is fully con-
Does Section 6, by overturning Martin V.
Carl Cook, the black firefighter who got
Wilks, seek greater finality in employment
my promotion, as shown on this chart, was
sistent with the Griggs V. Duke Power Com-
ranked No. 85 while I was No. 6 on the the
pany decision, and Griggs remains good law
discrimination cases? Yes and no. The great-
er finality is sought only against innocent
list. Mr. Cook. had been with the Depart-
today. Moreover, whether or not Griggs has
third persons but not with respect to civil
ment 9 years while I was only there 6, so he
led employers in the past to use quotas is to-
rights plaintiffs
got more seniority points than I did. Mr.
tally Irrelevant to this bill. This bill does not
Charles Alan Wright, Arthur Miller, and
Cook was not qualified as a medic, had no
codify Griggs, it twists Griggs completely
A. E. Cooper, in their noted work, Federal
Fire Science degree, had never worked as
out of shape. It is S. 2104, and how it dis-
Practice and Procedure (1981), wrote:
the leadworker or acting officer and had no
torts Griggs, that is the source of my
The initial presumption that nonparties
prior firefighting experience. I had all of
present concern.
are not bound by a judgment has been
these qualifications. Despite my better
I look forward to hearing the witnesses
today.
stated in many cases. This presumption
qualifications and starkly higher test scores,
draws from the due process right to be
the Fire Chief told me I would not be pro-
heard It is conceivable that some day
moted because I am not black. Moreover,
STATEMENT OF SENATOR ORRIN G. HATCH,
this basic postulate may be eroded by courts
Mr. Cook was never identified as a victim of
MARCH 7, 1990
that believe that one full and fair litigation
past discrimination, but received preferen-
Thank you, Mr. Chairman. One of the
of an Issue is sufficient without regard to
tial treatment solely due to his race. Finally,
the identity of the parties. It is much better,
several years later I received my promotion
most cherished rights we enjoy as Ameri-
cans is the right to our own day in court
however, to resist any such erosion. Our
to Lieutenant and thereafter I was promot-
when we believe we have been actually
deep-rooted historic tradition that everyone
ed to Captain. During those years, my
harmed. S. 2104 is a harsh, illiberal effort to
should have his own day in court draws
career was on hold and I lost pay and se-
niority solely due to my race. Aside from
strip effectively certain innocent Americans
from clear experience with the general falli-
these tangible losses, this has been a demor-
of their opportunity to assert equal protec-
bility of litigation and with the specific dis-
tortions of judgments that arise from the
alizing experience for me and my family.
tion claims under the Constitution, and em-
I am a working class man. I am not re-
ployment discrimination claims under feder-
very identity of the parties.
al statutes, in their own lawsuits. This could
I intend to resist any such erosion
sponsible for any past discrimination by the
There is some irony, Mr. Chairman, in
City of Birmingham. I did not cause any dis-
well be the first serious effort in recent
years to restrict access to the courts for per-
Section 6. Other parts of S. 2104 overturn
crimination and should not have pay the
price for it. The City of Birmingham should
sons who wish to assert fundamental consti-
the Lorance decision: Thus, the bill permits
pay the price for its own wrongs. I am not a
tutional claims to equal protection of the
persons like the women in Lorance to sue an
lawyer, but I think I can tell when I have
laws and basic statutory rights to be free of
employer at the time they are harmed in
been treated unfairly.
invidious discrimination.
fact by a seniority provision adopted with a
Mr. Chairman, all I am seeking is & day in
We will hear a great deal of lawyer talk
discriminatory intent. I agree with that, and
Court to show I am a victim of unlawful dis-
about due process and what the Constitu-
the bill I have introduced, S. 2166, reverses
crimination. I filed suit promptly after I was
tion does and does not require. And that, of
that decision. But lets let every American
denied a promotion: I had no knowledge of
course, is extremely important. But we must
have his or her right to a day in court at the
the details of the litigation which resulted
also keep in mind the impact of what we do
time the individual is actually harmed.
in the consent decree. If I get the trial and
on the lives of people asserting the most
Finally, Mr. Chairman, S. 2104 is not
appeal and the Courts find that the-City's
fundamental rights of all in our society. An
merely content effectively to slam the
conduct was legal, I can accept that and
individual who is not a party to an employ-
courthouse door in the face of innocent
know that in America everyone is entitled to
ment discrimination case, and who has not
third parties in the future. By applying Sec-
a day in Court. What I cannot accept is
been joined under the Federal Rules of Civil
tion 6 retroactively, this bill would literally
having the City's agreement shoved down
Procedure, should not be bound by the
throw current litigants asserting constitu-
my throat with no opportunity to a full and
result in that case. This is so, in my opinion,
tional equal protections claims and discrimi-
fair trial to show that this is wrong.
even if that individual has less formal notice
nation claims right out of court and into the
Thank you.
of a proposed order or consent decree, or
street without opportunity for redress. And
even of the underlying lawsuit prior to the
I suppose we will do that in the name of
STATEMENT OF RAYMOND P. FITZPATRICK, JR.,
proposal of an order or consent decree.
civil rights.
BEFORE THE SENATE LABOR AND HUMAN RE-
Unless an individual is a party to a case or
SOURCES COMMITTEE, MARCH 7, 1990
actually represented in the case, as in a
STATEMENT OF JAMES W. HENSON BEFORE THE
class action. he or she should have the right
SENATE LABOR AND HUMAN RESOURCES Com-
Mr. Chairman, I am Raymond Fitzpatrick
MITTEE, MARCH 7, 1990
of Birmingham, Alabama. I represent the
to make his or her own claims of racial or
nonminority firefighters of the Birmingham
gender discrimination and denial or equal
Mr. Chairman, I am James Henson, an
Fire & Rescue Service in Martin V. Wilks.
protection of the laws in an independent
employee of the Birmingham Fire & Rescue
lawsuit. Such an individual should have the
Thank you for the opportunity to appear
service. I am a plaintiff in the case which
before this Committee to comment on Sec-
right to do so within the appropriate statute
was called Martin V. Wilks in the Supreme
tion 6 of S. 2104.
of limitations from the time he or she
Court of the United States. I believe racial
Martin V. Wilks was a correct decision
claims to be actually harmed.
discrimination is wrong no matter who it is
which Congress should leave undisturbed.
Indeed, this bill allows for just such a sub-
directed against. I sued the City of Birming-
The Supreme Court reaffirmed the funda-
sequent lawsuit for some persons, but not
ham because I was denied a promotion on
mental principle of due process that all
others. Supporse the EEOC or Department
the basis of my race. I am pleased that the
Americans are entitled to a day in Court
of Justice files a lawsuit against an employ-
Supreme Court has ruled that I am entitled
when they believe they have been wronged.
er on behalf of employees or job applicants
to a day in court. I urge this committee not
I wish to make it clear that Martin V. Wilks
who are women or members of a particular
to take away my opportunity to show that I
is a decision designed to further the due
racial or ethnic minority group. The persons
have been discriminated against.
process guaranties embodied in the Consti-
on whose behalf the government is suing
I joined the Birmingham Fire Department
tution, and any legislative action in this
are not parties, but assume that they have
in 1976. At that time, blacks had been in the
the notice S. 2104 describes. If the employer
area must meet due process scrutiny. Those
department for several years. I am not re-
who claim that the Supreme Court was
settles the case by consent decree, or judg-
sponsible for any wrongs that may have oc-
merely interpreting the Rules of Civil Pro-
ment is entered against the employer. S.
curred before or since that time.
2104 preserves current case law which per-
cedure are wrong. The Supreme Court
I had previously been the chief of a small
mits those women or minority employees to
quoted Justice Brandeis when it held: "it is
suburban fire department but wanted to
bring a subsequent lawsuit against that very
a principle of general application in anglo-
join a large department where my opportu-
American jurisprudence that one is not
same employer seeking greater relief for
nities would be greater. I worked hard and
themselves. And I think that is fine.
bound by a judgment
in a litigation in
earned a 2 year college degree in Fire Sci-
S. 2104, however, effectively slams the
which he is not designated as a party or to
ence and became a qualified paramedic.
courthouse door in the fact of innocent em-
which he has not been made a party by
In 1983, I spent months studying for the
ployees, not parties to the case, if they are
service of process.'
promotional exam and out of over 100
later harmed by the very same consent
The Court recognized that this fundamen-
people that took the test, placed No. 6 on
tal due process principle was incorporated
3148
CONGRESSIONAL RECORD - SENATE
March 26, 1990
into the Rules of Civil Procedure by the per-
cuit and the Supreme Court held that it
missive language of Rule 24 governing inter-
was wrong to bind my clients to a settle-
I should note that even the kind of notice
vention and the mandatory joinder provi-
ment they had no part in making. The Su-
which may meet due process requirements
sions of Rule 24. It is a principle which,
preme Court remanded the case for a trial
in bankruptcy or probate proceedings may
both as a matter of due process and funda-
on the validity of the City's race-based af-
not pass muster when fundamental personal
mental fairness, Congress should not dis-
firmative action plan.
rights are at stake. In the bankruptcy and
turb.
Despite nine years of litigation, my clients
probate proceedings rights to a res-personal
The fairness of this principle is demon-
have only now been afforded an opportuni-
or real property-must be affixed. Title to
strated by the facts of the Birmingham litl-
ty to demonstrate that the City's quota plan
property must be clear. In an employment
gation where the nonminority firefighters
is outside the limits of permissible affirma-
discrimination case, the right to equal pro-
filed both lawsuits challenging the quota
tive action. I urge the Committee to leave
tection of the laws and the right to be free
plan and a motion to intervene in the con-
that decision intact and wish to make the
of Invidious discrimination are at stake.
sent degree litigation. In 1975, the United
following substantive comments regarding
I wish to stress that even if mandatory
States filed suit against the City of Birming-
this bill.
intervention might be someday found con-
ham and the Personnel Board, a separate
Section 6 has a number of problems which
stitutional in employment discrimination
agency which screens applicants for City
1 wish to outline for the Committee:
cases, it would not be the fairest or most ef-
jobs. The Personnel Board's entry-level
1. The provisions governing the hearing of
ficient manner of adjudicating those rights
Police Officer and Firefighter examinations
objections in part (A) of section 6 are viola-
for the reasons stated in Martin V. Wilks.
were found to violate Title VII, but not the
tive of due process. A Fairness Hearing does
3. While terminating the right of nonpar-
Constitution, and the District Court ordered
not provide adequate protection to nonpar-
ties to seek court review of their claims
a hiring quota. The City of Birmingham was
ties. Nonparties lack the tools of discovery
when harmed by the implementation of a
not found guilty of any discrimination.
to prepare for a hearing, have no subpoena
decree, the bill makes it clear that the
Nobody has ever challenged that entry level
power or other rights of parties and, most
standards of Intervention remain un-
order. In 1979, the District Court held a
important, have no right to appeal when
changed. In other words, intervention appli-
second trial on the legality of other tests
the district court signs the consent decree.
cations at the time of approval of a decree
and screening devices used by the Personnel
An objector is not a party and does not have
will be met with claims of untimeliness and
Board. There was no attack made on any
the rights of a party.
lack of standing. As demonstrated by the
Fire Department promotional examination.
2. The notice provisions of parts B and C
facts of the Birmingham case, by the time a
The City faced 8 potential backpay claim of
also do not meet due process requirements.
consent decree is announced, intervention is
$5 million. Rather than wait for ruling, in
The Court has upheld the termination of
no option at all.
1981, the City secretly negotiated a Consent
nonparty claims only in very limited statu-
4. The inconsistency and unfairness of the
Decree in which it agreed to 50% quotas for
tory proceedings, such as bankruptcy or pro-
bill is also demonstrated in part (2)(B) of
promotions to Fire Lieutenant, quotas for
bate proceedings, where there is a clear
section 6. While nonparties, who are usually
all other jobs with the City of Birmingham,
framework of rules to require actual notice
nonminorities, are precluded from ever
and paid only $265,000 to the victims of past
to affected individuals, with a full comple-
having a meaningful day in Court, the bill
discrimination. Mayor Arrington has de-
ment of due process guaranties. There are
expressly preserves the rights of the benefi-
scribed this arrangement as the "best busi-
no guidelines regarding notice in this bill
ciaries of the decree, usually minorities or
ness deal" the City had evern made.¹ Indeed
which even attempt to meet due process
women, to seek further or additional relief
It was, for the City settled the case on the
standards to ensure actual notice to affected
in other proceedings against the employer
backs of innocent nonparties who them-
individuals. The language of the bill which
that is a party ot the decree.
selves were not guilty of committing any dis-
cuts off claims without service of actual
5. This bill will not reduce litigation,
crimination.
notice on known interested parties is con-
rather it will cause a proliferation of unnec-
The Birmingham Firefighters Association
trary to the Supreme Court's recent due
essary motions to intevene by persons who
appeared at the District Court's Fairness
process decision of Tulsa Professional Col-
Hearing to oppose the quotas and urge the
lection Services V. Pope, 108 S. Ct. 134
Court to require participation by the non-
(1988).
whereabouts are known, the party seeking to bind
minority employees in the settlement proc-
another must mail or personally serve specific
ess. In addition, before approval of the
notice of the action. Mullane, 317-318.
In re Birmingham Reverse Discrimination Em-
decree,2 the Firefighters Association and
In Mullane, the Court struck down a state statute
ployment Litigation, 833 F.2 1492 (11th Cir. 1987).
permitting notice by publication to known benefici-
two of its members moved to intervene so
Martin V. Wilks, 490 U.S.
104
L.Ed.2d
835,
aries in B proceeding for judicial settlement of trust
they could contest the legality of the pro-
109 S.Ct. 2180 (1989).
accounts despite the fact that the trustee knew
posed decree. At the urging of the Lawyers
A fairness hearing does not provide nonparty
their identities and addresses. It made no difference
Committee and the City of Birmingham,
objectors with an adequate opportunity to be
that Mullane received actual notice of the proceed-
the District Court refused to allow interven-
heard. See. Comment. Collateral Attacks on Em-
ing and represented the interests of known benefi-
tion, claiming we were five years too late.
ployment Discrimination consent decrees, 53 ChiL
claries. The Court held. at a minimum, Individual
Rev. 147. 181 n.139 (1986) (use of 2 Fairness Hear-
The Firefighters appealed. Again, the City
notice by mail was required to be given to known
ing to dispose of nonminority claims is the most ex-
interested parties. Mullane, 318-320.
and Lawyers Committee opposed interven-
treme view). The fairness hearing held in this case
In Tulsa Professional Collection Services V. Pope.
tion saying the firefighters were years too
by the district court did not provide objecting par-
108 S.Ct. 1340 (1988), the Court again upheld the
late. should have intervened when the suits
ties with the benefits normally accorded to parties
duty to give adequate notice by mail to known in
were filed in 1975, and had no standing to
in litigation. Thus, the objectors were not able to
terested parties. The Tulsa Court struck down ar
contest the quotas because there had been
engage in discovery. could not call witnesses or
Oklahoma statute permitting notice by publication
no injury. In addition, the Lawyers Commit-
offer evidence, and, most importantly. could not
to known creditors In a state probate proceeding
tee told the 11th Circuit that the Firefight-
appeal from the proceedings of the district court.
The Oklahoma statute permitted notice by publica
Indeed, despite over nine years of continuous litiga-
tion for 2 consecutive weeks in a local newspaper
ers should not be allowed to intervene be-
tion, no appellate court has ever addressed the va-
The publication commenced after the state probat
cause they were free to file separate litiga-
lidity of Birmingham's plan. either on Its face or as
court opened the estate upon request of the execu
tion to challenge the City's actions. The
It applies to the firefighters.
tor or administrator of the estate. The Court foun
Eleventh Circuit held that intervention was
The fairness hearing process, whereby nonparties
that when private parties trigger a state statute o
not necessary because individual firefighters
are given the opportunity to voice their concerns
limitations through commencement of judicial prt
who are denied promotion should file sepa-
through objections. does not rise to the level of the
ceedings there is sufficient state action to implicat
rate suits after they are in fact denied a pro-
full hearing necessary to terminate the substantive
the Due Process Clause. In such circumstance
rights of nonparties. Rather. a fairness hearing is
"due process is directly implicated and actual notic
motion. Following the 11th Circuit's deci-
much like the predeprivation conference in Cleve-
generally is required" 99 L.Ed.2d at 577. The part
sion. my clients pursued their suits under
land Bd of Education V. Loudermill, 470 U.S. 532
giving such actual notice bears the burden of "re
Title VII and the Fourteenth Amendment.
(1985) where the charged employee is given the
sonably diligent efforts to uncover the Ident
The District Court summarily deemed its
right to appear before the decisionmaker to coax,
ties Id. at 578. The Court held that if the 11
decree valid and bound the nonminority
object and respond to the proposed deprivation. but
terested nonparties "identity was known or 'reaso:
firefighters to the terms of the Consent
not call witnesses or cross-examine those of the em-
ably ascertainable,' then termination of appellant
Decree they had no part in making. The
ployer. Indeed. Loudermill provided that after a
claim without actual notice violated due process
deprivation of the employee is entitled to a full
Id. at 579.
District Court required the employees to
hearing. Employees who are denied a promotion on
The notice must be sufficient to apprise nonps
show that the City was not following the
the basis of race are certainly entitled to no less.
ties of the nature of the decree-approval procee
decree. We again appealed and the 11th Cir-
The firefighters' suits are akin to the full post dep-
ings. the effect of failure to seek intervention. a:
rivation hearing required by Loudermill.
the time limit for motions to intervention. Col
The practical effect of the doctrine of mandato-
ment. Collateral Attacks on Employment Discrin
1985 trial. PX 403.
ry intervention is that parties to a consent decree
nation Consent Decree, 53 ChiLRev. 147. 160-1
2 Intervention was sought on August 4. 1981. The
may obtain a consent judgment from a court and
(1986). Adequate notice must apprise the potenti
decree was entered on August 21. 1981.
make that judgment binding against all third par-
ly affected nonparty of the procedure for resolvi
3 Brief of John W. Martin. et al., Appellees at 10,
ties. Mullane V. Central Hanover Bank & Trust Co.,
claims at & hearing so as to permit the objector
No. 81-7761 (11th Cir. 1982).
339 U.S. 306. 317 (1950) requires that in such of cir-
adequately prepare for the hearing. Memphis Lig
4 United States V. Jefferson County, 720 F.2d 1511
cumstances, interested parties are entitled to the
Water and Cas Division V. Crash 436 U.S. 1. 13
(11th Cir. 1983).
"best notice practicable." If a person's identity and
(1978).
March 26, 1990
CONGRESSIONAL RECORD SENATE
S3149
might never have a stake in the litigation at
The Supreme Court in Martin V. Wilks
great cost to them. Under this bill. every
recognized that the existing rules provide a
not one that infringes on the rights of inno-
cent third parties.
time an employer is sued under Title VII,
framework to allow parties to negotiate con-
the employees of that employer, as well as
If the Birmingham decree is valid and the
sent decrees yet ensure finality:
the prospective employees of that employer,
city has acted lawfully, then the Courts will
1. The existing parties to litigation are in
must Intervene to preserve their right to
rule against my clients and we must accept
the best position to determine who may be
contest a decree which might possibly affect
that ruling. If it is not, then my clients have
potentially affected by the relief sought in
their rights if they seek a promotion in the
been done an injustice, are entitled to be
the litigation Federal Rule of Civil Proce-
future.'
heard, and should receive fair compensation
dure 19 places the burden on the existing
and an end to wrongful conduct.
parties and the court to join all interested
This bill is not content with just prospec-
The questionable standing of nonminority Indi-
parties in litigation.
tive application. Under its transition rules,
viduals to participate and their uncertainty about
2. Large numbers of similarly situated per-
it seeks to throw any employment discrimi-
whether they need to bear the expenses of litigat-
sons may be joined into the litigation
nation case involving a prior decree out of
ing mean that third parties will often discover that
through the class action mechanisms of
court on a retroactive basis. Given the ef-
their rights have been compromised but that It is
Rule 23. In such a case, the Court must
forts the Birmingham Firefighters made to
already too late to move to intervene. The propo-
nents of the bill claim a collateral attack bar saves
ensure that the proper notice is given to
intervene before entry of the decree. this
judicial resources and litigation costs. On the con-
class members and that the Interests of
would be extremely unfair. My opponents
trary. such a rule will encourage protective and
class members are fully and adequately rep-
would succeed in immunizing their racial
often unnecessary intervention applications which
resented. Moreover, unlike objectors at a
program from appellate scrutingy forever.
will unduly expand the breadth of discrimination
Fairness Hearing, a class which is approved
This Committee should understand that
litigation. In fact, under such a rule, every employ-
by the Court has the right to appeal from
in our multiethnic society, a decree which
ee of every employer sued for race discrimination
may be placed in the position of having to hire
the entry of a decree which affects its
gives preferential relief for one group may,
counsel to intervene to protect his or her position
rights.
at the same time, impact adversely upon
in the workforce. Such a burden has never been
We believe that racial discrimination
other minorities or females. While we be-
placed on strangers to litigation. See, Chase Nation-
should be identified and eliminated and the
lieve this bill is primarily aimed at white
al Bank V. Norwalk, 291 U.S. 431, 441 (19330 ("law
victims should be given a full remedy, but
males, it will also cut off the rights of His-
does not impose
the burden of voluntary Inter-
panics, women and other minorities seeking
vention"). See also, Cooper V. Federal Reserve Bank
to make progress in the workplace.
of Richmond, 467 U.S. 867 (1984) (individual unliti-
"standing to seek appellate review of the consent
The Supreme Court recognized that allow-
gated claims of class members not precluded de-
Judgments." Brief of John W. Martin. 23, United
spite the fact that other class members intervened
ing suits such as Mr. Henson's will not
States V. Jefferson County, No. 81-7761 (11th Cir.).
to assert individual claims).
create chaos but preserve the fundamental
10 Consent decree parties have an adequate
In order to have standing, a party must have a
right of all of a day in court. While we be-
remedy through joinder of nonparties under rule
recognizable interest which is traceable to the de-
fendant's allegedly unlawful conduct. Allen V.
19, F.R.Civ.P. Such a mechanism clearly provides
lieve section 6 does not provide a constitu-
Wright, 468 U.S. 737 (1984); Gladstone Realtors V.
the nonparty with a full complement of due process
tional framework for adjudication of the
safeguards by notice, through a summons, a date
rights of nonparties and the principle of
Village of Bellwood, 441 U.S. 91 (1979). The rules of
Article III standing apply to intervenors as well as
certain after which default may be entered. the
Marting V. Wilks is good public policy, the
original parties to. the litigation. Diamond V.
tools of discovery, the opportunity to be heard
retroactive application of the act is shock-
Charles, 476 U.S. 54 (1986).
through & full evidentiary hearing, and, most im-
ingly wrong and unfair
The City of Birmingham has some 3,000 employ-
portant, the right to appeal any adverse decision.
Thank you.
ees. Over 600 are Birmingham Fire & Rescue Serv-
Just as the employer believes the nonparty should
ice ("BFRS") employees. It is wholly unrealistic to
perceive its interest and intervene, 80 too may the
STATEMENT BEFORE THE SENATE COMMITTEE
require each individual BFRS employee to take
employer perceive the interest of the nonparty and
join the nonparty at the appropriate time. The em-
ON LABOR AND HUMAN RESOURCES, FOR THE
notice in 1975 through newspaper stories of the
ployer has sophisticated counsel with knowledge of
U.S. CHAMBER OF COMMERCE BY JAMES C.
pendency of litigation. to learn that the litigation
involves rights to promotional positions rather
the proposed consent decree and the skills to per-
PARAS, Ese., MARCH 1, 1990
than hiring discrimination, to foresee that their
ceive the potential interest of the nonparty while
Good morning. My name is James C.
employer will settle rather than litigate and that
the nonparty has no counsel or intimate knowledge
Paras. I am a Senior Partner in the San
they will be the ones to bear the burden of that set-
of the federal court proceedings. Had Birmingham
Francisco law firm of Morrison & Foerster
tlement through implementation of the quotas.
wished to bind the Firefighters to its settlement, it
could have joined them under Rule 19 or refrained
and a member and past Chairman of the
Such an individual's interest in the litigation would
certainly be speculative at best.
from opposing intervention. The fact that joinder
U.S. Chamber of Commerce's Labor Rela-
Similarly, in 1981, it was unreasonable to require
will Involve some cost should be of no consequence.
tions Committee. I am also a member of the
hundreds of BFRS employees to seek to Intervene
See, Laycock, Consent Decrees Without Consent:
governing Council of the Labor and Employ-
in order to protect their right to a promotion which
The Rights of Nonconsenting Third Parties, 1987
ment Law Section of the American Bar As-
they might decide to seek in the future and which
Univ. of Chicago Legal Forum 103, 144-153. Given
sociation. Accompanying me today is Nancy
might be denied If they obtain B score high enough
its opposition to intervention, the city should not
Reed Fulco. Human Resources Attorney for
to be certified. Moreover, only a small portion of
now be allowed to complain. Each time a complex
claim of discrimination is brought before the courts
the Chamber. Thank you for affording the
those passing the Fire Lieutenant's examination
are evern certified.
involving diverse and competing interests, there are
Chamber this opportunity to discuss the
The union also cannot act as the surrogate for
significant costs in terms of the litigation expenses
impact of the proposed civil rights legisla-
the employees. It represents a broad spectrum of
and liability exposure of the parties as well as the
tion on the business community.
employees, black and white, officers and privates,
allocation of scarce judicial resources. If the City
Since the passage of Title VII of the Civil
those with seniority and those without, as well as
desires to engage in a settlement the cost of which
Rights Act of 1964, this country has made
those who intend to seek promotion and those who
some third party is likely to bear. it should pay the
tremendous strides both in eradicating em-
do not. See, Wygant, 476 U.S. 281 n.8.
price of either joining those parties in the litigation
ployment discrimination and in eliminating
Given the speculative nature in 1975 of the Fire-
or facing the claims of those third parties in the
future. Shifting the entire cost of settlement to in-
artificial barriers to employment while at
fighters' interest in the consent decree litigation. it
is certainly unreasonable to place the burden on
nocent third parties should not be permitted. As
the same time protecting an employer's
the individual nonminority employees of the City,
Mayor Arrington has testified. the consent decree
right to make reasonable and nondiscrim-
not to mention persons who are not yet City em-
was "the best business deal [the City] had ever
inatory employment decisions. However,
ployees, to intervene in the litigation. See Safir V.
struck." J.A. 528. Congress should not countenance
proponents of S. 2104, the Civil Rights Act
Dole, 718 F.2d 475 (D.C.Cir. 1983) (Scalia, J.)
"business deals" at the expense of strangers to the
of 1990, claim that the Supreme Court has
(Safir's possible future reentry into the shipping
litigation.
recently made "an abrupt and unfortunate
business deemed too speculative to confer stand-
In ensuring the rights of the Firefighters to due-
process, the Supreme Court found that the Fire-
departure from its historic vigilance in pro-
ing). Moreover. protective intervention adds to the
high cost of litigation of the existing parties as well
fighters' claims against their employer are due to
tecting civil rights." 136 Cong. Rec. S 1018
as subjects the intervenor to the possible assess-
be heard in the context of independent suits. Such
(Feb. 7. 1990). Based upon this assumption.
ment of attorney's fees if the defendant is ultimate-
a rule is a reasonable procedural device which pre-
S. 2104 is offered to overrule numerous Su-
ly deemed liable. See Diamond V. Charles, 476 U.S.
serves the due process rights of nonminorities to
preme Court decisions handled down over
54, 70 (1986); Reeves V. Wilkes, 754 F.2d 965 (11th
have their claims heard. Firefighters believe their
the past decade. With few exceptions. pro-
Cir. 1985). Such costs and risks are simply too high
suits are the preferable means of resolving these
poonents contend that the bill would merely
to preserve the future rights of nonparties to object
types of claims. in view of the ability of the court
to a potentially illegal consent remedy.
not only to consider the facial validity of a decree-
restore prior law and, therefore, presumably
Moreover, the claim that the firefighters should
emboided plan. but also the conduct of the parties
have little impact on employers who already
have intervened in the decree case contradicts the
in implementing the plan. See, e.g., Johnson V.
have been striving to comply with existing
position which the City took in the appeal from the
Transportation Agency, 480 U.S. 107 S.Ct. 1442
employment discrimination laws.
intervention proceedings that the Firefighters
(1987) (goal should be flexible based on the avail-
From the perspective of the business com-
lacked & Htigable interest which would support
ability of minorities in relevant labor pool at the
munity. nothing could be further from the
intervention. In 1983. the City told the Eleventh
time of the preferential promotion rather than
truth. S. 2104 represents a multifaceted re-
Circuit that the appellants lacked standing. See
fixed at the time the plan is adopted): Fullilove V.
Klatznik, 448 U.S. 448. 480-481 (1980) (Court only
vision and expansion of the employment dis-
J.A. 549 ("with respect to the promotional goals the
approved facial validity of set-aside statute and did
crimination laws that have developed over
Firefighters fail to show a sufficient direct and per-
sonal injury to its members"). Similarly, the Law-
not foreclose future challenges on & case-by-case
the past 25 years. If enacted. it would dra-
yers Committee claimed the appellants lacked
basis).
matically alter the balanced between the
S 3150
CONGRESSIONAL RECORD SENATE
March 26, 1990
goal of eliminating discrimination In society
Title VII, as written, "expressly protects the
ed, can now be examined under the adverse
and the goal of preserving & vital and effi-
employer's right to insist that any prospec-
impact theory.
cient business environment capable of com-
tive applicant
must meet the applicable
Wards Cove Packing Ca V. Atonio, 109 S.
peting in an increasingly global economy.
job qualifications." 110 Cong. Rec. S 7247. In
Ct. 2115 (1989), is the first Supreme. Court
This is so because S. 2104 would substantial-
a separate memorandum, these Senators
ly increase the burdens and risk of liability
further stated that There is no require-
case to examine the adverse impact analysis
for every employer in this country, includ-
ment in Title VII that employers abandon
following the expansion of that analysis in
ing the most exemplary.
bona fide qualification tests where, because
Watson. In Wards Core, the Court summa-
The most troubling aspects of the pro-
of differences in background and education,
rized the adverse impact analysis as follows:
posed legislation include the bill's adoption
members of some groups are able to per-
First, the plaintiff must identify the specific
of a virtually irrebuttable presumption in
form better on these tests than members of
employment practices that the plaintiff con-
favor of a quota system; penalization even
other groups. An employer may set his
tends are discriminatory and establish that,
of those employers who successfully prevent
qualifications as high as he likes
in fact, each challenged practice adversely
Id, at
impermissible factors from affecting the
S 7213 (emphasis added). From these state-
impacts members of a protected group. Id
outcome of employment decisions; substan-
ments, the Griggs court concluded that se-
at, 2124-25. Second, in the event that the
tial and often open-ended expansion of the
lection criteria are permissible despite their
plaintiff establishes that certain practices
time for raising discrimination complaints
adverse impact on protected groups if they
have such an adverse impact, the employer
by some employees, while ironically short-
are "demonstrably 8 reasonable measure of
must produce evidence that each of the
ening the time for raising such complaints
job performance. Griggs, 401 U.S. at 430
challenged practices "serves, in a significant
by other similarly situated employees; injec-
(emphasis added)
way. the legitimate employment goals of the
tion of unpredictable and perhaps uncon-
As the Court's subsequent decision in
employer. [Citations omitted.] The touch-
trollable elements of damages in employ-
Furnco Construction Corp. V. Waters, 438
stone of this inquiry is a reasoned review of
ment discrimination cases; and reduction of
U.S. (1978), reflects, sound jurispruden-
the employer's justification for his use of
incentives for. discrimination claimants to
tial and societal reasons support Congress's
the challenged practices. A mere insubstan-
settle their cases and restore work relation-
original intent not to interfere with an em-
tial justification in this regard will not suf-
ships. In the section-by-section analysis that
ployer's right to rely upon legitimate job-re-
fice
Id. at 2125-26. Finally, once the
follows, these problems with S. 2104 will be
lated selection criteria. In Furnco, plaintiffs
employer has introduced evidence of reason-
addressed.
challenged an employer's reliance upon per-
able business justifications for the chal-
sonal and outside recommendations con-
lenged practices, the plaintiff must come
I. ANALYSIS
cerning applicants' job qualifications. The
foward with evidence of alternative prac-
A. Section 4: Adverse impact analysis
Court of Appeals ruled in favor of the plain-
tices that could equally serve the employer's
One of the principal thrusts of S. 2104 is
tiffs and ordered the employer to imple-
legitimate interests with a lesser adverse
to overturn the Supreme Court's decision in
ment a new hiring process based upon an
impact on protected employees. Id. at 2126-
Wards Cove Packing Co. V. Atonio, 109 S.
evaluation of written employment applica-
27. The burden for establishing that the em-
Ct. 2115 (1989), and in the process substan-
tions. In reversing this decision; the Su-
ployer is relying upon non-job-related prac-
tially to rewrite the adverse impact analysis
preme Court noted "[t]he dangers of em-
tices remains on the plaintiff.
utilized by the Supreme Court for the past
barking on 8 course such as that chartered
The tripartite analysis followed in Wards
two decades. Contrary to the impression cre-
by the Court of Appeals here, where the
Cove is entirely consistent with prior Su-
ated by its title, Section 4 of the bill would
court requires businesses to adopt what it
preme Court precedent. With respect to the
not "restore" any preexisting Supreme
perceives to be the 'best' hiring proce-
plaintiff's prima facie case, there is simply
Court interpretation of Title VII. Instead,
dures. Not only does the record not
no dispute that plaintiffs have been re-
this Section would legislatively overrule not
reveal that the court's suggested hiring pro-
quired to identify and establish the adverse
only the Wards Cove decision but also a
cedure would work satisfactorily, but also
impact of specific employment practices in
number of other Supreme Court decisions,
there is nothing in the record to indicate
each Supreme Court adverse impact case
including the Court's seminal decision in
that it would be any less 'haphazard, arbi-
preceding Wards Cove Se, e.g., Griggs; 401
Griggs V. Duke Power Co., 401 U.S. 424
trary and subjective' than Furnco's
U.S. 424 (high school diploma and aptitude
(1971). By shifting the burden to the em-
method.
Courts are generally less com-
test requirements); Albermarle Paper, 422
ployer to prove, in the absence of quotas,
petent than employers to restructure busi-
U.S. 405 (aptitude tests); Washington V.
that it did not discriminate and that the fac-
ness practices, and unless mandated to do so
Davis, 426 U.S. 229 (1976), (written tests);
tors utilized in its employment process were
by. Congress they should riot attempt it." Id.
Dolhard V. Rawlinson, 433 U.S. 321 (1977)
not only reasonable but also indispensable,
at 578:
(height and weight requirements); New
S. 2104 would leave employers with little
2. Section 4 of the Bill, Rather than
York City Transit Authority V. Beazer, 440
choice but to adopt quota systems in order
Wards Cove, Is Inconsistent with Prior Ad-
U.S. 568 (1979 (drug use policy); Connecti-
to protect themselves from substantial li-
verse Impact Decisions of the Supreme
cut V. Teal, 457 U.S. 140 (written test);
ability.
Court:
Watson, 108 S. Ct. 2777 (subjective promo-
1. Title VII Currently Preserves an Em-
Two principal theories of proof under
tion evaluations). Similarly, in Teal, the Su-
ployer's Right to Establish Selection Crite-
Title VII are "disparate treatment" and "ad-
preme Court rejected "bottom line" analysis
ria with a Potentially Adverse Effect on
verse impact." Under the disparate treat-
and required adverse impact analysis to be
Protected Groups Provided the Selection
ment theory. an employer is liable if it in-
applied separately to each aspect of anem-
Criteria Are Job-Related:
tentionally treated a member of a protected
ployment process. Teal, 457 U.S. 440.
At the outset it should be noted that Con-
group less favorably than other persons be-
With respect to a defendant's rebuttal ob-
gress never intended Title VII to force em-
cause of the former's protected status.
ligation. the Supreme Court likewise has
ployers to abandon reasonable predictors of
Texas Department of Community Affairs V.
consistently held that an employer must
job success that have been adopted without
Burdine, 450 U.S. 248 (1981); McDonnell
show that its practices are, in fact, "job-re-
the taint of discriminatory intent. Instead,
Douglas Corp. V. Green, 411 U.S. 792 (1973).
lated" or possess a "manifest relationship"
as the Supreme. Court's development of the
Under the adverse impact theory, an em-
to the employment in question. Wards Cove,
disparate. treatment and adverse impact
ployer need not have possessed any discrimi-
109 S. Ct: at 2130 n.14 (Stevens, J. dissent-
models of proof establishes, only practices
natory intent. Instead, the employer is
ing) (quoting Teal, Beazer, Dothard, Alber-
that are intentionally discriminatory or that
liable if It utilized "artificial, arbitrary, and
marle Paper, and Griggs.) This is true even
create obstacles, to equal employment that
unnecessary barriers to employment" that
in cases such as Griggs, which used the al-
are not reasonably related to job perform-
had a disproportionately adverse impact
terative formulation "business necessity."
ance are prohibited by Title VII.
upon members of a protected group. Griggs,
In elaborating upon the meaning of busi-
In Griggs itself, a unanimous Supreme
401 U.S. at. 431. In the words of the Griggs,
ness necessity in Griggs, the Court immedi-
Court observed that there had been sub-
court, such unreasonable employment cri-
ately explained that "If an employment
stantial concern prior to the adoption of
teria could not be allowed to become the
practice which operates to exclude [a
Title VII regarding whether the new law
"masters of reality." Id. at 433.
member of a protected group] cannot be
could be construed to require employers to
Prior to 1988, each Supreme Court case
shown to be related to job performance, the
select employees based upon their protected
adverse impact decision had involved
practice is prohibited." Griggs, 401 at 31.
status, rather than their employment quali-
'standardized employment tests or criteria."
Nowhere in Griggs did the Supreme Court
fications. To allay this fear, "Proponents of
Watson V. Fort Worth Bank and Trust, 108
say that a challenged practice had to be es-
Title VII sought throughout the debate to
S. Ct. 2777. 2785 (1988). In Watson, the Su-
sential, indispensable, or otherwise absolute-
assure the critics that the Act would have
preme Court broadly expanded the scope of
ly required in order for a business to func-
no effect. on job-related tests." Griggs, 401
adverse impact analysis to encompass not
tion.
U.S. at 434 (emphasis added). Consistent
only standardized or objective employment
An issue not expressly resolved in Griggs
with Congressional intent, Senator Case of
factors but also nonstandardized or subjec-
and subsequent Supreme Court decisions is
New Jersey and Senator Clark of Pennsylva-
tive factors as well. This means that very
the precise degree of proof required by a de-
nia, comanagers of the Senate bill, issued an
aspect of the employment decision making
fendant at the rebuttal stage. Although the
influenial memorandum explaining that
process, whether articulated or unarticulat-
Supreme Court had used words such as
March 26, 1990
CONGRESSIONAL RECORD SENATE
3151
"demonstrating," "proving," or "showing"
to describe, the defendant's rebuttal obliga-
obligation on a plaintiff A plaintiff's only
obligation under Wards Cove and its prede-
tions concerning the likelihood of establish-
tion, it had never discussed whether this
cessors was to meet the specific job-related-
ing a business necessity defense. According-
was a burden of production or persuasion.
ness Justifications proffered by the defend-
ly, the most reasonable alternative for many
In Wards Cove, the Supreme Court conclud-
ant in Its rebuttal. This is consistent with
businesses would be the adoption of quotas.
ed that the defendant carried a burden of
the purposes underlying both. disparate
Even this, of course, would not provide abso-
producing evidence of its "job-relatedness"
defense, but that the plaintiff retained the
treatment and adverse impact analysis,
dute protection, because employees harmed
which is the orderly and focused presenta-
by the quotas may also be able to prevail in
burden of proving that the defendant had,
tion of evidence. Cf. U.S. Postal Service
a reverse discrimination lawsuit. Thus, Sec-
in fact, relied on arbitrary or unréasonable
Board of Governors V. Aikens, 460 U.S. 711
tion 4 truly represents a "no win" proposi-
practices that adversely affected a protected
(1983) (disparate treatment model "is
tion for employers.
group. This is entirely consistent with the
merely a sensible, orderly way to evaluate
B. Section 5: Mixed motivation
Court's resolution of the same issue in the
the evidence in light of common experience
context of disparate treatment analysis.
as it bears on the critical question of dis-
Section 5 of the bill nominally is offered
Burdine, 450 U.S: 248. Moreover, it would
crimination"). Id. at 715 (quoting Furnco,
to overturn the Supreme Court's decision in
'seem anomalous to impose a higher burden
438 U.S. at 577). In contrast, under Section
Price Waterhouse V. Hopkins, 109 S. Ct. 1775
of proof upon defendants in cases involving
4, a defendant could no longer satisfy its re-
(1989). In Price Waterhouse, the Supreme
alleged intentional discrimination.
buttal obligation by establishing that the
Court addressed the standards applicable to
Finally. if a defendant has identified le-
practices in question are, in fact, reasonably
"mixed motive" cases, i.e., cases in which
gitimate job-related reasons for its employ-
related to legitimate job expectations. In-
legal and illegal factors allegedly entered
ment practices, it has always been the plain-
stead, the defendant will carry the much
Into an employment decision. The plaintiff
tiff's burden to identify and establish that
higher, and in many cases impossible,
had asserted that proof of an impermissible
alternative practices could equally serve the
burden of having to establish that no con-
factor playing any part in the employment
defendant's interests with 8 lesser Impact
ceivable alternative practices could be
process resulted in a finding of liability
upon protected groups. See. e.g, McDonneu
adopted that would be equally effective in
against the employer, regardless of whether
Douglas, 411 U.S. at 801; Albermarle Paper,
accomplishing the defendant's business
the impermissible factor affected the out-
422 U.S. at 425.
goals.
come of the employment decision in ques-
Section 4, in combination with the defini-
3. Section 4 Will Inevitably Lead to the
tion. The defendant, on the other hand,
tions found in Section 3 of the bill, would
Adoption of Quotas by Employers:
claimed that the plaintiff must prove that
şubstantially alter the adverse impact anal-
There is no question that Title VII, as cur-
the impermissible factor actually altered
ysis developed by the Supreme Court since
rently written, does not require employers
that decision.
the early 1970s in several major respects.
to adopt quota systems. Indeed, Section
The court selected a middle ground be-
First, it would relieve the plaintiff of the
703(j) of Title VII expressly states that em-
tween the positions advocated by either
requirement of challenging specific employ-
ployers are not required and logically
party. First, the Court held that a plaintiff
ment practices. Instead, it would permit the
cannot be penalized for failing to adopt
establishes a prima facie case by showing
plaintiff to rely exclusively on "bottom line"
quotas or preferences of members of pro-
that an impermissible factor entered into
statistics indicating an overall imbalance in
tected groups. This has led the Supreme
the decision making process. Id. at 1785-86.
the work force. In the absence of any fur-
Court to avoid the adoption of legal rules
Thereafter, a defendant can avoid liability
ther evidence, the plaintiff may prevail
"leaving any class of employers with 'little
only by proving that the impermissible
based upon such bottom line statistics
choice but to adopt such measures."
factor did not alter the ultimate decision.
alone. This conflicts not only with the Su-
Watson, 108 S. Ct. at 2788 (quoting Alber-
This requires the defendant to prove by a
preme Court's Teal decision but also with
marle Paper, 422 U.S. at 449 (Blackmun, J.
preponderance of evidence that legitimate,
Section 703(j) of Title VII, which expressly
concurring)).
nondiscriminatory reasons would have led
states that employers are not required to
Consistent with past Congressional intent,
to the same result in the absence of the pro-
maintain numerical balances or grant pref-
the sponsors of S. 2104 belie any interest in
hibited factor. Id. at 1786-88.
erential treatment to eliminate numerical
imposing quota systems through the lan-
Justice O'Connors concurring opinion ex-
imbalances.
guage of Section 4. This denial, however, is
plored more fully an issue left unanswered
Second, Section 4 would raise the stand-
unconvincing.
by Justice Brennan's plurality decision. This
ard of justification for challenged business
When the Watson Court expanded ad-
issue involved the importance that imper-
practices from its current "reasonable meas-
verse impact analysis to every aspect of em-
missible factors must have played in the de-
ure of job performance" standard to one re-
ployment, not just discrete and objective se-
cision process. Id. at 1790-91 and n.13. Jus-
quiring evidence that the practices are not
lection criteria, it expressed an obvious and
tice O'Connor concluded that a plaintiff, at
only reasonable but also "essential to effec-
common sense concern that "the inevitable
least, must etablish that the impermissible
tive job performance." This elevation of the
focus on statistics in disparate impact cases
factor played a "susbstantial" role in the de-
degree of justification required from busi-
could put undue pressure on employers to
liberative process before the employer is
nesses squarely conflicts with. prior Su-
adopt inappropriate prophylactic meas-
burdened with the requirement of proving
preme Court decisions, which have held
ures," such as quotas. Watson, 108 S. Ct. at
that permissible factors dictated the same
that manifestly job-related selection criteria
2787. The articulation of adverse impact
result. As Justice O'Connor noted, this re-
do not have to be essential or absolutely re-
analysis in Wards Cove was carefully de-
quirement is supported by the consensus of
quired in order to be sustained. Davis, 426
signed to ensure that this concern did not
circuit courts that have addressed this issue,
U.S.
at
Beazer, 440 U.S. at
In
come to fruition.
which had uniformly required proof that
addition, it runs directly into the problem
Section 4, on the other hand, places busi-
discriminatory factors "played a significant
identified in Furnco of requiring courts to
ness planners in the dilemma of having to
or substantial role in the contested employ-
assume the difficult, indeed impossible,
choose between quotas and the legal re-
ment decision" before shifting the burden
burden of ascertaining what hypothetical
quirement of proving that each and every
of proof to the defendant. Id. at 1804 (quot-
practices would be essential to a given busi-
aspect of the employment process, in addi-
ing the Court of Appeals; decision below in
ness.
tion to the overall process itself, is not only
Hopkins V. Price Waterhouse, 825 F.2d 458,
Third, by placing the burden of persua-
reasonable and manifestly related to bona
470 (D.C. Cir. 1987)).
sion upon defendants to establish the neces-
fide job requirements but is also essential or
Section 5 of the bill differs from Price Wa-
sity or indispensability of their business
indispensable. The sponsors of S. 2104 give
terhouse in two principal ways. First, its use
practices, Section 4 would relieve the plain-
no explanation to how this latter standard
of the term "motivating factor" appears to
tiff. indeed even the court, of determining
can be met, much less any evidence that it
conflict with the requirement that the al-
whether there are any alternative practices
can ever be met. Nor is there any legal
leged impermissible factor must have been a
that would have a lesser impact on minority
precedent explaining how an employer can
substantial or significant factor in the em-
groups. Instead, Section 4 would impose
prove that common employment practices,
ployment process. Thus, a plaintiff can es-
upon the defendant the burden of establish-
e.g., relying on job recommendations, or su-
tablish a prima facie case by showing that
ing that there is no possible alternative to
pervisory evaluations, or the overall employ-
the impermissible factor played a role in the
the way its business is operated that might
ment process itself, are essential. Thus, at a
minds of any person involved in the deci-
lessen the adverse impact upon protected
minimum, employers without an effective
sional process, no matter how insignificant
groups.
quota system in place would face unpredict-
the role may be. There is simply no reason
In this regard, it is interesting that propo-
able and extremely risky prospects of litiga-
to shift the burfen of proof to the employer
nents of S. 2104 attempt to justify its shift-
tion.
based on trivial or insubstantial evidence.
ing of the burden of proof to the employer
Effective business planning requires rea-
Second, Section 5 goes substantially
by observing the virtual impossibility of
sonably accurate predictions about the legal
beyond the position of Justice Brennan and
proving a negative fact, i.e., the absence of
effect of employment decisions. The legal
his colleagues in Price Waterhouse. As noted
any conceivable business justification for a
uncertainties implicit in the defense burden
above, Justice Brennan's plurality decision
challenged practice. As the foregoing indi-
imposed by Section 4 would deprive busi-
permitted the defendant to absolve itself of
cates, Wards Cove never imposed such an
nesses of the ability to make such predic-
any laibility if it could carry the substantial
3152
CONGRESSIONAL RECORD
March 26, 1990
burden of proving that the prohibited.
workplace. If employers are given prompt
ployees to accept a reasonable settlement
factor did not alter the ultimate decision. As
notice of a problem by the early filing of a
offer-the employee pays neither court
written. Section 5 only allows-the defendant
charge, they can correct it and provide reas-
costs nor attorneys' fees while the Equal
to reduce its financial exposure with proof
nable compensation to any victims of dis-
Employment Opportunity Commission han-
that the impermissible motive had no actual
crimination. Without prompt notice, the
dles the charge. Claims are not likely to be
effect on the employment decision in ques-
problem may go uncorrected, and employ-
tion. The defendant would still be found
er's back pay liability will be increased un-
settled where there is such a significant
liable for employment discrimination and
justifiably. Moreover. by unnecessarily ex-
"upside" and no corresponding "downside"
to litigating.
required to pay the plaintiff's legal fees no
panding an employer's back pay liability,
matter how strong its evidence that the
this extended limitations period may well
Recent experience in California has
plaintiff was not denied any employment
impede another fundamental purpose of
shown that the availability of compensatory
opportunity for a prohibited reason.
Title VII-conciliation and settlement of
and punitive damages turns employment
This latter result of Section 5 is a dramat-
cases.
litigation into a high-stakes lottery in which
ic alteration of Title VII. As originally en-
Title VII's 180-day limitations period has
everyone-employees, employers, and the
acted, it was clear that Title VII only pro-
served both employers and employees well
courts-loses. Once compensatory and puni-
hibited discriminatory actions, not
for over 25 years. The same 180-day rule ap-
tive damages became available in California,
thoughts. As Justice O'Connor observed, in
plies under the National Labor Relations
wrongful discharge litigation went out of
response to claims that Title VII would
Act and has succeeded in protecting employ-
control. The courts were overwhelmed with
becomes a "thought control bill," the influen-
ee rights under that Act for more than 50
cases, and juries seemed to lose touch with
tial Senator Case stated that "There must
years. We are aware of no public outcry or
reality. Between 1980-1986, employees won
be some specific external act, more than a
need for á change in Title VII's statute of
more than 70 percent of the cases tried
mental act. Only if he does the act because
limitations and fail to see any benefit from
before juries, and the average award was
of the grounds stated in the bill would there
this dramatic and unwise change.
more than $545.000.' Million-dollar verdicts
be any legal consequences." 100 Cong. Rcc.
D. Section 8: Remedies
to,single plaintiffs were not uncommon, and
S 7254 (1964). Section 5 would impose a
one verdict in Santa Clara County exceeded
Although the sponsors of this bill-claim
finding of liability and attorney's fees upon
$50 million. Haun V. NEC, Case No.
that it represents merely a "technical resto-
employers even in the absence of a finding
(1986). Punitive damages com-
ration" of the law and an attempt to fill
that any employment decision was brought
prised a big part of these awards. The aver-
"gaps" in the law, in fact Section 8 consti-
about by illegal motivation.
age 'punitive damage award was over
tutes a wholesale revision of Title VII's en-
Finally, from a business perspective, busi-
$520,000. Rand Study at p. 25; see also Stem-
forcement provisions by providing for jury
nesses cannot control the thoughts of each
ming the Tide at p. 406 (the average puni-
trials as well as awards of both compensato-
and every employee involved in the decision
tive damages award in 'I982-1986 was
ry and punitive damages. The rationale for
making process. The best an employer can
$494,000). In recognition of the problems
this radical change is to "make the remedies
do is to establish an employment process
that these irrational verdicts created, the
available for sex, religion and ethnic dis-
that, through an effective system of checks
California Supreme Court recently deter-
crimination claims under Title VII the same
and balances, prevents decisions from being
mined that compensatory and punitive dam-
as the remedies now available under Section
made for illegal reasons. If an employer is
ages should not be recovered in most wrong-
1981 for racial discrimination." This ill-con-
successful in this endeavor, it should be re-
ful discharge cases. Foley V. Interactive
ceived attempt to alter dramatically the
warded, not penalized, by the law.
Data, 47 Cal. 3d 654'(1988).
Title VII landscape should be rejected.
C. Section 7: Statute of Limitations
A major problem with punitive damages is
There is no good reason why the remedies
available under Title VII should mirror the
the lack of any guidance to juries as to
Although advertised as a response to Lor-
when and in what amounts punitive dam-
ance V. AT&T Technologies, 109 S. Ct. 2261
remedies "available under Section 1981.
(1989), Section 7 of the bill represents a
Indeed, the opposite is true-there are good
ages should be awarded. As Professor Gould
noted, "Juries in these cases often impose 11-
major rewrite of Title VII by allowing a
reasons why the remedies should differ. Sec-
charge to be filed at any time within two
tion 1981 is not coextensive in its coverage
ability and large damage awards according
years of the time an unlawful practice oc-
with Title VII. Section 1981 covers only
to their own standards of fairness rather
curred "or has been applied to affect ad-
racial discrimination and is applicable to all
than the legal instructions provided by the
employers; while Title VII establishes a co-
judge." Stemming the Tide at p. 406. This
versely the person aggrieved, whichever is
later." Under current law, charges must be
ordinated mechanism for remedying em-
creates not only greater uncertainties for
filed within 180 days after an employee re-
ployment discrimination. Unlike Section
business planners but also great inequities
ceives notice of an unlawful employment
1981, Title VII offers victims of discrimina-
between successful plaintiffs who may re-
tion assistance in investigating their claims,
ceive widely varied awards based on similar
practice. Delaware State College V. Ricks,
competent counsel to represent them, and a
conduct and harm. The standard articulated
449 U.S. 250 (1980). Sections 7(a)(1) and
(a)(2) of the bill would dramatically extend
waiver of court costs. This comprehensive
in the bill do little to resolve this concern.
Although the bill's standard tracks the
Title VII's statute of limitations, without
scheme is designed to facilitate prompt reso-
any justification: Section 7(a)(1) would
lution of employment disputes, with an em-
standard articulated by the Supreme Court
extend the time limits for filing a charge
phasis onconciliation and settlement. Sec-
in Smith V. Wade, U.S. 30 (1983), it pro-
from 180 days to two years. Section 7(a)(2)
tion 1981, on the other hand, merely pro-
vides little guidance to courts or juries as to
would extend that time limit even further
vides a private right of action, without any
when punitive damages should be awarded.
by. starting the running of the limitations
administrative support mechanism. These
Indeed, because the bill adopts a' "reckless
period at the time that the adverse action
differences underlie the distinctions be-
disregard of the rights of others" standard,
impacts the employee, rather than the time
tween the remedies available. Indeed, it was
and because international discrimination
that the employee has notice of the adverse
on the basis of these differences that a
necessarily involves a disregard of others'
action. In essence, Section 7(a)(2) would
unanimous Supreme Court first recognized
rights, punitive damages would seem to be
overrule Delaware State College V. Ricks.
the availability of compensatory and puni-
available in virtually every-case involving in-
There is no basis for this dramatic exten-
tive damages in Section 1981 actions. John-
tentional discrimination. Surely, the spon-
sion of Title VII's time limits. A primary
son V. Railway Express, 421 U.S. 460 (1975).
sors of the bill did not intend this result.
goal of Title VII is the prompt resolution of
As the court noted "the remedies available
Compensatory and punitive damages are
employment discrimination claims. This
under Title VII and under Section 1981, al-
simply a bad idea in Title VII litigation. By
goal not only advances the potential for rec-
though related, and although directed to
producing unreasonably large verdicts, they
onciliation and the reestablishment of a
most of the same ends, are separate, dis-
will increase the costs of goods and services:
nondiscriminatory work relationship but
tinct, and independent." Id. at 454
make the market less efficient, and reduce
also diminishes the chance of harm to inno-
Rather than efféctuating the purposes of
the availability of jobs. They will encourage
cent coemployees,- whose career and other
the Title VII, the availability of compensa-
employers to retain incompetent employees
expectations are often built on prior em-
tory and punitive damages will undermine
for fear of litigation, thereby making the
ployment decisions. Permitting an employee
the Act's goals-by impeding the prompt
work force as a whole less productive. These
to wait for more than two years before
resolution of employment disputes through
are real, weighty concerns. As the Fole
filing a charge of discrimination is wholly
,conciliation and settlement. The availability
court recently noted, "the expansion of ter
inconsistent with the goal of prompt resolu-
of compensatory and punitive damages will
remedies in the employment context has P
tion of employment disputes. Moreover. it is
provide an irresistible incentive to litigate.
tentially enormous consequences for th
simply unfair to permit an employee to wait
Employees ar unlikely to accept reasonable
to exercise a right while the memories of
pretrial settlement offers if they know that
witnesses fade; documents are lost or mis-
there is a possibility that they will be
'J. Dertouzos, The Legal and Economic Conse
quences of Wrongful Termination," Rand Corpors
placed. and back pay is accruing. An individ-
awarded a windfall in the form of punitive
tion Study R-3602-ICJ (1988): ("Rand Study
ual should not be permitted to "grow" po-
damages if they go to trial. This is particu-
Gould. Stemming the Wrongful Discharge Tide:
tential back pay award while the employer
larly. true under Title VII because the
Case for Arbitration, 13 Emp. Rel. LJ. 404 USE
goes without notice of problem, in the
system contains no incentives for the em-
("Stemming the Tide").
March 26, 1990
CONGRESSIONAL RECORD - SENATE
S 3153
stability of the business community.' 47
change apparently is intended to permit
Cal. 3d at 669.
Title VII to circumvent the holding of
versed Indeed, we note that the Attorneys
Moreover, punitive damages are at odds
Marek V. Chesny. Thus, if Section 9 is en-
General in more than 42 states, three pro-
with a fundamental premise of Title VII+
acted. Title VII plaintiffs will be free to
tectorates, and one major city filed amicus
that victims of discrimination be compensat-
reject Rule 68 settlement offers without any
briefs supporting the result reached by the
ed for the Injuries that they actually suffer.
fear of the loss of attorneys' fees should
court in Evans. V. Jeff D. That decision is
Punitive damages are a windfall to plain-
they not recover more than the offered
correct and should be permitted to stand.
tiffs, who are entitled to receive full com-
amount at trial.
Moreover although the bill's sponsors
pensation for their injuries, but nothing
This attempt to reduce the risk of rejec-
suggest that Section 9(4) is limited to court
more. Title VII currently provides victims of
tion of a reasonable settlement offer is both
ordered consent decrees, the language of
discrimination with adequate compensation
misguided and contrary to the purposes of
Section 9(4) is not narrowly drawn. Section
for their injuries and, thus, punitive dam-
Title VII. As previously noted, one of the
9(4) refers to a "consent order or judg-
ages are not necessary to fill any "gap."
fundamental goals of Title VII is the
ment." As drafted, It could easily be read to
The proponents of compensatory and pu-
prompt resolution of employment disputes
apply to the settlement of any Title VII
nitive damages argue that the availability of
through conciliation and settlement. Sec-
claim. For obvious reasons, this result would
these remedies will have a desirable deter-
be folly. Experience has shown that attor-
tion 9 undercuts this goal by making rejec-
rent effect: However, given the skyrocketing
tion of reasonable settlement offers risk-
neys' fees awards in single plaintiff Title
costs of employment litigation, no further
free to Title VII plaintiffs. It will also result
VII actions often dwarf the amounts recov-
deterrent is necessary Experience has
in unnecessary, costly litigation. An individ-
ered by plaintiffs. H. Newburg. Attorney Fee
shown that the average cost of defending a
ual should not be. permitted to recover at-
Awards, ch. 11 (1986). Given this large expo-
single plaintiff employment discrimination
torneys' fees and costs for work performed
sure, few defendants would be willing to
action through trial can be between
after rejection of a settlement offer where
settle single plaintiff cases unless they could
$100,000 and $150,000, and often it is much
he does not recover more than the offered
obtain. a waiver of any attorneys' fees
more. Of course, the employer must also
amount at trial. Under these circumstances,
claims Thus, by foreclosing settlement of
pay the employee's attorney's fees and costs
the settlement offer would have fully com-
fee issues as part of a package settlement,
pensated the individual for his losses and
Section 9(4) would greatly impede settle-
if the employee prevails. Thus, an employer
who discriminates is facing at least
should have been accepted. Nor should de-
ment of single plaintiff Title VII cases. The
$200,000-$300,000 in litigation costs alone.
fendants be required to pay attorneys' fees
bill's sporisors surely cannot intend this
result.
This is more than ample deterrence for any
to plaintiffs on amounts expended to prose-
employer.
cut post-offer claims because such claims
II. CONCLUSION
Finally. we note that this issue has recent-
are, by definition, worthless. Thus, the
The sponsors of S. 2104 avidly assert that
ly been debated by the Senate in the con-
changes proposed by Section 9 are unwise
their bill is intended to overturn a number
text of the Americans With Disabilites Act
and unwarranted and should be rejected.
of recent Supreme Court decisions and Γe,
(ADA). For many of the reasons articulated
The Chamber also has serious concerns
store the law to its prior state. As the previ-
above, Congress determined that compensa-
about Section 9(4). Section 9(4) of the bill
ous discussion demonstrates, however, this
tory and punitive damages were not appro-
would foreclose court approval of Title VII's
bill would go much further. Indeed, S. 2104
priate in the employment discrimination
settlements unless "a waiver of all or sub-
represents a blatant effort to inject con-
context. Indeed, Senator Durenberger ex-
stantially all attorneys's fees was not com-
cepts into the law that are directly in con-
plained the elimination of the compensato-
pelled as a condition of settlement The
flict with the principles upon which Title
ry and punitive damages provision from
bill's sponsors argue that this section is in-
VII was founded, including, most important-
ADA as follows:
tended to overrule Evans V. Jeff D., 475 U.S.
ly, the principle of basing employment deci-
We also took great effort to address the
717 (1986), and that it would simply bar
sions on merit and merit alone. This effort
concerns many had over the punitive nature
"forced" waivers of attorneys' fees claims in
to alter the fundamental precepts of Title
of the remedies section. Instead of allowing
consent. decree settlements. But the lan-
VII law, as articulated by Congress and the
punitive and compensatory damages as
guage of Section 9(4) goes far beyond that
Supreme Court since 1964, threatens to
originally introduced, the bill before us
modest objective and should: in any event.
make humerical quotas the very artificial
today parallels current civil rights legisla-
be rejected.
"masters of reality" originally condemned
tion under Title II and VII of the Civil
There is no good reason to overrule Evans
in the Griggs decision.
Rights Act of 1964
This change will help
V. Jeff D. Contrary to the impression created
The misguided notion that appears to un-
avoid some of the excessive and unnecessary
by the rhetoric supporting Section 9(4),
derlie much of the bill is the conclusion that
litigation the original bill would have
Evans V. Jeff D. does not mandate "forced
Title VII is not working well. However,
caused. (Emphasis added).
waivers" of attorneys' fees claims. In Evans.
there is no empirical basis for this assump-
Vol. 135 Cong. Rec. No. 112, S 10721 (Sept.
V. Jeff D., the Supreme Court merely held
tion. Moreover. anyone with even rudimen-
7. 1989) (Statement of Senator Duren-
that a District Court has the power to ap-
tary knowledge of the changes that Title
berger). This approach was fully debated
prove a consent decree settlement that in-
VII has wrought in the American workplace
and rejected last fall. and there is no reason
cludes a waiver of attorneys' fees. Thus,
knows that Title VII has been and contin-
Evans V. Jeff D, does not stand for the prop-
to reopen that issue here.
ues to be a powerful vehicle for the eradica-
osition that parties to a Title VII must
E. Section 9: Attorneys fees
waive their attorneys' fees; rather, it holds
tion of employment discrimination. In light
We have serious concerns about the bill's
only that they may waive those claims.
of this history of progress, it seems that the
prime beneficiaries of the bill would be the
attorneys fees provisions. First, Section 9 of
Thus, plaintiffs and their counsel remain
the bill will have a dramatic effect on settle-
free to reject any settlement offer they
lawyers who would reap potentially vast
ment offers under Rule 68 of the Federal
deem unreasonable. In addition, they may
monetary rewards from the expanded incen-
Rules of Civil Procedure. Rule 68 provides
address limitations on the waiver of fees or
tives for litigation that the bill provides.
Most importantly, the changes to Title
that if a timely pretrial offer of settlement
the ultimate allocation of settlement pro-
VII sought in this bill offend the basic
is not accepted and "the judgment finally
ceeds in the event of such a waiver in their
premise of equality upon which our demo-
obtained by the offeree is not more favor-
retainer agreements.
cratic and constitutional society is founded.
able than the offer, the offeree must pay
This is a sound, reasonable result. There is
the costs incurred after the making of the
no good reason for parties to Title VII liti-
Although the substitution of quotas for
merit can never be justified, it is particular-
offer." The purpose of Rule 68 is to encour-
gation to be foreclosed from waiving attor-
ly inappropriate in this time of intense and
age voluntary settlements and relieve over-
neys' fees claims as part of the negotiated
growing international competition. The
crowded court dockets by creating a disin-
settlement. To the contrary. there are many
touchstone of any national legislation to be
centive to unreasonable rejections of fair
good reasons for parties to be permitted to,
passed by this or any ensuing Congress
settlement offers.
and perhaps encouraged to, waive fees
should be the removal, not the creation: of
In Marek V. Chesny, 473 U.S. 1 (1984). the
claims during settlement negotiations. For
artifical barriers to merit based on employ-
Supreme Court held that a party who re-
many Title VII actions, particularly those
ment.
jects a Rule 68 settlement offer and thereaf-
seeking injunctive relief, the attorneys' fees
ter is awarded less than the offered amount
awards are the largest monetary exposure
at trial cannot recover either fees or costs
facing defendants. Obviously, to the extent
STATEMENT OF DONALD B. AYER, DEPUTY Ar-
for any post offer work, where the statute
that plaintiffs are permitted to waive all or
.TORNEY GENERAL, BEFORE THE COMMITTEE
authorizing recovery of attorneys' fees de-
part of those claims, Title VII actions will
ON LABOR AND HUMAN RESOURCES, FEBRU-
fines attorneys' fees as part of the "costs."
be more easily settled. Indeed, foreclosing
ARY 27, 1990
Title VII-currently defines attorneys fees as
any waiver of attorneys' fees would often
Mr. Chairman, distinguished members of
part of the costs. 42 U.S.C. 2000e-5(k). By
pose an absolute barrier to settlement. In
the Senate Committee on Labor and Human
striking out the phrase "as part of the"
Evans V. Jeff D., the court recognized these
Resources:
from Title VII's costs provisions, Section
problems and reached the correct result. We
It is an honor to appear before you today
9(3) makes recovery of attorneys' fees inde-
have heard no public outcry against that de-
to testify regarding the U.S. Supreme
pendent of the recovery of costs. This
cision and fail to see why it should be ré-
Court's rulings last term involving civil
3154
CONGRESSIONAL RECORD SENATE
March 26, 1990
rights issues, and S. 2104, entitled the Civil
The Court held that Section 1981 is limited
Rights Act of 1990. The Administration has
by its terms to prohibiting discrimination in
precise litigation. In addition, a rule that
a strong commitment to the civil rights of
"mak[ing] and enforc[ing] contracts," and
limits challenge to the period immediately
all people. We believe that there must be
does not extend to "problems that may arise
following adoption of a seniority system will
strong remedies to root out discrimination
later from the conditions of continuing em-
promote unnecessary and unfocused litiga-
wherever it may exist. Unfortunately,
ployment." Patterson, U.S. at
tion. Employees will be forced to challenge
109
racism and bigotry cannot be viewed as
S. Ct. 2372. Thus, the Court held, the stat-
the system before it has produced any con-
wholly problems of the past. As the Presi-
crete impact, or forever remain silent. Other
ute prohibits discrimination, whether gov-
dent said in his State of the Union message:
ernmental or private, in the formation of a
employees, who are hired after the statute
"Every one of us must confront and con-
contract, and in the right of access to a legal
has run following adoption of a seniority
demn racism, anti-semitism, bigotry. and
process that will enforce established con-
system, will be barred from ever challenging
hate. Not next week, not tomorrow, but
tract obligations without regard to race. Ac-
the adverse consequences of that system. re-
right now. Every single one of us."
cording to the Court, however, the plain-
gardless how severe they may be. Such a
We congratulate the Senate for passing,
tiff's allegations of harassment on the job
rule fails to protect sufficiently the impor-
with Administration backing, the Hate
addressed only conditions of employment
tant interest in eliminating employment dis-
Crimes Statistics Act, which, once enacted,
and were not actionable pursuant to Section
crimination that is embodied in Title VII.
will help us to get a better picture of this
1981.
The Administration therefore supports an
problem and to focus our resources where
The amicus brief filed by the Department
amendment to section 706(e) of Title VII of
they are most needed. In the first year of
of Justice, on which my name appears,
the Civil Rights Act of 1964 that would re-
this Administration, the Department of Jus-
argued for a somewhat broader reading of
start the period for filing a charge each
tice indicted some 89 defendants in 56 sepa-
Section 1981, which would have extended its
time an employee was injured by the appli-
rate cases for criminal civil rights violations.
coverage to claims of harassment that
cation of a seniority system that was alleged
We filed or participated. in 34 cases under
would constitute a violation of state con-
to have been adopted with disciminatory
the new Fair Housing Act amendments,
tract law. Our review of the cases applying
intent.
which only became effective as of March 12.
Patterson over the last eight months fur-
We urge Congress to move quickly to
And we filed & dozen employment discrimi-
ther leads us to the, conclusion that the
enact these two important changes. At the
nation cases. As our activities suggest, we
Court's reading leaves a gap in the fabric of
same, we strongly believe that four other
are using vigorously the tools available to us
our civil rights laws that must be filled. We
major changes proposed by S. 2104 should
and, for the most part, we find those tools
therefore support corrective legislation to
not be adopted. We are convinced that three
effective.
ensure that section 1981 will apply to the
of last Term's decisions, Wards Cove Pack-
The Supreme Court last Term issued some
performance, breach, and termination of
ing Co. v. Atonio, - U.S. 109 S. Ct. 2115
thirteen decisions that touched one aspect
contracts to the same extent that it does to
(1989); Martin v. Wilks, - U.S. 109 S. Ct.
or another of civill rights law. In some of
their making and enforcement. At the same
2180 (1989); and Price Waterhouse U. Hop-
these cases, the government had urged the
time, we believe that it is appropriate to
kins, - U.S. 109 S. Ct. 1775 (1989),
position adopted by the Court. In others,
codify the holding of Runyon V. McCrary,
should be left Intact.
the Court disagreed with the government.
427 U.S. -160 (1976), that section 1981 pro-
In Wards Cove, the Court addressed three
Thereafter, the President and Attorney
hibits private, as well as governmental dis-
Important issues concerning the burdens of
General both pledged last June that the Ad-
crimination.
proof in a lawsuit alleging that an employ-
ministration would carefully monitor the
In Lorance, supra, female employees chal-
er's hiring practices have had the effect of
application of these decisions in the lower
lenged a seniority provision pursuant to
discriminating in violation of Title VII.
courts to determine their effect on meritori-
Title VII, claiming that it was adopted with
After reaffirming that statistics may-form
ous civil rights claims and respond accord-
an intent to discriminate against women. Al-
the basis for a prima facie case of disparate
ingly.
though the provision treated all similarly
impact, and that the statistics must com-
We have done exactly that Based on our
situated employees alike, it produced demo-
pare the employer's workforce to the pool
own studies and comments from groups, in-
tions for plaintiffs, who claimed that the
of qualified job candidates, the Court ad-
cluding the NAACP Legal Defense and Edu-
employer had adopted it with the intent to
dressed the issue of causation. The Court
cation Fund, we have concluded that of the
discourage women from entering a particu-
held first that a plaintiff must identify the
five most significant decisions, two reach re-
lar line of employment.
specific employment -practices that have
sults that merit legislative action. Thus, we
The Supreme Court held that the claim
produced the challenged disparate impact.
believe that Congress should amend the law
was barred under Title VII's statute of limi-
Thereafter, the Court addressed the bur-
to require a different result from that
tations, because the time for plaintiffs to
dens imposed on the parties once a plaintiff
reached by the Supreme Court in Patterson
file their complaint began to run when the
has established a prima facie case of dis-
V. McLean Credit Union,
U.S.
employer adopted the allegedly discrimina-
crimination. It held that the employer's
109 S. Ct. 2363 (1989), and Lorance V. AT&T
tory seniroity system. The Court distin-
burden is to. produce evidence that the
Technologies, Inc.,
U.S.
109 S.
guished. the -situation where a seniority
"challenged practice pursues, in a signifi-
Ct. 2261 (1989). Accordingly, the Adminis-
system discriminates on its face, acknowl-
cant way, the legitimate employment goals
tration supports legislation that has been
edging that in such a circumstance each ap-
of the employer." Wards Cove, - U.S.
introduced by Senators Thurmond, Dole,
plication of the policy constitutes a new vio-
109 S. Ct. at 2125-26. Finally. the Court
Hatch and Coats (S. 2166) to address the
lation. However, where, as in the case before
held that the burden of persuasion always
problems created by these cases. With
it, the provision is neutral on its face (al-
remains with the plaintiff, and that the
regard to three other cases, based on our
though discriminatory both in purpose and
plaintiff may defeat the. employer's evi-
review of how these rules have been ap-
effect). the Court concluded that only the
dence by showing that reasonable alterna-
plied.' we see no need for corrective action.
initial enactment constitutes a violation.
tives would serve the employer's purpose
In supporting legislative action in some
The United States, and the EEOC. filed
equally well.
areas and opposing It in others, we are
an amicus brief. on which my name ap-
This seems to us to be a sensible and effi-
guided by a fundamental principle that
peared, supporting the plaintiffs. We argued
cient allocation of litigation responsibilities.
grows out of our history, and is now a part
that the plaintiffs' demotions were not
Asking the plaintiff to identify. the specific
of the fabric of our law: that people should
merely the inevitable effects of the prior al-
practices that produce a disparate impact
not be judged or dealt with according to the
legedly discriminatory adoption of the se-
before employers are asked to justify them
color of their skin or certain other irrele-
niority system. but were instead direct,
is consistent with traditional rules allocat-
vant personal traits. We take this as a
present applications of the seniority system,
ing burdens of proof. This allocation of re-
common value that all decent people can
the effects of which had until then been
sponsibilities strikes us as more efficient
agree upon. I will begin by discussing those
only theoretical, and, as such, were "unlaw-
than allowing plaintiffs simply to allege
areas where we think this principle dictates
ful employment practices" that independ-
that a hiring system produces a disparate
the enactement of new legislation.
ently triggered Title VII's statute of limita-
impact and forcing employers to demon-
In Patterson, supra, an employee brought
tions.
strate that each individual employment
an action pursuant to 42 U.S.C. 1981. alleg-
The rule adopted by the Court could have
practice within that system does not have a
ing that her employer has harassed her on
the result of shielding intentionally dis-
disparate impact. In view of the liberal dis-
the job. failed to promote her. and ultimate-
criminatory seniority systems from attack
covery rules and the record-keeping require-
ly discharged her, all because of her race.
by.people who never have had an opportuni-
ments of the Uniform Guidelines on Em-
ty to challenge them. The discriminatory
ployee Selection Procedures, 29 C.F.R.
reasons for adoption of a seniority system
§ 1607.1 et seq. (1988). we do not think that
1 These decisions are Wards Cove Packing Co. V.
may become apparent only when the system
this requirement of specificity should
Atonio. U.S. 109 S. Ct. 2115 (1989): Martin
is finally applied to affect the employment
unduly burden plaintiffs.
V. Wilks. U.S. 109 S. Ct. 2180 (1989): and
Price Waterhouse V. Hopkins.
U.S.
109
S.
status of the employees that it covers. More-
Indeed, the Court's prior "disparate
Ct. 1775 (1989). We also oppose any legislation
over, such an application surely focuses the
impact cases have always focused on the
aimed at City of Richmond V. J.A. Croson Co.,
controversy between an employer and an
impact of particular hiring practices on em-
U.S. 109 S. Ct. 706 (1989).
employee more sharply and permits more
ployment opportunities for minorities,'
March 26, 1990
CONGRESSIONAL@RECORD SENATE
3155
Wards
Cove,
U.S.
at
109
S.
Ct.
2124,
lateral
attack
doctrine,
pursuant
to
which
and plaintiffs have always targeted those
based solely:o the discriminatory thoughts
some courts had held that once a decree was
of an agent of the employer, which have no
specific practices. See Griggs v. Duke Power
entered, it could not be challenged, even by
Co., 401 U.S. 424 (1971) (high school diplo-
consequence to the plaintiff. For: contrary
individuals who had not been parties to the
to the Court's conclusion that Title VII is
ma requirement); Dothard v. Rawlinson,
original lawsuit.
not violated where the employer proves that
433 U.S. 321 (1977) (height and weight re-
The Court's decision turned on a straight-
the adverse action would have resulted even
quirements for prison guards); Albemarle
forward application of the Federal Rules of
in the absence of any discriminatory motive,
Paper Co. v. Moody, 422 U.S. 405 (1977) (em-
Civil Procedure and underlying notions of
the proposed legislation recognizes a viola-
ployment tests and seniority systems); Con-
due process. The Federal Rules establish
tion and a damage remedy in that circum-
necticut v. Teal, 457 U.S. 440 (1982) (written
procedures for joinder of all interested par-
stance. I believe that this would be the first
examination); Watson v. Fort Worth Bank
ties in a case. Under those procedures,
instance ever in American law where dam-
& Trust, 487 U.S. 977 (1988) (subjective
anyone who is not joined in a lawsuit, and
ages could be recovered solely for thinking
judgment of supervisor).
given an opportunity to appear in court to
bad thoughts.
In our view, the Court also correctly held
protect his or her rights, cannot be bound
We also need to be clear on one other
that its formulation of the applicable sub-
by the final judgment. The Court's decision
point. As this Committee is aware, the Presi-
stantive standard is fully justified as an ap-
is a reaffirmation of the fundamental
dent, and the Attorney General have
propriate balancing of the interests of em-
notion that everyone, regardlessof race or
strongly supported the Americans With Dis-
ployers and employees. Courts have used
gender, it entitled to his or her day in court.
abilities Act (ADA), and have worked closely
varying terminology in defining that stand-
The Department of Justice advocated the
with Congress, and the disability communi-
ard. The standard molded by the Court
position adopted by the Court. I did not
ty to devise the version that passed the
from those prior formulations has sufficient
work on that brief, but I signed a similar
Senate with Administration support. I was
teeth to ensure that employers do not use
brief arguing the same approach a year
not personally a party to that process. Ac-
practices of dubious business utility, while
erlier in Marino V. Ortiz, 484 U.S. :301
cordingly, others are in a better position to
not pressuring employers to resort to hiring
(1988).
answer detailed questions concerning it.
and promotion quotas, and respecting the
We think tht this decision should have a
However, I do think it is important to make
needs of employers to preserve legitimate
salutary effect. By requiring early joinder of
the following point.
management prerogatives. We find it un-
all those who may be adversely affected by
Title I of the ADA, as agreed to, dealing
likely that this formulation of the standard
a lawsuit, the decision should enable courts
with employment, incorporates by reference
for a business justification will preclude the
to consider the fully range of interests af-
remedies available under Title VII. It was
assertion of meritorious claims, particularly
fected by a proposed decree. The decision
very clear at the time of our discussions
since the plaintiff may still prevail by show-
should lead to fairer, more carefully consid-
that the fact that these remedies were limit-
ing that other reasonable business practices
ered, and unassailable remedies for discrimi-
would satisify the employer's need without
nation. It will discourage defendants from
ed to injuctions, back pay, and other equita-
producing a discriminatory effect.
settling discrimination cases by bargaining
ble relief that can be obtained without trig-
Likewise, we think that the burden of per-
away third party rights, rather than making
gering the Constitution's civil jury require-
ment was critical to the Administration's
suasion remains with the plaintiff through-
whole the actual victual victims of discrimi-
out a disparate impact case, just as it does in
nation: In addition, the participation of all
agreement.
a case alleging intentional discrimination,
of the affected parties in formulation of a
In light of the fact that legislation alter-
see Texas Department of Community Affairs
decree should aid in its implementation.
ing these remedies has now been intro-
Successful, voluntary compliance with Title
duced, our continuing support for the ADA
V. Burdine, 450 U.S. 248, 256-58 (1981), and
VII may depend upon the cooperation of a
hinges on the clarification that the reme-
just as it generally does when causation is
an element of a violation. See Restatement
broad range of individuals. Involving as
dies provisions of the ADA will not be af-
(Second) of torts § 433B (1965). We think it
many of those individuals as possible in for-
fected by the proposed Kennedy-Hawkins
would be unjustifiable to impose a greater
mulating the decree will lead to smoother
amendment of the remedies available under
burden on an employer who is alleged to
and more effective implementation of the
Title VII. This will require amending the
have violated Title VII by employing a prac-
remedy for discrimination
reference to Title VII in the Senate version
tice that produced a disparate impact than
The proposed legislation relating to Wilks
of the ADA: We look forward to cooperating
on one who is alleged to have engaged in
would reverse, in the context of civil rights
with this Committee and others to assure
purposeful discrimination.
consent decrees, the usual practice under
that the goal of bringing 43 million disabled
We are convinced that the Court thought-
our system of civil litigation. Instead of re-
Americans into the mainstream of American
fully balanced the competing interests and
quiring that outsiders be joined by the par-
life through passage of the ADA, a goal that
produced a workable distillation of some
ties to litigation if they are to be bound, the
we all share, is not thwarted by disagree-.
legislation would put the burden on outsid-
ments about other areas of the law.
eighteen years of precedents applying the
disparate impact standard. Indeed, the
ers to inject themselves into a dispute be-
In summary. we believe that the Supreme
Court in large part adopted the approach
tween others. Persons with no current inter-
Court acted prudently and correctly, and in
urged by a brief filed by the United States.
est in issue must be on the lookout for on-
reasonable interpretation of existing stat-
We believe that plaintiffs will be able to
going litigation whose resolution may at
utes and case law, in its decisions in the
pursue successfully meritorious claims, and
some point impact upon them.
Wards Cove, Wilks, and Price Waterhouse
employers will not be unduly burdened in
Neither the burden on these non-litigants
decisions. These decisions should be allowed
defending claims of discrimination and will
to join or be bound, nor the burden on the
to stand.
not be encouraged to resort to quotas to
judicial system of such expanded and unfo-
At the same time, with regard to Patter-
ward off the threat of lawsuits based on
cused lawsuits, is wise as a matter of policy.
son and Lorance, we urge Congress to act
statisical imbalances.
Nor do we believe that it is fair to bind, as
quickly to enact our proposals. It is appar-
At the same time, we believe strongly that
the proposed bill does, anyone who has
ent that the Administration and the spon-
the changes proposed in S. 2104 would have
actual notice of the lawsuit, or who lacks
sors of S. 2104 are in substantial agreement
serious adverse consequences. By altering
actual notice but whose interests are ade-
on these issues, and we propose that S. 2166,
all three of the conclusions reached by the
quately deemed protected by others, or, fail-
the Administration's Bill. therefore be acted
Supreme Court, and placing on the employ-
ing that, wherever "reasonable efforts" are
upon expeditiously.
er the ultimate burden of identifying his
made to give actual notice. Indeed, we be-
I would be pleased to respond to any ques-
own practices leading to a statisical imbal-
lieve that serious due process issues are pre-
tions.
ance and proving them to be "essential" to
sented.
the conduct of his business, the proposal
In Price Waterhouse V. Hopkins;
TESTIMONY OF DAVID A. MADDUX, THE NA-
puts an employer in a. nearly impossible po-
U.S.
109 S. Ct. 1775 (1989). the Court
TIONAL RETAIL FEDERATION. BEFORE THE
sition. It would be difficult for an employer
ruled in favor of a woman who alleged that
COMMITTEE ON LABOR AND HUMAN RE-
not to adopt a silent practice of quota hiring
she had been denied partnership by her ac-
SOURCES, FEBRUARY 27; 1990
and promotion in an effort to protect him-
counting firm on account of her sex. In that
Mr. Chairman and Members of the Com-
self from the real probability of litigation
case, the Court faced a so called mixed
mittee:
and liability wherever a statistical imbal-
motive case in which plaintiff alleged that
I am David A. Maddux. a Partner in the
ance is shown.
her sex had supplied part of the motivation
law firm of Sheppard. Mullin, Richter &
Martin V.1 Wilks, supra, arose in the con-
for her rejection for partnership. The Court
Hampton. I have represented employers in
text of a civil rights action, but it turned on
held that once she had established by direct
labor and employment law matters for the
principles of fairness and access to court
and substantial evidence that sex played a
past thirty years. I started practicing law in
that apply in every area. The Court held
part in the decision, the burden shifted to
1959, which was the year in which the State
that firefighters, who had not been parties
the employer to show that it would have
of California enacted its California Fair Em-
to a consent decree that mandated racial
reached the same direction had sex not been
ployment Practices Act which prohibited
preferences. could have their day in court to
considered.
discrimination in employment. A substantial
contend that the decree violated their civil
The proposed legislation takes the star-
portion of my practice at all times since has
rights. The Court rejected the so called col-
tling step of allowing a damage recovery
involved employment discrimination mat-
3156
CONGRESSIONAL RECORD SENATE
ters before both the California Fair Em-
March 26, 1990
ployment and Housing Commission, the
nonwhites, Filipinos and Alaska Natives)
Equal Employment Opportunity Commis-
with that of the employer's non-cannery
in which the Supreme Court held that an
sion, State Courts and United States Dis-
work force (composed primarily of whites).
employer could not avoid liability in a dis-
trict Courts.
The Supreme Court easily indentified the
parate impact case simply by relying upon
I appear on behalf of the National Retail
logical fallacy associated with the lower
the "bottom line," racially balanced result
Federation 'I am Chairman of its Subcom-
court's reasoning: "Most obviously. with re-
of an allegedly discriminatory promotion
mittee on Wage, Hour and Equal Employ-
spect to the skilled non-cannery Jobs at
practice. In Teal, one part of the promotion
ment Opportunity Law.
issue here, the cannery work force in no
process involved 8 test which had a dispar-
The National Retail Federation is the na-
way reflected 'the pool of qualified job ap-
ate impact on minorities. Analogously, in
tion's largest trade group which speaks for
plicants' or 'the qualified population in the
Wards Cove, the Supreme Court held that
employees who challenge an employment
the retail industry on matters of govern-
labor force." 109 S. Ct. at 2122 (emphasis in
practice should not be able to establish a
mental and public policy. Created by a
original)
disparate impact case simply by showing
recent merger between the American Retail
Its holding on this point is entirely con-
racial imbalance "at the bottom line."
Federation and the National Retail Mer-
sistent with Hazelwood School Dist V.
The point is simple. If an employer cannot
chants Association, the organization repre-
United States, 433 U.S. 299, 308 (1977), in
avoid liability by resting upon a favorable
sents the entire spectrum of retailing, in-
which the Supreme Court held that the
"bottom line" result, an adversely affected
cluding 27 national and 50 state retail asso-
'proper [statistical] comparison [in a dis-
employee should not be able to prove liabil-
ciations. In addition, the Federation mem-
bership encompasses over one million U.S.
parate impact case is] between the racial
ity solely by showing an unfavorable
retail establishments employing nearly 16
composition of [the at-issue jobs] and the
bottom line" result. The real issue is
racial composition of the qualified
whether a particular employment practice
million people and accounts for more than
pop-
one-quarter of the GNP.
ulation in the relevant labor market." Simi-
or selection device has a prohibited effect
I greatly appreciate this opportunity to
larly, in New York City Transit Authority V.
on the protected class. It will be impossible
Beazer, 440 U.S. 568, 585 (1979)2, the Su-
for the Courts to properly decide this issue
appear before you and testify on the Civil
if the plaintiffs can continue to hide it.
Rights Act of 1990. The views I will express
preme Court held that in the absence of re-
Furthermore, the Wards Cove Court's
are based primarily upon my years of expe-
liable labor market statistics, the courts
holding that the burden of proof remains
rience representing retailers, many of whom
may look to statistics that measure the
with the disparate-impact plaintiff at all
are members of the National Retail Federa-
racial composition of "otherwise-qualified
times is perfectly consistent with prior
tion, in employment discrimination matters.
applicants" for the at-issue jobs.
precedent. See, e.g., Watson D. Fort Worth
The Bill has been publicized as a response
Secondly, Wards Core perpetuated the
Bank & Trust, 487 U.S. 977, 108 S. Ct. 2777,
to recent "conservative" attacks by the Su-
long-standing principle that in a disparate
2790 (1988) (O'Connor, J.); Texas Dep't of
preme Court upon Civil Rights in employ-
impact case the plaintiff must demonstrate
Community Affairs v. Burdine, 450 U.S. 248,
ment. In fact, its scope goes far beyond the
the specific employment practice which is
256-58 (1981);5 Croker D. Boeing Co., 662
few recent decisions involving discrimina-
claimed to have the disparate impact on
F.2d 975, 991 (3d Cir. 1981). Section 4 of the
tion in employment decided at the end of
protected class members. The Court said:
Bill will overrule these cases. It is also con-
the last term. In reality it undoes and im-
Consequently, on remand, the courts
trary to Fed. Rule of Evid. 301, which clear-
plicitly overrules a decade of the Court's
below are instructed to require, as part of
ly provides that a shift in the "burden of
Title VII decisions. Much of the precedent
respondents' prima facie case, a demonstra-
going forward with evidence" does not
which this proposed legislation will over-
tion that specific elements of the petition-
impose on a party "the burden of proof in
turn was written and concurred in by the
least conservative members of the Court.
ers' hiring process have a significantly dis-
the sense of the risk of non-persuasion,
parate impact on nonwhites." 109 S. Ct. at
which remains throughout the trial upon
COMMENTS CONCERNING SECTION 4 OF THE BILL
2125
the party on whom it was originally cast."
The practical effect of Section 4 will be to
Section 4 of the Bill would undo Wards
Curiously, the proposed amendment says
codify and drastically alter traditional dis-
nothing about a complaining party's option
Cove by allowing a complaining party to es-
under existing law to challenge a business
parate impact analysis. Under the Act as
tablish that an employment practice or "an
amended, a complaining party could estab-
necessity defense that has been put forth by
overall employment process" (Section 3(o))
lish a prima facie case simply by demon-
the responding party. This option is clearly
is "unlawful" when it results in a disparate
reaffirmed in Wards Cove In fact, it has
strating that a "combination of employment
impact upon a protected group. Since "over-
practices or an overall employment process"
been long established that the complaining
all employment process" is such a broad
party may attempt to prove that "other
had a disparate impact upon a protected
term, an employer could be found liable
group. The employer would then have the
tests or selection devices, without a similarly
under the Act as amended based upon sta-
undesirable racial effect, would also serve
burden to produce evidence and prove by a
tistical disparity that was simply accidental.
the employer's legitimate [business] inter-
preponderance of the evidence that the
Requiring employers to defend against
ests.
Such a showing would be evidence
practice or process in question was "essen-
tial to [employees'] effective job perform-
claims that unidentified employment prac-
that the employer was using its tests merely
tices violate Title VII places them in an im-
as a 'pretext' for discrimination." Albemarle
ance." No other "business necessity" could
be used to defend the practice or process.
possible position. In order to avoid liability,
Paper Co. v. Moody, 422 U.S. 405, 425 (1975).
At the same time, the plaintiff would have
employers would have no option other than
The Act as amended is silent regarding this
no burden to demonstrate which practice
to adopt strict racial quotas at all levels of
element of traditional disparate-impact
analysis.
among a group of practices resulted in the
their organization. This result was by no
disparate impact. Instead, the employer
means the original intent of Title VII. Albe-
In addition, proposed Section 703(k)(2)
marle Paper Co. V. Moody, 422 U.S. 405, 449
provides that "[a] demonstration that an
would have the burden of producing evi-
(1975).
employment practice is required by business
dence and proving with a preponderance of
necessity may be used as a defense only
the evidence that none of its practices or
Wards Cove is also consistent with Con-
against a claim under this subsection." The
process had a disparate impact.
necticut V. Teal, 457 U.S. 440 (1982) a case
term "required by business necessity" is de-
Section 4 of the Bill will also overrule
fined in proposed Section 701(o) (Section 3
Wards Cove Packing Co. V. Atonio, 109 S.
Ct. 2115 (1989) on the premise that it was
Justice Stewart's opinion for the Court was
of the Bill) as "essential to effective job per-
incorrectly decided. To the contrary, Wards
joined in by Chief Justice Burger and Justices
formance." This definition severely limits
Cove, as demonstrated herein, is entirely
White, Marshall, Blackmun. Powell and Rehnquist,
the business necessity defense in disparate
consistent with long-existing judicial au-
and concurred in by Justice Brennan. Justice Ste.
impact cases.
vens dissented.
There are many instances in which em-
thority interpreting Title VII.
"Justice Steven's opinion for the Court was
ployers have non-discriminatory business
In Wards Cove, the Supreme Court began
joined in by Chief Justice Burger and Justices
reasons for taking job action. It would be
its opinion by reaffirming that in order to
Blackmun, Stewart and Rehnquist. Justice Powell
concurred in part and dissented in part. Justices
highly intrusive and simply bad public
make out a statistically-based prima facie
disparate impact case, the plaintiffs must
Brennan, White and Marshall dissented.
policy to inflict liability upon employers by
prove there is a disparity between the racial
, Justice Stewart's opinion for the Court was
restricting the "business necessity" defense
joined in by Justices Douglas and Brennan and con-
to situations in which the employment prac-
composition of the qualified persons in the
relevant labor market and the persons hold-
curred in by Justices Marshali and Rehnquist. Jus.
tice is "essential to effective job perform-
tice Blackmun concurred in the judgment. Chief
ing the jobs at issue.
ance." For example, If the Bill is passed in
Justice Burger concurred in part and dissented in
its present form. employers could be liable
The lower court in Wards Core had erro-
part. Justice Powell took no part in the consider-
neously permitted the employees to make
ation or decision of the case.
thereunder whenever they effect a reduc-
out a prima facie disparate impact case by
Justice Brennan's opinion for the Court was
presenting statistics which compared the
Joined in by Justices White. Marshall, Blackmun
Justice Powell wrote the opinion for a unani-
racial composition of the employer's can-
and Stevens. Chief Justice Burger and Justices
mous Court composed of Chief Justice Burger. and
Rehnquist and O'Connor joined Justice Powell's
nery work force (composed primarily of
dissenting opinion.
Justices Brennan, Stewart, White, Marshall, Black-
mun, Rehnquist and Stevens.
March 26, 1990
CONGRESSIONAL RECORD SENATE
S 3157
tion in force for economic reasons that re-
sults in a disparate Impact upon protected
cannot predict, as it sits here today, the
many situations in which an employer may
ing a fact by a preponderance of the evi-
employees. Thus, a race-neutral reduction
have legitimate nondiscriminatory business
dence is met when the person having the
in force could be cast pursuant to proposed
or public policy reasons for adopting em-
burden persuades the trier of fact that it is
Section 703(k)(1)(A) as an "employment
ployment practices that may have a dispar-
more likely than not that the asserted fact
practice" resulting in a disparate impact on
is true.
ate impact upon one group or another.
the "basis of race, color, religion, sex, or na-
Transportation Management was in
tional origin." This would be true even if,
COMMENTS CONCERNING SECTION 5 OF THE BILL
accord with and relied upon in the United
for example, the reduction in force arose
The practical effect of Section 5 of the
States Supreme Court's decision in Mt.
from contracting out a function which re-
Bill is to provide that a violation of the Act
Healthy City Board of Education v. Doyle,
sulted in a large savings for the employer.
is established when the complaining party
429 U.S. 274 (1977), which dealt with the
In one recent case, Spaulding V. Universi-
demonstrates that a prohibited practice was
discharge of a teacher and the board of edu-
ty of Washington, 740 F.2d 686, cert. denied,
a motivating factor of any employment deci-
sion even though the decision was motivat-
cation's refusal to reinstate him for his ex-
469 U.S. 1036 (1984), certain past and
present members of the University of Wash-
ing by other factors. The Section further
ercising his constitutionally-protected right
provides that if the responding party, usual-
to free speech. The Supreme Court found
ington School of Nursing faculty challenged
the University's compensation practices
ly the employer, "establishes" that it would
that the trial court had erred by not deter-
under 42 U.S.C. § 1983, the Equal Pay Act
have taken the same action in the absence
mining whether the board had shown by a
of any discrimination, then the complaining
preponderance of the evidence that it would
and Title VII of the Civil Rights Act of
party would not be entited to such remedies
have refused reinstatement in the absence
1964. The plaintiffs alleged the University's
as reinstatement and back pay.
of the teacher's protected conduct.
compensation practices discriminated
against them on the basis of sex.
On the other hand, even though the re-
Thus, Price Waterhouse U. Hopkins, in de-
The Court of Appeals affirmed the lower
spondent establishes that it would have
ciding that once a plaintiff in a Title VII
taken the same action in the absence of any
case shows that his or her protected status
court's dismissal of plaintiffs' claims in part
on the ground that the employer was con-
discrimination, under Section 8 of the bill it
played a motivating part in an employment
will still be liable to the complaining party
decision, the defendant may avoid a finding
strained by market forces in setting its
for general compensatory damages (includ-
of liability only by proving that it would
wages. The court opined:
"For Title VII purposes, simply labelling
ing pain and suffering and damages for
have made the same decision even if it had
an employer's action 'policy or practice' is
emotional distress) and punitive damages,
not allowed the protected status to play
all of which can be awarded by a jury.
such a role, was simply swimming in the
not sufficient. What matters is the sub-
This Section has been apparently pro-
mainstream of long-standing judicial au-
stance of the employer's acts and whether
posed to reverse the effect of the United
thority on this issue.
those neutral acts are a non-job-related pre-
text to shield an invidious judgment. [1]
States Supreme Court dicision in Price Wa-
Indeed, the Hopkins opinion was written
Every employer constrained by market
terhouse V. Hopkins, 109 S. Ct. 1775. (1989).
by Justice Brennan and joined in by Jus-
It would however, in reality, change the law
tices Marshall, Blackmun and Stevens. Jus-
forces must consider market values in set-
ting his labor costs. Naturally, market prices
of the land as it has existed in "mixed
tices White and O'Connor concurred. Chief
motive" employment discimination cases for
Justice Rehnquist and Justice Scalia joined
are inherently job-related, although the
many years, and would impose on defendant
Justice Kennedy's dissenting opinion. The
market may embody social judgments as to
the worth of some jobs. Employers relying
employers the burden of general compensa-
Hopkins plurality joined unanimous courts
on the market are, to that extent, 'price
tory and punitive damages in circumstarices
in Mt. Healthy, an opinion participated in by
takers.' They deal with the market as a
where no liability at all would have been
Chief Justice Burger and Justice Brennan,
given, and do not meaningfully have "a
imposed under longstanding legal prece-
Stewart, White, Marshall, Blackmun,
'policy' about it in the relevant Title VII
dent.
Powell, Rehnquist and Stevens and Trans-
sense. Fringe policies, which are discretion-
The so-called "mixed motive" doctrine
portation Management, an opinion partici-
ary, are altogether another matter. Addi-
arose in the context of Section 8(a)(3) of
pated in by all of the above-named Justices
tionally, allowing plaintiffs to estabish rell-
the Labor Management Relations Act which
except Justice Stewart who was succeeded
ance on the market as a facially neutral
made it unlawful to discriminate against
by Justice O'Connor in the Court's October
policy for Title VII purposes would subject
employees based on their union activities or
1981 Term.
employers to liability for pay disparities
sympathies. The National Labor Relations
Thus, it is respectfully suggested that it
with respect to which they have not, in any
Board in Wright Line, Inc., 251 NLRB 1083,
would be the wrong result to impose the
meaningful sense, made an independent
105 LRRM (BNA) 1169 (1980), enforced, 662
threat of serious monetary liability arising
judgment." 740 F.2d at 708.
F.2d 899 (1st Cir. 1981), cert. denied, 455
from general compensatory and punitive
As the Ninth Circuit readily recognized in
U.S. 989 (1982), held that the General Coun-
damages on employers who would have
Spaulding, uncontrollable market forces can
sel of the National Labor Relations Board
taken the same action but for the alleged
result in actions by an employer that have a
had the burden of proving that the employ-
discriminatory motive, in the face of hold-
disparate impact upon a protected class of
ee's protected conduct was a substantial or
ings requiring a contrary result by all of the
employees. Under the amended Act, howev-
motivating factor in the employees dis-
Justices who decided Transportation Man-
er, the University of Washington would
charge. The Board then held that if there
agement, ML Healthy and Hopkins.
probably be found liable, withstanding the
was another legitimate reason for the dis-
In addition, there is a question concerning
fact that It engaged in no "act" with respect
charge the employer could avoid a violation
what burden The Bill proposes to place on
to the complaining parties. This result is
of the Act by proving that the discharge
the defendant by its use of the word "estab-
even more certain given the vague and
rested on the employee's unprotected con-
lishes" in describing the employer's burden
overly broad definition of "group of employ-
duct, and that the discharge would have oc-
in Section 5(b) of The BIll. In the defini-
ment practices" as "an overall employment
curred in any event.
tions section the term "demonstrates" is de-
process." Proposed Section 701(n) (Section 3
The National Labor Relations Board's
fined. "Establishes" is not.
of the Bill).
Wright Line principle was given express ap-
It is also respectfully suggested that it is
Another example arises from Wambheim
proval by the United States Supreme Court
an inappropriate allocation of judicial re-
V. J.C. Penny Co., Inc., 705 F.2d 1492 (9th
in NLRB v. Transportation Management
sources to process burdensome and time-
Cir. 1983) in which the Ninth Circuit consid-
Corp., 462 U.S. 393 (1983). In Transporta-
consuming jury-trial litigation where the
ered whether or not Penny's "head-of-
tion Management, the Court held that even
facts would clearly establish that the em-
household" rule which allowed employees
though the General Counsel of the Board
ployer had a legitimate business reason for
to obtain medical and dental insurance for a
met his burden by proving that the employ-
its employment decision which would have
spouse if the employee earned more than
ee's protected conduct was a substantial or
been made irrespective of the plaintiff's pro-
half the couple's. combined income violated
motivating factor in the discharge of the
tected status.
Title VII.
employee, the employer could avoid a viola-
One could conjure the simple example of
Although the rule clearly had a disparate
tion of the Act by proving by a preponder-
two employees who conspired in a common
impact on female employees the court af-
ance of the evidence that the discharge
scheme to steal from their employer. Once
firmed the trial court's decision that the
rested on the employee's unprotected con-
the employer found out about the scheme,
major cost considerations involved estab-
duct as well and that the discharge would
he would probably terminate both employ-
lished a legitimate business jurstification
have occurred in any event. The Court, rely-
ees. If a jury determined that the employer
for the rule.
ing on National Labor Relations Board
happened to harbor some wholly unrelated
The Bill as proposed would compel a con-
precedent, characterized the doctrine as one
feelings of prejudice against one of the indi-
trary holding and the result would ignore
where the employer could prevail by pre-
viduals, who happens to be a protected class
the economic realities of the situation.
senting an "affirmative defense", which
member. the likley and somewhat nonsensi-
As these examples demonstrate, there is a
under normal rules of burden of proof.
cal result would be that he or-she would be
plethora of situations in which preservation
placed upon the employer the burden to
entitled to recover general compensatory
of a broader business necessity defense is
sustain its affirmative defense by a prepon-
and punitive damages. Of course, the equal-
compelled by sound public policy. Congress
derance of the evidence. The burden of prov-
ly guilty non-protected employee would be
3158
CONGRESSIONAL RECORD - SENATE
entitled to nothing. Clearly such a result
March 26, 1990
has not logical support.
the possibility of inconsistent results as be-
tween judge and jury.6
affiliated with an additional 158,000 busi-
COMMENTS CONCERNING SECTION 8 OF THE BILL
COMMENTS CONCERNING SECTION 9 OF THE BILL
nesses through its Associations Council and
the National Industrial Council.
The practical effect of the proposed
The practical effect of Section 9 of the
The Society for Human Resource Manage-
mendment to Section 706(g) of the Act
Bill is to prohibit a "waiver" of attorney's
ment is the world's largest association for
(Section 8 of the Bill) will be to provide for
fees as a condition of settlement of a Title
human resource professionals with over
jury trials and compensatory and punitive
VII action. As 8 result of proposed Section
damages in cases of intentional discrimina-
706(k), it is likely that settlement of actions
44,200 members representing employers
who employ over 53 million individuals. As
tion. In this connection, It should be noted
that have been commenced under the Act as
the leading professional association for
that essentially all individual disparate
amended will be significantly discouraged. It
human resource managers, SHRM has a
treatment cases involve intentional discrimi-
has long been the practice of parties in em-
nation. The result of the proposed amend-
ployment discrimination suits to combine a
vital interest in legislation impacting on
almost every aspect of the human resource
ment will be to take federal discrimination
settlement of all claims, as well as any attor-
function
ney's fees, into a lump-sum figure. General-
cases out of the expert hands of the EEOC
ly, the defendant provides the plaintiff and
Both SHRM and NAM have a long back-
and place them in the private hands of liti-
his or her attorney with a check and leaves
ground in promoting fair employment prac-
gants and their lawyers. Once such cases are
it to the plaintiff and the attorney to divide
tices. NAM's involvement in this area goes
settled with the payment of money, they
back to the 1960s when it was instrumental
the proceeds. The Act as amended prohibits
will be dismissed and the facts surrounding
in promoting Plans for Progress, the fore-
the "waiver" of attorney's fees as a condi-
the allegedly discriminatory behavior of the
tion of the settlement. This provision will
runner of our affirmative action policies.
And its efforts continued through the 1980s
employer will be effectively buried. (It is
likely create tremendous uncertainty re-
when NAM took the lead in establishing the
standard practic in most cases for employers
garding appropriate attorney's fees at a
consensus which preserved the policy of af-
to insist upon confidentiality provisions in
stage in the proceeding when both parties
firmative action as a viable component of
settlement agreements). Although the pri-
are earnestly seeking to conclude litigation.
our nation's employment structure. SHRM's
vate litigant and his or her lawyer may be
It is foreseeable that although the parties
efforts in this area are as equally long-
better off after the case has been settled,
in a particular action may agree upon the
standing. SHRM played a vital role in train-
there is absolutely no guarantee that the
amount of money the defendant should pay
ing the human resources profession to un-
employer will not continue discriminating
the plaintiff in settlement of his or her legal
derstand and implement the concepts of
against other employees who were not party
claims, the parties may be thousands of dol-
equal employment opportunity in the work-
to the litigation.
lars apart with respect to the amount of at-
place when the laws were first passed. In
Punitive and compensatory, damages are
torney's fees the plaintiff's attorney should
the 1980s SHRM's activities included the
also available for violations of California's
receive. Disagreements between the parties
preparation and filing of an Amicus Curiae
(and their lawyers) about this issue will in-
primary antidiscrimination law, the Fair
brief before the Supreme Court in the land-
evitably end up before a federal judge who
Employment and Housing Act ("FEHA").
mark affirmative action case of Johnson V.
will have to decide, among other things, the
Commodore Home Sys., Inc. V. Superior
Santa Clara County, California, arguing
reasonableness of the fees after reviewing in
Court, 32 Cal. 3d 211, 649 P.2d 912 (1982).
that affirmative action was a necessary part
detail all the time the plaintiff's attorney
Unfortunately this has resulted in our
of our employment system. SHRM's brief,
has put into the case and his or her relative
which I prepared, was cited by Justice Bren-
standard practice under the FEHA for
experience in the area. This provision will
nan as providing the professional justifica-
plaintiffs' attorneys to request a right-to-
likely create rancor between the attorneys,
tion for affirmative action. Thus, these two
sue letter and commence a civil action long
just as the parties have come to an under-
leading organizations bring a long and in-
before the Department of Fair Employment
standing as to the value of the case. There
volved background to the current debate
and Housing has had a chance to investi-
do not appear to be any overriding public
over our equal employment policies.
gate, conciliate and/or seek redress of
policy reasons for encouraging attorneys to
The Civil Rights Act of 1990 represents a
claimed discrimination. Similarly; under the
have more of a monetary stake in the out-
massive restructuring and rewriting of our
Act as amended, plaintiffs' attorneys, driven
come of these cases than they already have.
equal employment laws. Presented as a re-
by a contingent-fee arrangement, will likely
No evil exists which this Section is needed
sponse to certain Supreme Court decisions
seek to by-pass the EEOC entirely and com-
to correct.
of last term, the draft legislation in fact re-
mence litigation in the federal courts. The
I appreciate the opportunity to testify
jects the concept of conciliation and rapid
focus will shift from the remedy of employ-
before the committee and I would be
settlement of complaints, which the Con-
ment discrimination process, which Title
pleased to answer any questions you may
gress used as its guidepost in 1964 when
have.
VII was enacted to accomplish, to a process
Title VII was enacted, and assumes that the
which creates higher litigation stakes fueled
only resolution of discrimination complaints
TESTIMONY ON BEHALF OF NATIONAL ASSOCIA-
by large dollar contingent fee awards. An
is in protracted litigation in a federal court
TION OF MANUFACTURERS AND SOCIETY FOR
additional likely result will be a sharp in-
system which is already overburdened. We
HUMAN RESOURCE MANAGEMENT, BEFORE
crease in federal court jury trial litigation
find this thrust particularly ill-conceived at
THE COMMITTEE ON LABOR AND HUMAN RE-
which will further burden the federal court
a time when there is almost universal recog-
SOURCES, FEBRUARY 27, 1990
system.
nition that the problem our economy faces
Mr. Chairman, members of the Commit-
in the 1990s is not too few jobs but too few
Further, the proposed amendment to Sec-
tee, my name is Lawrence Lorber. I am a
tion 706(g) of the Act contains no defini-
trained or trainable employees. A congres-
partner in the law firm of Kelley Drye &
sional commitment of scarce federal re-
tions for a jury to look to in deciding wheth-
Warren. I am submitting this testimony on
sources to increased federal court litigation
er to award punitive damages against an em-
behalf of the National Association of Manu-
seems particularly ill-advised when our
ployer. The lack of a clear definition as well
facturers ("NAM") and the Society for
country faces such pressing employment
as the relatively low standard of proof (pre-
Human Resource Management ("SHRM")
problems. In the recent annual economic
ponderance of the evidence as contrasted
(formerly the American Society for Person-
report issued by the President, the employ-
with "clear and convincing evidence" in
nel Administration).
ment concerns of America were identified as
California) will leave an employer without
The National Association of Manufactur-
the necessity to find skilled workers for the
an understanding of the kind of conduct it
ers is a voluntary business association of
available jobs. The President's Report,
should avoid in order not to be punished by
more than 13,500 member companies and
which follows upon the Workforce 2000
an award of punitive damages.
subsidiaries, large and small, located in
study issued by the Department of Labor
Additional problems created by Section 8
every state. Members range in size from the
and the many private studies focusing on
of the Bill arise from the fact that it would
very large to the more than 9,000 smaller
the employee shortage we are facing identi-
impose compensatory damages and punitive
manufacturing firms, each with fewer than
fies the trained labor shortage as a grave
damages on top of an existing remedial
500 employees. NAM member companies
problem of national proportions.
scheme which already grants to successful
employ 85 percent of all workers in manu-
Our country has long since outgrown the
plaintiffs the right to recover lost wages,
facturing and produce more than 80 percent
pernicious "luxury" of discriminatory exclu-
back pay and reinstatement or front pay.
of the nation's manufactured goods. NAM is
sion. In the increasingly tight labor markets
Since the issues of Title VII violation and
of the 1990s, employers inclined to indulge
reinstatement or front pay (where reinstate-
in discriminatory hiring will pay a high
"This problem has been resolved by some of the
ment is not feasible) are issues for the
price for it-they will be unable to meet
circuits which have addressed it in the context of
court-not the jury-while compensatory
combined Title VII and Section 1981 actions. They
their own need for workers. The protected
and punitive damage claims are jury ques-
generally hold that the jury's factual determina-
groups-minorities and women-will com-
tions, a serious and complex issue involving
tions on the Section 1981 claims control. See, ea,
prise the overwhelming percentage of new
judicial economy arises. The act provides
Sherman D. Burke Contracting Inc., 891 F.2d 1527
entrants to the workforce. Employers who
(11th Cir. 1990); Wade a Orange County, 844 F.2d
are unwilling to hire them for reasons of
absolutely no guidance as to how to avoid
951 (2d Cir. 1988).
bias will find themselves increasingly unable
March 26, 1990
CONGRESSIONAL RECORD SENATE
3159
to find qualified workers. Therefore; it is
tice is predictive of Job performance, corre-
ironic that at a. time when business necessi-
ly unmanageable, as would be the burden
lates to important elements of work behav-
ty dictates open,nondiscriminatory:employ
when reviewing the multistage hiring proc-
lior, or more generally relates to the specific
ess for management trainees, first line su-
ment practices, Congress is seeking to place
job functions in question. The proposed new
greater rigidities on the labor market. We
pervisors, public law enforcement positions
definition of business necessity, would over-
think this would be counterproductive to
turn these long-standing precedents and
or other such positions. The very complex-
expanded workforce opportunities. This leg-
impose an impossible burden on employers.
ity of the employer's burden when dealing
islation. however, ignores these pressing
Understanding that the legal review of
with aggregated, subjective employment
problems and focuses single-mindedly on
employment practices does not even begin
practices would require decisionmaking
narrow and technical litigation concerns of
until there is proof of a numerical imbal-
aimed at numerical balance, rather than
interest primarily to lawyers.
ance defined as adverse impact under the
business judgment, in order to avoid the
The Civil Rights Act of 1990 does not pro-
proposed legislation, employers would have
crushing costs which would be required to
fess to create jobs or provide skills. It does,
to show that the suspect practice, or the
even attempt to defend challenged criteria.
however, promise to vastly increase conten-
"overall employment process" (see new defi-
In Watson and Wards Cove, the Supreme
tious litigation. Beginning with the several
nition "n") are not only necessary but are
Court attempted to craft a rational balance
new definitions to Title VII, the legislation
"essential". The judgment as to what is "es-
allowing long-accepted Title VII obligations,
places employers in a position where they
sential" would not be made by the employer
and heretofore unquestioned general litiga-
have no reasonable opportunity to offer
but by a Judge or possibly a jury, and then
tion burdens to coexist with viable produc-
nondiscrimiatory explanations to chal-
in the context of a numerical deficiency
tive employment systems. Proposed subsec-
lenged employment practices. Put into this
rather than actual business needs. The
tion 703(k) and the new "definitions" would
position, employers will have little choice
promise of the Congress in 1964, as enunci-
overturn this balance, while leaving employ-
other than to assure numerical balance in
ated in Griggs, that employers could estab-
ers essentially defenseless to challenges of
their workforce
lish their own employment standards so
subjective practices based on adverse impact
DEFINITIONS
long as the standards were consistent with
analysis.
Proposed new definition "n" includes the
the employer's own business requirements
SECTION 5
term "group of employment practices"
and equal employment principles will thus
Proposed Section 5 of the draft legislation
within the scope of Title VII. This defini-
be consigned to a footnote describing dis-
would "deal" with the Price Waterhouse
tion, as applied to both disparate treatment
carded policy. Rather, the law would require
case by amending Title VII to find a viola-
and adverse impact cases, would place the
employers to accept bare minimum qualifi-
tion whenever a discriminating factor was
entire range of an employer's employment
cations or performance levels since they
shown to have been a "motivating factor" in
practices under question without providing
would be the only standards which could
any personnel action regardless of the pres-
an employer with any specificity as to which
possibly meet the "essential" test.
ence or importance of other factors support-
practice is questionable. The legal inquiry
SECTION 4
ing the action. Section 5 is here character-
would be changed from an examination of a
Proposed definition "n" discussed above,
ized as "dealing" with Price Waterhouse
single suspect practice into an open-ended
would abolish the requirement that a plain-
since at the time of the decision It was
inquisition of an employer if its total work-
tiff identify the cause of a statistical dispar-
greeted as a major advance by civil rights
force did not reflect some idealized numeri-
ity. Proposed subsection 703(k) would also
advocates and was said to represent the first
cal balance suggested by a plaintiff. This
overturn those parts of the Court's holdings
time the Supreme Court had recognized the
new defintion rejects long accepted Title
in Watson and Wards Cove related to bur-
well-established concept of mixed motives in
VII jurisprudence. In Connecticut V. Teal,
dens of proof.
the title VII context. The drafters of section
Justice Brennan analyzed the various ad-
The Civil Rights Act of 1990 would permit
5 clearly intend to expand upon Price Wa-
verse impact cases since Griggs and made
a plaintiff's cause of action to be based
terhouse by finding liability where a dis-
clear that Title VII never required the focus
solely on the statistical "bottom line". That
criminatory consideration is a motivating
to be placed on the overall number of mi-
is, a plaintiff need not identify one specific
factor as opposed to the motivating factor
nority or female applicants hired or promot-
employment practice causing an adverse
or even a substantial motivating factor.
ed.
impact, but could complain generally about
Indeed the mere presence in the mind of
In Transit Authority V. Beazer, the Su-
a group of practices or point to the overall
the decisionmaker or in the employer's
preme Court focused on a single identified
"employment process" to establish the nu-
records of any questionable consideration or
employment practice. To permit a lawsuit to
merical threshold necessary for a showing
inartfully phrased concern about an individ-
be based on a "group of employment prac-
of adverse impact. An employer would then
ual would, by the terms of the proposed
tices"-perhaps all practices used by a par-
have the burden of showing that some or all
amendment, doom the employment deci-
ticular employer and to have that lawsuit
of its practices-depending upon the scope
sion. The legislation would preclude an em-
triggered because the "overall employment
of the compliant-are not causally related
ployer's ability to rebut or refute the Infer-
practice" results in a workforce that is nu-
to the numerical deficiency. The employer
ence of discrimination by proving that the
merically deficient-is a profound change in
would then be obliged to prove that each of
factor was irrelevant because of the pre-
the standard for reviewing personnel prac-
these practices is "essential" to its business.
dominant weight of legitimate factors.
tices. It will put pressure on employers to
Thus, an employer using a variety of em-
Once obvious result of this section. were it
assure that their overall employment prac-
ployment practices would have to first parse
to become law. would be to require legal
tices result in a workforce measured by arbi-
all of its practices, identify which caused
review of personnel appraisals, supervisory
trary numerical standards, and not produc-
the numerical "discrimination" and then
ratings and similar personnel tools while in
tivity or ability.
prove that the suspect practice was "essen-
draft stage in order to scrub or delete any
Proposed new definition "0" would find
tial" to Its business.
phrase or reference which could be pointed
"business necessity" justifying a selection
Proving that some objective selection cri-
to as a "motivating factor" and which would
criterion only if that criterion were proven
terion-such as a college degree-is "esssen-
thereby subject an employer to absolute li-
to be "essential to effective job perform-
tial" to success on a job is difficult enough.
ability. Employers would almost have to es-
ance." This new definition is a drastic
But in the context of subjective criteria the
tablish legal "thought police" to measure
change from the definitions first set forth
task becomes impossible. completely unrec-
each consideration of a supervisor against
in Griggs V. Duke Power Company which
ognized in the bill or the accompanying con-
the ever-changing legal standards of inten-
has become well settled law during the suc-
gressional analysis is the fact that the
tional discrimination in order to insulate
ceeding nineteen years.
Watson and Wards Cove cases dealt with
the employment process.
In Griggs the Supreme Court first enunci-
non-standardized subjective practices not
The argument by the proponents of Sec-
ated the theory of adverse impact, and im-
heretofore dealt with under the impact
tion 5 that Price Waterhouse authorizes "a
posed on employers the requirement of
analysis. The proposed legislation is built on
little bit of discrimination" Is specious. The
showing that a challenged practice was jus-
the faulty premise that every employment
Supreme Court crafted an appropriate
tified by "business necessity". The Court
practice. including interviews, supervisory
burden shift by requiring employers to do
said that the standard of business necessity
ratings and the like, can be reviewed with
more than merely articulate an explanation
meant "job relatedness", meaning a selec-
scientifc precision. Unlike the accepted
for the "taint." Employers were given a dif-
tion criterion "having a manifest relation-
methodology for establishing the job relat-
ficult burden of proof to avoid liability. The
ship to the employment in question." The
edness of objective "pass-fail" instruments
draft legislation "cures" Price Waterhouse
Court in Griggs reemphasized congressional
or practices such as standardized tests or
by abolishing any opportunity for defense.
intent to allow employers to set their em-
height-weight standards, where business ne-
Strangely, the draft legislation seeks to
ployment standards as high as they wished
cessity has never been converted into the
amend § 706(g) by including the Price Wa-
as long as the business necessity test was
legal sine qua non which this legislation
terhouse "defense" in that section. The
met. The various Supreme Court and appel-
would mandate, the prospect. of proving
intent of this placement is unclear. Clearer
late court rulings subsequent to Griggs have
that it is "esstential" to job performance for
drafting would have new $ 703(1) add at its
made it clear that 'business necessity" re-
a candidate to appear "bright" or "motivat-
end "except that a respondent will not
quires a showing that the challenged prac-
ed" during an interview would be complete-
commit an unlawful employment practice
3160
CONGRESSIONAL RECORD SENATE
March 26, 1990
where it establishes that it would not have
Court ruling which triggered this section.
taken the same action notwithstanding the
There seems to be no rationale for this four-
would be effectively terminated, and the
consideration of the prohibited factor.
fold expansion of the statute of limitations;
courts would be inundated with new em-
nor does there appear to have been consid-
ployment suits.
SECTION 6
In Martin V. Wilks, a five justice majority
eration of other, parallel changes sure to
Nor is this a spectral parade of horrors
of the Supreme Court held that where al-
follow, such as the extension of EEOC's
raised by employers with untold hidden li-
legedly race conscious promotion decisions
record retention rules to two years and
ability. Rather, it reflects the experience in
other administrative changes. The legisla-
those states with expanding doctrines of
were being made as a result of the operation
tion is also silent as to the impact of this
wrongful discharge and expanding liability
of a prior consent decree, white individuals
who were not party to the proceedings
change on cases filed with deferral agencies,
judgments. Employers would be ill-advised
to undertake thoughtful self-analysis and
which resulted in the entry of the decree
The silence with respect to the status of de-
could bring suit alleging that the denial of
ferral states apparently will allow simulta-
corrective action for fear of unleashing a
promotions to them was due to impermissi-
neous processing of charges and could
torrent of two-year old "intentional discrim-
ble considerations of race. The four dissent-
create redundant legal actions in different
ination" litigation with million dollar liabil-
forums. This result would be a direct contra-
ity claims. Short of resurrecting the plain-
ers argued that obedience to the dictates of
a lawfully entered consent decree should
diction of Title VII's fundamental purpose
tiff's bar, no cogent explanation has been
given for this section.
not expose an employer to collateral attack
to foster conciliation and settlement of
and potential liability. The Supreme Court
cases.
We would also note that the Senate debat-
The drafters have apparently given no
ed this Issue when it recently passed the
was grappling with the competing and
thought to the ramifications of this propos-
Americans With Disabilities Act ("ADA").
equally compelling concepts of affording
every individual his or her own day in court
al on actual employment processes. It is dif-
Following long negotiations between the
White house and Senate, during which orga-
with the-need to bring finality to litigation.
ficult to imagine the benefit in allowing a
Proposed section 6 would establish that a
grievance to fester for at least two years
nizations such as SHRM and NAM and the
person could hot challenge the operation of
before triggering the investigative and adju-
disability community provided input, the
a decree if the person were a party to the
dicative processes of title VII. In that long
Senate rejected the inclusion of compensa-
interim, personnel will have changed, man-
tory and punitive damages and jury trials
proceeding, had notice that the proposed
for the disabled as inappropriate in the em-
judgment might affect his interests and was
agers shifted, perhaps even ownership
ployment title of the ADA. The Senate and
given reasonable opportunity to object, or if
changed, yet the employer will have to re-
the Civil Rights community were correct
a court determines that the objections being
construct dated events in order to respond.
Productive employment will be subject to
then. We do not believe that those negotia-
raised were raised by other persons during
tions were undertaken in other than com-
the pendency of the consideration of the
forgotten land mines of forgotten actions
plete good faith, yet we see a policy reversal
decree
when a charge is filed two or more years
in a matter of months. Section 8 has no
Section 6 would leave the adequacy of
after the triggering occurrence.
place in this legislation.
notice to interested parties as the only
Section 7(a)(2) reinstates the continuing
grounds available to attack the lawful oper-
violation theory by starting the running of
SECTION 11
ation of a decree after it is entered. Appar-
the statute of limitations only after a ques-
This section would require all federal civil
ently it would bring finality to issues even if
tioned practice has adversely affected the
rights laws to be "broadly construed," effec-
the underlying decree incorporated race
aggrieved party. Thus, the proposed legisla-
tively providing that the actual statute
conscious features and was of substantial
tion has the effect of overturning United
serve only as the starting point for judicial
duration. While employers share the belief
Airlines V. Evans decided in 1977, not 1987.
review rather than providing textual limits
that judicial oversight of employment poll-
It is simply inappropriate policy to encour-
on such review. This seems to be a needless
cies not be open-ended and intrusive, we be-
age potential plaintiffs to sit, on their rights
invitation to judicial activism and could
lieve that these concerns ought to be tem-
for an extended period. There seems to be
readily cause confusion. If the "broad con-
pered somewhat in view of the appropriate
no cogent reason for this other than to in-
struction" were viewed by some to be limit
ly strict standards for relief currently fol-
crease employer exposure.
ing rather than expanding, we would inevi-
lowed by the courts in reviewing or impos-
SECTION 8
tably have to respond to yet another round
ing race conscious policies. The standards
This section would amend Title VII to
of congressional restoration. The Congress
enunciated by the Supreme Court in John-
provide for compensatory and punitive dam-
should not invite such activism and thereby
son V. Santa Clara County and Local 28
subject the law to transient determinations
ages where intentional discrimination is
Sheetmetal Workers V. EEOC ought to allay
shown and, consistent with the principle
of the meaning of "broad construction."
concern that affirmative relief will unfairly
that such damages fall under the definition
Section 11(b) appears to abolish, in the
hinder the expectations of nonparty individ-
of "legal" rather than equitable relief, a
context of civil rights, the doctrine that sub-
uals or that a court will usurp the employ-
jury trial would be provided
sequent legislation that is more specific or
er's human resources function.
As much as any section of the proposed
narrow in design operates to limit prior leg-
We do believe that rather than rushing to
legislation, this section would change the
islation that is more expansive. If this is the
simply "repeal" Martin V. Wilks, the Con-
entire structure of our equal employment
intent, section 11(b) ought to be thoroughly
gress ought to take sufficient time to study
laws. The issue of a jury trial and extraordi-
debated. We see absolutely no reason legis-
the issues and consider such possibilities as
nary relief for discrimination was consid-
latively fossilize every piece of civil rights
statutory time limits for an employment
ered by the drafters of the original Title VII
legislation and simply add layer upon layer
consent decree or specifying the scope of
and rejected for a number of sound policy
of "additional statutory language. Civil
the fairnes hearing so that adequate notice
reasons. Those reasons have not changed.
rights and equal employment is not such a
is in fact provided to all interested or poten-
It was the considered view that discrimi-
fragile concept so as to require this type of
tially interested or impacted individuals.
nation issues should be settled quickly, that
legislative shield. As the organizations I am
SECTION.7
the employee achieve make whole relief
representing today showed in the debate
In Lorance AT&T Technologies, the Su-
promptly and that the process avoid inter-
over affirmative action, exposure to such
debate, whether in the executive branch or
preme Court held that a challenge to a se-
minable delay in crowded federal courts.
niority system allegedly adopted for a dis-
Further, there was concern that juries
the legislative branch, or before the public,
criminatory purpose must be raised at the
will not shrivel the reach of our equal em-
might be loath to find for minority or
time the seniority system is adopted (within
female plaintiffs.
ployment policies. There is no place for Sec-
Title VII's limitation period) rather than at
Since 1964, Title VII has been interpreted
tion 11 in the proposed legislation.
the time the system has its discriminatory
and enforced in a relatively efficient
SECTION 12
impact. The Court reiterated its view that
manner, enabling individuals to achieved
Section 12 of the proposed legislation
there was no viability to the "continuing
relief. To the extent there has been criti-
would overturn the Patterson decision. The
violation" theory of discrimination in this
cism, it was that the EEOC was inefficient
Administration similarly has introduced leg-
context. The dissenters argued that Con-
in conciliating cases and that backlogs were
islation to accomplish this purpose. Rather
gress never intended absolute immunity for
permitted to expand.
than legislatively "correct" an admittedly
tainted seniority systems and that the deci-
Section 8 would not respond to these con-
strained judicial interpretation, the Con-
sion would foster anticipatory litigation.
cerns but would create new problems of
gress ought to meet its responsibility by
While the holding in Lorance is relatively
vastly increased magnitude. Were this sec-
thoroughly examining the ramifications and
straightforward and deserving of careful
tion enacted, any hope of conciliation and
underlying rationale of the Supreme
consideration, the legislative response incor-
settlement through the EEOC would
Court's action.
porated in section 7 is wholly out of propor-
vanish. We would witness instead a national
The Patterson case involved alleged racial
tion to the holding in Lorance and affects
employment law lottery where attorneys
harassment. Title VII makes racial harass-
significant expansion of Title VII.
would hold out to individuals the promise of
ment illegal. The Supreme Court did not en-
Section 7(a)(1) expands the statute of lim-
six or seven figure judgments, with the ac-
dorse racial harassment. It noted that the
itations of Title VII from 180 days to two
companying six or seven figure legal fee.
remedial provisions of Title VII could have
years. There was no "adverse" Supreme
The purpose and function of the EEOC
been available to the plaintiff. Rather, the
March 26, 1990
CONGRESSIONAL RECORD - SENATE
3161
Court questioned, perhaps awkwardly, the
ELECTIONS
IN
TAIWAN:
A
efficacy of having multiple statutory forms
ing: control of the television and radio,
MOMENT OF TRIUMPH FOR
available to remedy discriminatory activities
vast financial resources, a cooperative
THE TAIWANESE
and attempted by its decision to channel
police and judiciary, as well as consid-
such matters through the congressionally-
Mr. PELL Mr. President, Eastern
erable informal influence over the
created scheme of Title VII. The underlying
Europe, Central and Latin America
most influential economic, social and
question which the Supreme Court attempt-
are not the only places in the world
cultural organizations.
ed. to resolve was whether it. made sound
where democracy is emerging from the
Importantly, the issue of Taiwan's
policy. to have such multiple forums. The
long, cold winter of dictatorship.
independence was also prominently
Congress ought to take the time to examine
In Taiwan, thousands of protestors,
raised in this election despite legal
whether it makes any sense to have such
mainly students, have gathered in a
prohibitions against such discussion.
anomalous situations as litigations in which
Taipei city park to declare their sup-
This indicates both new flexibility on
both Title VII and $1981 are at issue and in
port for greater democracy just as Chi-
the part of the Government as well as
which the same facts are tried partly before
nese students gathered last spring in
the continued importance of this issue
a judge and partly before a jury, either at
Tiananmen Square. However, unlike in
the same time or on alternate days, in
to the Taiwanese people. Twenty DPP
China, rather than being brutually
which different procedural rules and stat-
candidates in favor of independence
utes of limitations would apply and differ-
suppressed, their voices have real hope
won election, seven of these to parlia-
ent remedies would be available. We believe
of being heard
ment.
that the Congress ought to examine wheth
We need to support the Taiwanese
However, the elections in December
er plaintiffs ought to be required to choose
people in their courageous call for
and March also illuminate continued
an exclusive forum, and whether equal em-
greater freedom and independence
problems in the Taiwanese political
ployment litigation ought not be encum-
from the stultifying oppression of 40
system. In the Legislative Yuan èlec-
bered with parallel federal, state and
years of Kuomintang rule.
tions, for example, only 101 out of 292
common law counts We would urge that
We can take some encouragement
were contested. The majority of 162
considered legislative attention be devoted
from the actions taken by President
continue to be filled with holdovers
to examining and addressing and underlying
Lee Teng-hui, a native Taiwanese, who
from the mainland and 29 were ap-
causes of the Supreme Court's decision
has just been elected to a 6-year term,
rather than rushing to "reverse" the at-
pointed by the KMT to represent
despite an effort by hardliners in the
tempt of the Supreme Court to bring reason
overseas Chinese. The President was
Nationalist Party to replace him.
to an unnecessarily confused and cumber-
elected by a 752 member National As-
Having already taken determined
some situation.
sembly controlled by 668 KMT dele-
action in the past toward democracy,
gates, also holdovers from 1949. The
CONCLUSION
President Lee will surely heed the call
voice of the Taiwanese people is still a
Contrary to the representations of its co-
for greater reform at a faster pace. In
minority voice in their homeland.
sponsors, the Civil Rights Act of 1990 far
this spirit, I commend and congratu-
But the winds of change can be felt
exceeds its professed aim of "simply' revers-
late him for this leadership.
Ing certain Supreme ? Court decisions.
this spring. Following the December
Last December President Lee presid-
Rather, the draft legislation will effect a
ed over the first officially contested
Telections, President Lee promised
sea-change in the treatment of equal em-
elections since 1949. At that time elec-
more democratic reforms stating that
ployment complaints, converting every
tions were held for 101 seats in the na-
the vote "indicate[d] the various
charge into a federal court action; making
tional legislature, the Legislative
reform measures undertaken by the
the administrative process of mediation and
Yuan, 16 county executive positions
Government in recent years had failed
conciliation an unused and forgótten option
and building up a backlog of cases calling on
called magistrates, several city mayors,
to meet the public's expectations.
and seats on two city councils and the
President Lee has met with the dem-
scarce federal court resources
Taiwan Provincial Assembly The re-
onstrators in Talpei's Chiang K'ai-
The draft legislation also reverses the
long settled concept underlying Title VII
sults sent a clear signal that the Tai-
shek Memorial Park-a clear indica
when it was passed and incorporated in the
wanese people want change
tion of his desire to accommodate new
Griggs decision, of letting an employer set
As noted the Deputy Secretary Gen-
political voices. He has also proposed a
its standards as high as it wishes. The legis.
eral of the opposition Democratic Pro-
meeting with the DPP and other
lation would present American industry
gressive Party, Tsai Shih-yuan, "it was
groups in a national convention to dis-
with the choice of bolling its legitimate em-
a big victory for the opposition!"
cus Taiwan's problems.
ployment criteria down to the very few es-
The Democratic Progressive Party
This is clear evidence that change is
sential elements which would result in a
[DPP] won 38 percent of the popular
occurring in Taiwan
minimally competent workforce or facing
vote in city and county executive races
I hope it will lead to substantial
lengthy and expensive litigation leading to
winning 6 out of 21, including the big-
reform in several areas, including an
extraordinary relief in which the statutory
gest prize of all-the executive post in
examination of possible constitutional
deck is stacked overwhelmingly against it.
Taipei county. The KMT received just
changes that would further institu-
The only other option left to employers is
53 percent of the vote rather than the
tionalize and preserve democratic
the distasteful one of insuring numerical
projected 70 percent. In the Legisla-
practices, guarantees for freedom of
balance.
Finally. the draft legislation ignores the
tive Yuan, the DPP increased its mem-
speech, elections for other members of
current procedural and statutory impedi-
bership from 11. to 21 seats, giving it
the Legislative Yuan, loosening of visa
ments to rapid and equitable resolution of
enough members to introduce legisla-
restrictions on overseas Taiwanese or
employment complaints. Rather than exam-
tion
Taiwanese-Americans seeking to
ining the continued viability of multiple
These important victories were
return to Taiwan, and a release of po-
forums and multiple statutory bases for em-
achieved despite tremendous odds—
litical prisoners.
ployment litigation the legislation merely
the DPP has only 20,000 members and
In particular, I hope that Shih
perpetuates the current unwieldy and ineffi-
the KMT's is estimated at 1 to 2.5 mil-
Ming-Teh will be released. This prison-
cient system.
lion out of an electorate of about 12
er-of-conscience has been jailed for 25
The issues raised by the Civil Rights Act
million-and large hurdles.
years. He is Taiwan's Nelson Mandela.
of 1990 deserve careful and thoughtful anal-
The National Democratic Institute
First arrested in 1962, he was jailed
ysis. The apparent rush to pass a bill with a
for International Affairs [NDI] in an
until 1977. He was arrested again in
minimum of debate and consideration is an
unseemly and inappropriate way of treating
excellent pre-election report, entitled
January 1980 for his role in the forma-
civil rights. We urge that this committee re-
"A. Moment In Political Transition:
tion of an opposition magazine and
flect upon the issues raised in this testimo-
The December 1989 Elections In
demonstrations on behalf of democra-
ny and join with America's employers in ad-
Taiwan," observed that the "KMT re-
cy and independence. He has been in
dressing the pressing issues we all face in
tains near total control of almost all
jail ever since. His American wife,
the 1990s and beyond
political, social, economic and media
Linda Arrigo, was deported by the
Mr. HATCH. Thank you, Mr. Presi-
institutions in Taiwan," ensuring "the
Government. Amnesty for Shih Ming-
dent.
KMT numerous institutional advan-
Teh would send a clear signal of the
I yield the floor.
tages in the current campaign, includ-
Government's desire to bury the prob-
# Attend listening
!
statement of Arneiple -done Vonept
2 pho- - strorg support of curl Rights If discracy been a model.
avil right not partion irrue.
But- STATEMENT of PRINCIPLE3 (to modifificaredy's fill).
mention A.D.A. (nothing Pappered see awak ago.)
May the activity histof ortybe Fokewin affirmative Anty
3:20 5/9 MICHAER JACKSON "Yo creek."
ON A.D.A. bill
&
1:30 backs
2:00 Hisps 3:00 Catchall group
Mont Tar - listening services w/ Gu Bights groups
ask he Camp, Vogt get suited
Me Cethgin
And how is it shaping of
Commission - 6 ofthem fehird porus.
Welcome. Here today to Rone Civ. Right Commission, 50 state sps Committee meanter
Praise and.
Aobs nomined is flird
POMS' commitment:
LD(
This is anniv. of announce. of Brown v2. Road of Elere.
Thankug, Cavagos Aekanl. Karl Handicaped Andernen NOT THERE
Staff director
L>
commitment to enfacing laws Chairman
Art getcher looking forward Badership the
(gettio)
A.D.A.
A Negative
Vote On
Affirmative
Action
BY SHELBY STEELE
centuries of unrelieved oppression. And to these
arguments other very obvious facts must be
added. In America, many marginally compe-
IN A FEW SHORT YEARS, WHEN MY TWO
tent or flatly incompetent whites are hired ev-
children will be applying to college, the affirma-
ery day - some because their white skin suits
tive-action policies by which most universities
the conscious or unconscious racial preference
offer black students some form of preferential
of their employers. The white children of alumni
treatment will present me with a dilemma. I am
are often grandfathered into elite universities in
a middle-class black, a college professor, far
what can only be seen as a residual benefit of
from wealthy, but also well removed from the
historic white privilege. Worse, white incompe-
kind of deprivation that would qualify my chil-
tence is always an individual matter, but for
dren for the label "disadvantaged." Both of
blacks it is often confirmation of ugly stereo-
them have endured racial insensitivity from
types. Given that unfairness cuts both ways,
whites. They have been called names, have
doesn't it only balance the scales of history,
America, to know that this country, howe
suffered slights and have experienced first hand
doesn't this repay, in a small way, the systemat-
imperfectly, recognizes its past sins and wis
the peculiar malevolence that racism brings out
ic denial under which my children's grandfather
to correct them.
of people. Yet they have never experienced
lived out his days?
Yet good intentions can blind us to the effe
racial discrimination, have never been stopped
In theory, affirmative action certainly has all
they generate when implemented. In our SOC
by their race on any path they have chosen to
the moral symmetry that fairness requires. It is
affirmative action is, among other things
follow. Still, their society now tells them that if
reformist and corrective, even repentent and
testament to white good will and to black pov
they will only designate themselves as black on
redemptive. And I would never sneer at these
and in the midst of these heavy investments
their college applications, they will probably do
good intentions. Born in the late 1940's in Chi-
effects can be hard to see. But after 20 year
better in the college lottery than if they conceal
cago, I started my education (a charitable term,
implementation I think that affirmative ac
this fact. I think there is something of a Faust-
in this case) in a segregated school, and suf-
has shown itself to be more bad than good
ian bargain in this.
fered all the indignities that come to blacks in a
that blacks - whom I will focus on in this es
Of course many blacks and a considerable
segregated society. My father, born in the South,
- now stand to lose more from it than they g
number of whites would say that I was sancti-
made it only to the third grade before the white
In talking with affirmative-action admi
moniously making affirmative action into a test
man's fields took permanent priority over his
trators and with blacks and whites in gener:
of character. They would say that this small
formal education. And though he educated him-
found that supporters of affirmative act
preference is the meagerest recompense for
self into an advanced reader with an almost
focus on its good intentions and detract
professorial authority, he could only drive a
emphasize its negative effects. It was virtu:
Shelby Steele is an English professor at San
truck for a living, and never earned more than
impossible to find people outside either cal
Jose State University in California. A collection
$90 a week in his entire life. So yes, it is crucial
The closest I came was a white male mana
of his essays, "The Content of Our Character,"
to my sense of citizenship, to my ability to
at a large computer company who said,
will be published in August.
identify with the spirit and the interests of
think it amounts to reverse discrimination,
46
Photo Copy Preservation
I'll put up with a little of that for a little more
diversity." But this only makes him a half-
hearted supporter of affirmative action. I
Affirmative action, the author
think many people who don't really like affir-
mative action support it to one degree or an-
other anyway.
I believe they do this because of what hap-
pened to white and black Americans in the
crucible of the 1960's, when whites were con-
believes, has proved more bad than
fronted with their racial guilt and blacks tast-
ed their first real power. In that stormy time
white absolution and black power coalesced
into virtual mandates for society. Affirmative
action became a meeting ground for those
good. Blacks, he says, now stand to
mandates in the law. At first, this meant insur-
ing equal opportunity. The 1964 civil-rights bill
was passed on the understanding that equal
opportunity would not mean racial preference.
But in the late 60's and early 70's, affirmative
action underwent a remarkable escalation of
lose more from it than they gain.
its mission from simple anti-discrimination
enforcement to social engineering by means of
THE NEW YORK TIMES MAGAZINE / MAY 13,
Photo Copy Preservation
quotas, goals, timetables, set-asides
discrimination explained racial im-
and other forms of preferential
which came to a head in the very late
balances, it became easy to justify
ing of racial discrimination. By m
treatment.
60's, could no longer be satisfied by
group remedies to presumed dis-
ing black the color of prefere
Legally, this was achieved through
anything less than racial prefer-
crimination rather than the normal
these mandates have reburdened
ences. I don't think these mandates,
a series of executive orders and
case-by-case redress.
ciety with the very marriage of CI
in themselves, were wrong, because
Equal Employment Opportunity Co-
Even though blacks had made
and preference (in reverse) that
mission guidelines that allowed ra-
whites clearly needed to do better by
set out to eradicate.
great advances during the 60's with-
blacks and blacks needed more real
cial imbalances in the workplace to
out quotas, the white mandate to
When affirmative action grew
power in society. But as they came
stand as proof of racial discrimina-
achieve a new racial innocence and
social engineering, diversity beca
together in affirmative action, their
tion. Once it could be assumed that
the black mandate to gain power,
a golden word. Diversity is a te
effect was to distort our understand-
that applies democratic principle
races and cultures rather than to
zens, despite the fact that there
nothing to indicate that real diver
is the same thing as proportionate
resentation. Too often the result of 1
on campuses for example, has be
Nobody
democracy of colors rather than
people, an artificial diversity that g
the appearance of an educational p
ty between black and white stude
that has not yet been achieved in re
ty. Here again, racial preferences
has the Carlton
low society to leapfrog over the di
cult problem of developing black:
parity with whites and into a cosm
diversity that covers the blemish
disparity - a full six years after
Combination.
mission, only 26 to 28 percent of bla
graduate from college.
Racial representation is not
same thing as racial developm
Representation can be manu
tured; development is always h
earned. But it is the music of in
1.
cence and power that we hear in al
SOFTPACK
mative action that causes us to C.
Carlton
to it and to its distracting empha
2.
on representation. The fact is 1
Lowest tar.
after 20 years of racial preferen
is
the gap between median incomes
Lowest
LOWEST
black and white families is grea
The taste
than it was in the 1970's. None of
nicotine.
that's right."
is to say that blacks don't need I
cies that insure our right to ec
opportunity, but what we need m
of is the development that will lei
take advantage of society's effort
include us.
TAR 1 mg
I think one of the most troub
NICOTINE 0.1 mg
effects of racial preferences
blacks is a kind of demoralizat
Under affirmative action, the qua
Carlton PACK
that earns us preferential treatm
is an implied inferiority. Howe
this inferiority is explained - an
is easily enough explained by
myriad deprivations that grew ou
1mg.tar
our oppression - it is still inferior
0.1 mg. nic.
There are explanations and t
there is the fact. And the fact must
borne by the individual as a condit
apart from the explanation, ap
even from the fact that others
himself also bear this condition.
integrated situations in which bla
U.S. Gov't. Test Method confirms of all king soft packs:
must compete with whites who n
be better prepared, these expla
tions may quickly wear thin and
Carlton is lowest
pose the individual to racial as wel
personal self-doubt. (Of cou
whites also feel doubt, but only I
sonally, not racially.)
What this means in practical ter
is that when blacks deliver the
selves into integrated situations t
encounter a nasty little reflex
whites, a mindless, atavistic rel
that responds to the color black V
King Size Soft Pack: mg. "tar", 0.1 mg.
SURGEON GENERAL'S WARNING: Cigarette
negative sterotypes, such as intell
nicotine av. per cigarette by FIC method.
tual ineptness. I think this reflex (
Smoke Contains Carbon Monoxide.
barrasses most whites today :
thus it is usually quickly repress
On an equally atavistic level,
The American Tobacco Co. 1990.
48
Photo Copy Preservation
After 20 years
of affirmative
action, black
and white
incomes are
farther apart.
black will be aware of the re-
flex his color triggers and will
feel a stab of horror at seeing
himself reflected in this way.
He, too, will do a quick repres-
sion, but a lifetime of such
stabbings is what constitutes
his inner realm of racial doubt.
Even when the black sees no
implication of inferiority in ra-
cial preferences, he knows
that whites do, so that - con-
sciously or unconsciously -
the result is virtually the
same. The effect of preferen-
tial treatment - the lowering
of normal standards to in-
crease black representation -
puts blacks at war with an
expanded realm of debilitating
doubt, so that the doubt itself
becomes an unrecognized pre-
occupation that undermines
their ability to perform, espe-
cially in integrated situations.
I believe another liability of
affirmative action comes
from the fact that it indirect-
ly encourages blacks to ex-
ploit their own past victim-
ization. Like implied inferior-
ity, victimization is what jus-
tifies preference, so that to
receive the benefits of prefer-
ential treatment one must, to
some extent, become invest-
ed in the view of one's self as
a victim. In this way, affir-
mative action nurtures a vic-
tim-focused identity in blacks
Princess Hotels.
and sends us the message
that there is more power in
our past suffering than in our
Quite simply, the best places tostay
present achievements.
in the best nlaces tovisit.
When power itself grows out
of suffering, blacks are en-
couraged to expand the bound-
aries of what qualifies as ra-
cial oppression, a situation
that can lead us to paint our
victimization in vivid colors
THE
Princess
even as we receive the benefits
of preference. The same cor-
Bermuda
porations and institutions that
Because you prefer the best.
give us preference are also
seen as our oppressors. At
Stanford University, minority-
group students - who receive
For reservations and information, contact your travel agent or call 800-223-1818; in Canada 416-964-6641
at least the same financial aid
as whites with the same need
Acapulco: Acapulco Princess, Pierre Marques; Arizona: Scottsdale Princess; Bahamas: Bahamas Princess Resort
- recently took over the presi-
Casino; Bermuda: Southampton Princess, The Princess; California: Palm Springs Marquis Hotel and Villas
dent's office demanding,
Represented by Princess Hotels International, In
among other things, more fi-
nancial aid.
But I think one of the worst
prices that blacks pay for pref-
(Continued on Page 73)
THE NEW YORK TIMES MAGAZINE / MAY
Photo Copy Preservation
BLACKS
Continued from Page 49
erence has to do with an illu-
firmative action marks
sion. I saw this illusion at work
blacks with. In this sense,
recently in the mother of a
preferences make scape-
middle-class black student
goats of the very people they
who was going off to his first
seek to help. And it may be
semester of college: "They
that at a certain level em-
owe us this, so don't think for a
ployers impose a glass ceil-
minute that you don't belong
ing, but this may not be
there." This is the logic by
against the race so much as
which many blacks, and some
against the race's reputation
WASHINGTON
whites, justify affirmative ac-
for having advanced by color
tion - it is something "owed,"
as much as by competence.
WEEK
a form of reparation. But this
This ceiling is the point at
logic overlooks a much harder
which corporations shift the
IN REVIEW:
and less digestible reality, that
emphasis from color to com-
it is impossible to repay blacks
petency and stop playing the
living today for the historic
affirmative-action game.
Exploring
suffering of the race. If all
Here preference backfires
the issues
blacks were given a million
for blacks and becomes a
dollars tomorrow it would not
taint that holds them back. Of
thatshape
amount to a dime on the dollar
course one could argue that
our times
for three centuries of oppres-
this taint, which is after all in
sion, nor would it dissolve the
the minds of whites, becomes
residues of that oppression
nothing more than an excuse
that we still carry today. The
Each week, noted
to discriminate against
concept of historic reparation
blacks. And certainly the re-
journalists analyze
grows out of man's need to
sult is the same in either case
the events that affect
impose on the world'a degree
- blacks don't get past the
of justice that simply does not
glass ceiling. But this argu-
our lives on
exist. Suffering can be endured
ment does not get around the
"Washington Week in
and overcome, it cannot be re-
fact that racial preferences
paid, To think otherwise is to
now taint this color with a
Review," public televi-
prolong the suffering.
new theme of suspicion that
sion's longest-running
Several blacks I spoke with
makes blacks even more vul-
said they were still in favor of
nerable to discrimination. In
public affairs
affirmative action because of
this crucial yet gray area of
program.
the "subtle" discrimination
perceived competence, prefer-
Now in its 23rd
blacks were subject to once
ences make whites look better
they were on the job. One pho-
than they are and blacks
year, "Washington
tojournalist said, "They have
worse, while doing nothing
Week in Review"
ways of ignoring you." A
whatever to stop the very real
black female television pro-
discrimination that blacks
provides a probing
ducer said: "You can't file a
may encounter. I don't wish to
in-depth look at what
lawsuit when your boss does-
justify the glass ceiling here,
n't invite you to the insider
but only suggest the very sub-
is happening in the
meetings without ruining
tle ways that affirmative ac-
nation and the world.
your career. So we still need
tion revives rather than extin-
affirmative action." Others
Ford Motor
guishes the old rationaliza-
mentioned the infamous
tions for racial discrimination.
Company, in its 11th
"glass ceiling" through which
I believe affirmative action
blacks can see the top posi-
is problematic in our society
consecutive year, is
tions of authority but never
because we have demanded
proudly joined by
reach them. But I don't think
that it create parity between
Ford Aerospace in
racial preferences are a pro-
the races rather than insure
tection against this subtle dis-
equal opportunity. Preferen-
underwriting this
crimination; I think they con-
tial treatment does not teach
informative program.
tribute to it.
skills, or educate, or instill mo-
In any workplace, racial
tivation. It only passes out en-
"Washington Week
preferences will always create
titlement by color, a situation
in Review" is pro-
two-tiered populations com-
that in my profession has cre-
posed of preferreds and unpre-
ated an unrealistically high de-
duced by WETA in
ferred. In the case of blacks
mand for black professors.
Washington, D.C.
and whites, for instance, racial
The social engineer's assump-
preferences imply that whites
Consult your local
tion is that this high demand
are superior just as they imply
will inspire more blacks to
listings for day
that blacks are inferior. They
earn Ph.D's and join the pro-
and time in your
not only reinforce America's
fession. In fact, the number of
oldest racial myth but, for
blacks earning Ph.D's has de-
community.
blacks, they have the effect of
clined in recent years. Ph.D's
stigmatizing the already stig-
must be developed from pre-
matized.
school on. They require family
I think that much of the
and community support. They
"subtle" discrimination that
must acquire an entire system
blacks talk about is often (not
of values that enables them to
Ford
always)
discrimination
work hard while delaying grat-
against the stigma of ques-
ification.
tionable competence that af-
It now seems clear that the
73
-5-
heart ache. This is a very personal and sensitive area, and it should
always remain a matter of individual choice, but I do think we have to
have better methods of letting people know that families can be planned
if they are desirous of having such information.
11. DO YOU FAVOR LEGALIZING ABORTION?
This is a complicated area. I do not favor a federal abortion law.
It seems to me that this is a matter for the individual states to decide.
I, personally, feel that women should have the freedom to choose or not
choose abortion and that it should always be done by competent medical
personnel.
12. WHAT IS YOUR POSITION ON CHANGING THE SENIORITY SYSTEM OF CONGRESS?
Chairmen of committees should be elected by their peers just as
the Congressional leadership is selected. This change would make the
committees more responsive to the needs of the people. It will not
remove the chairmanships from the effective chairmen. Specifically,
I propose that chairmen be elected by the committee members from the
five most senior members of the committee. If the present chairman
is effective, he will continue to serve as the chairman of the
committee.
13. WHAT DO YOU CONSIDER TO BE THE NATIONAL PRIORITIES FOR THE NEXT
CONGRESS?
The priorities with which Congress must deal are to reach a just
and secure peace, return stability to our economy, find a lasting
solution to our rampant crime problems, deal with the preservation of
our environment, and seek new ways to upgrade quality of life for all
of our people and thus preserve and develop our human resources.
14. WHAT DO YOU CONSIDER TO BE THE RESPONSIBILITIES OF THE UNITED
STATES AS A MAJOR WORLD POWER?
The role of the United States as a major world power carries with
it awesome responsibilities. It does not include being policeman for
the world. But it does entail the maintenance of strength, economic
and social as well as military, and a determination to live up to our
existing commitments for our own security and the security of the
free world. But we cannot allow ourselves to be dragged into conflicts
around the world when we have no interest involved. We now know that
money will not buy the good will of our world neighbors, nor will
increasing world trade in war weapons insure peace. Our main responsi-
bility is to be so secure internally, that by our example, there can
be no question that democracy is freedom and justice, and it works.
15. WHAT IS YOUR POSITION ON OPEN-HOUSING?
In April of 1968 the Congress passed the Civil Rights Act of
1968 which included a section providing for fair housing. At that
time, I expressed some concern about some of the provisions of the
open-housing section. Although the individual homeowner was exempt
when he sold directly to a buyer, I felt he should have the right to
-6-
sell or rent through a real estate agent. The way the bill was
written, however, it was discriminatory toward the real estate
agent. I voted for this bill because I did not feel that in all
good conscience and fairness I could vote against legislation which
would permit a Negro to buy or rent a home of his choosing if he has
the money. I put great emphasis in voting for that bill on the
anti-riot provisions of the bill, and I think it is significant that
the "Chicago Seven" were convicted under this law. I recognized and
fought against the imperfections of this bill, but finally voted for
it because we must have strong law enforcement and we must, while
protecting individual property rights, offer hope and fair play to
all Americans regardless of their color.
16. WHAT IS YOUR STAND ON THE ANTI-BALLISTIC MISSLE (ABM) SAFEGUARD
SYSTEM?
I am convinced that the initial deployment steps of the ABM have
been helpful in getting the SALT talks under way. I supported the
initial deployment requested last year and the limited - one additional
base - increase this year. I would like to see the SALT talks so
successful and with such inspection safeguards that the full deploy-
ment of ABM will not be necessary.
17. WHAT CAUSES INFLATION? HOW DO YOU FEEL IT COULD BE STOPPED?
Inflation is caused for the most part by excessive, wasteful
government spending and fiscal irresponsibility on the part of labor
and business in setting wage and price policies. A curb on wasteful
spending by government and restraint by business and labor will be
required to stop inflation. During the period from 1960-1968, the
federal government spent $60.2 billion more than it took in. This is
what has caused the tremendous inflation we have been suffering from.
This is what must be stopped. President Nixon has submitted a budget
that will permit a surplus, but the Democrat Congress again seems deter-
mined to create another deficit. I am working to keep this government
spending within the bounds of fiscal responsibility, effectiveness, and
efficiency.
18. DO YOU APPROVE OF GIVING FOREIGN AID TO COMMUNIST OR PRO-
COMMUNIST COUNTRIES?
No. I have voted in the House against doing this.
19. WHAT IS YOUR ATTITUDE TOWARD THOSE WHO PROTEST THE WAR IN VIETNAM?
Lawful protests are a fundamental right we must protect. Unlaw-
ful protests subvert our society and must not be condoned.
20. HOW DO YOU FEEL ABOUT SEX EDUCATION IN THE SCHOOLS?
I think that what is needed is some kind of balance and good taste
in handling sex education. Ideally, the school and the home should be
able to work together to create a sound balance between scientific
knowledge and morality. This is indeed a sensitive subject, and I
Services of Mead Data Central
PAGE
4
6TH STORY of Level 2 printed in FULL format.
Copyright (c) 1990 The Washington Post
January 28, 1990, Sunday, Final Edition
SECTION: OUTLOOK; PAGE C1
LENGTH: 1520 words
HEADLINE: Why Blacks Like Bush;
He's Got the Image - But Soon He'll Need Results
SERIES: Occasional
BYLINE: Juan Williams
BODY:
AS GEORGE Bush stands before Congress this week to deliver his annual
State of the Union message, his political power is made stronger by support from
a suprising quarter: black Americans.
Blacks are at the heart of the president's overall popularity, says Lee
Atwater, chairman of the Republican National Committee. At this point in his
presidency, Bush enjoys the highest approval level of any post-World War II
president. Atwater believes good feelings about Bush in the black community
translate into higher approval ratings across the political spectrum.
In fact, Bush has consistently scored high with black voters since taking
office. Last February he had a 61 percent approval rating among blacks; that
rating has now climbed to 74 percent -- only six points lower than among whites.
Even Americans who are not employed, a disproportionate share of whom are black,
give the president a 76 percent approval rating.
Here is a paradox. George Bush served for eight years as vice president
to Ronald Reagan, the most unpopular president with blacks in modern history. He
ran his successful presidential campaign using the face of Willie Horton - the
black rapist and slasher - as a frightening logo and drew only about 12 percent
of the black vote. Yet now he is almost as popular with the black public as with
the white.
How can this be? One explanation, offered by Milton Morris, research director
for the Joint Center for Political Studies, the nation's major black think tank,
is that most black Americans, like most white Americans, like to like their
president. Says Morris, "The black community was dying to express support for
someone in the White House and George Bush is the lucky ben eficiary of that
desire. And to his credit he has been accessible and willing to be responsive to
black issues and concerns."
Atwater doubts that blacks perceived Bush's Willie Horton ads as racist. "If
black voters truly thought it was a racial campaign they wouldn't support him,"
says Atwater. "Black voters understand the furlough issue, the crime issue."
As for Bush's position as Reagan's successor, it seems to have helped rather
than hurt him: To a degree, Reagan's adversarial relationship with blacks was
the launching pad for Bush's high ratings. "It has been 50 easy to stand out in
sharp contrast to Ronald Reagan when it comes to black people," says Morris.
LEXIS® NEXIS® LEXIS® NEXIS ®
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PAGE
5
(c) 1990 The Washington Post, January 28, 1990
But Bush has also taken positive steps to improve his standing with blacks.
Most have involved more public relations than substance - meeting with national
and foreign black leaders, speaking at the National Baptist Convention. But
these visible acts of leadership have apparently been important in setting the
tone for his administration.
"There is no question in my mind that Ronald Reagan would not have met with
Bishop Tutu - Bush did," says Benjamin Hooks, the NAACP director who met
only once with Reagan but has had five meetings with Bush during his first year
in office.
"I have the impression," Hooks adds, "that Bush comes from the old-line,
moderate wing of the Republican party like his father before him. He doesn't
trace his political line to Barry Goldwater who turned Republicans away from
black people." Unlike Reagan, Bush has not made himself an opponent of
affirmative action. After the Supreme Court struck down a contract set-aside
plan last year, Bush said he would "not read into that a mandate to me to stop
trying on equal employment and on affirmative action generally."
Bush is also praised for appointing blacks to high-level positions. His most
visible choices have been Colin Powell, as chairman of the Joint Chiefs of
Staff; Constance Newman as head of the Office of Personel Management; Fred
McClure as head of congressional liaison ; and Louis Sullivan as head of the
Health and Human Services Department.
Although Powell was originally elevated to the influential position of
National Security Adviser by Reagan, Bush has garnered far more credit for his
appointments.
"I'll tell you one key difference between Bush and Reagan's black
appointees," says Armstrong Williams, vice-president of B&C Associates in
Highpoint, N.C. and a former Reagan administration appointee. "Bush puts people
there because they are qualified." Instead, Williams feels, Reagan's main
interest was "statistics - so he could rattle off how many blacks worked for
him."
"No one who saw [Powell] during the Panama crisis was talking about
affirmative action --- they were saying what a strong commander he is," says
Williams, "and the man who put those people in place, who gave them
responsibility and listens to them is George Bush. =
Bush has also pursued a strategy of going beyond black leaders to visit
black neighborhoods and homes. Last week he visited a Kansas City community, the
week before he was at a public housing project in Alexandria.
"He was comfortable and they were comfortable with him," says Jack Kemp, the
housing secretary who accompanied Bush to the housing project.
"They didn't come up and say I want to join the Republican party but they did
say 'Keep it up Mr. President Don't give up on us.' And when he said to them
he wants to do something to reverse 30 years of failed social policy by putting
rewards back in life for cleaning up your house, staying in school, and taking
jobs, those people are saying to him, 'Yes, sir, we'd be proud to be a part of
something that stands for dignity, justice and pride.'
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(c) 1990 The Washington Post, January 28, 1990
"It will not last," says Michael Frazier, legislative aide to Sen. Edward
Kennedy (D-Mass.). Pointing to pending measures dealing with discrimination in
the workplace, the death penalty and South Africa, Frazier predicts that "Bush
will have to take stands on issues of importance to black America in the next
year. Let's see if he is still popular by the end of this year."
GRAPHIC: ILLUSTRATION, PETER ALSBERG
TYPE:
FEATURE
SUBJECT:
BLACK; U.S. PRESIDENT
NAMED-PERSONS:
GEORGE BUSH
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George Bush
for
GEORGE BUSH on APPIRMATIVE ACTION
George Bush supports allitmative action.
As .1 businessman in Texas, he practiced
affirmative action in hiring and propotion
of black and hispanic employees. The bene-
ficial effects of affirmative action policies.
can be seen in the closing gap in wage rates
between white and black workers, particularly
among the young and college-educated.
However, he is opposed to quotas in
Federal or other hiring.
and for the Telefan tenm. an Washington DI 20201
CW: 11.29.1
AT `IRMATIVE ACTION
QUESTION: DO YOU SUPPORT APPIRMATIVE ACTION?
ANSWER:
I support affirmative action, as it. helps
bring people "P 10 the starting line on an
equal fooling. But I have opposed quotas,
SOURCE: JEWISH LIVING MAGAZINE OUESTIONNATRE
from 3rd person.
1977, private citizen Goorge Bush served 88 host and
"e sponsor of Howard University's "New Directions"
raising drive.
July, Candidate for President George Bush appointed
Flotcher (author of the Affirmative Action Legislation
1974) as Chairman of Blacks for Bush.
BUSH PACTS
George Hush, more than any other candidate, has both the
experience and the sensitivity to work in the interest of all
the people of the United States. His convictions that minorities
must be represented in responsible positions in all areas of
government are firm Bush is equally committed to creating
opportunity for minorities in the private sector, and these
concerns will be of primary importance to his administration when
he 1s elected to the Presidency.
Specifically, in his numerous positions in private and public
life, he has worked to insure the participation of minorities
at every turn.
- In the late 1950's he was Chairman or the Midland, Texas
United Way Annual Campaign.
- As President and co-founder of ZAPATA off-Shore Company,
George Bush worked hard to train and hire Mexican-Americans
and Blacks at. All levels of the corporation.
- A Congressman from Houston, Texas from 1966-1970, Bush
sponsored and fought for Civil Rights legislation,
including the Fair Housing Act.
- In 1970, George Bush became our Ambassador to the United
Nations where greater than one-third of his staff was Black.
In 1972, he appointed a Black, Arthur Feltcher (recently
a candidate for Mayor in Washington, D.C.) to compaign
nationwide in support of the United St.at.es., position on the
crucial II 2 China = question.
- In 1972, as Chairman of the Republican National Committee,
Goorge Bush initiated 8 program to attract minoritics in
large numbers 1.0 the Republican Party through increased
voter education and registration drives. In those R.R.C.
years he also started the National Black Republican
Council and was the first Republican official at that
high level to meet b1-weekly with members of the National
Association of Black Press,
- After 2 years as our Ambassador to China, Bush was brought
back to this country t.o head the Central Intelligence
Agency. There, lie was the first CIA Director to initiate
a program to actively solicit and train minorities for
responsible roles in the intelligence community and State
Department.
Torposident.
for
GEORGE BUSH ON THE ISSUES
AFFIRMATIVE ACTION
George Bush has long favored action designed
to ensure that every American has equal access
to opportunity, but he opposes quotas as arbitrary
and unfair. The Bakke decision struck down earlier
decisions favoring quotas. George Bush supports
that decision.
A copy of out report is "D file with the Federal Election Commission and
available for purchase from the Federal Fixtion Commission Washington DC 20443
C030000 CIVIL RIGHTS/*RECORD
In 1968, as a freshman congressman. Mr. Bush headed back to
his conservative Republican district in Houston after casting a
vote in favor of landmark open-housing legislation.
"Somehow it seems fundamental that a man should not have a
door slammed in his face because he is a Negro or speaks with a
Latin American accent. " he said. -- The Sun, January 17, 1988.
Bush is matter-of-fact in acknowledging that he was not out
front on civil rights in the '60s. But he reacts strongly to
any suggestion that his privileged upbringing might naturally
make him insensitive to the needs of minorities and the poor.
"Did they ask that of Franklin D. Roosevelt? or
John
Kennedy?
The answer is no. They ask it of Republicans who came from
backgrounds like mine. They don't ask it of Democrats. See, if
I were a Democrat, nobody would think of asking me a question
like that because I would be spending more (federal money) on
whatever it is. -- Inquirer, February 28, 1988.
"I voted for every piece of civil rights legislation for the
four short years I was in Congress," Mr. Bush said in discussing
the bill before the veto. "And I don't want to see us
positioned - anything to interpret this as being against civil
rights. -- New York Times, March 24, 1988.
In April 1968, Rep. George Bush (R -Tex.) voted for a
landmark fair housing bill
Bush said, "I do not want it on
my conscience that I have voted against legislation that would
permit a Negro, say a Negro serviceman returning from Vietnam,
where he has been fighting for the ideals of his country, to buy
or rent a home of his choosing if he has the money.'
"The place was jammed, he said. "Judging from the boos and
catcalls when I was introduced, it was also seething. " Bush
reminded them of the blacks fighting in Vietnam and asked how
they would feel if a black veteran returned "only to be denied
the freedom that we, as white Americans, enjoyed?" the crowd
gave him a standing ovation, he recalled. -- The Washington
Post, March 27, 1988.
"I'm not going to start doing something 7-1/2 years into an
administration that I haven't been willing to do before. Bush
said at a news conference Thursday in Hartford, Conn., when
asked if he supported the veto of the civil rights bill. "I'm
not going to try now to distance myself. -- Philadelphia
Inquirer, March 27, 1988.
C030000 CIVIL RIGHTS/*GROVE CITY BILL
Bush reiterated his position that the legislation as written
was flawed and that he was not going and that he was not going
to start contradicting Reagan this late in his term. but he
said he supported the bill's underlying intent.
Perhaps Rev. Jackson was talking when he should have been
listening,' Bush said.
It's not that I'm afraid to do what some of the Democrats
are afraid to do go after him," Bush said. "But if he's the
nominee, we'll have a chance to discuss civil rights records and
I'll lay my record on the ground with anybody." -- (AP), March
25, 1988.
"Don't use past pluperfect, let's go to the future, " he
urged reporters when asked to clarify his position. "Others
will try, the Democrats will try, they will try to get me to say
would you have done this different from the president, you owe
it to us to tell us. I'm going to say I don't think I do. I'll
do it (Civil Rights) exactly the way I spelled out I'm going to
do it. " -- The Washington Post, March 27, 1988.
C030000 CIVIL RIGHTS/*GROVE CITY BILL
The vice president said he favored the basic premise of the
bill, but didn't want to go against the president on the
matter. Besides, he said, the legislation was flawed. Jackson
has scoffed at that, saying Bush lacks leadership.
"Perhaps Rev. Jackson was talking when he should have been
listening," Bush retorted Thursday. "If he's the nominee, we'll
have a chance to discuss civil rights records and I'll lay my
record on the ground with anybody." -- (AP), March 25, 1988.
"I don't think anybody is going to be judged by one vote in
one administration, Bush said when asked about criticism from
Democratic presidential hopeful Jesse L. Jackson and others of
his support of the veto, overridden by Congress this week. --
-Washington Post, March 25, 1988,.
Sometimes we forget that civil rights isn't simply a bill,
it's a whole state of mind in terms of education, a state of
mind in terms of opportunity, a state of mind in terms of
education, whatever these things are," Bush said. -- Washington
Post, March 25, 1988.
Bush emphasized that he was motivated by his policy of
supporting positions taken by the president. Asked if he would
oppose Reagan's veto, he said, "I'm not going to start doing
that now, which I haven't done for seven and a half years.'
-- Houston Chronicle, March 22, 1988.
Bush said today that there were "shortcomings" in the bill,
but when asked what his specific objections were, Bush offered
only one, that the law might impinge on religious organizations
and their operations such as day care centers. He did not
elaborate. He indicated, however, that he did not have major
objections.
As for Jackson's criticism, Bush said: "Perhaps Rev. Jackson
was talking when he should have been listening
If he's the
nominee we'll have a chance to talk about civil rights records.
I'll lay mine on the ground with anybody." -- Washington Post,
March 25, 1988.
C030000 CIVIL RIGHTS/*GROVE CITY BILL
Vice President George Bush indicated Monday he supported
President Reagan's veto of a major civil rights bill, even as
the House and Senate prepared to override the president's
action.
"Let me be very frank with you, " Bush told a group of his
black supporters. "The legislation is imperfect, and the
imperfections need to be corrected.
Bush emphasized that he was motivated by his policy of
supporting positions taken by the president. Asked if he would
oppose Reagan's veto, he said, "I'm not going to start doing
that now, which I haven't done for seven and half years. " --
Houston Chronicle, March 22, 1988.
"I'm not going to start differing with the president after
seven-and-a-half years into the vice presidency,"
"I've stood with the president, and that the legislation
needs to be perfected, and I hope it will be.' -- The State,
Columbia, South Carolina.
Speaking to a black audience, Bush said the bill was
"imperfect. The imperfections should be corrected." But then
he went on to say he supported its purpose: "The Federal
government must require that organizations that get tax dollars
comply with our civil rights laws." -- (AP), March 23, 1988.
"I'm not going to start doing that now which I hav'nt done
in 7 1/2 years, " he told reporters. "I favor the overturning of
Grove city. " -- Los Angeles Times, March 23, 1988.
"I favor the overturning of Grove city."
Bush said he believed the legislation passed by Congress was
"imperfect" and could infringe on religious freedoms. -- Los
Angeles Times, March 23, 1988.
Vice President Bush said today that the civil rights bill
Congress passed over President Reagan's veto this week should be
"fully enforced," and though he continued to cite flaws in the
measure he would not say whether he would have vetoed the bill
himself. --- New York Times, March 24, 1988.
C030000 CIVIL RIGHTS/*GROVE CITY BILL
Bush adroitly maneuvered around the hard fact that earlier
in the day, while campaigning in New Jersey, he had announced
his support for President Reagan's veto last week of the Grove
City civil rights bill passed by Congress. The bill broadly
expands civil rights coverage for institutions receiving federal
funds, and Reagan said he wants to "ensure equality" but that
the bill is too intrusive.
Bush said in his speech last night that he wasn't going to
differ with Reagan on the matter, and he even drew a standing
ovation by adding. "The federal government must require that
organizations that get tax dollars comply with our civil rights
laws. And that's fundamental. " -- Washington Post, March 22,
1988.
Even so, he said of the so-called Grove City legislation:
"The federal government must require that organizations that get
tax dollars comply with our civil rights laws. And that is
fundamental. Many in his audience stood to applaud this
statement. Boston Globe, March 22, 1988.
"Let me be very frank with you, Bush told a group of his
black supporters. "The legislation is imperfect, and the
imperfections should be corrected.
"
"Having said that,
however, the federal government must require that organizations
that get tax dollars comply with our civil rights laws. That's
fundamental. " Bush told the gathering that civil rights "was
not just a matter of social policy, but of fundamental
right.
"
"If I am the Republican nominee," he continued, he
continued, "I want to attract to this party -- the party of
Lincoln -- the broadest base of Americans possible, and that
includes blacks, Hispanics and all minorities." -- Houston
Chronicle, March 22, 1988.
"I've said I've stood with the President, and that the
legislation needs to be perfected, and I hope it will be. " --
The Philadelphia Inquirer, March 22, 1988.
"The pending legislation, let's face it, if we're rational
with each other, is imperfect. The imperfections' should be
corrected.
"Having said that, " he added, "the federal government must
require that organizations that get tax dollars comply with our
civil rights laws. And that's fundamental. -- Washington Post,
March 22, 1988.
C030000 CIVIL RIGHTS/*GROVE CITY BILL
Bush said he also supported President Reagan's veto of the
Civil Rights Restoration Act passed both chambers earlier this
year by large margins. Both supporters and opponents of the
measure said there was little chance the veto would be
sustained.
It was prompted by a 1984 Supreme Court ruling that civil
rights laws applied only to a specific program or activity
receiving federal aid. Under the decision, for example, the
government could not cut off money to a college if the
discrimination occurred in a department that did not receive
such aid. -- (AP), March 21, 1988.
Asked if he would oppose Mr. Reagan's veto, he said, "I'm
not going to start doing that now, which I haven't done for
seven and half years. -- New York Times, March 22, 1988.
"I'm not going to start doing that now which I haven't done
in 7 1/2 years," "I favor the overturning of Grove City."
Bush said he believed the legislation passed by Congress was
"imperfect" and could infringe on religious freedoms.
He told a group of local reporters in Connecticut that with
selective veto power he could, as president, shape such a bill
to his liking, vetoing those parts he does not like and signing
the rest. -- Plain Dealer, March 22, 1988.
"I'm not going to start differing with the president after 7
1/2 years into the vice presidency," Bush said Monday in
Hartford, Conn.
"I've said I've stood with the president, and that the
legislation needs to be perfected, and I hope it will be."
Bush said that while he considered the legislation
"imperfect," he believes "The federal government must require
that organizations that get tax dollars comply with our civil
rights of every American." -- Orange County Register, March 22,
1988.
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The Associated Press
The materials in the AP file were compiled by The Associated Press. These
materials may not be republished without the express written consent of The
Associated Press.
July 11, 1988, Monday, PM cycle
SECTION: Washington Dateline
LENGTH: 346 words
HEADLINE: Don't Take Blacks for Granted, Hooks Tells Democrats
DATELINE: WASHINGTON
KEYWORD:
NAACP
BODY:
Democrats should not take blacks for granted, and Republicans are making a
mistake in ignoring the black vote, says NAACP Executive Director Benjamin L.
Hooks.
Hooks opened the 79th annual convention of the National Association for the
Advancement of Colored People Sunday night with a speech in which he also called
on blacks to emphasize self-help.
"It would be a tragic mistake to take us for granted," Hooks said in remarks
aimed at the Democrats. "Don't take us for granted."
To the Republicans, he said, "You're making a terrible mistake to continue to
ignore the black vote."
Blacks have won an inspiring measure of economic, political and social
freedom, Hooks said. But racism and hopelessness persist, he added.
He accused the Reagan administration of abandoning the war on poverty and
dismantling civil rights gains.
"The question tonight I propose is: Where do we go from here?" Hooks said.
In answering his own question, he said:
"First of all, we shall go forward to first class citizenship only if we
place renewed emphasis on self-help. What good is freedom of thought if you
can't think? What good is freedom of speech if you can't speak?"
Hooks praised Jesse Jackson's presidential campaign as "brilliant and
incredible" but said the decision to seek or accept the vice presidency "is one
that he alone has to make."
About 16,000 people are expected to attend the five-day convention, whose
theme is "Vote! Be Heard.' Vice President George Bush, the expected
Republican presidential nominee, is scheduled to speak Tuesday and
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The Associated Press, July 11, 1988
Massachusetts Gov. Michael Dukakis, the expected Democratic nominee, is to
address the convention Wednesday.
The 11-year-old grandson of Medgar Evers, the field secretary for the NAACP
in Mississippi who was shot to death in 1963, spoke earlier Sunday in Arlington
National Cemetery.
"If we didn't have those like Malcolm x, Martin Luther King Jr. and Medgar
Evers, we wouldn't be free today," said Daniel Evers Everette. "We wouldn't be
able to go anywhere we want to. We wouldn't be able to do anything we want to."
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150TH STORY of Level 2 printed in FULL format.
The Associated Press
The materials in the AP file were compiled by The Associated Press. These
materials may not be republished without the express written consent of The
Associated Press.
July 12, 1988, Tuesday, AM cycle
LENGTH: 625 words
HEADLINE: Bush Pledges 'New Day' In Civil Rights If Elected President
BYLINE: By TERENCE HUNT, AP White House Correspondent
DATELINE: WASHINGTON
KEYWORD:
Bush
BODY:
Republican George Bush told blacks Tuesday his presidency would mark "a
new day" after the Reagan administration, promising, "I will be personally
involved in protecting the civil rights of all Americans."
Appearing before the 79th convention of the NAACP, the vice president
promised, "You will be heard, I promise you that. You're going to be called on.
You're going to be partners in my presidency."
Bush, sure to be the Republican presidential nominee, also paid tribute to
Jesse Jackson, the runner-up in the Democratic presidential primaries.
While saying he had profound policy differences with Jackson, Bush said, "I
salute him for running the race, for being heard, and he deserves a salute from
us." The audience of several thousand people applauded loudly, and generally
gave Bush a warm response.
Bush made no mention of the selection of Texas Sen. Lloyd Bentsen as the
running mate of Michael Dukakis, the presumed Democratic presidential nominee.
Later in the day, Bush planned to fly to Cincinnati to throw out the first pitch
at baseball's All-Star Game.
Republicans traditionally have not had much luck in attracting black voters.
The Reagan administration has been criticized repeatedly by blacks, particularly
for its record on civil rights and aid to the poor.
Bush, however, has a relationship with many black leaders. In introducing
Bush, NAACP executive director Benjamin Hooks praised the vice president's
"long and distinguished record of public service" and called him a man "of honor
and integrity."
Using a baseball analogy, Bush told the NACCP that as a candidate for
president, "I'm not just in the on-deck circle any more, I'm at the plate. And
let me just say, it is a new day."
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The Associated Press, July 12, 1988
He promised that, "I will have a positive civil rights agenda. I guarantee
you I will be personally involved in protecting the civil rights of all
Americans. This effort will be at the top of the agenda of my attorney general,
and he or she will be directly accountable to me for results."
The audience respounded with applause and cheers.
Bush said he did not intend to concede the vote of any American, but
acknowledged it's tough for Republicans to win over blacks.
"I need your help. I know I'll get your constructive criticism," he said,
amid chuckles from the audience. "That's all right. You will be heard, I promise
you that," Bush said.
Bush said his commitment to include blacks was was not dependent on his
receiving a certain percentage of the black vote.
"I'm a realist. You all are realists," Bush said. "I'm going to do better
than people think in that regard."
He promised that " I will have minority men and women of excellence as
full-scale partners in my administration. He said black leaders like Hooks
"will always be welcome at my house, even when my house is your house - the
White House."
Bush credited the Reagan administration with "building a record of economic
success" and said that a third of all black families now earn more than $25,000
a year. "But there's much more left to be done," Bush said.
He said the government can be involved in dealing with problems such as
pregnancy among unwed black teen-age girls and the high rate of black school
dropouts. However, he added, "The answer also lies in the values that are passed
on from generation to generation withington values like family, faith, education, the
importance of work."
"We must teach kids the difference between right and wrong. We must teach
them how to say no to drugs and no to teen-age pregnancy. We must stop the cycle
of babies having babies. And we must emphasize the importance of family and work
and education."
Bush promised that his first budget would seek a dramatic increase in funding
for the Head Start program.
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39TH STORY of Level 2 printed in FULL format.
Copyright (c) 1989 Chicago Tribune Company;
Chicago Tribune
July 9, 1989, Sunday, CITY EDITION
SECTION: NEWS; Pg. 6; ZONE: C
LENGTH: 611 words
HEADLINE: Bush will be better for blacks than Reagan, NAACP leader says
BYLINE: From Chicago Tribune wires
DATELINE: DETROIT
BODY:
George Bush will be a better president for black Americans than Ronald
Reagan, whose administration ignored black leaders and let civil rights erode,
NAACP leader Benjamin Hooks said.
Hooks, speaking Friday before the group's annual convention, which opens
Sunday, said Bush has shown a genuine desire to see the United States overcome
its history of racism.
"There's no question in my mind that Bush is going to be a better president
than Reagan," Hooks said. "It would be hard to be a worse president than
Reagan."
The National Association for the Advancement of Colored People, the nation's
oldest and largest civil rights group with 500, members, predicts 18,000 to
20,000 people will attend its 80th annual convention.
"It's a sad fact that we're still about the same thing we were when we were
founded in 1909 - eliminating all forms of racial discrimination," said Hooks, a
former Federal Communications Commission member who became NAACP executive
director in 1977.
"Racism, sexism are alive and well," he said.
Hooks said Bush, unlike Reagan, has been accessible to black leaders and has
met with him and the Congressional Black Caucus, as well as with South African
antiapartheid leaders Revs. Desmond Tutu and Allan Boesek,
Hooks said he has known Bush for many years and considers him a member of the
Republican Party's Eastern, more moderate wing.
"He wants to do a good job, but he wants to be elected again," Hooks said.
"There are various pressures working on him."
Vice President Dan Quayle, 1988 Democratic presidential contender Jesse
Jackson and U.S. Housing and Urban Development Secretary Jack Kemp are among
those scheduled to address the NAACP convention, which runs through Thursday.
Asked how delegates would receive Quayle, who would be making his first
appearance before a black group, Hooks joked: "Oh, he'll get a reception.
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(c) 1989 Chicago Tribune, July 9, 1989
Seriously, he'll get a cordial reception, I'm sure. If we didn't want to hear
him, we wouldn't have invited him."
A series of U.S. Supreme Court decisions narrowing federal civil rights laws
and allowing white workers the right to counter-sue in affirmative action cases
will be a hot convention topic, Hooks said.
"The question on the minds of black folks around the country is how we deal
with the recent spate of Supreme Court decisions that just emasculate the civil
rights laws," he said. "In fact, it's going to get a lot worse before it gets
better."
=
The Supreme Court has gone absolutely berserk. I can't believe that
five people would be 50 dumb as the majority is in those cases," Hooks said.
"It's either dumbness or out-and-out racism and sexism."
In what is viewed by civil rights officials as the most significant ruling,
the court on June 12 said white male employees can sue to reopen affirmative
action court settlements if they feel they were subject to reverse
discrimination. The ruling in Martin V. Wilks threatens to invalidate dozens of
settlements involving police, firefighters and other public employees, legal
scholars say.
Hooks said the 80-year-old NAACP, which has 500,000 members, is exploring
whether to push for passage of federal legislation dealing with affirmative
action matters.
A side effect of the Supreme Court's rulings has been interest in the NAACP
among some people previously uninvolved.
"I've seen young blacks in professional roles who haven't supported us
sending checks and wanting to demonstrate," Hooks said.
Other officials addressing the convention will be Democratic National
Committee Chairman Ron Brown, Gov. James Blanchard, Mayor Coleman Young and
United Auto Workers union President Owen Bieber.
TERMS: UNITED STATES; OFFICIAL; BLACK; RIGHTS
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Copyright (c) 1989 Newsday, Inc.
Newsday
August 9, 1989, Wednesday, CITY EDITION
SECTION: NEWS; Pg. 15
Other Edition: Nassau and Suffolk Pg. 5, Home Pg. 15
LENGTH: 674 words
HEADLINE: Bush Promises Attempts to End Discrimination
BYLINE: By Marie Cocco. Newsday Washington Bureau
DATELINE: Washington
KEYWORD: NATIONAL URBAN LEAGUE; MEETING; GEORGE BUSH; CIVIL RIGHTS;
DISCRIMINATION; MINORITY;
BODY:
President George Bush, in his first speech to a major civil rights
organization since taking office, pledged yesterday to "make America open and
equal to all" by striking down barriers to minorities' economic advancement and
working to ensure that discrimination ends.
"Your problems are my problems," the president told thousands of delegates to
the National Urban League convention here. "Today, I offer you my hand and offer
you my word. Together, we will make America open and equal to all."
But the president did not spell out new initiatives, and reiterated the list
of tax breaks for business investors that he has proposed to spur inner city
development.
And Bush avoided any reference to a series of actions by his administration
that already have strained relations between the White House and some civil
rights leaders. These include Bush's controversial nomination of William Lucas -
who last week was rejected as unqualified by the Senate Judiciary Committee - to
head the Justice Department's civil rights division, and his decision that no
legislation is needed to negate the string of recent Supreme Court decisions
sharply limiting affirmative action.
Bush's remarks got a polite reception from the delegates, who interrupted his
speech at various points with a smattering of applause. Leaders of the Urban
League and several delegates said afterward that while they disagreed with some
of the president's views and actions, they were willing to give him more time to
match his rhetorical commitment to civil rights with concrete deeds.
Bush said his administration was open to reaching out to minorities, and
said: "We will not tolerate discrimination, bigotry or bias of any kind,
period."
Bush suggested that affirmative action programs are no longer necessary,
because he said a shortage of labor in the coming decade will mean jobs for
women, minorities and immigrants.
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Copyright (c) 1989 The Times Mirror Company;
Los Angeles Times
July 1, 1989, Saturday, Home Edition
SECTION: Part 1; Page 2; Column 1; National Desk
LENGTH: 608 words
HEADLINE: BUSH MARKS ANNIVERSARY OF CIVIL RIGHTS ACT, URGES EXPANDED FIGHT
AGAINST BIAS
BYLINE: By JAMES GERSTENZANG, Times Staff Writer
DATELINE: WASHINGTON
BODY:
President Bush, declaring "the full promise of the civil rights movement has
still not been achieved,' called Friday for an expansion of the civil rights
mission in the United States to encompass the fight against discrimination based
not just on race, but on gender, age and physical disabilities.
During the day, the President also offered support to a number of other
causes.
He met with Albertina Sisulu, wife of an imprisoned black South African
leader and co-president of the United Democratic Front of South Africa, who said
later that Bush told her he hoped his Administration would become a catalyst
"for bringing about a peaceful change in South Africa." However, she reported,
the President balked at her call for "comprehensive, mandatory sanctions"
seeking to bring about an end to South Africa's racial separation policy,
apartheid.
And, journeying across the Potomac to the flag-bedecked Iwo Jima Memorial in
Arlington, Va., Bush gave his backing to a proposed 20-word constitutional
amendment that would prohibit the desecration of the American flag.
With an audience of civil rights leaders including the Rev. Jesse Jackson
looking on in the White House East Room, Bush marked the 25th anniversary of the
landmark 1964 Civil Rights Act, which President Lyndon B. Johnson signed into
law on July 2, 1964. The act banned segregation in public accommodations and was
followed by laws protecting voting rights and banning discrimination in housing
and employment.
Economic Barriers
"The law cannot tolerate any discrimination and my Administration will not
tolerate abuse of that principle," Bush said.
"The hard lesson of the passing years is that it has not been enough to wage
a war against the old forms of bigotry and inequality," he said. "The lives of
the disadvantaged in this country are affected by economic barriers at least as
much as by the remnants of legal discrimination."
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While "much progress" has been achieved since the Civil Rights Act was
passed, Bush said, it is time "to move forward on a broader front, to move
forward into the century's final decade with a civil rights mission that fully
embraces every deserving American, regardless of race, whether women, children
or the aged; whether the disabled, the unemployed or the homeless."
The President's 200 guests included civil rights leaders Martin Luther King
III, Benjamin L. Hooks, Vernon Jordan, James Farmer and Rosa Parks, whose
refusal to move to the back of a Montgomery, Ala., bus on Dec. 1, 1955, became a
landmark in the civil rights movement.
After the ceremony, Jackson complained that as a result of recent Supreme
Court decisions restricting affirmative action programs and making it more
difficult for plaintiffs to prove workplace discrimination, "we need a meeting
of some substance with the President to deal with legislative remedies to
offset" the impact of the court decisions.
At the flag ceremony, Bush again showed his dismay with a Supreme Court
decision that overturned laws in 48 states that made it illegal to burn the
American flag. In a 5-4 decision last week, the court ruled that such statutes
violated the First Amendment's protection of free speech.
Using as a backdrop the bronze sculpture of the raising of the American flag
on Mt. Suribachi during the victorious World War II battle for the Pacific
island of Iwo Jima, Bush said:
"For those who've championed the cause of civil rights here at home, to those
who fought for democracy abroad, free speech is a right that is dear and close
to all. It is in defense of that right and the others enshrined in our
Constitution that so many have sacrificed."
GRAPHIC: Photo, COLOR, Heroic Setting President and Mrs. Bush pose at the Iwo
Jima Memorial in Arlington, Va., Friday before Bush gave his backing to a
20-word constitutional amendment that would prohibit the desecration of the
American flag. United Press International
SUBJECT:
CIVIL RIGHTS; CIVIL RIGHTS ACT OF 1964; BUSH, GEORGE; FLAGS; DESECRATION;
AFFIRMATIVE ACTION; DISCRIMINATION
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Copyright (c) 1989 The New York Times Company;
The New York Times
August 9, 1989, Wednesday, Late Edition - Final
SECTION: Section A; Page 24, Column 1; National Desk
LENGTH: 931 words
HEADLINE: Bush Vows Rights Effort on Jobs and Economic Development
BYLINE: By JULIE JOHNSON, Special to The New York Times
DATELINE: WASHINGTON, Aug. 8
BODY:
President Bush renewed the Administration's commitment to equal opportunity
today, pledging to rebuild the nation's urban areas by focusing on education,
job training and economic development.
want to make sure everyone in this room knows just where I stand, just
where my Administration stands, Mr. Bush told the annual conference of the
National Urban League here. ' 'My Administration is committed to reaching out to
minorities, to striking down barriers to free and open access. We will not
tolerate discrimination, bigotry or bias of any kind, period.
Mr. Bush used his appearance, the first by a President before the group since
1977, to continue White House efforts to build support among black Americans and
civil rights groups, who were frequently at odds with Ronald Reagan's
Administration and who have clashed in recent months with Mr. Bush's.
'Your problems are my problems, the President said. ''Today, I offer you
my hand. I offer you my word. Together, we will make American open and equal to
all.
Touchy Issues Avoided
But Mr. Bush avoided mention of issues that have recently angered civil
rights groups, like the Supreme Court rulings that they said narrowed
anti-discrimination laws, or his nomination of William C. Lucas to be head of
the Justice Department's civil rights division, a choice that was rejected by
the Senate Judiciary Committee.
Mr. Lucas, a black former Executive of Wayne County, Mich., was criticized as
lacking the legal experience needed to be the nation's top civil rights
enforcement official.
Mr. Bush has won high marks from civil rights groups for embracing
affirmative action and working behind the scenes on legislation like amendments
to the the Fair Housing Act and the Americans with Disabilities Act.
Weighing against Mr. Bush among some civil rights leaders is his refusal when
he was Vice President to criticize President Reagan on his actions on civil
rights issues, like his veto of the Civil Rights Restoration Act. That measure
was in response to a 1984 Supreme Court decision limiting the scope of
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anti-distrimination provisions connected with the use of Federal money. Congress
later overrode Mr. Reagan's March 1988 veto.
League Focuses on Business
Today, Mr. Bush was received warmly by the Urban League members, who
interrupted his speech with applause several times. He tailored his remarks to
the league, a civil rights organization that works closely with businesses and
focuses on employment and economic development.
Repeating his support for tax incentives to encourage business enterprises to
locate in the inner cities, Mr. Bush said, ' 'The future of urban America depends
on bringing growth to our inner cities.
John E. Jacob, the league's president, praised Mr. Bush for language that
he said sets a new tone for the nation on civil rights, and he said the
President's positions on education and drugs were in line with those of the
Urban League.
'What WE heard from him today is that he has said his Administration will do
everything within its power to make sure that discrimination does not exist in
this country and that they will fight it with every weapon that they have, Mr.
Jacob said. ''I think that's important because this nation needs to have not
only a reordering of its priorities but a reordering of the nation's atmosphere,
to move the nation back toward the center.
Speech Seen as Lacking Specifics
But Clarence L. Barney, the New Orleans Urban League president, who is
chairman of the national group's economic development committee, said Mr. Bush
had to be assessed by his policies.
'Though I was very impressed with the tone, style and sincerity of the
President's speech, I would like to have seen a greater degree of specificity,
he said.
He praised Mr. Bush's comment that the nation must 'create conditions for
urban growth and economic revival. But Mr. Barney said it was unrealistic for
black contractors to focus solely on inner cities with hopes of building
'economic wealth out of poverty.
Mr. Barney said black business leaders 'want to rebuild our inner city
neighborhoods, but we don't want to be consigned or restricted to that,
adding, 'The greatest opportunities are in foreign investment and in rebuilding
our infrastructure. It is estimated that $1.4 trillion will have to be spent
in coming years rebuilding the nation's deteriorating highways, waterways and
other public structures.
Appearance Was Monitored
Several civil rights organizations and Administration officials, particularly
those who have been involved in skirmishes with the Bush White House, closely
monitored Mr. Bush's appearance at the Urban League meeting, which concludes
Wednesday.
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Ralph Neas, executive director of the Leadership Conference on Civil Rights,
a coalition of several groups that helped marshal opposition to the nomination
of Mr. Lucas, said, ''Everyone in the civil rights community applauds the new
tone that President Bush has set, and this speech is another indication of that
tone.
But despite the oratory, Mr. Neas said, many groups in his coalition are
'deeply disappointed'' that Mr. Bush sees no need for the proposed legislation
to counteract Supreme Court rulings that made it harder to bring and win suits
charging discrimination.
William Barclay Allen, chairman of the Civil Rights Commission, said in an
interview after reading a text of the President's remarks: ''It's nice to have
this statement. These are very important problems, but we must also recognize
that civil rights is bigger.
SUBJECT: URBAN AREAS; FEDERAL AID (US); CIVIL RIGHTS; EDUCATION AND SCHOOLS;
LABOR; ECONOMIC CONDITIONS AND TRENDS
ORGANIZATION: URBAN LEAGUE, NATIONAL
NAME: BUSH, GEORGE (PRES); JACOB, JOHN E; JOHNSON, JULIE
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204
FAMOUS SERMONS AND PUBLIC ADDRESSES
IF THE
chinery, has the capacity to make some miracles for men-if it values
ous and vicious obstacle when th
men as highly as it values machines.
ployment. Labor must honestly
To find a great design to solve a grave problem labor will have to in-
design the battle plan which will
tervene in the political life of the nation to chart a course which distrib-
labor would be unearthing th
utes the abundance to all instead of concentrating it among a few. The
against the bleakness of injustic
strength to carry through such a program requires that labor know its
How can labor rise to the he
friends and collaborate as a friend. If all that I have said is sound, labor
cement its bonds with Negroes
has no firmer friend than the twenty million Negroes whose lives will be
First: Labor should accept the
deeply affected by the new patterns of production.
to Negroes and the struggle for
To say that we are friends would be an empty platitude if we fail to
taken actions to eliminate discr
behave as friends and honestly look to weaknesses in our relationship.
high enough the standard for
Unfortunately there are weaknesses. Labor has not adequately used its
should and can set an example f
great power, its vision and resources to advance Negro rights. Undeni-
sades for social justice. You shoi
ably it has done more than other forces in American society to this end.
tion of discrimination so that S(
Aid from real friends in labor has often come when the flames of strug-
or locals may not besmirch the
gle heighten. But Negroes are a solid component within the labor move-
aware this is not easy nor popul:
ment and a reliable bulwark for labor's whole program, and should ex-
ular nor easy to achieve. Nor W
pect more from it exactly as a member of a family expects more from his
you accomplished all of these
relatives than he expects from his neighbors.
Out of such struggle for democi
Labor, which made impatience for long-delayed justice for itself a vi-
and the respect of the country,
tal motive force, cannot lack understanding of the Negro's impatience.
Negro rights a great crusade.
It cannot speak, with the reactionaries' calm indifference, of progress
Second: The political strengt
around some obscure corner not yet possible even to see. There is a
mation from becoming a Molo
maxim in the law-justice too long delayed, is justice denied. When a
can be multiplied if you tap the
Negro leader who has a reputation of purity and honesty which has
Negroes, given the vote, will V
benefited the whole labor movement criticizes it, his motives should not
the same liberal legislation labo
be reviled nor his earnestness rebuked. Instead, the possibility that he is
To give just an example of th
revealing a weakness in the labor movement which it can ill afford,
I might cite the arresting fact t
should receive thoughtful examination. A man who has dedicated his
pealed the right-to-work law is ]
long and faultless life to the labor movement cannot be raising ques-
Negro vote in that state grew la
tions harmful to it any more than a lifelong devoted parent can become
er, and it went along with labor
the enemy of his child. The report of a committee may smother with
support to assist us in securing
legal constructions a list of complaints and dispose of it for the day. But
tween success and defeat for u
if it buries a far larger truth it has disposed of nothing and made justice
we need and you have an appar
more elusive.
ognized five years ago a moral
eral of your leaders, including
and Mr. MacDonald and othe
BIAS EXISTS IN UNIONS
paign to assist the struggling N
Discrimination does exist in the labor movement. It is true that orga-
circumstances in the South. A t
nized labor has taken significant steps to remove the yoke of discrimina-
ed by the ILGWU to begin the
tion from its own body. But in spite of this, some unions, governed by
the drive was never begun. Tl
the racist ethos, have contributed to the degraded economic status of
these turbulent, violent years,
the Negro. Negroes have been barred from membership in certain
many unions thought of as im
unions, and denied apprenticeship training and vocational education. In
meeting the budget to properly
every section of the country one can find local unions existing as a seri-
that you tax your treasuries.
IF THE NEGRO WINS, LABOR WINS / 205
ous and vicious obstacle when the Negro seeks jobs or upgrading in em-
ployment. Labor must honestly admit these shameful conditions, and
design the battle plan which will defeat and eliminate them. In this way,
labor would be unearthing the big truth and utilizing its strength
against the bleakness of injustice in the spirit of its finest traditions.
How can labor rise to the heights of its potential statesmanship and
cement its bonds with Negroes to their mutual advantage?
First: Labor should accept the logic of its special position with respect
SPEECH TO AFV- c10
to Negroes and the struggle for equality. Although organized labor has
taken actions to eliminate discrimination in its ranks, it has not raised
high enough the standard for the general community. Your conduct
should and can set an example for others, as you have done in other cru-
sades for social justice. You should root out vigorously every manifesta-
tion of discrimination so that some internationals, central labor bodies
or locals may not besmirch the positive accomplishments of labor. I am
aware this is not easy nor popular-but the eight-hour day was not pop-
ular nor easy to achieve. Nor was outlawing anti-labor injunctions. But
you accomplished all of these with a massive will and determination.
Out of such struggle for democratic rights you won both economic gains
and the respect of the country, and you will win both again if you make
Negro rights a great crusade.
Second: The political strength you are going to need to prevent auto-
mation from becoming a Moloch, consuming jobs and contract gains,
can be multiplied if you tap the vast reservoir of Negro political power.
Negroes, given the vote, will vote liberal and labor because they need
the same liberal legislation labor needs.
To give just an example of the importance of the Negro vote to labor,
I might cite the arresting fact that the only state in the South which re-
pealed the right-to-work law is Louisiana. This was achieved because the
Negro vote in that state grew large enough to become a balance of pow-
er, and it went along with labor to wipe out anti-labor legislation. Thus,
support to assist us in securing the vote can make the difference be-
tween success and defeat for us both. You have organizing experience
we need and you have an apparatus unparalleled in the nation. You rec-
ognized five years ago a moral opportunity and responsibility when sev-
eral of your leaders, including Mr. Meany, Mr. Dubinsky, Mr. Reuther
and Mr. MacDonald and others, projected a two million dollar cam-
paign to assist the struggling Negroes fighting bitterly in handicapped
circumstances in the South. A ten-thousand-dollar contribution was vot-
ed by the ILGWU to begin the drive, but for reasons unknown to me,
the drive was never begun. The cost to us in lack of resources during
these turbulent, violent years, is hard to describe. We are mindful that
many unions thought of as immorally rich, in truth have problems in
meeting the budget to properly service their members. So we do not ask
that you tax your treasuries. Instead, we ask that you appeal to your
SHOWDOWN FOR NONVIOLENCE / 67
es and the reforms that radiated
get any instantaneous results from Congress, knowing its recalcitrant
1.
nature on this issue, and knowing that so many resources and energies
ties and five rural districts-from
are being used in Vietnam rather than on the domestic situation. So we
adre. We will have two hundred
don't have any illusions about moving Congress in two or three weeks.
But we do feel that, by starting in Washington, centering on Congress
ild be about three thousand to get
and departments of the government, we will be able to do a real educa-
They are important, particularly
They are being trained in this dis-
tional job.
We call our demonstration a campaign for jobs and income because
we feel that the economic question is the most crucial that black people,
e are also stimulating activities in
and poor people generally, are confronting. There is a literal depression
rotest. We are planning to have
in the Negro community. When you have mass unemployment in the
gton. We may have half the group
Washington and begin the protest
Negro community, it's called a social problem; when you have mass un-
employment in the white community, it's called a depression. The fact
king. They would flow across the
is, there is a major depression in the Negro community. The unemploy-
the Georgia group, right on up
ment rate is extremely high, and among Negro youth, it goes up as high
and Virginia. We hope that the
as forty percent in some cities.
oor people walking slowly toward
We need an economic bill of rights. This would guarantee a job to all
natic effect on Congress.
1, there will be spontaneous sup-
people who want to work and are able to work. It would also guarantee
an income for all who are not able to work. Some people are too young,
he country. This has usually hap-
some are too old, some are physically disabled, and yet in order to live,
nk it will again. I think people will
they need income. It would mean creating certain public-service jobs,
choose California and other areas
but that could be done in a few weeks. A program that would really deal
em of transporting marchers that
with jobs could minimize-I don't say stop-the number of riots that
spontaneous demonstrations take
could take place this summer.
Our whole campaign, therefore, will center on the job question, with
t is very important. We know from
other demands, like housing, that are closely tied to it. We feel that
president won't do anything until
much more building of housing for low-income people should be done.
ich people of goodwill can find a
On the educational front, the ghetto schools are in bad shape in terms
: it really means breaking that co-
of quality, and we feel that a program should be developed to spend at
n-dominated, rural-dominated, ba-
least a thousand dollars per pupil. Often, they are so far behind that
Southerners there with committee
they need more and special attention, the best quality education that
D stand in the way of progress as
can be given.
ght-wing midwestern or northern
These problems, of course, are overshadowed by the Vietnam war.
We'll focus on the domestic problems, but it's inevitable that we've got
ement powerful enough, dramatic
to bring out the question of the tragic mix-up in priorities. We are
so that people of goodwill, the
spending all of this money for death and destruction, and not nearly
students, poor people themselves
enough money for life and constructive development. It's inevitable
en to the point that they can no
that the question of the war will come up in this campaign. We hear all
this talk about our ability to afford guns and butter, but we have come to
economic problem of the poor. We
see that this is a myth, that when a nation becomes involved in this kind
to do to appeal to Congress itself.
of war, when the guns of war become a national obsession, social needs
re geared toward educational pur-
inevitably suffer. And we hope that as a result of our trying to dramatize
nature of the problem and the cru-
this and getting thousands and thousands of people moving around this
S that we confront in the ghettos.
issue, that our government will be forced to reevaluate its policy abroad
response from Congress, we will
in order to deal with the domestic situation.
igh to feel that we aren't going to
150
/
PHILOSOPHY
THE RISING TIDE OF
ica in spite of these crippling restrictions is sufficient to refute all of the
preventing our democratic and Cl
myths and half-truths disseminated by the segregationist.
Then and only then will we be ab
Yet we cannot ignore the fact that our standards do often fall short.
dream of our American democracy
One of the sure signs of maturity is the ability to rise to the point of self-
of equality of opportunity, of privil
criticism. We have been affected by our years of economic deprivation
a dream of a land where men will n
and social isolation. Some Negroes have become cynical and disillu-
give luxuries to the few; a dream of
sioned. Some have so conditioned themselves to the system of segrega-
the color of a man's skin determi
tion that they have lost that creative something called initiative. So many
dream of a place where all our gift
have used their oppression as an excuse for mediocrity. Many of us live
selves alone but as instruments of
above our means, spend money on nonessentials and frivolities, and fail
dream of a country where every m
to give to serious causes, organizations, and educational institutions that
of all human personality, and mei
so desperately need funds. Our crime rate is far too high.
ers-that is the dream. Whenever
bleak and desolate midnight of ma
and glowing daybreak of freedom
CONSTRUCTIVE ACTION
Therefore there is a pressing need for the Negro to develop a positive
program through which these standards can be improved. After we
have analyzed the sociological and psychological causes of these prob-
lems, we must seek to develop a constructive program to solve them. We
must constantly stimulate our youth to rise above the stagnant level of
mediocrity and seek to achieve excellence in their various fields of en-
deavor. Doors are opening now that were not open in the past, and the
great challenge facing minority groups is to be ready to enter these
doors as they open. No greater tragedy could befall us at this hour but
that of allowing new opportunities to emerge without the concomitant
preparedness to meet them.
We must make it clear to our young people that this is an age in which
they will be forced to compete with people of all races and nationalities.
We cannot aim merely to be good Negro teachers, good Negro doctors,
or good Negro skilled laborers. We must set out to do a good job irre-
spective of race. We must seek to do our life's work so well that nobody
could do it better. The Negro who seeks to be merely a good Negro,
whatever he is, has already flunked his matriculation examination for
entrance into the university of integration.
This then must be our present program: nonviolent resistance to all
forms of racial injustice, even when this means going to jail; and bold,
constructive action to end the demoralization caused by the legacy of
slavery and segregation. The nonviolent struggle, if conducted with the
dignity and courage already shown by the sit-in students of the South,
will in itself help end the demoralization; but a new frontal assault on
the poverty, disease, and ignorance of a people too long deprived of the
God-given rights of life, liberty, and the pursuit of happiness will make
the victory more certain.
We must work assiduously and with determined boldness to remove
YWCA Magazine (December 1960): 4
from the body politic this cancerous disease of discrimination which is
THE RISING TIDE OF RACIAL CONSCIOUSNESS / 151
preventing our democratic and Christian health from being realized.
Then and only then will we be able to bring into full realization the
dream of our American democracy-a dream yet unfulfilled. A dream
of equality of opportunity, of privilege and property widely distributed;
a dream of a land where men will not take necessities from the many to
give luxuries to the few; a dream of a land where men to not argue that
the color of a man's skin determines the content of his character; a
dream of a place where all our gifts and resources are held not for our-
selves alone but as instruments of service for the rest of humanity; the
dream of a country where every man will respect the dignity and worth
of all human personality, and men will dare to live together as broth-
ers-that is the dream. Whenever it is fulfilled we will emerge from the
bleak and desolate midnight of man's inhumanity to man into the bright
and glowing daybreak of freedom and justice for all of God's children.
YWCA Magazine (December 1960): 4-6.
366
INTERVIEWS
PLAYBOY INTERVIEW:
soul-searching analyses and evaluations of the environment-
An example is aid to
al causes that spawn riots. All major industrial and ghetto
policy of the federal go
areas should establish serious biracial discussions of commu-
erty; one billion was p1
nity problems, and of ways to begin solving them. Instead of
ing the slightest dent in
ambulance service, municipal leaders need to provide pre-
ple is the fact that aft
ventive medicine. Secondly, these communities should
when it became policy
make serious efforts to provide work and training for unem-
military machine the V
ployed youth, through job-and-training programs such as
took upon itself, throug
the HARYOU-ACT program in New York City. Thirdly, all
sures, the financial rel
cities concerned should make first-priority efforts to pro-
European people. If A
vide immediate quality education for Negro youth-instead
allies and ex-enemies,
of conducting studies for the next five years. Young boys
much greater obligatio
and girls now in the ghettos must be enabled to feel that
its own no less needy C
they count, that somebody cares about them; they must be
PLAYBOY:
Do you feel it's fair to r
able to feel hope. And on a longer-range basis, the physical
of preferential treatme
ghetto itself must be eliminated, because these are the envi-
minority group?
ronmental conditions that germinate riots. It is both socially
KING:
I do indeed. Can any fa
and morally suicidal to continue a pattern of deploring ef-
gro has been deprived?
fects while failing to come to grips with the causes. Ultimate-
turies the Negro was el
ly, law and order will be maintained only when justice and
potential accrued wealt
dignity are accorded impartially to all.
of his descendants. All
PLAYBOY: Along with the other civil rights leaders, you have often
adequately compensate
proposed a massive program of economic aid, financed by
ploitation and humiliati
the federal government, to improve the lot of the nation's
gram such as I propose
twenty million Negroes. Just one of the projects you've
computaton of two cent
mentioned, however-the HARYOU-ACT program to
lated interest. In any ca:
provide jobs for Negro youths-is expected to cost 141 mil-
of economic aid should
lion dollars over the next ten years, and that includes only
benefit the disadvantag
Harlem. A nationwide program such as you propose would
Within common law,
undoubtedly run into the billions.
cial compensatory prog
KING:
About fifty billion, actually-which is less than one year of
ments. American India
our present defense spending. It is my belief that with the
settlement manner. Is
expenditure of this amount, over a ten-year period, a genu-
helped to build this cour
ine and dramatic transformation could be achieved in the
er easily applicable prec
conditions of Negro life in America. I am positive, more-
labor laws, social secur
over, that the money spent would be more than amply justi-
manpower retraining P
fied by the benefits that would accrue to the nation through
that America adopted a
a spectacular decline in school dropouts, family breakups,
millions of veterans aft
crime rates, illegitimacy, swollen relief rolls, rioting and
far more than a policy o
other social evils.
tate the traditionally
PLAYBOY: Do you think it's realistic to hope that the government
today.
would consider an appropriation of such magnitude other
The closest analogy is
than for national defense?
bilitation in America wo
KING:
I certainly do. This country has the resources to solve any
breadth of program-w
problem once that problem is accepted as national policy.
den on our economy. Ji
PLAYBOY INTERVIEW: MARTIN LUTHER KING, JR. / 367
An example is aid to Appalachia, which has been made a
policy of the federal government's much-touted war on pov-
erty; one billion was proposed for its relief-without mak-
ing the slightest dent in the defense budget. Another exam-
ple is the fact that after World War II, during the years
when it became policy to build and maintain the largest
military machine the world has ever known, America also
took upon itself, through the Marshall Plan and other mea-
sures, the financial relief and rehabilitation of millions of
European people. If America can afford to underwrite its
allies and ex-enemies, it can certainly afford-and has a
much greater obligation, as I see it-to do at least as well by
its own no less needy countrymen.
PLAYBOY: Do you feel it's fair to request a multibillion-dollar program
of preferential treatment for the Negro, or for any other
minority group?
KING:
I do indeed. Can any fair-minded citizen deny that the Ne-
gro has been deprived? Few people reflect that for two cen-
turies the Negro was enslaved, and robbed of any wages-
potential accrued wealth which would have been the legacy
of his descendants. All of America's wealth today could not
adequately compensate its Negroes for his centuries of ex-
ploitation and humiliation. It is an economic fact that a pro-
gram such as I propose would certainly cost far less than any
computaton of two centuries of unpaid wages plus accumu-
lated interest. In any case, I do not intend that this program
of economic aid should apply only to the Negro; it should
benefit the disadvantaged of all races.
Within common law, we have ample precedents for spe-
cial compensatory programs, which are regarded as settle-
ments. American Indians are still being paid for land in a
settlement manner. Is not two centuries of labor, which
helped to build this country, as real a commodity? Many oth-
er easily applicable precedents are readily at hand: our child
labor laws, social security, unemployment compensation,
manpower retraining programs. And you will remember
that America adopted a policy of special treatment for her
millions of veterans after the war-a program which cost
far more than a policy of preferential treatment to rehabili-
tate the traditionally disadvantaged Negro would cost
today.
The closest analogy is the GI Bill of Rights. Negro reha-
bilitation in America would require approximately the same
breadth of program-which would not place an undue bur-
den on our economy. Just as was the case with the return-
BROWN V. BOARD EDUCATION
- robbe intentrois. Defunked doctrine of separate but agoral.
Children are best educated when ref pegregated.
(-bow muchare have barn from other,
But the grip of government. the four to
We want to part that
in the hands of people. Parents (: vauchers)
BROWN V. BOARD OF EDUCATION was a 1954
decision of the U.S. Supreme Court that voided
state laws and state constitutional provisions
requiring or permitting the segregation of white
and black children in public schools on the
basis of race. Chief Justice Earl Warren, writ-
ing for a unanimous court on May 17, 1954,
held in Brown V. Board of Education of Topeka
that such laws and provisions denied to black
children the equal protection of the laws guar-
anteed by the U.S. Constitution.
&o
The Topeka (Kans.) Board of Education had
152/29
established segregated elementary schools. Attor-
neys for black children contended that the seg-
regated schools were not equal and could not be
made equal. A U.S. district court disagreed,
but Warren wrote that to "separate them from
others of similar age and qualifications solely
because of their race generates a feeling of in-
feriority that may affect their hearts and
minds in a way unlikely ever to be undone." He
added, "Separate educational facilities are in-
herently unequal." On May 31, 1955, the court
asked local courts to require "a prompt and rea-
sonable start toward full compliance with the
decision, and said that local administrative prob-
lems should be resolved "with all deliberate
speed."
Opponents of desegregation criticized the
court's reliance on psychological and sociologi-
cal data. They contended that the court was in
effect passing legislation and was encroaching on
states rights. In later years the Supreme Court
struck down attempts by state legislatures and
local school boards to avoid compliance.
color blindmeans no guotes
Nobody
10 I have a dream that my four little children
will one day live in a nation where they will
wants then
not be judged by the color of their skin, but
by the content of their character.
Ib.
Jus I'm Fare
the Dem. Baderhip will work w/we
to a abilltor all Am for appor, Sepal gootar.
Photo Copy Preservation
Office of the Attorney General
Washington, B.C. 20530
April 3, 1990
Honorable Edward M. Kennedy
Chairman
Committee on Labor and Euman Resources
U.S. Senate
Washington, D.C. 20510
Dear Chairman Kennedy:
This letter presents the views of the Administration
regarding S. 2104, the Civil Rights Act of 1990. The
Administration is determined to help root out racial bias and
bigotry and to guarantee equal opportunities for all Americans,
and has proposed new legislation to attack discriminatory
employment practices. Guided by the same principles, the
Administration opposes as inconsistent with equal opportunity any
legislation that would encourage quota systems or otherwise
divide our society along racial lines. If S. 2104 were presented
to the President in its current form, I and other senior advisors
would recommend that it be vetoed. The Administration's
objections to S. 2104 are discussed below.
Sections 1 through 3 of the bill are, respectively, the
short title, statement of findings and purpose, and definitions.
The substantive provisions of the bill begin with section =,
which would reverse Wards Cove Packing Co. V. Atonio, 109 S. Ct.
2115 (1989).
In Wards Cove, the Court addressed three important stages of
a lawsuit alleging that an employer's hiring practices had the
effect of discriminating in violation of Title VII of the Civil
Rights Act of 1964. First, the Court reaffirmed that statistics
may form the basis for a prima facie case of disparate impact.
It also reaffirmed that the statistics must compare the
employer's workforce to the pool of qualified job applicants or
qualified members of the labor force. See, e.g., Hazelwood
School District V. United States, 433 U.S. 299, 308 (1977)
A second, related issue addressed by the Court involved
causation. Consistent with established precedent, the Court
noted that a Title VII plaintiff must identify the specific
employment practice that has produced the challenged disparate
impact.
The Court then addressed the burdens imposed on the parties
once a plaintiff has established a prima facie case of
discrimination. The Court held that the employer's burden was to
produce evidence that the "challenged practice pursues, in a
significant way, the legitimate employment goals of the
employer." Wards Cove, 109 S. Ct. at 2125-2126. The burden of
persuasion, however, remains with the plaintiff. If the
plaintiff does not meet this burden of persuasion, the plaintiff
may still prevail by showing that reasonable alternatives would
serve the employer's purpose equally well.
S. 2104 would change the law in several respects. First,
the bill would permit plaintiffs to allege simply that the end
product of all the employer's employment practices was a
statistically disparate workforce. The Court's approach seems to
us to be a much more sensible, efficient, and fair allocation of
litigation responsibilities. Absent the link between specific
practices and a resulting disparate impact, employers could be
found liable for the numerous innocent factors that can cause
statistical imbalance in the composition of a workforce.
Liability could be premised entirely on statistics showing
"bottom line" racial imbalance, a measure of discrimination that
the Supreme Court has appropriately rejected when bottom line
balance has been offered as a justification for discriminatory
selection devices. See Connecticut V. Teal, 457 U.S. 440 (1982)
Moreover, asking the plaintiff to identify the specific
practices that produce a disparate impact before employers are
asked to justify them is consistent with traditional rules
allocating burdens of proof. This allocation of responsibilities
strikes us as more efficient and equitable than allowing
plaintiffs simply to allege that a hiring system produces a
disparate impact and forcing employers to demonstrate that each
individual employment practice within that system does not have a
disparate impact, as S. 2104 would. Furthermore, in view of the
liberal discovery rules and the record-keeping requirements of
the Uniform Guidelines on Employee Selection Procedures, 29 CFR
1607.1 et seq. (1988), we do not think that this requirement of
specificity should unduly burden plaintiffs.
Indeed, the Court's prior "disparate impact cases have
always focused on the impact of particular hiring practices on
employment opportunities for minorities," Wards Cove, 109 S. Ct.
at 2124, and plaintiffs have always targeted those specific
practices. See Griggs V. Duke Power Co., 401 U.S. 424 (1971)
(high school diploma requirement) ; Dothard V. Rawlinson, 433 U.S.
321 (1977) (height and weight requirements for prison guards) ;
Albemarle Paper Co. V. Moody, 422 U.S. 405 (1977) (employment
tests and seniority systems) ; Connecticut V. Teal, 457 U.S. 440
(1982) (written examination) ; Watson V. Fort Worth Bank & Trust,
No. 86-6139 (June 29, 1988) (subjective judgment of supervisor).
2
The Court's rule is also consistent with the general practice in
the lower courts.
S. 2104 would also shift the burden of persuasion to the
employer and require that he prove that its employment practices
are "essential to effective job performance." In our view, the
Court correctly held that the burden of persuasion remains with
the plaintiff throughout a disparate impact case, just as it does
in a case alleging intentional discrimination, see Texas
Department of Community Affairs V. Burdine, 450 U.S. 248, 256-258
(1981) and just as it generally does when causation is an
element of a violation. See Restatement (Second) of Torts 433B
(1965) This is also the accepted rule in civil litigation
generally. Fed. R. Evid. 301. We think it would be
unjustifiable to impose a greater burden on an employer who is
alleged to have violated Title VII by employing a practice that
produced a statistical imbalance than on one who is alleged to
have engaged in purposeful discrimination.
Even though the employer's burden is now established as one
of production and not proof, it is by no means insubstantial.
Under existing Supreme Court precedent (Texas Department of
Community Affairs V. Burdine, 450 U.S. 248, 254-255 (1981)), the
employer's burden is "to rebut the presumption of discrimination
by "the introduction of admissible evidence" which is "legally
sufficient to justify a judgment for the defendant." If the
employer adduces evidence that an employment practice does
pursue, in a significant way, legitimate employment goals, and if
the plaintiff cannot then establish that such is not the case or
that other reasonable alternatives are available, policy would
not seem to dictate a result adverse to the employer.
Likewise, we think that the Court's formulation of the
applicable substantive standard is fully justified as an
appropriate balancing of the interests of employers and
employees. Prior decisions had used varying terminology in
describing the employer's burden after a showing of disparate
impact. See, e.g., Connecticut V. Teal, 457 U.S. 440, 446 (1982)
(citation omitted) ("manifest relationship to the employment's) ;
Albemarle Paper Co. V. Moodv, 422 U.S. 405, 425 (1975) ("job
related") ; Gricos V. Duke Power Co., 401 U.S. 424, 431, 432
(1971) ("business necessity"; "manifest relationship to the
employment") ; New York Transit Authority V. Beazer, 440 U.S. 568,
587 n.31 (1979) ("legitimate employment goals of safety and
efficiency * * * are significantly served"). The standard molded
by the Court from those prior formulations, i.e., that a
"challenged practice serves, in a significant way, the legitimate
employment goals of the employer" (Wards Cove, 109 S. Ct. 2125-
2126), has sufficient teeth to ensure that employers do not use
practices of dubious business utility, while not pressuring
employers to resort to hiring and promotion quetas, and
respecting the needs of employers to preserve legitimate
3
management prerogatives. We find it unlikely that this
formulation of the standard for a business justification will
preclude the assertion of meritorious claims, particularly since
the plaintiff may still prevail by showing that other reasonable
business practices would satisfy the employer's need without
producing a discriminatory effect.
By contrast, the requirement of S. 2104 that an employer
whose workforce is not statistically balanced show that each of
its employment practices is "essential" to the conduct of the
business puts the employer in a nearly impossible position. It
would be difficult for the employer not to adopt a silent
practice of quota hiring and promotion in an effort to protect
the business from the probability of litigation wherever a
statistical imbalance exists. Many employers would resort to
using hiring criteria that would insure that the numbers come out
"right."
Those who say that Wards Cove represents a radical change in
the law are simply wrong. Each of the Court's holdings was
presaged by earlier Supreme Court and lower court decisions.
These adjustments represent at most fine tuning to a method of
proving discrimination that has been developed entirely by
courts. We are convinced that the Court thoughtfully balanced
the competing interests and produced a workable distillation of
some eighteen years of precedents applying the disparate impact
standard. Indeed, the Court in large part adopted the approach
urged by a brief filed by the United States. This approach will
enable employees to pursue successfully meritorious claims, and
employers will not be unduly burdened in defending claims of
discrimination. Nor will employers be encouraged to resort to
quotas to ward off the threat of lawsuits based on statistical
imbalances.
Section 5 of the bill would reverse the holding in Price
Waterhouse V. Hopkins, 109 S. Ct. 1775 (1989), in which the Court
ruled in favor of a woman who alleged that she had been denied
partnership by her accounting firm on account of her sex. The
Court there faced a case in which plaintiff alleged that her sex
had supplied part of the motivation for her rejection for
partnership. The Court held that once she had established by
direct evidence that sex played a substantial part in the
decision, the burden shifted to the employer to show that it
would have reached the same decision had sex not been considered.
The result reached in Hopkins is as favorable or more favorable
to plaintiffs as that adopted by the overwhelming (9-2) majority
of courts of appeals. See id. at 1784 n.2. It is also
consistent with the Supreme Court's own earlier decisions for
mixed motive cases brought under the Constitution and the
National Labor Relations Act. See Mt. Healthy City School
District Board of Education V. Dovle, 429 U.S. 274 (1977) ; NLRB
V. Transportation Management Corp., 462 U.S. 393 (1983) ; see also
4
Hunter V. Underwood, 471 U.S. 222 (1985). We think that the
Court's balancing of interests is reasonable and should be
preserved.
Yet, S. 2104 would state that a violation of Title VII is
established when the plaintiff demonstrates that race, color,
religion, sex, or national origin was "a motivating factor" in an
employment decision, regardless of whether the employer
demonstrates that he would have made the same decision for
legitimate reasons absent the discrimination. The latter proof
would go only to the question whether the plaintiff was entitled
to the position that he or she had been denied. The bill would
reverse the general rule that in employment discrimination cases,
as in any civil case, the plaintiff must show that the
defendant's unlawful conduct caused the harm complained of by
plaintiff. Allowing recovery based on an employer's state of
mind is contrary not only to the spirit of Title VII, but to the
spirit of our legal system as well. Of course, the inequities
resulting from such an approach would be further magnified in the
class action context. At the very least, reversal of Price
Waterhouse is premature, since there was not a majority opinion
for the Court and there is no evidence that the decision has
worked inequitably. Moreover, the creation of this new category
of Title VII violation would have an exacerbating effect if
section 8 of the bill were enacted, authorizing compensatory and
punitive damage awards for disparate treatment violations of
Title VII. A plaintiff would be entitled to such awards and
attorney fees even if the employer demonstrated that he would
have made the same employment decision he did for legitimate
reasons absent the discriminatory factor.
Section 6 of the bill would reverse the holding in Martin V.
Wilks, 109 S. Ct. 2180 (1989). That case arose in the context of
a civil rights action, but it turned on principles of fairness
and access to court that apply in every area. The Court held
that white firefighters, who had not been parties to a consent
decree that mandated racial preferences, could have their day in
court to contend that the decree violated their civil rights.
The Court rejected the so-called collateral attack doctrine,
pursuant to which some courts had held that, once a decree was
entered, it could not be challenged, even by individuals who had
not been parties to the original lawsuit.
The Court's decision turned on a straightforward application
of the Federal Rules of Civil Procedure and underlying notions of
due process. The Federal Rules establish procedures for joinder
of all interested parties in a case. Quite simply, and quite
fairly, anyone who is not joined in the lawsuit and given an
opportunity to appear in court to protect his or her rights
cannot be bound by the final judgment. The Court's decision is a
reaffirmation of the fundamental notion that everyone is entitled
5
to his or her day in court. The Department of Justice advocated
the position adopted by the Court.
S. 2104, however, would reverse this holding by prohibiting
challenges to a Title VII decree by individuals who had notice of
the proposed judgment and an opportunity to present objections to
it or if the interests of the challenger were adequately
represented by another individual who challenged the judgment.
The bill would also forbid challenges if the court that entered
the judgment determined that reasonable efforts were made to
notify interested persons of the judgment.
We strongly oppose this provision. Rather, we think that
the rule in Wilks has a salutary effect. By requiring early
joinder of all those who may be adversely affected by a lawsuit,
the rule enables courts to consider the full range of interests
affected by a proposed decree. The decision may lead to fairer,
more carefully considered, and unassailable remedies for
discrimination. It will discourage attempts to bargain away
third party rights, rather than making whole the actual victims
of discrimination. In addition, the participation of all of the
affected parties in formulation of a decree should aid in its
implementation. Successful, voluntary compliance with Title VII
may depend upon the cooperation of a broad range of individuals.
Involving as many of those individuals as possible in formulating
the decree will lead to smoother and more effective
implementation of the remedy for discrimination. We view this
decision working in conjunction with our proposed amendment to
alter the statute of limitations in response to Lorance V. AT&T
Technologies, Inc., 109 S. Ct. 2261 (1989), to ensure that
aggrieved individuals have an opportunity to litigate their
claims. In practice, the only time a consent decree will be
disturbed under Wilks is when a federal judge finds that its
operation is violating the rights of the challenging party. It
is hard to understand why anyone would try to prevent such an
adjudication. The unfortunate effect of this provision would be
to insulate illegal or unconstitutional quota decrees from
judicial review.
Finally, by foreclosing appropriate review, the proposed
Wilks legislation would raise serious constitutional concerns
under the Due Process Clause of the Fifth Amendment. In
particular, proposed section (III) (1) (B) of Section 6 of the bill
would authorize the deprivation of an individual's legal claims
without any attempt to notify the individual that his rights were
in jeopardy. Rather, it would suffice that a court found that
the individual's interests had been represented adequately by
another party, regardless of whether the excluded individual
stood in privity or in some similar relationship with the
representative party. This provision of the bill is inconsistent
with the Due Process Clause and "principle of general application
in Anglo-American jurisprudence that one is not bound by a
6
judgment in personam in a litigation in which he is not
designated as a party or to which he has not been made a party by
service of process. Martin V. Wilks, 109 S. Ct. 2184, quoting
Hansberry V. Lee, 311 U.S. 32. 40 (1940) (black home buyers could
not be bound by prior suit approving racially restrictive
covenant, since they had not been parties nor in privity with
parties to the earlier suit). It also cannot be squared with the
Supreme Court's consistent holding that notice is an "elementary
and fundamental requirement of due process." Mullane V. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Proposed section (m) (1) (c) also raises serious due process
concerns. This section would cut off future challenges to
discriminatory employment practices if the court entering the
judgment determined that "reasonable efforts were made to provide
notice to interested persons." As discussed in the preceding
paragraph, a general, and fundamental, principle in our legal
system is that individuals are not bound by litigation in which
they are not a party - that everyone is entitled to his or her
day in court. This bill, moreover, differs considerably from
other special statutory schemes approved by the Supreme Court
where the need to resolve the ownership of specific property
justifies foreclosing successive litigation by nonlitigants of
preexisting claims. In contrast to the property interests
affected by such statutory schemes, this bill precludes
discrimination claims, including equal protection claims.
Moreover, this bill purports to foreclose not only legal claims
existing at the time of adjudication, but also claims that may
arise in the future. Indeed, S. 2104 could foreclose claims
which arose after judgment had been entered, based upon new acts
of alleged discrimination occurring against, for example,
individuals who had never previously applied for a job with the
employer or, indeed, had not been born at the time of the
original decree. Further, the procedure for determining the
reasonableness of notice under section (m) (1) (c) is
constitutionally defective. Such a proceeding would necessarily
lack the adversarial character which normally gives us confidence
in determinations reached by courts. Indeed, not only will the
proceeding be nonadversarial, but defendants can be expected to
support plaintiffs' claim to have provided reasonable notice. We
do not believe an individual's due process rights are satisfied
by a court determination entered with no one present to represent
the individual's interests and where everyone who is present has
interests contrary to those of the individual. Cf. Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979) ; Blonder-
Tonoue Laboratories, Inc. V. University of Illinois Foundation,
402 U.S. 313, 329 (1971).
Section 8 of the bill provides for compensatory damages for
intentional violations of Title VII and punitive damages when
violations are committed with malice, or reckless or callous
indifference to the rights of others. The section also expli-
7
citly acknowledges that any party will have a right to request a
jury trial in an action for damages. This section represents a
major change in Title VII and is in no way related to any of last
Term's Court decisions. It was part of the original compromise
that led to passage of Title VII that the only monetary relief
available would be in the form of back pay. The scheme of relief
authorized in Title VII reflected a careful balancing of
employees' rights and the need to preserve legitimate management
prerogatives. Title VII has proved effective in fighting
exclusion of minorities and women from the workplace.
The bill's proposal to authorize damages threatens to upset
this careful balance. The bill's provisions for adding damages
to the remedies already available will discourage conciliation
and encourage litigation. Under the bill's regime, plaintiffs'
lawyers will inevitably include claims for pain and suffering,
emotional harm, and the like as a matter of course. Placing
these issues before a jury, as well as the complex and emotional
issues of liability that are often involved in Title VII cases,
will turn Title VII litigation into a time-consuming, high risk
venture for both plaintiffs and defendants. Thus, rather than
adopt the bill's approach, we think it is better to preserve
Title VII's current remedial scheme, with bench trials and prompt
equitable relief including back-pay and rightful place seniority,
which has worked well for over 25 years.
The Administration endorses the bill's intent to change
results reached in two of last Term's decisions: Lorance V. AT&T
Technologies, Inc., 109 S. Ct. 2261 (1989), and Patterson V.
McLean Credit Union, 109 S. Ct. 2363 (1989). The Administration
has, however, itself proposed legislation to accomplish these
results, and, for the reasons stated below, we urge the approach
taken in the Administration's bill rather than S. 2104.
Section 7 of S. 2104 would reverse the holding in Lorance V.
AT&T Technologies, Inc., supra, in which female employees
challenged a seniority system pursuant to Title VII, claiming
that it was adopted with an intent to discriminate against women.
Although the system was facially nondiscriminatory and treated
all similarly situated employees alike, it produced demotions for
plaintiffs, who claimed that the employer had adopted the
seniority system intentionally to alter their contract rights.
The Supreme Court held that the claim was barred by Title VII's
requirement that a charge must be filed within 180 days (or 300
days if the matter can be referred to a state agency) after the
alleged discrimination occurred.
The Court held that the time for plaintiffs to file their
complaint began to run when the employer adopted the allegedly
discriminatory seniority system, since it was the adoption of the
system with a discriminatory purpose that allegedly violated
their rights. According to the Court, that was the point at
8
which plaintiffs suffered the diminution in employment status
about which they complained. The Court viewed this result as
dictated by its prior cases holding that the statute of
limitations begins to run when the act of discrimination occurs
and not when its effects are felt.
The rule adopted by the Court was contrary to the position
taken by the Government and the EEOC. It would shield large
numbers of existing seniority systems from legitimate
discrimination claims. The discriminatory reasons for adoption
of a seniority system may become apparent only when the system is
finally applied to affect the employment status of the employees
that it covers. Moreover, such an application surely focuses the
controversy between an employer and an employee more sharply and
permits more precise litigation. In addition, a rule that limits
challenges to the period immediately following adoption of a
seniority system will promote unnecessary, as well as unfocused,
litigation. Employees will be forced to challenge the system
before it has produced any concrete impact or forever remain
silent. Given such a choice, employees who might never suffer
harm from the seniority system may be forced to choose to file a
charge - an especially difficult choice since they may be
understandably reluctant to initiate a lawsuit against an
employer if they do not have to. And, finally, the Court's rule
will prevent employees who are hired more than 180 (or 300) days
after adoption of a seniority system from ever challenging the
adverse consequences of that system, regardless of how severe
they may be: Such a rule fails to protect sufficiently the
important interest in eliminating employment discrimination that
is embodied in Title VII.
Likewise, a rule that an employee may sue only within 180
(or 300) days after becoming subject to a seniority system is
unfair to both employers and employees. The rule fails to
protect seniority systems from delayed challenge, since so long
as employees are being hired someone will be able to sue. And,
while this rule would give every employee a theoretical
opportunity to challenge a discriminatory seniority system, it
would do so, in most instances, before the employee's status had
been adversely affected by the seniority system and, therefore,
before the challenge was sufficiently focused and before it was
clear that a challenge was necessary. Finally, most employees
would be reluctant to begin their jobs by suing their employers.
The Administration, therefore, supports an amendment to
Title VII of the Civil Rights Act of 1964 that would start the
period for filing a charge when a discriminatory system was
adopted, when an employee becomes subject to the system, or when
he is injured by it.
9
S. 2104 would address Lorance V. AT&T Technologies, Inc.,
supra, by adding the following sentence to Section 703 (h) of
Title VII of the Civil Rights Act of 1964:
Where a seniority system or seniority
practice is part of a collective bargaining
agreement and such system or practice was
included in such agreement with the intent to
discriminate on the basis of race, color,
religion, sex, or national origin, the
application of such system or practice during
the period that such collective bargaining
agreement is in effect shall be an unlawful
employment practice.
This provision contains two apparent and significant limitations.
First it would apply only to seniority systems that are adopted
as part of a collective bargaining agreement. Apparently, it
would not apply to a non-union shop or where a seniority practice
was not the result of a collective bargaining agreement or where
a collective bargaining agreement had expired, but the seniority
system remained in place.
Second, this provision does not make explicit that an
unlawful employment practice also occurs when a discriminatory
seniority system is adopted and when an employee first becomes
subject to it, even though it has not been "applied" in any
tangible sense to the employee to produce some employment
consequence. Rather, this amendment states only that the
unlawful employment practice occurs when the system is applied.
Thus, an employee may be precluded from challenging a
discriminatory seniority system any time before it is applied to
him or her.
BY contrast, the Administration proposal is broader. It
states:
For purposes of this section, an unlawful
employment practice occurs when a seniority
system is adopted, when an individual becomes
subject to a seniority system, or when a
person aggrieved is injured by the
application of a seniority system, or
provision thereof, that was adopted for an
intentionally discriminatory purpose, in
violation of this Title, whether or not that
discriminatory purpose is apparent on the
face of the seniority provision.
This proposal would reach all seniority systems, regardless of
whether they were part of a collective bargaining agreement. It
also makes explicit that an employee may challenge a
10
discriminatory system when it is adopted, when the employee first
becomes subject to it, or when the employee suffers some injury
by virtue of the application of the system. We, therefore, urge
adoption of the Administration's language.
Section I2 of S. 2104 would overrule Patterson V. McLean
Credit Union, 109 S. Ct. 2363 (1989). In Patterson, an employee
sued pursuant to 42 U.S.C. 1981, alleging that her employer had
harassed her on the job, failed to promote her, and ultimately
discharged her, all because of her race. The Court held that
Section 1981 is limited by its terms to prohibiting discrimina-
tion in "mak[ing] and enforc[ing] contracts," and does not extend
to "problems that may arise later from the conditions of continu-
ing employment." Patterson, 109 S. Ct. at 2372. Thus, the Court
held, the statute prohibits discrimination - whether governmen-
tal or private - in the formation of a contract and in the right
of access to a legal process that will enforce established con-
tract obligations without regard to race. While the plaintiff's
allegation that she had been discriminatorily denied promotion
might fall within the prohibition against discrimination in
making contracts, her allegations of harassment on the job
addressed only conditions of employment. And there was no
allegation that she had been discriminatorily denied access to
legal process to enforce her contract of employment.
We believe that the law as interpreted in Patterson leaves a
significant gap in section 1981 coverage that should be filled.
We, therefore, support corrective legislation to ensure that
section 1981 will apply to the performance, breach, and
termination of contracts to the same extent that it does to their
making and enforcement. Furthermore, to remove any possible
ambiguity for future cases, we believe that it is appropriate to
codify the holding of Runvon V. McCrary, 427 U.S. 160 (1976),
that section 1981 prohibits private, as well as governmental
discrimination.
Again, however, we urge adoption of the language offered by
the Administration. S. 2104 would overturn Patterson by adding
the following sentence to 42 U.S.C. 1981:
For purposes of this section, the right to
"make and enforce contracts" shall include
the making, performance, modification and
termination of contracts, and the enjoyment
of all benefits, privileges, terms and
conditions of the contractual relationship.
11
The Administration bill would add the following new language:
The rights protected by this section are
protected against impairment by
nongovernmental discrimination as well as
against impairment under color of state law.
This section affords the same protection
against discrimination in the performance,
breach, or termination of a contract, or in
the setting of the terms or conditions
thereof, as it does in the making or
enforcement of that contract.
The proposals are comparable in extending the protection of
section 1981 to every aspect of contract performance and
termination. The Administration proposal, however, goes beyond
S. 2104 in codifying the holding of Runvon V. McCrary, 427 U.S.
160 (1976), that section 1981 reaches private, as well as
governmental conduct. While the Supreme Court declined to
overrule Runvon in Patterson, this provision ensures that Runyon
will remain the law of the land.
S. 2104 contains several changes to current civil rights law
of less significance and varying degrees of merit, none of which
appear necessary at present.
Section 7 (a) (2) of S. 2104 would overturn much of the
Supreme Court's jurisprudence regarding the time for challenging
an unlawful employment practice. Under current law, an employee
must challenge such a practice within 180 days after it
"occurred." Section 7 (a) (2) would also permit such a challenge
within 180 days after the unlawful practice had "been applied to
affect adversely the person aggrieved." The selection of a
starting point for the running of a statute of limitations
initially involves a weighing of two important interests: (1)
ensuring that as many meritorious claims as possible can be
pursued, while (2) not unfairly burdening employers with the
obligation to defend stale suits. The Court has generally
designated the point at which the employee receives notice of an
employment action as the relevant moment. See Delaware State
College V. Ricks, 449 U.S. 250 (1980) i Chardon V. Fernandez, 454
U.S. 6 (1981) S. 2104 would go too far in upsetting the present
balance. By focusing on the subsequent applications of an
employment practice, rather than the occurrence of the practice,
S. 2104 would allow charges to be filed long after --in many
instances years after - the challenged practices occurred.
Increasing the time between the challenged act and the filing of
a charge will increase the likelihood that memories will fade,
witnesses will disappear, and documents will be lost, making it
more difficult for both plaintiffs and defendants to meet their
respective burdens.
12
Similarly, section 7 (a) (1) would extend the statute of
limitations for filing a charge of discrimination pursuant to
Title VII from 180 days (or 300 days in a state that is certified
as having a comparable procedure) to 2 years. We are aware of no
body of proof that suggests a need for such prolongation of the
existing filing rules. Instead, this additional time between the
occurrence of the challenged practice and the charge will simply
increase the likelihood that employers will have to defend
against stale claims. It may also disadvantage some plaintiffs
by lulling them into delaying assertion of their claims until
their claims are stale and more difficult to prove.
Likewise, Section 10 (1) of S. 2104 would extend the time for
filing a charge against the federal government from 30 to 90
days. We are not convinced of the need for this change. The
short filing deadline provides an opportunity for structured
resolution of a grievance before positions become hardened.
Section 9 of the bill addresses attorney and expert witness
fees in Title VII actions. Section 9 (2) would authorize awards
of the full amount of expert witness fees to prevailing parties.
The fees presumably would be awarded according to the same
standard that governs awards of attorney fees; that is,
prevailing plaintiffs generally recover fees, while prevailing
defendants recover if the plaintiff acted frivolously or
unreasonably. The current state of the law regarding awards of
expert fees is unsettled, and is likely to be resolved soon. The
Supreme Court recently granted certiorari in West Virginia
Hospital V. Casey, No. 89-994, to resolve whether the fees of
expert witnesses may be included in an award of attorney fees
pursuant to 42 U.S.C. 1988. Because the statutory language of
section 1988 and Title VII is similar, that case should shed
light on the question whether such fees may be recovered pursuant
to Title VII. Legislation may prove to be premature, and the
Court's thinking on the subject may provide instruction.
Section 9 (3) of the bill would strike the language of
section 706 (k) of Title VII that states that attorney fees shall
be awarded "as part of the costs." This section would overturn
Marek V. Chesny, 473 U.S. 1 (1985), in which the Court held that
attorney fees awarded pursuant to 42 U.S.C. 1988 as part of the
costs were subject to Rule 68 of the Federal Rules of Civil
Procedure. Rule 68 states that when a timely pretrial offer of
settlement is made and "the judgment finally obtained by the
offeree is not more favorable than the offer, the offeree must
pay the costs incurred after the making of the offer." Thus,
Marek held that if a plaintiff rejects a pretrial offer and fails
to recover more at trial, he may not recover from the defendant
attorney fees incurred after the offer.
13
The Government supported this result as amicus curiae, and
we are not convinced that the current rule fails to make sense as
a matter of judicial administration. Rule 68 is designed to
encourage settlement and avoid litigation. The inclusion of
attorney fees as an expense that cannot be recovered serves those
goals. Title VII is otherwise designed to encourage resolution
of complaints prior to litigation and Rule 68 constructively
reinforces that structure. The Administration is not aware that
Marek has imposed substantial hardship.
Section 9 (4) of the bill would prohibit a court from
entering a consent decree unless the parties and their counsel
attested that a waiver of attorney fees had not been compelled as
a condition of the settlement. This provision would overturn
Evans V. Jeff D., 475 U.S. 717 (1986), in which the Court held
that a district court has discretion to approve a settlement that
is conditioned on a waiver of statutory attorney fees. Again,
the Government urged this result as amicus curiae.
This provision is designed to eliminate a potential bind for
attorneys. Where a defendant offers a favorable settlement, but
conditions it on the attorney's waiver of any claim for attorney
fees, the plaintiff's attorney will often disserve his client by
rejecting the offer, but may forego compensation if he accepts.
This provision, however, would eliminate a way in which
defendants can limit their liability and be certain of the bottom
line. In addition, a district court has discretion to reject a
settlement that contains a compelled fee waiver. It may also
instruct the parties to negotiate fees separately. In view of
these safeguards, the Administration is not convinced that this
provision is necessary.
Section 9 (4) of S. 2104 would also authorize a party who
prevailed in a Title VII action to recover from the party against
whom relief was granted attorney fees incurred in defending that
relief from subsequent collateral attack. This provision
addresses indirectly the rule announced in Independent Federation
of Flight Attendants V. Zipes, 109 S. ct. 2732 (1989), in which
the Court held that individuals bringing a collateral attack
would be treated as Title VII plaintiffs, not defendants, for
attorney fee purposes -- i.e., the original plaintiffs would
recover from them only if the collateral attack had been
frivolous. The Government, as amicus curiae, once again
supported this result. Pursuant to this provision of S. 2104,
the cost of another party's unsuccessful - and perhaps frivolous
or ill-advised - litigation would be imposed on a defendant who
had no control over it. The Administration is not convinced that
the solution offered by this provision is wise.
14
Section 10 of the bill, in addition to lengthening the
statute of limitations for filing a charge against the federal
government, would also authorize payment of interest on Title VII
awards against the United States.
Section 11 of S. 2104 would require that all civil rights
statutes be broadly construed to effectuate their purposes. To
the extent that this provision suggests that courts should eschew
traditional rules of statutory construction in favor of
unfettered judicial policymaking, we oppose it. Civil rights
statutes, like all others, should be construed in a manner that
is consistent with legislative intent as expressed in the
language of the statutes.
Section 11 of the bill further provides that no federal
civil rights law shall be construed to "limit the rights,
procedures, or remedies available under any other Federal law
protecting such civil rights." Again, civil rights statutes
should be construed and reconciled according to their language as
enacted. To the extent that this provision suggests that courts
do otherwise, we oppose it.
Section 13 of the bill states that it shall not be construed
to affect "court-ordered remedies, affirmative action, or concil-
iation agreements that are otherwise in accordance with the law.
The purpose of this section is unclear. It should be clarified
so that it may be debated.
Section 14 of the bill contains a severability provision.
Section 15 of the bill creates transition rules. It states,
in effect, that each provision that overrules a Supreme Court
case shall apply retroactively to the date of the decision. It
also provides for vacating orders entered in the interim and
tolls until enactment of the bill the running of the statute of
limitations on actions that were not filed because of one of the
overturned decisions. By upsetting final judgments, this section
may unconstitutionally interfere with vested legal rights.
In conclusion, the Administration supports overruling
Patterson and Lorance, but urges the Committee to adopt the
language of the Administration's proposal. The Department
vigorously opposes those parts of S. 2104 that would overturn
Wards Cove Packing Co. V. Atonio, Martin V. Wilks, and Price
Waterhouse V. Hopkins, as well as the bill's damage remedy for
Title VII violations. Based upon this opposition, if S.R. 2104
were presented to the President in its current form, I and other
senior advisors would recommend that it be vetoed.
15
The Office of Management and Budget has advised us that
there is no objection to the submission of this report and that
enactment of S. 2104 would not be in accord with the program of
the President.
CC: Honorable Orrin G. Hatch
16
CIVIL RIGHTS ACT OF 1990
by
William J. Kilberg*
The Civil Rights Act of 1990, currently before
Congress, purports to seek a series of narrowly defined,
undeniably laudable goals: to "restore" rights, "correct"
statutes of limitation, "reform" rules of construction, and
reassert the principle that "job bias is always illegal." In
fact, the bill would overturn years of Supreme Court precedent
reflecting the difficult balancing of societal dilemmas
embedded in hard-fought civil rights legislation. Indeed,
while eschewing any intent to mandate quotes, this bill would
eliminate all defenses to employment practices that fail to
assure proportionate hiring and promotion for minorities and
women.
Proponents of this legislation apparently view Supreme
Court interpretations of the 1964 Civil Rights Act as a
coherent challenge to the ability of the American workforce to
*Mr. Kilberg served as Solicitor for the United States
Department of Labor, 1973-77; he is a labor lawyer and partner
in the Washington, D.C. office of Gibson, Dunn & Crutcher.
become integrated racially and sexually. In fact, the
tentative and factious Court has done no such thing. Rather,
it has backed itself into a series of compromises that allow
employers a degree of flexibility to adopt and implement
affirmative action programs while denying plaintiffs the right
to ride statistical disparities in the workforce to the point
at which quotas become inexorable.
One of the decisions criticized by the proposed
legislation, Wards Cove Packing Co. V. Atonio, sets forth two
complementary principles: (1) plaintiffs are responsible for
isolating and identifying with specificity the employment
practices that are allegedly responsible for any observed
statistical disparities; and (2) employers must show that the
"challenged practice serves, in a significant way, the
legitimate employment goals of the employer." These holdings
strike a carefully calculated balance between a plaintiff's
difficulty in proving intent from an employer's subjective
decisional process and an employer's difficulty in proving that
subjective criteria are justified by business necessity. The
Civil Rights Act of 1990 would reverse both portions of this
compromise. Under this legislation, plaintiffs could rely on a
generalized "group of employment practices" as the basis for a
lawsuit. To prove business necessity, the employer would then
-2-
have to establish that the criterion applied was "essential to
effective job performance."
Thus, under the Civil Rights Act of 1990, plaintiffs
would have to do nothing more than establish a statistical
disparity; employers then would be liable unless they could
identify specific reasons for the disparity and prove that each
of the causes was essential for effective job performance. How
do you prove that any particular subjective criterion, such as
loyalty, integrity, or interpersonal skills, is "essential"?
It is virtually impossible to do so. Thus, employers governed
by such a standard would be left with little choice: either
impose statistical quotas or risk large compensatory and
punitive damage awards from the juries that now would decide
such actions under the revised procedures contained in other
portions of the bill.
Similarly, the proposed legislation would radicalize
the Supreme Court's 1989 decision in Price Waterhouse V.
Hopkins, which sets forth standards under which plaintiffs may
recover in so-called "mixed motive" cases. In Hopkins, the
Court had to reconcile the difficult questions raised when
evidence of both discriminatory and non-discriminatory motives
for employment decisions is presented. The Court resolved
these questions by holding that, once a plaintiff evidences
some impermissible race-based or gender-based stereotypes, the
-3-
employer must assume the burden of proving that the same
decision would have been made in the absence of these factors.
Because requiring "clear and convincing" evidence concerning
the latter issue would make proof virtually impossible, the
Supreme Court held that the employer's burden would be governed
by the "preponderance of the evidence" standard usually
associated with civil actions in our legal system.
Not satisfied with the plaintiff's victory in Hopkins,
or even with a "clear and convincing" standard that would make
the employer's burden nearly impossible, proponents of the
Civil Rights Act are seeking to assure that the employers'
burden in such cases is, in fact, impossible. Under the
proposal, an unlawful employment practice would be found
whenever "the complaining party demonstrates that race, color,
religion, sex or national origin was a motivating factor for
any employment practice, even though such practice was also
motivated by other factors." The employer would thus be given
no opportunity to prove that the adverse action would have
resulted even in the absence of any discriminatory motive.
Deputy Attorney General Donald B. Ayer put it succinctly in his
testimony on the bill in the House of Representatives: "I
believe that this would be the first instance ever in American
law where damages could be recovered solely for thinking bad
thoughts."
-4-
The Civil Rights Act of 1990 would thus appear to have
as its primary effect, if not purpose, to stimulate lawsuits
against employers. If enacted, it would surely succeed in
that. It would not, however, create a single job, except
perhaps for labor lawyers. Nor would the bill provide job
skills for a single person. It ignores the two key changes
coming to our workforce in the 1990's -- the increasing demand
for skilled labor and the dramatic increase in the percentage
of new entrants into the workforce who are minorities and
women. Instead of dealing with the real issues resulting from
changing demography, this bill would favor a race and
gender-coded workforce hired and promoted by the numbers. The
Civil Rights Act of 1990 is not an extension of prior
congressional efforts to create a better society, but an effort
that can only pervert the principles upon which that prior,
historic legislative effort was founded.
-5-
reasury
from the public, or the government
argue that only reduction of the
said in an interview. Myers IS con-
current-account deficit will produce
cerned that an over-generous Con-
would have to cut spending or raise
taxes elsewhere in the budget" to
a meaningful economic benefit.
gress could enact more generous
TALKING POINTS
Bush Meets With NAACP Chief,
Cites 'Outrage' at Bombings
President Bush yesterday met with NAACP Chair-
man Benjamin Hooks to assure him that the admin-
istration will "not let up" in investigating the recent
wave of bombings aimed at civil rights figures.
In a statement issued by the White House, Bush
said he met with Hooks to "personally express to him
my outrage" at the recent bombings, obscene phone
calls and hate mail aimed at NAACP headquarters and
branch chapters. "I have asked Reverend Hooks to let
his membership know that this administration will not
let up in the fight against racism and that we will
O
R
work to bring the perpetrators of these hideous
BUSH
HOOKS
crimes to justice," Bush said.
Hooks said after the meeting that he is "fairly sat-
Privately Financed 'Points of Light'
isfied" with the efforts of federal authorities to inves-
President Bush was presented last week with
tigate the wave of bombings and threats. A federal
recommendations for establishing a privately fi-
TREAS
judge and a lawyer involved in civil rights cases were
nanced national volunteerism program-his own
killed last month by mail bombs. Other mail bombs,
"thousand points of light" program.
sent to the courthouse in Atlanta and to an NAACP
"We're recommending setting up a private-public
office in Florida, were intercepted by authorities.
foundation," said New Jersey Gov. Thomas H. Kean
S
Earlier, Bush signed a proclamation for next Mon-
day's Martin Luther King holiday observance before a
(R), chairman of the five-member President's Ad-
group including Hooks. Bush, saying he wanted to
visory Committee on the Points of Light Initiative.
offer "some words from the heart," said King's life
Although Bush has discussed a $50 million annual
was "central to the story of America" and the holiday
budget to get the initiative moving-$25 million
is an event "that celebrates the greatness of a man
from the private sector and another $25 million in
whose life and legacy helped set America free."
public money-Kean said the foundation should be-
gin immediately without tax dollars. "Let's get it up
States' Big Tab for Education, Welfare
first as a private foundation so we can get it going
Save 30% to 50% on selected fi
State governments spent half their $485 billion
right away," he said.
outlays in fiscal 1988 on education and welfare, ac-
The Points of Light Initiative Foundation, which
and gold jewelry, giftware, sil
cording to a recent Census Bureau report.
would be composed of 19 to 25 board members,
would seek to instill a desire for community service
during our annual sale fo
The bureau said $160 billion went for education
and $84 billion for welfare. Highways, health and
in the 50 percent of all Americans who never have
hospitals, employee retirement, unemployment and
volunteered, Kean said.
other insurance trusts plus a variety of smaller pro-
"I don't think there's a problem out there that can't
grams accounted for the remaining expenditures.
be helped by volunteers," Kean said. "That's not to
JANUARY 11
The report said the two biggest sources of state
replace what government should be doing. No matter
revenue were state taxes, which produced $264 bil-
what government does, it can never be enough."
Connecticut
lion, and federal government payments, $100 billion.
Senator Hits Gains Tax 'Name-Calling'
$150 Hourly Fees at Ethics Committee
Metzenhaum
(D-Ohio)
yesterday
A phlosophrating 800ydars ago said
"Anticipate" charity by prevating poverty."
Maimonids, 1190
Guide to the Peeplexed
THE WALL STREET JOURNAL FRIDAY, MAY 4, 1990
The 1990 Civil Rights Bill Is Wrong
By ABIGAIL THERNSTROM
low 50% and a literacy test was used to
use of numerical indicators has expanded
Opposing a bill that has been named
screen potential registrants. All states and
to one that is highly questionable. Courts
"The Civil Rights Act of 1990" is not politi-
counties fitting those criteria were "cov-
and the Justice Department have arrived
cally easy: the deck has already been rhe-
ered" and thus subject to a set of stringent
at a new statistical rule of thumb: Where
torically stacked. But the proposed legisla-
remedies.
minority officeholding is disproportionately
tion is deeply flawed. The title of the bill
At the time, critics complained that jus-
low in relation to the minority population,
and the voices of Coretta Scott King and
tice could not be measured by percentages
electoral exclusion can almost be assumed.
others in support of it all suggest continu-
and that fair enforcement of the Fifteenth
Only blacks can represent blacks, it is ap-
ity with the great- civil rights-statutes of
Amendment required the precise identifi-
parently believed, and black, candidates
the 1960s. In fact. the issues the 1990 bill
cation of offenders, which the statistical
lose elections for only one reason: race.
raises have none of the moral simplicity of
formula did not provide. But in fact the act
Those assumptions last week informed
those earlier days.
did not rely excessively on numerical indi-
the Justice Department decision to throw
It is the attempt to overturn last term's
cators. Framed with meticulous care, in-
out Georgia's system of electing judges.
Supreme Court decision in Wards Cove
formed by years of litigation experience.
True. the number of superior court judges
Packing Co. U. Atonio that is most trou-
the 1965 statute swiftly accomplished what
in the state is disproportionately low in
bling. Employment patterns in an Alaskan
no previous law had achieved: the enfran-
relation to the black population. Even in
salmon cannery were the issue in Wards
chisement of Southern blacks.
majority-black Atlanta. only three out of 11
Cove. The "non-cannery" jobs were gener-
The statistical test allowed the finding
judges are black. But how large is the pool
ally held by whites, while Filipinos, Es-
of vote denial by a simple formula, elimi-
of qualified attorneys eager for judge-
kimos and Aleuts filled most of the un-
ships? How many black voters bother to
skilled "cannery" positions. The plaintiffs
charged discrimination. But how telling
Within limits, num-
cast ballots in judicial elections-contests
that are often ignored by almost everyone?
was the disproportionate concentration of
bers are telling in discrimi-
And how often does any candidate-white
minority employees in the lower paying-
or black-win against an incumbent?
jobs? Not as telling as the plaintiffs claim,
nation cases. No one
Again, the numbers raise questions. But,
the Supreme Court said.
would argue otherwise.
as the court in Wards Cove understood,
Harder for Plaintiffs
they don't provide the answers.
But only in exceptional
In voting rights cases, electoral defeat
Civil rights groups depict the decision
is not conclusive evidence of inadequate
as a betrayal; the court reneged on an ear-
circumstances should they
electoral opportunity, and opportunity
lier commitment, they say. And indeed,
Wards Cove has made it harder for minor-
be regarded as conclusive,
should be the question. Likewise, the fail-
ure to pass an employer's test is not strong
ity plaintiffs to prevail. A 1971 decision
Griggs v. Duke Power Co.) forced em-
or nearly so.
evidence of a system closed to minority as-
pirations. The point of antidiscrimination
ployers to defend their hiring practices as
a "business necessity" if plaintiffs could
nating the need to ferret out constitutional
laws is not to protect black candidates
violations in states with abominable rec-
from white competition-whether the job
point to a "racially disparate impact"-
ords with respect to black voting rights. By
in question is in politics or industry. Their
fewer blacks than whites passing, say, an
1965 the excessive cost and limited effec-
point is to provide access, and, again, only
aptitude test.
tiveness of the traditional judicial route
in the most extraordinary circumstances
The problem with Griggs was the as-
had become abundantly clear. And what
can access be gauged from statistical evi-
sumption that numbers-the number of
the framers of the act wrote into law was
dence. Access normally raises a question
blacks in one job category and the number
only what the litigators had learned in the
about process, not results. Is the elec-
of whites in another-tell much of what
field. The statistical test simply acknowl-
toral-or hiring-process distorted by rac-
you want to know in an employment dis-
edged the proven link-proven in countless
ism? Has opportunity been blocked by rac-
crimination case. And the strength of
suits-between fraudulently administered
ist assumptions?
Wards Cove was that it refined- an ele-
Southern literacy tests and low levels of
mentary, common-sense manner-the sta-
Emphasis on Opportunity
voter participation. Aware that literacy
tistical rule. Minorities may be dispropor-
tests were the chief means of disfranchis-
An emphasis on opportunity, or fair pro-
tionately concentrated in unskilled posi-
ing Southern blacks, the framers of the
cess, squares with our traditional and con-
tions or may disproportionately fail an ap-
1965 act used voter registration and turn-
tinuing understanding of what Americans
titude or other test, the court said, but the
are entitled to. To focus on numerical re-
out figures to devise a statistical means to
relevant question is the size of the pool of
identify the discriminatory use of literacy
sults is to invite quotas. And quotas
minority candidates qualified to fill the
amount to reserved seats for scheduled
tests.
jobs in question. And if the numbers alone
But those circumstances were unique.
castes, as in India where the horizons of
tell less than the Griggs court assumed
In 1965 low voter registration rates were
trust do not extent beyond ethnic bounda-
they would, then a showing of disparate
an almost infallible guide to the intention-
ries. That, too, is a lesson contained in the
impact should not place the burden of
ally discriminatory use of literacy tests.
history of the Voting Rights Act. We can
proof on employers to demonstrate the
Equally important, citizens over 18, with
take the path of pessimism-of assuming
"business necessity" of their hiring proce-
few exceptions, have a right to vote; that's
that members of minority groups cannot
dures. Plaintiffs who charge discrimina-
what democracies are all about. Employ-
get a "fair shake" and must be given their
tion should have to prove their case.
ment is very different. Statistical informa-
"fair share."
Within limits, numbers are telling in
tion is not a comparably reliable sign of in-
Or we can structure our legal system-
discrimination cases. No one would argue
tentional-discrimination-df a desire to ex-
,our electoral and-employment processes,
otherwise. But only in exceptional circum-
clude blacks from certain jobs. And no one
among others-to deliver a message that
stances should they be regarded as conclu-
is entitled to a particular category of job in
minority groups amount to separate na-
sive, or nearly SO. The 1965 Voting Rights
a particular place of employment.
tions and separate nations require distinct
Act is instructive in this regard. It was
Thus, when it comes to jobs, numbers
treatment. That message runs through
precisely the point of the act to substitute a
can serve to alert employers, employees
much civil rights discussion these days.
statistical rule of thumb for the extended
and courts to the possibility of discrimina-
But it should not inform our law.
and complex judicial process by which Fif-
tion. But numbers should only set off an in-
teenth Amendment questions were tradi-
quiry. Other questions must then take
Mrs. Thernstrom is the author of
tionally decided. The act identified a viola-
over. Again, the history of the Voting
"Whose Votes Count? Affirmative action
tion wherever voter registration or turnout
Rights Act is instructive. In the enforce-
and Minority Voting Rights," (Harvard
in the presidential election of 1964 fell be-
ment of the statute, the initially legitimate
University Press, 1987).
PAGE. 001
MAY 8 '90 12:16 FROM WB FEAT LEGAL
Whitery young
Roy Inniss
WARNER BROS. INC.
FEATURE LEGAL
4000 WARNER BOULEVARD
against fhotas
BURBANK, CA 91522
TELEPHONE: 818-954-2023
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TO:
CAROLYN CAWLEY
FROM: JEREMY WILLIAMS
COPIES TO:
TOTAL NUMBER OF PAGES (INCLUDING COVER PAGE):
3'
DATE:
MAY 8, 1990
NOTE: IF YOU DO NOT RECEIVE ALL PAGES, PLEASE CALL (818) 954-2023 AND
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BUDGET NO.: 415107
FAX NO.: 202-456-6218
Terry Eastland
"by #'s" #
Ben Hooks
John Jacobs
"on quotes
Bush"
MAY 3 '90 12:16 FROM WB FEAT LEGAL
PAGE. 002
WB
WARNER BROS.
Jeremy N. Williams
Warner Bros. Inc.
Vice President and General Counsel P Theatrical
4000 Warner Boulevard
Burbank, California 91522
818 954-2023
Cable Address: Warbros
May 8, 1990
VIA FAX (#202-456-6218)
Carolyn Cawley
THE WHITE HOUSE
Washington
Re: "DRIVING MISS DAISY" - King Quote
Dear Ms. Cawley:
Replying to your fax, I attach the page of the script in which
the King voice overs appear.
Best of luck with it.
Sincerely,
JNW/wa
Janes Jeremy N. Williams
Attachment
11"
A Warner Communications Company
MAY 8 '90 12:16 FROM WB FEAT LEGAL
PAGE. 003
97.* *
139 EXT. BILTMORE SIDE DOOR - SAME TIME
139
Daisy emerges from her car, slowly but head held high. Hoke
stands where he is, on his side of the car, not helping, his
head also held high. This is an enormous breach of etiquette.
Daisy proceeds into the hotel. Hoke climbs back into the car,
his face troubled. He drives it slowly away from the arrival
area.
ON HOKE'S immobile face.
140 INT. BILTMORE HOTEL BALLROOM - NIGHT
140
The room is crowded with elegantly laid round tables, each
seating eight. The camera concentrates on DAISY so we see
only one end of the room. Nor do we see the speaker DR. KING,
but only hear his voice, as the camera moves in slowly toward
DAISY and the empty chair beside her.
DR. KING (v.o.)
Segregation has placed the whole south
socially, educationally and economically
behind the rest of the nation. Yet there
are in the white south millions of people
of goodwill whose voices are yet unheard,
whose course is yet unclear, and whose
courageous acts are yet unseen
141 INT. DAISY'S CAR - NIGHT
141
HOKE sits listening to the same speech on the car radio.
DR. KING (v.o.)
These persons are often silent today because
of fear - fear of social, political and economic
reprisals. In the name of human dignity, and
for the cause of democracy these millions are
called upon to gird their courage, to speak out,
to offer leadership that is needed.
141A INT. BILTMORE HOTEL BALLROOM - NIGHT
141A*
CU Daisy-
DR. KING (v.o.)
If the people of goodwill of the white south
fail to act now, history will have to record
that the greatest tragedy of this period of
social transition was not the vitriolic words
and the violent actions of the bad people, but
the appalling silence and the indifference of
the good people.
Diane wear
MLK Library 526-8989
524-1956 Archives
Dingler Plaza Hotel
after Nobel Prize
1/65 Atlanta
See On by Neks King
The Words of NICK, Jr
green
new market Price
a a Testament of Hope
The Writings of MLK
Halper: 5. RDN
by