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West Point Commencement 6/1/91 [OA 8324] [4]
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West Point Commencement 6/1/91 [OA 8324] [4]
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West Point Commencement 6/1/91 [OA 8324] [4]
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26
21
4
4
New
RIGHTS
From page Al
people more equal than others.
rights
Democrats called this a smoke
screen to scuttle the anti-job-
discrimination measure.
The current bill, like last year's,
bill in
would reverse six recent Supreme
Court decisions that make it tougher
for people to bring discrimination
suits. Mr Bush vetoed the bill, and
House
the Senate failed to override the veto
by one vote.
Certain aspects of the Democrats'
plan had surfaced during the past
week, but the nine-point proposal re-
leased yesterday failed to answer a
By J. Jennings Moss
host of lingering questions. The only
THE WASHINGTON TIMES
official information distributed was
House Democrats yesterday trot-
a one-page summary.
ted out a retooled civil rights bill
For example, the explanation for
they hope will alleviate the fears of
how the package will deal with "race
business groups and gain President
herming
the practice of adjust-
Rep. Jack Brooks
Rep. Patricia Schroeder
Bush's signature - but neither ap-
ing job tests higher for minorities
pears likely.
and other protected groups con-
legal," said Ralph Neas, executive di-
discrimination, the Democrats
The changes include language
sumed two sentences. When pressed
rector of the Leadership Conference
agreed to a maximum of $150,000 or
prohibiting hiring and promotion
for details Mr Brooks and civil
on Civil Rights, a coalition of civil
the amount of compensatory dam-
quotas, a cap on punitive damages
rights leaders could not say what the
rights groups that is the prime lob-
ages, whichever is higher, in cases of
for some bias victims, a chance for
final language would say.
byist in the debate.
discrimination based on sex; reli-
white men to sue for reverse dis-
The outline said such changes to
Said Mr. Hyde: "You can say this
gion or disability.
crimination and an apparent ban on
test scores would be prohibited and
isn't a quota bill but you know if
Republicans contend that such an
adjusting test scores to benefit mi-
tests that "are not valid and fair"
you take a bottle of muscatel and put
arrangement is really no cap at all.
norities.
would not be allowed. "In addition, it
a label on it that says Cordon Rouge
They would like to see the current
"It has been a long, arduous pro-
would permit an employer to use al-
1812, it's still a bottle of muscatel."
situation of providing back pay con-
cess trying to accommodate all the
ternative selection procedures," the
Earlier in the day, before the
tinued as well as giving extra dam-
different interests involved, but I
summary said.
Democrats released their plan, a
ages for sexual harassment.
think it is fair to say we have done
Mr. Hyde, who unsuccessfully
White House spokesman pushed the
Rep. Patricia Schroeder, Colorado
just that," Rep. Jack Brooks, Texas
pushed in the Judiciary Committee
president's bill.
Democrat, believes no caps should
Democrat and chairman of the
an amendment to prohibit race-
"The president is committed to
be placed on damages and it's not
House Judiciary Committee, told re-
norming, said he was encouraged to
signing a strong civil rights bill and
fair to give some victims unlimited
porters.
see Democrats address the matter
he will not sign a quota bill. The pres-
damages while placing limits on oth-
But Republicans who last year
but remains "suspicious."
ident has a bill in Congress, and we
ers.
stood behind Mr. Bush's veto of a
The two biggest issues that con-
think it is the best bill," said the
One new twist in the package out-
similar bill said true accommoda-
tinue to separate Democrats and Re-
spokesman, Roman Popadiuk.
lined yesterday was allowing white
tion can be reached only when
publicans are quotas and caps.
Business lobbvists said vesterday
men to challenge reverse discrimi-
Democrats accept more of the pres-
On quotas, the new package says
that even with a ban on quotas in the
nation in court and possibly win
ident's proposals.
that hiring or promoting minorities
bill, businesses would end up hiring
monetary damages.
"What they are portraying as a
or women according to set ratios is
by the numbers to protect them-
Today, the Rules Committee will
compromise is a compromise with
prohibited. The earlier version said
selves from potentially costly law-
consider how the floor debate, ex-
themselves," said Rep. Henry Hyde
this was not "encouraged."
suits.
pected to bègin May 30, should take
of Illinois, a high-ranking Republi-
"What this bill is doing is disallow-
Although there would be no cap on
place.
can on the Judiciary Committee.
ing quotas. It would make quotas il-
punitive damage awards for racial
Republicans are expected to wage
"They continue to meet amongst
a fight in the committee because of
themselves incestuously and work
Democrats' tentative plans to limit
something out, but it really isn't a
CIVIL RIGHTS' NEW LOOK
debate to three proposals - the
compromise."
An outline of the changes House Democrats made to a new civil rights bill.
Democrats' bill, a Republican alter-
The comments from both sides
native and an amendment to strip
foreshadow a floor debate that is
A limit on punitive damages of either $150,000 or the amount of
the cap.
likely to be a repeat of last year's in
compensatory damages, whichever is higher, for those who prove
discrimination.
"It's outrageous they would even
many ways. Republicans labeled
think of having a modified or closed
that version a "quota bill" that would
A statement saying that hiring and promotion quotas are "not permitted."
rule," said Rep. Gerald B. Solomon
bankrupt businesses and make some
Ban on adjusting test scores to favor a protected class of people,
a
of New York, the ranking Republi-
practice called race norming.
ring
can on the committee. He noted that
see RIGHTS, page A10
A' "right of businesses to defend themselves against discrimination
when the House has dealt with civil
lawsuits by arguing that a certain practice has a valid business necessity...
rights bills, it traditionally has al-
Necessity for those who file discrimination suits to identify specific biased
lowed an open debate so a variety of
practices the employer engaged in, unless the court rules such a burden is
amendments can be offered.
not necessary.
Rep. Joseph Moakley, Massachu-
A six-month reduction In the statute of limitations for discrimination suits
setts Democrat and chairman of the
Photocopy-Preservation
from 2 years to 18 months.
Rules Committee, said Monday that
Source: House Judiciary Committee
the debate needs to be focused be-
The Washington Times
cause of the complexity of the issue.
H.R. 1 VS. The President's Civil Rights Bill
Common features of the two bills:
Overturn the Patterson decision, greatly expanding the
rights of racial minorities to sue for on-the-job
harassment, as well as discrimination in promotions and
dismissals.
Overturn the Lorance decision, ensuring that victims of
discriminatory seniority systems have a fair chance to
challenge those systems.
Put the burden of proof on employers to defend "business
necessity" in cases of unintentional discrimination.
Extend the statute of limitations in cases involving the
U.S. Government, and authorize the award of interest against
the government.
Authorize the award of expert witness fees in civil rights
cases.
Critical differences between the bills:
In "disparate impact" cases -- those in which the employer
is accused of using practices that unintentionally exclude
disproportionate numbers of minorities or women -- H.R. 1
creates a complicated set of new rules that would make it
almost impossible for employers to defend themselves
successfully. As a result, they would have little choice
except to adopt quotas so that their numbers come out
"right."
The President's bill shifts the burden of proof to the
employer in defending practices that cause disparate impact,
which is a major concession to the civil rights groups. In
other respects the bill essentially codifies the law as it
stood prior to the Wards Cove decision in 1989.
H.R. 1 creates new rules designed to prevent victims of
illegal quotas from challenging consent decrees that mandate
such quotas.
The President's bill preserves the existing rights of these
victims by codifying the Supreme Court's decision in Martin
V. Wilks.
H.R. 1 would radically alter Title VII by introducing jury
trials, unlimited compensatory damages (including pain and
suffering awards) and unlimited punitive damages in cases of
intentional discrimination.
The President's bill permits awards of up to $150,000 in
cases of harassment. It is only in harassment cases that
existing remedies (backpay and injunctive relief) are
inadequate, because harassment victims often do not suffer
lost wages.
H.R. 1 would overturn the Price Waterhouse case, in which
the plurality opinion was written by Justice Brennan. The
effect would be to hold employers liable for discrimination
even when an employer's "bad thoughts" caused no adverse
action against anyone.
The President's bill leaves current law intact, preserving
the basic rule of no liability where no harm is done.
H.R. 1 purports to apply Title VII to Congress, but provides
for no enforcement by an impartial tribunal.
The President's bill allows congressional employees to seek
redress in the court, just like other victims of
discrimination (including those who work for the Executive
branch).
H.R. 1 includes attorney fee provisions that would encourage
litigation and create disincentives for amicable
settlements.
The President's bill does not contain these provisions.
H.R. 1 includes a "comparable worth" provision.
The President's bill contains no such assault on the basic
premises of the free market system.
H.R. 1 applies retroactively.
The President's bill applies only to new cases.
H.R. 1 instructs the courts to resolve all doubts against
the employer.
The President's bill allows the courts to apply normal rules
of statutory construction.
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
February 27, 1991
REMARKS BY THE PRESIDENT
IN ANNOUNCEMENT OF OPPORTUNITY ACTION PLAN
TO CIVIC AND CHARITABLE ORGANIZATIONS
The J.W. Marriott Hotel
Washington, D.C.
11:08 A.M. EST
THE PRESIDENT: Thank you very, very much. And what a
wonderful reception. And I interpret that, I think properly, the
same way I interpreted the applause at the State of the Union message
-- as strong support for those men and women that are serving our
country overseas. And now the war is almost over, and I think we owe
them a vote of thanks, and I think I heard it right now. So thank
you, Bill, and I'm just delighted to be here.
I want to shift and talk about domestic matters. And
Bill, I couldn't help but glance at this marvelous quilt coming in
here, and I do think that we owe you and all the others in the
association a vote of thanks for following through and, indeed, being
points of light.
I want to salute our Attorney General who is with us
today; our two able Secretaries so concerned also about what we're
talking about today, Secretaries Kemp and Sullivan; Ted Sanders, who
is doing a superb job as our Acting Secretary at Education; and, of
course, my old friend, a man so well-known to all of you, Bob Woodson
of the Center for Neighborhood Enterprise. You know, it's hard to
believe that a year has passed since the challenge Bill mentioned,
since I challenged the members of ASAE to channel the tremendous
energy of this organization and transform a nation through community
service. And what a terrific job you've done.
Looking around the room today, peeking, before I came in
here, I see so many familiar faces, so many people that are making a
difference in the lives of others. Every man and woman here believes
in the power of the individual, and is bolstered by the conviction
that America is indeed a land of opportunity. For more than 200
years, America has been the home of free markets and free people.
And there is no question: opportunity in America is the envy of the
entire world.
The story of America has been the story of opportunity.
Throughout our history, we've pioneered the frontiers of liberty for
all humanity. Our Founding Fathers created perhaps the most simple
yet profound document in modern history -- our Constitution and Bill
of Rights. Abraham Lincoln broke forever the chains of human
sdavery. The suffrage movement made the promise of democracy a
reality for women. The founders of our public schools unleashed our
national potential through universal education. And by their
struggle for equal rights, the leaders of the civil rights movement
helped bring dignity to the oppressed and disenfranchised. The story
of opportunity in America is the story of Thomas Paine and Frederick
Douglass, Clara Barton, the Wright brothers, Rosa Parks.
But it doesn't end there, with these heroes from our
past. There are the new American heroes of today, many of them in
this room. And they, too, are inspired by pride, integrity, faith in
the dignity of man, and courage -- yes, courage to overcome the odds.
It's called leadership by example -- and it's made America the
world's great beacon of freedom.
MORE
- 2 -
These modern visionaries are the ones that are making
history -- propelling us into the next American century.
Theirs is a movement - it's more than 200 years old --
as old as the Declaration of Independence - -- a movement defined by
what Jefferson called "the American mind" and what I've been calling
"the American idea." It continues to sweep our country today with a
vigor as strong as ever. It's a vision driven by the strength and
power of the American Dream.
And I share that vision for what is the American Dream
if it isn't wanting to be part of something larger than ourselves?
If it isn't creating a better life for our children than we might
have had? If it isn't the freedom to take command of our future?
For most people, these aspirations mean enjoying the
blessings of good health or having a home to call one's own, or
raising a family, holding a stake in the community, feeling secure --
secure at home or in our neighborhood.
But for others, sadly, America has not yet fulfiled the
promise of equality of opportunity. We know who they are: They're
the hopeless and the homeless, the friendless and the fearful, the
unemployed and the underemployed, the ones who can't read, the ones
who can't write. They are the ones who don't believe that they will
ever share in the American Dream.
I'm here to tell any American for whom hope lies dormant:
We will not forget you. We will not forget those who have not yet
shared in the American Dream. We must offer them hope. But we must
guarantee them opportunity.
It's been said, "Hope is a waking dream." That awakening
begins with learning, understanding the power and potential of
individual effort, developing a skill, and with it, independence,
earning a living, with dignity and personal growth. More skills mean
more freedom - more options for even greater opportunity.
Today, our administration is proposing an agenda to
expand opportunity and choice for all. It involves more than six
major initiatives across the scope of our entire government:
restoring quality education, ensuring crime-free neighborhoods,
strengthening civil and legal rights for all, creating jobs and new
businesses, expanding access to homeownership, and allowing
localities a greater share of responsibility. In its entirety, I
believe it represents one of the most far-reaching efforts in decades
to unleash the talents of every citizen in America.
In several weeks, I will have legislation to enact this
agenda on the desk of every congressman. The administration's
Educational Excellence proposals, by way of example, will put choice
in the hands of students and parents -- so that they can choose the
best school to attend. Our higher education system is clearly,
unquestionably, the finest in the world creative, innovative and
highly competitive. From the G.I. Bill to Pell Grants, college
students already have the power to choose. And now it's time that
our education system, all of it, became the finest in the world.
We're also proposing education reforms to build
flexibility and accountability into our school systems. We've seen
what education reform can do, from East L.A. to East Harlem. We're
encouraging governors to bring together teachers, parents and
administrators to work together to meet the needs of all students.
We must cut the dropout rate and ensure that every student in America
arrives at school ready to learn, and graduates ready to work.
For some time now, the administration has called for the
restructuring of American education. We've got to raise our
expectations for our students and our schools. But if we're going to
ask more of them, it wouldn't be fair to tie the hands of the
teachers and principals particularly those who make a difference.
MORE
- 3 -
We need responsive schools customer-driven ones, if you will.
Schools that are more market-oriented, and performance-based, because
it's time we recognize that competition can spur excellence in our
schools. Choice is the catalyst for change, the fundamental reform
that drives forward all others. These ideas will stir us and guide
us toward meeting the national education goals the governors and I
set up after that famous Education Summit - because we can't expect
to remain a first-class economy if we settle for second-class
schools.
Millions of jobs await America's graduates in the coming
years. But to fill those jobs, entrepreneurs will look increasingly
to America's minorities: blacks, Hispanics and Asians, and to people
just entering the economic mainstream, workers with disabilities, and
mothers who have chosen to work outside the home. The majority of
those jobs are safer, are cleaner, higher skilled, better paying
jobs. And they will go to the ones who have what it takes -- a
quality education.
Everyone knows the best education takes place in a safe,
drug-free environment. It is difficult for children to learn if
there's violence in the classroom. or crime out in the schoolyard.
Or drug pushers along the way home. And older students and workers
find it hard to attend night school or put in late hours at the
office because of the danger that darkness brings, especially in
crime-ridden neighborhoods.
Low-income Americans are the ones more likely to be
intimidated by crime, less likely to be able to take advantage of
opportunities that may be across town or even just around the corner.
They're the ones defending themselves and their families from the
drug dealers and muggers down the hall or down the street. And
they're the ones who need opportunity the most.
It is in their name that this battle for the streets of
our cities must be waged. The thugs and the gangs and the drug
kingpins should be the casualties of this war. Our tactics:
mandatory sentences for using a firearm in a violent crime,
strengthened protection against sex crimes and child abuse, tough
prosecutors, courts that mete out equal justice, swiftly and surely,
a prison system that is up to the job. And finally, our strategy
must include an unequivocal commitment to our young people. There
are meaningful and adventurous alternatives to a life of crime.
And it starts with education, a neighborhood that's safe and secure.
Opportunity is built on these foundations, but the door
is opened by one thing -- a job. Every American who wants a job
should be able to get one. Of course, vestiges of the past remain.
Bigotry and discrimination, regrettably, still do exist. But we have
powerful legal tools for eliminating discrimination. And remember,
the legal guarantees of equality of opportunity are largely in place:
Brown vs. the Board of Education, the Civil Rights Act of 1964, the
Voting Rights Act of 1965, the Fair Housing Acts of both 1968 and
1988, the Americans with Disabilities Act of 1990.
To assure that every American enjoys the equality of
opportunity and access, I am determined to continue the vigorous
enforcement of these and of all our civil rights laws.
And where our laws need improvement, I am committed to
refining them. We will soon introduce legislation with strong new
remedies to protect women from sexual harassment and minorities from
racial prejudice in the workplace. And I call on the Congress to act
promptly on this important initiative.
But legislation that only creates a lawyer's bonanza
helps no one. We all know where opportunity really begins. It
begins, as I said above, it begins with a job.
In our hardest hit urban and rural areas our enterprise
zone proposal will create new small businesses. We're providing new
incentives for employers to hire more workers, by eliminating the
MORE
- 4 -
capital gains tax on businesses in these areas, and attracting more
seed capital. Our proposals mean economic growth, more minority
entrepreneurs and most importantly, again, jobs.
The American dream also means choosing where to live and,
for many working people, owning a home someday. We're offering
public housing residents not only control and management of their own
community, but for the first time, access to home ownership and
private property to gain a stake in their communities. We've asked
the Congress to provide much-needed funding for the HOPE program in
1991, to make this opportunity a reality in our inner cities this
year. And we're proposing that Americans be allowed to use the money
from their IRAs to buy their first home. These initiatives will
bring us closer to our goal of one million new homeowners by 1992.
You know, there's something reassuring about becoming a
part of a neighborhood, a community that pulls together in times of
crisis, that looks out for one another. Each community in America is
different, and its residents know best how to take care of each
other, what the best options are for programs and services for those
who need a hand. And so we're proposing to allow communities to
restructure programs at the local level.
Our strength as a nation lies in the strength of our
communities, the sum of our neighborhoods and families, our hopes and
dreams for the future. This is our administration's agenda for
opportunity. It begins in the heart of every person who believes in
freedom and lives on in the American Dream. Every man and woman in
this room shares its vision. The great poet, Carl Sandburg, put it
this way: "nothing happens unless first a dream." Our mandate is to
make the dream a reality.
We face a new century, a new American century. Half a
world away, our allied troops face a defining moment in the new world
order. And they are succeeding in their battle because each and
every one of them possesses a pride in their country, integrity in
their cause and courage in their heart.
Our troops will be home soon -- coming home to a grateful
nation. And I want to ensure that their return is to a land of equal
opportunity. And just as they have stood to safeguard our freedom --
the world's freedom - let us stand with pride, integrity and courage
in our hearts and expand the freedoms of all Americans. It's up to
each of us to secure the triumph of "the American idea." And that
idea is opportunity.
With God's help and yours, we will succeed. Thank you
all very much. And may God bless our troops, and may God bless the
United States of America. (Applause.)
END
11:30 A.M. EST
TIME/MAY 27, 1991
DIANA WALKER FOR TIME
Bush's commencement speech at Hampton University was met by a student protest against his affirmative-action policies
Quota Quagmire
While racial tensions are rising in the country, Washington politicians are
bogged down in a rancorous dispute over a new civil rights bill
These are among the signs that blacks
The key aim of the bill, which is sched-
By PRISCILLA PAINTON
and whites are still talking past each other,
uled to reach the House floor this week, is
ere are examples of what passes
that the nation could stand to pause and
to make it easier for minorities and women
H
these days for communication
have a long, constructive conversation
to sue against "unintentional" employ-
across the color line: In Tamarac,
about race. Instead, the political establish-
ment discrimination, such as a hiring exam
Fla., a 20-year-old black cook was
ment in Washington has transformed what
that may look fair but has the effect of
questioned by police for 45 minutes after
should be a serious discussion about civil
keeping out members of some groups. The
officials at the bank where he wanted to
rights legislation into a festival of sophistry.
White House and congressional Republi-
open an account reported that he planned
Last week the verbal posturing gave way
cans claim that the Democratic bill would
to rob it. In New York City a rumor that a
to desperate, eleventh-hour arm-twisting
go too far, encouraging the use of racial
soft drink sold in poor neighborhoods had
and compromises, as House Democratic
hiring quotas, subjecting white males to
been secretly manufactured by the Ku Klux
leaders scrambled to find the votes they
"reverse discrimination" and rewarding
Klan to make blacks sterile worked so well
need to override a possible. presidential
more lawyers with more money. Demo-
that sales plummeted 70%. And a Universi-
veto. It was a spectacle the Republicans en-
crats reply that the White House alterna-
ty of Chicago survey of racial attitudes
joyed. "The Democrats are not going to get
tive does not go far enough, and would
found that 3 out of 4 whites believe black
the votes they need, and that will finish off
make victims of discrimination jump
and Hispanic people are more likely than
civil rights for this year," crowed G.O.P. whip
through hoops to prove they are victims.
whites to be lazy, less intelligent, less patri-
Newt Gingrich. Privately, civil rights lobby-
A central issue is who should bear the
otic and more prone to violence.
ists acknowledged that Gingrich was right.
"burden of proof" when a worker com-
20
panies will try to "inoculate" themselves
against discrimination suits by quietly try-
ing to match the percentage of blacks on
Have affirmative-
Have job opportunities
the payroll with the percentage of blacks in
action programs
for blacks become
the local labor market. Though Republi-
helped blacks get
better in the past
cans say that would be unfair to whites, the
better job
five years?
Federal Government does it every day. In
opportunities?
fact, Bush's Office of Federal Contract
Compliance Programs uses precisely the
WHITES
BLACKS
WHITES
BLACKS
same standard to determine whether cor-
Helped
52%
45%
Better
64%
39%
porations that do business with the govern-
ment are complying with laws against
Hurt
10%
5%
Worse
5%
22%
discrimination.
No
Haven't
Some White House officials, however,
28%
41%
26%
37%
changed
are so determined to keep quotas alive as a
difference
political issue that they have interfered
with efforts to reach a compromise. Last
month chief of staff John Sununu and
counsel C. Boyden Gray put pressure on
members of a group of top corporate exec-
utives called the Business Roundtable,
Do we need more
Do affirmative-
who were trying to forge an agreement on
action programs for
the bill, to break off their talks with civil
government efforts to
help blacks get better
blacks sometimes
rights leaders. The two Bush aides also crit-
icized the Roundtable's involvement at a
job opportunities, are
discriminate against
White House meeting with representatives
existing programs
whites? If "yes," does
of small businesses who oppose the bill.
adequate, or do they
this happen a lot or
That was the last straw for Robert C. Allen,
go too far?
only sometimes?
chairman and chief executive officer of
WHITES
BLACKS
WHITES
BLACKS
AT&T, who had initiated the negotiations.
More programs
19%
58%
No
17%
44%
He withdrew on April 19, taking with him
the influence and good intentions of the
Adequate
41%
23%
Yes, a lot
17%
7%
200-member organization.
Go too far
31%
13%
Sometimes
60%
42%
The Democrats, in the meantime, have
gone into contortions to keep the bill from
From
504
appearing to be about skin color. In their
attempts to get backing for their version,
they have called it a "job opportunities
plains that a company discriminates in its
tionship to the successful performance on
bill" or a bill "for all working Americans."
hiring and promotions. Until two years
the job," for example, the Republicans
But their main effort has been a campaign
ago, it was up to the employer to show the
want to say "a manifest relationship to the
to stress that women could be the major
"business necessity" of practices that have
employment in question."
beneficiaries. To attract support from the
a "disparate impact" on minorities. Under
43% of the population that is both white
that standard, plaintiffs were not required
he Republican goal is to associate
and female, they have included a provision
to prove that an employer had deliberately
T
the Democrats with the dread
that would allow women who are discrimi-
set out to be unfair to minorities; statistics
word quota. George Bush's pri-
nated against to sue in federal court for an
showing that qualified minorities were un-
vate polls have underscored the
unlimited amount; under current law, only
derrepresented in a company's work force
lesson North Carolina Senator Jesse
victims of racial discrimination have that
or had been consistently denied promo-
Helms delivered in his ugly finale against
right.
tions were enough to make the case.
black Democrat Harvey Gantt last Novem-
The proposal made uneasy conserva-
But in a 1989 case called Wards Cove
ber-that wavering white Democrats will
tive Democrats even more uneasy. So last
Packing Co. V. Atonio, the U.S. Supreme
scurry into the G.O.P. camp at the mere
week House leaders accepted a limit of
Court ruled that it was up to complaining
suggestion that blacks deserve special
$150,000 on jury awards to female plain-
workers to prove a lack of "business neces-
treatment to compensate for centuries of
tiffs. Though that might attract more con-
sity" for such practices. Statistics were no
bigotry. A last-minute weapon in Helms'
servative supporters, it alienated the Con-
longer enough; lawyers in effect had to
arsenal was a TV spot showing white hands
gressional Caucus on Women's Issues and
read employers' minds to demonstrate that
holding a job-rejection slip, while a narra-
many of their allies in the civil rights com-
they had consciously planned to favor
tor intoned, "You needed that job, and you
munity. Says Ed Dorn, an analyst at the
whites.
were the best qualified. But it had to go to a
Brookings Institution: "The strategy on
Both Republicans and Democrats want
minority because of a racial quota." Helms
the issue this year has been exceedingly
the decision reversed, a remarkable con-
won by 4%.
awkward and poorly planned."
sensus that should have yielded a law by
Bush has not shied away from exploit-
In the Senate there has been no strate-
now. But the Republicans have turned the
ing the issue. When he vetoed a similar civil
gy because there has been no bill. Demo-
legislative battle into the opening round of
rights bill last year, he talked about the
crats there have reason to be skittish. Of
the 1992 election campaign, and the Dem-
"destructive force" of quotas in the same
the 35 Senators up for re-election in 1992,
ocrats are fumbling for a way to counterat-
warrior tones Ronald Reagan once hurled
19 are Democrats and 11 of them are fresh-
tack. Despite the fact that there are no tru-
against the "evil empire." Although the
men. Five are from the South, where they
ly significant differences between the
Democratic bill explicitly discourages the
need both white and black support to win
competing proposals, the debate has sunk
use of quotas, the Republicans argue that
and where a vote on a civil rights law is sure
to the realm of the picayune. While Demo-
the idea is clearly implied in that version.
to offend one group or the other.
crats use language like "significant rela-
They say that if the bill becomes law, com-
The problem of how to reconcile blacks
TIME, MAY 27, 1991
21
Nation
and working-class whites, once the back-
bone of the Democratic Party, is com-
pounded by the recession. "People are
feeling very vulnerable in their job situa-
Does Affirmative Action
tions," says Democratic Congressman
Timothy Penny of Minnesota. "Quotas
mean jobs for some and pink slips for oth-
ers." The racial split so torments Demo-
Help or Hurt?
crats that it has overshadowed every other
issue. At a meeting in Cleveland earlier this
Black conservatives say their people become addicted to
month, members of the moderate Demo-
cratic Leadership Council spent most of
racial preferences instead of hard work
the time wrangling over the phrase "We
oppose discrimination of any kind-in-
Smith contends, however, that gender and
cluding quotas." Warned Paul Tsongas,
By SYLVESTER MONROE LOS ANGELES
race have not opened doors for him but
the former Massachusetts Senator who is
F
or Mignon Williams, 42, a black
shut them. He has been denied promotion
the only declared Democratic candidate
marketing executive in Rochester,
to sergeant so that Hispanics and females
for President: "We must tread lightly here.
N.Y., affirmative action means op-
who scored lower on exams could be given
These are our family jewels. If we discard
portunity. Recruited by Xerox Corp. in
the higher-ranking positions set aside for
them, we will wander into the wilderness
1977 under a pioneering plan to hire wom-
those groups. He worries that even if he is
with those who have no moral purpose."
en and minorities, Williams rose from
promoted, the achievement may be so taint-
But others, like Ron Gamble, a state repre-
saleswoman to division vice president in
ed by affirmative action that he will be
sentative from Pennsylvania, said the word
could cost the party the next presidential
election. "If we have to appease this inter-
est group or that interest group," he said,
"we will leave Cleveland as losers." The in-
FOR TIME
elegant compromise left everyone dissatis-
fied, and party chairman Ron Brown felt
the need to remind his fellow Democrats
to turn their fire on the Republicans.
hile politicians mangle the
W
language and one another,
there is fresh evidence that
blacks continue to face strong
barriers in the workplace. A study by the
Urban Institute released last week showed
that in 1 out of 5 attempts to get an entry-
level job, a white applicant advanced fur-
ther in the hiring process than a black ap-
plicant who was equally qualified. Since
the late 1970s, the gap between the average
earnings of black and white workers has
failed to narrow: the average annual in-
come of black workers in 1989 was $8,747,
compared with $14,896 for white workers.
Despite these inequities, some blacks
have turned their attention away from
Washington-to the deteriorating inner-
city neighborhoods-and concluded that
The professor talking with students
"Blacks now stand
the semantic dueling in Washington is be-
at San Jose State University
to lose more from
side the point. "If Congress passed their
version of the civil rights bill tomorrow,
just 13 years. While Williams attributes her
affirmative action
would things be all right in black America?"
success mainly to hard work and business
asks Charles R. Stith, founder of the Bos-
savvy, she acknowledges that her race and
than they gain.
ton-based Organization for a New Equali-
her sex played a role in her rapid rise. Affir-
ty, a six-year-old civil rights group. "The an-
mative action, she says, "opened the door,
-SHELBY STEELE
swer is no. It's a solution to a political
but it's not a free pass. If anything, you feel
problem. The problem we now face is fun-
like you're under a microscope and have to
damentally an economic problem." From
constantly prove yourself by overachieving
that perspective, it does not matter whether
and never missing the mark."
perceived as a "quota sergeant." Last fall
the current bill passes, since neither version
For Roy V. Smith, 40, a black 18-year
he joined a reverse-discrimination lawsuit
would help a single crack addict kick the
veteran of the Chicago police force, affir-
against the city of Chicago by 313 police of-
habit, persuade a youngster to stay in
mative action means frustration. Since
ficers, mostly white. "I am not anti-affirma-
school or give an unwed mother the train-
1973, court-ordered hiring quotas and the
tive action," he says. "I am just against the
ing she needs to get a job.
-Reported
by
aggressive recruitment of minorities have
way it is being used. It's something that
Laurence I. Barrett and Nancy Traver/Washington
expanded black representation on the
started out good and now has gotten out of
and Sylvester Monroe/Los Angeles
12,004-member force from 16% to 24%.
hand."
22
TIME, MAY 27, 1991
Williams and Smith reflect an increas-
"There's nothing new in the statement that
al Government. In 1971 Nixon's Labor De-
ingly acrimonious debate among African
we can and should do more for ourselves,"
partment started the Philadelphia Plan, a
Americans about the effectiveness and de-
says John Jacob, president of the National
quota system that required federal con-
sirability of affirmative action. On one side
Urban League. "It's not a debatable issue."
tractors in Philadelphia, and later Wash-
of the argument, a small but widely publi-
But, say supporters of affirmative action,
ington, to employ a fixed number of
cized group of black neoconservatives con-
expecting blacks to pull themselves up by
minorities.
tends that efforts to combat racial discrimi-
their bootstraps alone is unrealistic. Ar-
Such efforts have vastly expanded job
nation through quotas, racially weighted
gues Benjamin L. Hooks, executive direc-
opportunities for blacks. But they have
tests and other techniques have psycholog-
tor of the National Association for the Ad-
also touched off complaints from many
ically handicapped blacks by making them
vancement of Colored People: "It's still
whites that blacks are benefiting from re-
dependent on racial-preference programs
the responsibility of the government to
verse discrimination. Much of the anger is
rather than their own hard work.
provide a good school system for us and
aimed at so-called race norming, in which
Shelby Steele, an English professor at
fair and equal access to jobs."
scores on employment-aptitude tests are
California's San Jose State University, has
Adding irony to the dispute is an often
ranked on different racial curves. Whites
emerged as the most eloquent proponent
overlooked fact: government efforts to
usually score higher on such examinations
of this view. He asserts that affirmative ac-
"level the playing field" by giving blacks
than blacks and Hispanics. To be ranked in
tion has reinforced a self-defeating sense
special treatment were first adopted not by
the top 99% of applicants on one widely
of victimization among blacks by encour-
blacks or white liberals, but by conservative
used test, for example, a white applicant
aging them to pin their failures on white
Republicans. In 1959 then-Vice President
must score 405 out of a possible 500 points.
racism instead of their own shortcomings.
Richard M. Nixon, as head of President Ei-
To get the same ranking, a black would
Says he: "Blacks now stand to lose more
senhower's Committee on Contracts, rec-
have to achieve a 355.
from affirmative action than they gain."
ommended limited "preferential" treat-
Even the strongest black advocates of
On the other side, the heads of civil
ment for qualified blacks seeking jobs with
affirmative action concede that it is not a
rights organizations-and most African
government contractors. Following up that
perfect tool. Like Steele, they decry the
widespread view among whites that virtual-
ly all blacks who are hired, promoted or
THAI FOR TIME
gain admission to élite colleges are less
qualified than their white counterparts.
"There have been casualties-minority
kids who are depressed or feeling incom-
petent because of the stigma," says sociol-
ogist Troy Duster of the University of Cali-
fornia, Berkeley. Duster tells of a black
student who complained to him, "I feel like
I have AFFIRMATIVE ACTION stamped on
my forehead."
F
or most blacks, the opportunities that
affirmative action affords outweigh
any potential psychological threat.
Many reason that once they are on the job or
in the classroom, their performance can
erase negative stereotypes. Moreover, while
many barriers to black advancement have
been shattered, few African Americans have
penetrated the top levels of corporate man-
agement. A recent survey by Korn/Ferry In-
ternational shows that white males still con-
trol at least 95% of the real power positions
in corporate America.
Faced with white opposition and their
own misgivings about affirmative action, a
"There's nothing
The head of the National Urban League
growing number of blacks would prefer to
in his New York City office
new in the statement
moot the argument by expanding opportu-
nities for all Americans, whatever their col-
that we can and
recommendation, John F. Kennedy issued
or. They believe that instead of fighting for
should do more for
an Executive Order in 1961 calling for "af-
a fair share of the crumbs from a shrinking
firmative action" as the means to promote
economic pie, blacks should concentrate
MENT
ourselves."
equal opportunity for racial minorities in
their energy on making the pie big enough
hiring by federal contractors-the first of-
to guarantee a slice for everyone. That
-JOHN JACOB
ficial use by the government of the now
would require improving schools SO that
controversial term.
every child could obtain the skills needed
Eight years later, Nixon, as President,
to be competitive in the labor market, a
Americans-insist that racial discrimina-
beefed up the Office of Federal Contract
thriving economy that could provide a job
tion is so entrenched at all levels of U.S. so-
Compliance Programs, which, along with
for everyone who wants to work, and more
ciety that only affirmative action can over-
the Equal Employment Opportunity Com-
access to capital markets for minorities
come it. They charge that Steele and other
mission, has become one of the govern-
who want to start their own businesses.
critics greatly understate white resistance
ment's two main enforcers of affirmative-
Meeting those tasks is more difficult than
to black progress. To support their view,
action policy. It oversees 225,000
parceling out opportunities according to a
they note that self-reliance has long been a
companies, with a combined work force of
racial formula, but in the long run more
part of the black gospel for advancement.
28 million, that do business with the Feder-
worthwhile.
TIME, MAY 27, 1991
23
Wall Street Journal 22May
Executive Life
Civil Rights Bill Unveiled by House Panel
Se
Restructuring
In Bid to Neutralize Conservative Attacks
Sp
Plan Is Proposed
By TIMOTHY NOAH
civil rights measure as a "quota bill. One
Fo
Staff Reporter of THE WALL STREET JOURNAL
spot currently being aired by the National
WASHINGTON to neutral-
Congressional Club, a political action com-
ize attacks by the White House and conser-
mittee created by Sen. Jesse Helms (R.,
Staff Re
California Officials Unveil
vative groups against the civil rights bill,
N.C.), features footage from a much-criti-
WAS
members of the House Judiciary Commit-
cized 1990 Helms ad showing a white man's
overhai
'Rehabilitation' Measure;
tee unveiled their compromise measure.
hands crumpling a job-rejection letter.
Senate
House Democratic leaders directed
"The liberals' quota bill could affect your
honorai
Creditors Facing Losses
committee members to devise the new ver-
your promotion, your family's future,"
The
sion to win more support from moderate
says the announcer.
the con
Democrats. The legislation, which would
Ralph Neas, executive director of the
cial int
By FREDERICK ROSE
make it easier for employees to sue busi-
Leadership Conference on Civil Rights,
augmer
Staff Reporter of THE WALL STREET JOURNAL
nesses for discrimination, is expected to
charged that the ad is a "reprehensible use
rently
LOS ANGELES-California regulators
come to the House floor next week.
of the big lie technique" because "this bill
mitted
unveiled an intricate, two-part plan to re-
The new measure incorporates compro-
has never been a quota bill." But Carter
honorai
structure Executive Life Insurance Co.
mise language drawn partly from negotia-
Wrenn, executive director of the Congres-
the cha
that would offer difficult choices to policy-
tions with business leaders. The earlier
sional Club, said the group would continue
ing fees
holders and clearly signaled for the first
version, which cleared two House commit-
running its spot.
packag
time that they and other creditors could
tees in March, was similar to a bill that
Much of the legislative language in the
"We
suffer substantial initial losses.
was passed by the House and Senate last
new civil rights measure is drawn from re-
that all
The proposed resolution of the nation's
year but vetoed by President Bush.
cent negotiations between the Business
said Se
largest insurance failure-termed a "re-
The substitute, sponsored by Judiciary
Roundtable and the Leadership Conference
sponsor
habilitation blueprint" by California Insur-
Committee Chairman Jack Brooks (D.,
on Civil Rights. For instance, it incorpo-
ria. "TI
ance Commissioner John Garamendi-is
Texas) and Reps. Hamilton Fish (R.,
rates a definition of "business necessity,"
tion of
only a suggested structure for prospective
N.Y. and Don Edwards (D., Calif. ), would
one important defense against some dis-
women
bidders for the insolvent insurer, a unit of
explicitly outlaw hiring and promotion
crimination lawsuits, that was hammered
tag on
Los Angeles-based First Executive Corp.
quotas. Quotas previously have been ruled
out in those talks. The new language al-
Last
until it was seized April 11 by state insur-
illegal by the Supreme Court, but there
lows employers to defend employment
most id
ance regulators.
currently isn't a statutory ban.
practices as necessary if they bear "sub-
Sen. Do
It isn't clear what the complicated blue-
White House spokesman Roman Popa-
stantial and manifest" relationship to the
the Ser
print could produce for the nearly 170,000
diuk charged the substitute measure "still
jobs at issue.
owned
life insurance policyholders, 75,000 individ-
is a quota bill," and added that President
The Business Roundtable talks were
politica
ual annuitants and members of retirement
Bush remains committed to an earlier, ad-
halted as a result of pressure from the
tread f
and other plans covered by 307 guaranteed
ministration-sponsored Republican substi-
White House and some business groups.
amendr
investment contracts. The results will de-
tute. He said the administration hadn't yet
The Roundtable has dissociated itself from
along W
pend in large part on the bids offered by
reviewed the new bill.
the Democratic leadership's attempts to
ure.
investor groups. But, by one estimate,
Rep. Brooks said Bush administration
promote a compromise. "We've always
Pros
holders who choose to keep their policies
aides "see this as a red hot political issue
said that until everything was agreed,
finance
with a successor company to Executive
that they can exploit to the fullest in next
nothing was agreed," said American Ex-
clear. 1
Life might initially have policies worth
year's election."
press lobbyist Richard Moose, who partici-
veto De
70% or SO of the value assigned them by
Several business and conservative
pated in the talks.
paign S
Executive Life. More could be recovered
groups have been running radio and televi-
The new measure also would cap dam-
congres
over time, depending on a recovery in the
sion advertisements attacking the original
ages available to women, the handicapped,
Beca
junk bond market and final recovery from
and religious minorities in employment-
cally e)
state guarantee funds and legal settle-
Hickel Authorized to Seek
discrimination lawsuits at $150,000 or the
tant to
ments.
amount of compensatory damages. The
on honc
Holders of certain municipal securities
New Settlement on Oil Spill
cap is opposed by many civil rights groups
the inst
backed by Executive Life are likely to get
and by many women in Congress.
the Sei
30 cents or less on the dollar under the
By a WALL STREET JOURNAL Staff Reporter
The bill would prohibit adjustment of
JUNEAU, ALASKA The Alaska Le-
against
plan, the insurance department said.
employment test scores on the basis of
Mr. Garamendi, who has promised
gislature approved a resolution authoriz-
This y
race, color, sex, religion, or national ori-
ing Gov. Walter J. Hickel to try again to
$101,900
maximum recoveries for policyholders and
gin, a practice known as "race norming."
outside
annuitants, warned that his proposal is de-
craft a settlement of claims arising
And it explicitly would prohibit the use of
amount
pendent on a reversal of a $643 million
from the Exxon Valdez oil spill.
discriminatory employment tests. Sup-
In a
claim by the Internal Revenue Service for
The state Senate passed the resolu-
porters of "race norming" have argued
Dodd's
back taxes. Mr. Garamendi, together with
tion yesterday by a vote of 19-0. The
that it is necessary to correct for the bias
outside
his New York counterpart, Salvatore
House approved the resolution Monday
in many tests.
make t
Curiale, will appear today before a con-
night, by a margin of 39-0. Three weeks
gressional committee looking into the Ex-
ago, the House rejected a $1.1 billion
ecutive Life collapse.
plea agreement that had been pushed by
The plan announced yesterday makes
the governor, effectively dooming it.
no provision for a second First Executive
Under the original plea agreement,
Executive Life Insurance Co. of New
worked out between the state, Exxon
York, which was seized by regulators in
Corp. and the Justice Department, Ex-
that state. Regulators have in the past sug-
xon would have paid $100 million in fines
related to guilty pleas on criminal
We're accus
gested that a resolution might be cast for
the two companies, whose combined assets
charges. It would have paid up to an
before their failure totaled more than $13
added $1 billion for civil damages. That
billion.
agreement collapsed unexpectedly early
with perfecti
Under the California plan, two entities
this month, after federal Judge H. Rus-
would replace Executive Life. The first. a
sel Holland rejected the criminal fines
attention to
Washington Post 22May
THE WASHING
Democrats Outline Revised Rights Bill
Republicans Scoff at Assertion That Quotas Would Be Forbidden
intentional
discrimination
at
By Sharon LaFraniere
and Tom Kenworthy
$150,000 or the amount of compen-
Washington Post Staff Writer
satory damages; to prohibit employ-
ers from using separate scoring
House Democrats, struggling to
systems in testing white and minor-
regain lost political ground on an
ity applicants and workers, and to
issue Republicans have used to
modify the wording of the standard
their advantage for more than a
that employers can use to defend
year, yesterday unveiled the broad
themselves against certain discrim-
outlines of a new civil rights bill
ination suits.
B
they said would expressly forbid the
The cap on punitive damages was
Alt
Bis
use of quotas in the workplace.
included in the bill Bush vetoed.
Fle
Supporters of the bill hope the
The new language on the standard
Sol
explicit language will enable them
or
for an employer's defense grew out
to gain the upper hand in the war of
of the failed negotiations in recent
labels that has consumed debate on
months between civil rights groups
the civil rights bill through two ses-
and the Business Roundtable, a
up,
sions of Congress. The administra-
leading business organization that is
nat
tion's bill, one Democratic strate-
now behind the administration's
gist pointed out, does not prohibit
bill.
keep!
quotas. "Their bill is silent," he said.
REP. BARNEY FRANK
says Democrats can "defend" bill'
Supporters of the bill said it
"We go farther than the Republi-
would not place any further restric-
cans."
tions on workplace quotas than the
As described by its sponsors, the
ployees to bring and win discrim-
Supreme Court has already set.
new bill would simply restate re-
ination suits. Last year President
"Current law is pretty much the
strictions on quotas already set by a
Bush vetoed the legislation on the
same," Brooks said. "We are just
series of Supreme Court decisions
grounds that it was a "quotas" bill,
restating it."
over the past decade. But Rep. Bar-
and the Senate failed to override by
The court has upheld quotas in
ney Frank (D-Mass), who supports
one vote.
hiring and promotion cases, but
the legislation, said the wording will
Last year's bill stated that noth-
strictly limited their use. In gener-
B
give needed political cover to Dem-
ing in it "shall be construed to re-
al, it has ruled that quotas must be
ocrats afraid the "the average vot-
quire or encourage "quotas." But
temporary, flexible, narrowly tai-
er" is "predisposed to believe Dem-
Bush and other Republicans insisted
lored and designed to remedy past
ocrats are in favor of quotas."
discrimination.
"You arm the members and the
"Quotas are acceptable to right a
members, being armed, can go
"Current law [on
wrong. They are not acceptable for
home and defend it," Frank said.
keeping jobs divvied up according to
House Republicans yesterday
quotas] is pretty
race," said Michel Rosenfeld, a Ye-
derided the new language, sketchily
shiva University law professor and
outlined in a one-page synopsis re-
much the same. We
author of a book on affirmative ac-
leased by the bill's sponsors. Rep.
tion.
Newt Gingrich (Ga.), the minority
are just restating
In 1986, for example, the Su-
whip, said Democrats were en-
it."
preme Court upheld a consent de-
gaged in "a desperate effort to de-
cree that required the city of Cleve-
sign
a fig leaf." White House
-Rep. Jack Brooks
land to promote one black firefight-
spokesman Roman Popadiuk said
er for every white promoted over a
the White House was unmoved by
that businesses would be forced to
four-year period. The court found
the changes. "That still is a quota
resort to quotas because the bill
that the plan did not require the
bill, as far as we regard it," he said.
made it too easy for workers to
promotion of unqualified blacks and
House leaders began pushing for
mount and win discrimination suits.
was necessary to remedy past dis-
changes in the bill last month after
The revised bill will state quotas
crimination against blacks.
negotiations between civil rights
are not permitted, according to
In another case, the court upheld
and business groups broke down
House Judiciary Committee Chair-
a lower court order requiring a
under pressure from the White
man Jack Brooks (D-Tex.), its
union that had persistently refused
House. House Speaker Thomas S.
prime sponsor. At a news confer-
to admit blacks to increase its non-
Foley (D-Wash.), who normally
ence attended by Rep. Hamilton
white membership to 29 percent by
avoids predicting votes, said yes-
Fish (R-N.Y.) and Rep. Don Ed-
a certain date.
terday that the revised bill will at-
wards (D-Calif.), Brooks said that if
But the court ruled the same
tract enough votes to overcome a
the bill becomes law a worker who
year that it was unconstitutional for
presidential veto. "If I'm wrong, I'll
is injured by an illegal
teachers in order to preserve the
MD
IS designed to counter six
The legislators also said they in-
jobs of blacks with less seniority,
MD
Crys
recent Supreme Court decisions
tended to cap the amount of puni-
finding that was "too intrusive" a
VA.:
burden on white workers.
VA.:
that make it more difficult for em-
tive damages available to a victim of
VA.:
VA.:
employment discrimination.
Lets women, religious mi-
By J. David, Agence France-Presse
The House and Senate passed a
norities, and disabled people
age to approve
MOCK FRUSTRATION: President Bush threw his arms in the air and smiled broadly when
similar bill last year, but Presi-
collect punitive damages if
esident Bush's
reporters asked health questions during a photo session Tuesday. Bush said his doctors had
dent Bush vetoed it.
they prove discrimination -
million spend-
given him a 'clean bill of health' after a new checkup for his thyroid problem. (Story, 1A)
Bush says it would add to
but limits such awards to
mber cuts the
employers' burden of proof in
$150,000. Now they can only
h's plan on a
discrimination suits, forcing
collect back pay.
Secretary Dick
)W the House's
GOP, Democrats scramble
them to hire or promote by
Victims of racial discrimina-
quotas based on race or sex to
tion may sue for unlimited
ense and the B-
avoid costly lawsuits.
damages under a 1866 law.
se cuts, "I will
House Speaker Thomas Fo-
Bans grading employment
said.
aring helmets
for advantage on civil rights
ley, D-Wash., predicted that un-
tests according to the appli-
like last year, the bill will win
cant's race, sex, religion, or na-
the two-thirds majority needed
tional origin and outlaws tests
se not wearing
to override another veto.
said. And for
By Richard Benedetto
which are "not valid and fair."
whites who feel current laws
Ron Brown. "And because of
injuries rated
USA TODAY
give minorities unfair advan-
that distortion some compro-
n for non-hel-
tages for college and jobs.
mises are probably necessary."
it evaluated 49
Strip away lofty rhetoric
So they're pressing to craft a
Bush and other Republicans
Extending a helping hand
met use, and
about equality and fairness and
compromise bill that either at-
have denied the distortion
Whites see better results from affirmative-action
and econom-
the civil rights bill debate
tracts enough GOP votes to
charges.
employment programs than blacks, according to
helmets. Con-
comes down to one key ele-
override a Bush veto or wins
Brown's instincts are to fight
a recent poll:
eal of univer-
ment - partisan politics.
Bush's signature.
for a tougher bill. But he's
Whites
Blacks
tive grants to
Realists on both sides of the
"There's enough (racial) un-
caught between holding onto
WS. States fail-
issue sense growing public un-
ease out there that one does not
Affirmative-action programs have:
his party's strong minority base
inds.
ease with civil rights laws.
need to put any more strain on
and the need to persuade more
Helped
52%
And they are scrambling for
the atmosphere," says Demo-
middle-class whites to vote
45%
political advantage as the latest
cratic pollster Peter Hart.
Democratic.
measure to combat discrimina-
Led by Bush, the GOP ar-
"Republicans are adept at
Hurt
10%
tion in the workplace winds
gues the Democratic bill would
driving wedges between peo-
5%
across Capitol Hill.
encourage employers to im-
ple of common interest," says
Republicans, armed with
Made no
28%
pose racial and gender hiring
California Democratic Chair-
difference
polls showing more white vot-
41%
ble
quotas to avoid discrimination
man Phil Angelides.
ers believe current civil rights
lawsuits.
Bush, meanwhile, wants to
ghts
laws are either adequate or go
Democrats charge the Re-
Blacks say more programs needed
sign a civil rights bill he can
too far in favor of minorities,
publicans with a "distortion,"
use to attract minority voters to
More
19%
figure they can win two ways:
of the Democratic position.
the GOP. But advisers are
programs
58%
Vetoing a Democratic bill
"Have the Republicans man-
pressing him to make the Dem-
that angers white voters.
aged to distort the issue to the
ocrats squirm on the issue.
Whites say programs go too far
Forcing a compromise
extent where the American
"If they compromise, we
Go
31%
President Bush will sign.
people have been misled
take it off the political agenda,"
too far
Democrats, meanwhile, find
13%
(about quotas)? Yes, they
says GOP strategist Charles
themselves on the defensive
have," says Democratic Na-
Source: Time/CNN poll of 504 white and 504 black adults by Yankelovich
Black. "If they force a veto, it
Clancy Shulman. Sampling error: 4.5%.
over anger expressed by
tional Committee Chairman
might be a big issue in 1992."
USA TODAY
Ethiopia's
Area
AP
enlarged
Kuwaiti court 'picks up'
N: Wants
Golan
ruler flees
on pressure, delays trial
Minister Ro
rebel forces
By Jack Kelley
tatives, agreed to the postpone-
government
0 150
Eritrea
USA TODAY
ment because "it has picked
KS of violent
By Sharen Shaw Johnson
up" on the worldwide outrage
miles
Tigre
USA
chairman of
can congressman from New
terests in firms dealing with
Rep. Steven Schiff, R-N.M.,
Courter in a letter: "None of
on reviewing
Jersey. "It doesn't relate to the
bases on the closing list.
added "that when anyone has
the interests that you have in
bases to close,
military installations."
Rep. Patricia Schroeder, D-
dual loyalties, that raises a
various contractors doing busi-
at his $3,000-a-
Commission member Alex-
Colo., chairwoman of a House
question, but not one that pre-
ness with the Department of
ting fees from
ander Trowbridge resigned
military installations subcom-
vents one from serving."
Defense is inconsistent with
se contractor
last week because of his posi-
mittee, said the upheaval on
Courter said he's consulting
your responsibilities."
interest.
tion on two companies that
the commission will create
with Grumman on the F-14
And Grumman spokesman
ling hearings
serve military bases.
problems for the panel. It's sup-
Navy fighter, a carrier-based
Larry Hamilton said the base-
future of mili-
And commissioner James
posed to recommend by July 1
plane unaffected by any base
closure commission "has abso-
ionwide, dis-
Smith agreed to abstain from
whether to accept, reject or
closings.
lutely nothing to do with any-
a lobbyist for
voting on six bases because of
modify the Pentagon's list of 43
He also may sign up to work
thing we manufacture."
ota ban added to rights bill
se! No health questions!
But opponents call
compromise 'illusory'
By Leslie Phillips
Civil rights groups hope to
USA TODAY
call the White House bluff by
using the same anti-quota lan-
Democratic House leaders
guage offered last year by Sen-
Tuesday sketched the outlines
ate Minority Leader Robert
of a compromise civil rights
Dole, R-Kan. Dole still opposes
bill they hope will blunt Repub-
other parts of the bill.
lican charges the measure en-
It would be the first time that
courages racial quotas.
anti-quota rulings by the Su-
But key Democrats conced-
preme Court are written into
ed the changes involved poli-
law.
tics more than substance. Re-
But even "if there was a
publicans dismissed the
death penalty on quotas, (the
compromise as illusory.
White House) would still say
Hoping to attract more votes
it's a quota bill," said House
from conservative Democrats
Majority Leader Richard Gep-
and moderate Republicans, the
hardt, D-Mo.
bill's sponsors said they will
"Current law says pretty
add a provision saying quotas
much the same thing" added
aren't "permitted."
Judiciary Committee Chair-
That would let supporters
man Jack Brooks, D-Texas.
"defend themselves better"
Lobbyists for small business-
There guotes
against GOP attacks, said Rep.
es remain dissatisfied because
Barney Frank, D-Mass.
of standards by which employ-
But Rep. Henry Hyde, R-Ill.,
ers must defend themselves in
said, "What they are portray-
discrimination suits. Without
ing as a compromise is a com-
correcting that, they say em-
promise with themselves. You
ployers will be forced to resort
can say this isn't a quota bill in
to illegal quotas.
15 languages
but if you take
"Frankly, if you're a small
a bottle of muscatel and put a
employer, you're damned if
label on it that says Cordon
you do and damned if you
Rouge 1812, it's still muscatel."
don't," said David Rehr of the
At issue is a bill - scheduled
National Federation of Inde-
for a House vote next Thursday
pendent Businesses.
- to make it easier to prove
The compromise also:
employment discrimination.
Lets women, religious mi-
By J. David, Agence France-Presse
The House and Senate passed a
norities, and disabled people
TRATION: President Bush threw his arms in the air and smiled broadly when
similar bill last year, but Presi-
collect punitive damages if
ed health questions during a photo session Tuesday. Bush said his doctors had
dent Bush vetoed it.
they prove discrimination -
lean bill of health' after a new checkup for his thyroid problem. (Story, 1A)
Bush says it would add to
but limits such awards to
employers' burden of proof in
$150,000. Now they can only
discrimination suits, forcing
collect back pay.
Democrats scramble
them to hire or promote by
Victims of racial discrimina-
quotas based on race or sex to
tion may sue for unlimited
avoid costly lawsuits.
damages under a 1866 law.
House Speaker Thomas Fo-
Bans grading employment
dvantage on civil rights
ley, D-Wash., predicted that un-
tests according to the appli-
like last year, the bill will win
cant's race, sex, religion, or na-
the two-thirds majority needed
tional origin and outlaws tests
to override another veto.
detto
which are "not valid and fair."
whites who feel current laws
Ron Brown. "And because of
give minorities unfair advan-
that distortion some compro-
tages for college and jobs.
mises are probably necessary."
fty rhetoric
So they're pressing to craft a
Bush and other Republicans
Extending a helping hand
THE WHITE HOUSE
Office of the Press Secretary
Embargoed for Release
February 27, 1991
Until 11:05 a.m. EST
Wednesday, February 27, 1991
FACT SHEET
EXPANDING CHOICE AND OPPORTUNITY
FOR INDIVIDUALS, FAMILIES, AND COMMUNITIES
In his State of the Union Address, the President said: "The
strength of democracy is not in bureaucracy. It is in the people
and their communities
We must return to families, communities,
counties, cities, states and institutions of every kind the power
to chart their own destiny, and the freedom and opportunity
provided by strong economic growth."
The Administration is committed to strengthening the power
and opportunity of individuals and families, to breaking down
barriers to independence and self-reliance wherever they exist,
and to providing hope to distressed communities.
This means giving people access to jobs and the ability to
make choices that will better their lives and the lives of their
families. People with access to housing, jobs, and quality
education have a stake in their community, and a greater
incentive to lead productive lives. More important, people with
economic opportunity have hope for the future -- an important and
powerful weapon against poverty and despair.
The Administration seeks to use numerous administrative,
regulatory, and budgetary means to expand economic opportunity
for low-income individuals. In addition to these continuing
efforts, the President today announced that he will seek
Congressional action to promote choice and opportunity on several
fronts:
1. educational choice;
2. educational flexibility;
3. homeownership for low-income persons;
4. enterprise zones;
5. anti-discrimination laws;
6. community opportunity areas;
7. the social security earnings test; and
8. anti-crime efforts.
Legislation, where required, will be transmitted to Congress in
the next several weeks to implement these proposals.
- more -
2
GIVING PARENTS AND STUDENTS CHOICE IN EDUCATION:
Choice programs provide parents the opportunity to select
the most appropriate school for their children -- based on
informed judgments about which school offers the best education.
Choice leads to healthy competition among schools by focusing on
proven educational quality as the way to attract students.
Clearly, parents should have the opportunity to send their
children to schools of their choice. Choice can lift the
performance and quality of all schools.
The President will propose a new Educational Excellence Act
which contains strategic initiatives to improve the learning
achievement of all Americans and to restructure the nation's
educational system. Initiatives in the Educational Excellence
Act will:
o
Stimulate fundamental reform and restructure our education
system through promoting educational choice and alternative
certification for teachers and principals.
Assist educators in their mission to improve student
performance by: rewarding schools that demonstrate improved
achievement among students; rewarding excellent teachers;
and promoting innovation in training school administrators.
Provide incentives to school districts to design and
implement innovative approaches to mathematics and science
education; enhance the endowments of Historically Black
Colleges and Universities; and contribute to improving
literacy.
PROVIDING EDUCATIONAL FLEXIBILITY IN RETURN FOR ACCOUNTABILITY:
Federal Departments and agencies administer hundreds of
separate programs that provide or support education services;
each has its own statutory and regulatory requirements. Program
requirements can impede the ability of local schools and
districts to provide the best possible education. Flexibility in
administering Federal education programs will allow Governors,
school administrators, teachers, service providers, parents, and
others in the community to work together to develop effective
education programs that meet the needs of all students,
particularly those students who are educationally disadvantaged.
- more -
3
The Educational Excellence Act of 1991 would promote local
control and innovation in education by providing increased
flexibility in the use of Federal funding in exchange for
enhanced accountability for results. The Administration's
bill will be guided by the following principles:
Flexibility should be linked to accountability for
improvements in educational outcomes.
:
Flexibility should result in delivering services to
current target populations in a more effective manner.
:
Flexibility should retain key protections in current
laws (e.g., protection of the disabled).
PROVIDING HOMEOWNERSHIP OPPORTUNITIES:
Low-income Americans have a greater stake in their
communities when they have the opportunity to own their own
homes. The HOPE (Homeownership and Opportunity for People
Everywhere) initiative is a new grant program to increase
homeownership opportunities. By offering residents greater
control and access to property, the HOPE program will instill
pride of ownership and enhance incentives for maintenance and
improvement. While HOPE was enacted into law last year, Congress
provided no funding for the program in Fiscal Year 1991.
The President has requested $500 million in Fiscal Year 1991
supplemental funding to start the HOPE program immediately.
The President's Budget also requests $1 billion in 1992 for
the new HOME program -- a housing block grant program
providing States and localities greater flexibility in
meeting the housing needs of their low-income residents,
with incentives for use of housing vouchers.
HOPE Grants will be made on a competitive basis to resident
management corporations, resident councils, cooperative
associations, non-profit organizations, cities and States,
and public and Indian housing authorities. Funding will
help participants design and execute their plans for
resident management and buyouts of public and assisted
housing.
The HOPE initiative also targets $258 million in 1992 for a
new "Shelter Plus Care" program to help the homeless. The
Shelter Plus Care program will link housing with the full
range of services needed by the homeless. The program will
combine shelter with the support services -- job training,
health care, and drug treatment -- that help people achieve
dignified and independent lives.
- more -
4
CREATING JOBS IN ENTERPRISE ZONES:
Enterprise zones will attack poverty by promoting investment
in economically distressed neighborhoods. Enterprise zones will
attract new seed capital for small business start-ups, create new
incentives for entrepreneurial risk-taking, and reduce high
effective tax rates on those moving to work from welfare.
o
The Enterprise Zone and Jobs-Creation Act of 1991 will
target tax incentives and regulatory relief to some of our
nation's most economically depressed areas.
The Secretary of Housing and Urban Development would
designate up to 50 (urban, rural, and Indian) enterprise
zones over a four year period. Designation will be based on
the level of distress, as well as on the nature and extent
of State and local efforts to improve living conditions and
to eliminate government burdens to economic activity.
Designation will be for a maximum of 24 years.
O
The legislation will provide tax incentives to attract seed
capital, stimulate employment, and increase the economic
return from work for the working poor:
-- Workers will be eligible for a 5 percent refundable tax
credit for the first $10,500 of wages earned in an
enterprise zone business. This will put up to $525
more income in the pockets of low-income workers. The
credit phases out between $20,000 and $25,000 of total
annual wages.
-- To spur investment, capital gains taxes will be
eliminated for gains on investment in tangible property
(e.g., buildings and equipment) used in a business
located in an enterprise zone for at least two years.
:
To encourage entrepreneurial risk-taking, individuals
will be permitted to expense investments in the capital
of corporations engaged in enterprise zone businesses.
This essentially provides an immediate write-off for
investments in enterprise zone businesses.
Corporations must have less than $5 million of total
assets. Expensing will be permitted up to $50,000
annually per investor, with a $250,000 lifetime limit.
The legislation would also give enterprise zone communities
priority for free trade area status. Such status would, for
example, allow a business in an enterprise zone to import
materials duty-free if the materials are used to manufacture
products for export to other countries.
- more -
5
Enterprise zones would reduce Federal tax revenues by $1.8
billion over five years.
STRENGTHENING AND ENFORCING ANTI-DISCRIMINATION LAWS:
A vital element in the effort to protect the civil rights of
all Americans is the vigorous enforcement of existing anti-
discrimination laws. Over the past two years, the Bush
Administration has moved aggressively to fight hate crimes and
combat discrimination in housing, voting, employment, and
education. A few examples:
Emerges DONE of
Enactment of the Americans with Disabilities Act in July
1990 was one of the most important expansions of civil
rights protections in a quarter of a century. The
Administration is now pursuing swift implementation of the
landmark law.
The Department of Housing and Urban Development (HUD) is
aggressively enforcing the 1988 Fair Housing Amendments
which prohibit housing discrimination on the basis of race,
color, national origin, religion, sex, familial status, or
disability. The Bush Administration has resolved nearly
12,000 of the almost 16,000 fair housing cases.
In 1989, the Justice Department prosecuted more than twice
as many hate crimes cases as in any previous year. In 1990,
the Justice Department had a 100 percent success rate in
prosecuting hate crimes.
In 1990, the Department of Education received and resolved
more civil rights complaints than in any previous year of
its history -- and in record time.
The largest settlements in the history of the Department of
Labor's Federal Contract Compliance cases have been achieved
during the Bush Administration. A single case involving
employment discrimination against women and minorities
resulted in a payment of $14 million. In another case, a
back pay settlement of $3.5 million will benefit
approximately 1,000 women who were discriminated against in
hiring.
- more -
6
The Administration is committed to strengthening the strong
employment discrimination laws that now exist. These
improvements will remove consideration of factors such as sex,
race, religion, or national origin from employment decisions.
This can be done without encouraging the use of quotas or
preferential treatment, without departing from the fundamental
principles of fairness that apply throughout our legal system,
and without creating a litigation bonanza that brings more
benefits to lawyers than to victims.
A major objective of the Administration is to ensure that
Federal law provides strong new remedies for harassment
based on sex, race, color, religion, or national origin.
The Administration will propose to codify a cause of action
for "disparate impact," involving employment practices that
unintentionally exclude disproportionate numbers of certain
groups from some jobs. The burden of proof will be shifted
to the employer on the issue of "business necessity."
The time has come for Congress to bring itself under the
same anti-discrimination requirements it prescribes for
others.
Other improvements, including changes in certain provisions
affecting statutes of limitations and encouragement for the
use of alternative dispute resolution mechanisms, will also
enhance the administration of our comprehensive civil rights
laws.
REDUCING FEDERAL BUREAUCRACY AND ESTABLISHING OPPORTUNITY AREAS:
Programs providing social, welfare, health, education, and
nutritional services are often delivered in fragmented ways.
Allowing services to be integrated will better serve the
recipients of these programs and promote self-sufficiency and
opportunity.
The Community Opportunity Act of 1991 will enable local
communities to develop "community opportunity systems" and
allow them to restructure Federal programs to provide
services and benefits in the way the community deems best to
meet the needs of the individuals and families served.
- more -
7
The legislation would allow a Federal administrator
designated by the President to recommend a budget-neutral
waiver of most Federal statutory and regulatory requirements
for any Federally funded program to be included in the
community's opportunity delivery system. The Federal
administrator will make recommendations regarding the waiver
requests to the relevant Federal agency heads.
Communities will be able to develop community opportunity
systems in which:
--
services and benefits can be integrated, combined, and
restructured at the community level;
the system is neighborhood- or community-based, with a
specified target group of beneficiaries;
the individuals and families served can participate in
the design of the system; and
--
the delivery system offers individuals and families in
the target group of beneficiaries the maximum choice
and control over the range, source, and objectives of
the services and benefits to be provided.
Each community opportunity system will have clear and
measurable goals and will be evaluated with regard to both
the short- and long-term outcomes.
EXPANDING JOB OPPORTUNITIES FOR OLDER AMERICANS BY LIBERALIZING
THE SOCIAL SECURITY EARNINGS TEST:
If social security recipients aged 65 to 69 wish to
supplement their benefits with earnings, they may earn only up to
$9,720 this year before their social security benefits are
reduced. Beyond $9,720, each three dollars of earnings reduces
their social security benefits by one dollar.
For retirees with sources of income other than earnings,
such as private pensions and investment income, this limitation
on allowable earnings may have little effect on their lives.
Presently, the earnings test falls most heavily on elderly
persons who do not have significant savings or income from
pension plans, and can seriously constrain their choices of
employment.
- more -
8
O
The President's Fiscal Year 1992 Budget proposes an increase
in the amount of allowable earnings for social security
recipients aged 65 to 69.
-- For 1992, allowable earnings would be increased $800,
or 8 percent, from $10,200 to $11,000.
-- For 1993, the increase would be $200, from $10,800 to
$11,000.
-- For 1994, allowable earnings would continue to rise to
the level projected under current law, $11,400.
PROTECTING CITIZENS BY FIGHTING VIOLENT CRIME:
As President Bush has stated in the past, the right to be
free from fear in our homes, streets, and neighborhoods is the
first civil right of every American. Where streets are not safe
and property is not secure, economic opportunity is impossible.
The President announced in his State of the Union Address
that the Attorney General will soon convene a Crime Summit of our
nation's law enforcement officials. A major objective of the
Crime Summit is to strengthen the working relationship between
the Administration and State and local law enforcement
officials.
The Administration will again propose comprehensive violent
crime control legislation to give law enforcement authorities the
tools they need to apprehend, prosecute, and incarcerate violent
criminals. The legislation will include:
0
A meaningful Federal death penalty for the most heinous
crimes with procedures to ensure its fair and colorblind
application.
o
Habeas corpus reform to reduce unnecessarily repetitive
appeals that clog the courts and delay justice.
o
Exclusionary rule reform to ensure that the evidence
gathered by law enforcement officials in a good faith belief
that they are acting lawfully can be used to help courts
establish the truth.
Provisions to strengthen Federal laws concerning the safety
of women by modifying rules on the admissibility of evidence
in cases of sex crimes, enhancing penalties for the
distribution of illegal drugs to pregnant women, increasing
penalties for recidivist sex offenders, and offering greater
protection for victims below the age of sixteen.
# # #
Office of the Press Secretary
for Immediate Release
May 17, 1990
REMARKS BY THE PRESIDENT
DURING MEETING WITH
COMMISSION ON CIVIL RIGHTS
The Rose Garden
10:02 A.M. EDT
THE PRESIDENT: Welcome to the Rose Garden and to the
White House. Thank you all very much for coming. To the Attorney
General and Secretary Cavazos and Secretary Sullivan, thank you for
joining us. Director Newman, the same. And to Senators Dole, Hatch,
and Garn, Congressman Ham Fish, thank you very much for being with us
today. To Chairman Fletcher, an old friend and a man I'm very proud
of, welcome, sir. To Commissioners Buckley, Ramirez, Redenbaugh,
Wilfredo Gonzalez and the State Advisory Committee Chairpersons, and
to the distinguished leaders. I see Ben Hooks here and others of the
civil rights community across this great country. It is -- and I
mean it -- an honor to have you here today.
I think we've made it a moment that's very hopeful
worldwide. In a minute from now, I'll be meeting in this marvelous
Oval Office with Chancellor Kohl, talking about the dramatic changes
that have taken place in the world. There is a time when the
thundering cry for freedom is being heard and answered from Panama,
hopefully in Johannesburg, to Warsaw.
And around the world, peoples are warring against
tyranny, citizens struggling against state control, economies weary
of bureaucratic central planners, all are looking to America as
reason for hope -- the bright star by which to chart their course to
freedom.
And 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 the Land of Liberty. And we're called upon to ensure that
this democracy means opportunity for all who call it home.
Few have worked harder to deliver the promise of
democracy, to make an enduring dream a living reality, than the men
and women assembled here today in this Rose Garden. And
particularly, I want to give credit again to these men and women
standing behind me.
From its earliest origins, the Commission on Civil Rights
has been an independent, bipartisan voice for justice. And the
Commissioners, the Directors, the Advisory Committees all share a
cultural diversity and an intellectual and moral conviction that are
truly America's best. And these men and women have earned our
admiration. And today, they deserve our thanks.
Joining a new Chairman -- and as I said, my friend of
many years, Art Fletcher -- are two outstanding additions: Carl
Anderson and Russell Redenbaugh. I know Bob Dole shares my
admiration for Russell, a man of impressive credentials, who knows,
as all Americans should know, that physical disability will not be a
barrier to service in this administration. That's why I remain
firmly committed to the landmark Americans for Disabilities Act to
help ensure equal rights and opportunities for these Americans.
And today, I'd like to announce a new member of the Civil
Rights Commission, Mr. Charles Pei Wang, President of the China
Institute in America, an outstanding new addition.
Over the last few days, I've met to discuss pending civil
MORE
rights legislation with leaders representing America's rich tapestry
of cultural, religious, and ethnic diversity. And I got, as I knew I
would, a lot of sound advice. Much of which I can accept.
(Laughter.) But these leaders, this Commission -- (applause) -- the
Congress and this administration, believe me, all share a common
conviction for equal opportunity. It's a responsibility that I've
tried to take very seriously -- especially now, when our most vital
export to the world is democracy.
And we must make sure that we as a nation continue to
lead by example. We must see that true affirmative action is not
reduced to some empty slogan, and that this principle of striking
down all barriers to advancement has real, living meaning to all
Americans. We will leave nothing to chance and no stone unturned as
we work to advance America's civil rights agenda. (Applause.)
This nation's progress against prejudice, from the '64
Act to the Voting Rights Act, to the Fair Housing and Age
Discrimination in Employment Acts, it's all hinged on the principle
that no one in this country should be excluded from opportunity. And
so, we're committed to enacting new measures like the Hate Crimes
Statistics Act, the HOPE initiative of housing, a revitalized
enforcement of restrictions against employment bias. This
administration seeks equal opportunity and equal protection under the
law for all Americans -- goals that I know are shared by Senators
Kennedy and Representative Hawkins, and certainly by the four
distinguished members of Congress with us here today.
And so we've supported efforts to ensure an individual's
ability to challenge discriminatory seniority systems. We've also
moved to stiffen the penalties from racial discrimination in setting
or applying the terms and conditions of employment. And today, as we
work to, ensure that America represents democracy's highest
expression, I want to begin by offering three principles that must
guide any amendments to our civil rights laws. These principles are
firmly rooted in the spirit of our current laws. After the extensive
discussions that we've had this week, I think they're principles on
which all of us, including the leadership on the Hill, can agree.
And so I will enthusiastically support legislation that meets these
principles.
1
First, civil rights legislation must operate to
obliterate consideration of factors such as race, color, religion,
sex, or national origin from employment decisions. (Applause.) So
in essence, we seek civil rights legislation that is more effective,
not less. The focus of employers in this country must be on
providing equal opportunity for all workers, not on developing
strategies to avoid litigation. (Applause.)
No one here today would want me to sign a bill whose
unintended consequences are quotas. Because quotas are wrong, and
they violate the most basic principles of our civil rights tradition
and the most basic principles of the promise of democracy. America's
minority communities deserve more than symptomatic relief, and we
want to eradicate the disease. And that will require systematic
solutions, strategies that transcend statistics.
We should empower and ennoble our minority communities.
We should seek systematic change that allows every American to excel.
During these meetings this week, I invited the civil rights
leadership to work with me to craft a bill that moves us towards this
goal. After these consultations, I am confident that this can be
done. I want to sign a civil rights bill, but I will not sign a
quota bill. (Applause.) I think we can work it out. (Applause.)
2
The second civil rights legislation must reflect
fundamental principles of fairness that apply throughout our legal
system. Individuals who believe their rights have been violated are
entitled to their day in court, and an accused is innocent until
proved guilty. In every case involving a civil rights dispute,
constitutional protections of due process must be preserved.
- 3 -
3
And third, federal law should provide an adequate
deterrent against harassment in the workplace based on race, sex,
religion, or disability, and should ensure a speedy end to such
discriminatory practices. Our civil rights laws, however, should not
be turned into some lawyer's bonanza, encouraging litigation at the
expense of conciliation, mediation, or settlement.
4
Let me add that Congress, with respect, should live by
the same requirements it prescribes for others. (Applause.) In '72,
the Civil Rights Act of '64 was justly applied to executive agencies
in state, local governments and Congress, however, has not covered.
And this -- this is not an assault on Congress, I'm just trying to --
I've got about -- (laughter) -- but seriously, this inconsistency
should be remedied to give congressional employees and applicants the
full protection of the law to send a strong signal that it's both the
Executive Branch and Congress that are in this together. And the
Congress should join the Executive Branch in setting an example for
these private employers.
Now, we seek strategies that work, putting power where it
belongs -- in the hands of the people. That means new ideas, like
giving poor parents the power of an alternative choice in where to
send the kids to school so that all can have access to the best. It
means more tenant control and ownership of public housing. Tax
credits for child care to give parents more flexibility and choice.
Policies that underwrite prosperity by encouraging capital flow to
build more businesses in poor neighborhoods. The door is open wider
now than it ever has been. Together, I believe we can open it still
wider.
Today, an expanding economy is working in the service of
civil rights. And so, let's not set the clock back. Let's look past
the differences that divide us, to the shared principles and the
better natures that we have within us. To the civil rights
leadership assembled here today -- Dorothy, excuse me, I didn't see
you earlier -- and so many -- I'm in real trouble if I single them
out here. Look, I have offered you my hand and my word that,
together, we can and will make America open and equal to all. Now,
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 inside tracks, no two-tiered system, and no
rungless ladders. And I'm willing to take the time to make sure that
this is done right, simply because it's worth doing right. Now is
the time, really, to extend a hand to all that are struggling, and to
devote our energies to a broader agenda of empowerment, that all
might join in this new age of freedom.
I am delighted that you all came here. Thank you for
bringing honor to this prestigious Rose Garden, and to paying tribute
to our Commission here in which I have great confidence, and in which
I take great pride.
Thank you all very, very much. (Applause.) Thank you.
END
10:16 A.M. EDT
FACT SHEET ON
ADMINISTRATION CIVIL RIGHTS BILL
The Administration is committed to strengthening the strong
employment discrimination laws that now exist. These
improvements will operate to obliterate consideration of
factors such as race, religion, sex, or national origin from
employment decisions.
A major objective of the Administration is to ensure that
Federal law provides strong new remedies for harassment
based on race, sex, religion, or national origin. The
Administration proposes to create a new monetary remedy, up
to $150,000, for these forms of discrimination.
In addition, the Administration proposes to extend 42 U.S.C.
1981 to outlaw racial discrimination in the performance of
contracts, overruling Patterson V. McLean Credit Union, 109
S. Ct. 2363 (1989).
The Administration also proposes legislation overturning the
Supreme Court's decision in Lorance V. AT&T Technologies,
Inc., 109 S. Ct. 2261 (1989) which unfairly limits the time
for challenging discriminatory seniority systems.
The administration also proposes to codify the "disparate
impact" cause of action for employment practices that
unintentionally exclude disproportionate numbers of certain
groups from some jobs. This codifies Griggs V. Duke Power
CO., 401 U.S. 424 (1971). The Administration bill shifts
the burden of proof to the employer to justify practices
having a disparate impact under the rule of "business
necessity." This overrules the contrary decision in Wards
Cove Packing Co. V. Atonio, 109 S. Ct. 2115, 2126 (1989).
In order to help curtail unnecessary litigation, the use of
alternative dispute resolution mechanisms will be
encouraged.
The time has come for Congress to bring itself under the
same antidiscrimination requirements it prescribes for
others. This will promote both fair treatment for
congressional employees and a greater appreciation by
Congress of the consequences of new legislative initiatives.
Other improvements, including changes in certain provisions
affecting the statute of limitations and expert witness
fees, will also enhance the administration of Title VII of
the 1964 Civil Rights Act.
- 2 -
The Administration bill strengthens our civil rights laws
without encouraging the use of quotas or unfair preferences,
without departing from the fundamental principles of fair-
ness that apply throughout our legal system, and without
creating a litigation bonanza that brings more benefits to
lawyers than to victims.
o
The Administration recognizes that equal opportunity can
never be a reality unless there are decent schools, safe
streets, and revitalized local economies. Therefore, in
addition to this bill it seeks Congressional action to
promote choice and opportunity on several fronts:
educational choice and flexibility; home-ownership
opportunity; enterprise zones and community opportunity
areas; and heightened anti-crime efforts.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
01. Memo
Dick Thornburgh to POTUS, re: S. 2104, the "Civil Rights
10/22/90
P-5
Act of 1990." (10 pp.)
Collection:
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West Point Commencement 6/1/91 [4]
By SN (NLGB) on 6/7/2005
Date Closed:
10/27/2004
OA/ID Number:
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FOIA/SYS Case #:
Re-review Case #:
2004-2265-S
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financial information [(a)(4) of the PRA]
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information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
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purposes [(b)(7) of the FOIA]
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Office of the Attorney General
Washington, B.O. 20530
October 22, 1990
MEMORANDUM FOR THE PRESIDENT
FROM:
Per
DICK THORNBURGH
ATTORNEY GENERAL
SUBJECT:
S. 2104, the "Civil Rights Act of 1990"
This memorandum sets forth my views, and those of the
Department of Justice, on S. 2104, the "Civil Rights Act of
1990." Although the bill contains some provisions that we both
would like to see become law, S. 2104 is fatally flawed.
On May 17, 1990, in a Rose Garden speech marking the
reauthorization of the Civil Rights Commission, you outlined the
principles that would guide the approach of your Administration
to civil rights legislation. You stated that: (1) civil rights
legislation must operate to obliterate consideration of factors
such as race and sex from employment decisions; (2) it must
reflect fundamental principles of fairness that apply throughout
our legal system; and (3) it should strengthen deterrents against
harassment in the workplace based on race, sex, religion, or
disability, but should not produce a new and unjustified lawyers'
bonanza.
S. 2104 is not consistent with these principles. It creates
powerful incentives for employers to adopt quotas in order to
avoid litigation. It shields discriminatory consent decrees from
legal challenge under many circumstances. And it contains
several provisions that will serve primarily to foster litigation
rather than conciliation and mediation.
I. INCENTIVES FOR EMPLOYERS TO ADOPT QUOTAS
Sections 3 and 4 of S. 2104 create strong incentives for
employers to adopt quotas. Although putatively needed to
"restore" the law that existed before the Supreme Court's opinion
in Wards Cove Packing Co. V. Atonio, 109 S. Ct. 2115 (1989),
these sections actually engage in a sweeping rewrite of the law
of employment discrimination.
In Griggs V. Duke Power Co., 401 U.S. 424 (1971), the
Supreme Court ruled that Title VII of the Civil Rights Act of
1964 prohibits hiring and promotion practices that
1
unintentionally but disproportionately exclude persons of a
particular race, sex, ethnicity, or religion unless these
practices are justified by business necessity. Law suits
challenging such practices are called "disparate impact" cases,
in contrast to "disparate treatment" cases brought to challenge
intentional discrimination.
In a series of cases decided in subsequent years, the
Supreme Court refined and clarified the doctrine of disparate
impact. In 1988, the Court greatly expanded the scope of the
doctrine's coverage by applying it to subjective hiring and
promotion practices (the Court had previously applied it only in
cases involving objective criteria like diploma requirements and
height-and-weight requirements). Justice O'Connor took this
occasion to explain with great care both the reasons for the
expansion and the need to be clear about the evidentiary
standards that would operate to prevent the expansion of
disparate impact doctrine from leading to quotas. In the course
of her discussion, she pointed out:
"[T]he inevitable focus on statistics in disparate impact
cases could put undue pressure on employers to adopt
inappropriate prophylactic measures.
[E]xtending
disparate impact analysis to subjective employment practices
has the potential to create a Hobson's choice for employers
and thus to lead in practice to perverse results. If quotas
and preferential treatment become the only cost-effective
means of avoiding expensive litigation and potentially
catastrophic liability, such measures will be widely
adopted. The prudent employer will be careful to ensure
that its programs are discussed in euphemistic terms, but
will be equally careful to ensure that the quotas are met."
Watson V. Fort Worth Bank & Trust Co., 108 S. Ct. 2777,
2787-2788 (1988) (plurality opinion).
The following year, in Wards Cove, the Court considered
whether the plaintiff or the defendant had the burden of proof on
the issue of business necessity. Resolving an ambiguity in the
prior law, the Court placed the burden on the plaintiff.
Supporters of S. 2104 argue that this rule imposes an
unreasonable burden on employees, and have claimed that
legislation is needed to redress this imbalance. As you know,
your Administration is prepared to accept the shifting of that
burden to the defendant.
Sections 3 and 4 of S. 2104, however, go far beyond this
shift in the burden of proof. First, the bill effectively
creates a new presumption of discrimination whenever a plaintiff
shows a sufficient statistical disparity in the racial, sexual,
ethnic, or religious makeup of an employer's workforce, even if
the plaintiff fails to identify any employment practice that has
caused the disparity. Second, it defines "business necessity" in
2
an unduly restrictive way. Finally, it imposes unreasonable
restrictions on the type of evidence an employer may use in
proving business necessity. In combination, these provisions
will force employers to choose between (1) lengthy litigation,
under rules rigged heavily against them, or (2) adopting policies
that ensure that their numbers come out "right." Put another
way, the bill exerts strong pressure on employers to adopt
surreptitious quotas.
A. THE PRESUMPTION OF DISCRIMINATION ARISING FROM
STATISTICAL DISPARITIES
Under Section 4, a plaintiff may bring a disparate impact
case by alleging that a "group of employment practices results
in" significant statistical disparity. "Group of employment
practices" is very broadly defined in Section 3 to include any
"combination of employment practices that produces one or more
decisions with respect to employment
That definition provides no limitation whatsoever: all
practices that combine to produce, say, hiring decisions -- for
example, use of a high school graduation requirement, plus an
interview, plus job references, plus a requirement of a clean
criminal record -- all could be lumped together as a single
"group." Thus, if an employer's bottom line numbers are
"wrong," the employer can be forced to prove that every practice
is required by "business necessity."
Section 4 includes language emphasizing this point.
Subsection (k) (1) (B) (i) states that "except as provided in clause
(iii), if a complaining party demonstrates that a group of
employment practices results in a disparate impact, such party
shall not be required to demonstrate which specific practice or
practices within the group results in such disparate impact"
(emphasis added). The exception in clause (iii) seems at first
to state the opposite, but actually takes away what it seems to
give. Specificity is not required where the defendant has
"failed to keep such records" as are "necessary to make [the]
showing" of specifically which "practice or practices are
responsible for the disparate impact."
Thus, the bill requires any employer whose workforce has the
"wrong" bottom line numbers to point to records showing that one
of its practices could have been challenged as "responsible for"
the disparate impact. This is not a mere recordkeeping
requirement: it is essentially a transfer from the plaintiff to
the defendant of the obligation to make out the bulk of the
plaintiff's prima facie case. The transfer of obligations is
merely disguised as a recordkeeping requirement. An employer who
cannot meet the burden created by this rule faces the prospect of
defending all of its employment practices under the business
necessity test.
3
This concealed obligation does not merely create all the
record-keeping burdens one would imagine, but also a classic
Catch-22: if an imbalance in the employer's workforce is caused
by something other than the employer's practices (by housing
patterns, for example), so that the employer could not possibly
have kept records showing which of its practices was responsible
for the imbalance (because none was), a prima facie case will
nevertheless be deemed to have been established because the group
of practices "results in" a disparate impact and the employer
cannot possibly explain it from his own records.
The notion of allowing plaintiffs to attack a "group of
practices" without showing that each member of the group has
caused a disparate impact has absolutely no basis in Supreme
Court precedent. All Supreme Court cases prior to Wards Cove
focused on the impact of particular hiring practices, and
plaintiffs have always targeted those specific practices. See
Griggs V. Duke Power Co., 401 U.S. 424 (1971) ; Albemarle Paper
Co. V. Moody, 422 U.S. 405 (1975) ; Dothard V. Rawlinson, 433 U.S.
321 (1977) i New York City Transit Authority V. Beazer, 440 U.S.
568 (1979) ; Connecticut V. Teal, 457 U.S. 440 (1982) i Watson V.
Fort Worth Bank & Trust Co., 108 S. Ct. 2777 (1988). The new
rule created in S. 2104 is inconsistent with a fundamental
principle of civil litigation: that the plaintiff is obliged to
identify what act of the defendant is responsible for the
plaintiff's injury. Even apart from other defects in Sections 3
and 4 of this bill, the treatment of "groups of practices"
creates extremely powerful incentives for employers to adopt
quotas rather than go through the litigation necessary to
establish the "business necessity" of every one of their
employment practices.
B.
THE BUSINESS NECESSITY DEFINITION AND THE EVIDENTIARY
RESTRICTIONS
The risk of surreptitious quotas created by the bill's
provisions on "groups of practices" is compounded by S. 2104's
unreasonably restrictive definition of "business necessity" and
by evidentiary restrictions imposed on employers trying to meet
the "business necessity" test. I will discuss each in turn.
1. The Business Necessity Definition
S. 2104 forces employers to defend any employment practice
"involving selection" by showing a "significant relationship to
successful performance of the job." This standard is new; it is
found nowhere in any holding of the Supreme Court. On its face,
it is defective because a narrow requirement of this type denies
that there can be legitimate and desirable selection or promotion
practices aimed at objectives other than successful job
performance. Moreover, its very novelty guarantees that it will
4
generate litigation for employers seeking to defend themselves.
Finally, the bill's peculiar treatment of prior cases is likely
to suggest to courts that ambiguities should be resolved against
employers. In combination, these defects again make it likely
that employers will adopt quotas rather than risk expensive
litigation whose outcome will be highly uncertain.
First, simply taking the definition literally, S. 2104 would
preclude employers from using hiring or promotion practices
serving many legitimate business objectives. Consider, for
example, an employer with a policy under which promotions are
given only to employees who receive "outstanding" ratings in
their current jobs. The justification for such a policy might be
that it provides an incentive for all employees to perform in an
outstanding manner, thereby promoting overall efficiency within
the firm. Under S. 2104, however, the employer could not rely on
that justification. Rather, he or she would have to attempt to
prove that outstanding performance in an employee's current job
was "significant[ relat[ed] to successful performance" of the
next job. In many cases, this might be impossible.
There is no sound policy reason for confining in this way
the justifications an employer may offer for its selection
practices. Nor were such restrictions required by Supreme Court
decisions prior to Wards Cove. See, e.g., Griggs V. Duke Power
Co., 401 U.S. 424, 432 (1971) ; New York City Transit Authority V.
Beazer, 440 U.S. 568, 587 n.31 (1979) ; Watson V. Fort Worth Bank
& Trust Co., 108 S. Ct. 2777, 2790 (1988) (plurality opinion).
Indeed, the Wards Cove dissent itself made clear that under
Griggs any "valid business purpose" would suffice. Wards Cove
Packing Co. V. Atonio, 109 S. Ct. 2115, 2129 (1989) (Stevens, J.,
dissenting).
The statement in S. 2104 that the definition of business
necessity is intended to codify Griggs cannot alter the
inconsistency between the bill's text and the language of Griggs,
or the inconsistency between the bill's text and almost two
decades of Supreme Court precedent interpreting Griggs. Instead,
it merely guarantees confusion as courts attempt to sort out
precisely what Congress had in mind. This confusion will be
time-consuming and very expensive. And it will bring no benefit
to the victims of discrimination.
Finally, in attempting to interpret the confusing definition
of "business necessity," some courts would likely come to the
conclusion that Congress intended to bring about certain highly
undesirable results. First, the bill states that it is designed
to overrule Wards Cove's "treatment of business necessity as a
defense." Part of that treatment of business necessity, though,
was the Court's rejection of the view that an employer is
required to show that the "challenged practice [is] 'essential'
or 'indispensable' to the employer's business." Wards Cove
5
Packing Co. V. Atonio, 109 S. Ct. 2115, 2126 (1989). As the
Supreme Court noted, "this degree of scrutiny would be almost
impossible for most employers to meet, and would result in a host
of evils," including quotas. Id. Rather, the Court quite
reasonably found that "the dispositive issue is whether a
challenged practice serves, in a significant way, the legitimate
employment goals of the employer." Id. at 2125-2126 (citing
Watson and Beazer as well as Griggs). On this issue, as pointed
out above, the dissent in Wards Cove is in agreement.
In light of these statements, a statutory provision
overruling "the treatment of business necessity" in Wards Cove
could reasonably be interpreted by many courts as returning the
bill's definition of business necessity to the widely criticized
standard included in the original incarnation of S. 2104
("essential to effective job performance"). This inference would
be strengthened by two other provisions of the bill: Section 2
("Findings and Purposes") and Section 11 ("Construction").
Working in tandem, Sections 2 and 11 would likely lead some
courts to resolve ambiguities in the bill against prior decisions
by the Supreme Court and against defendants.
2. Evidentiary Restrictions
Finally, employers who must attempt to meet the business
necessity test must do so by means of "demonstrable evidence."
This is a new term invented by the bill, and no definition is
provided. The bill contains a long list of types of evidence
that courts may "receive," but the bill does not say that any of
these necessarily constitutes "demonstrable evidence." Courts
will likely understand the use of this new term (particularly in
light of Sections 2 and 11 of the bill) to mean that Congress is
referring to some category of evidence that is narrower than the
category of evidence on which courts would otherwise rely. The
effect of this provision, then, will apparently be to indirectly
raise the burden of proof on the defendant beyond what it would
otherwise be.
I am not aware that any justification has been offered for
restricting the kind of evidence on which courts may rely in this
context. Nor do I believe that it is advisable to force the
courts to engage in guessing games about the meaning of a novel
term like "demonstrable evidence." As with several other aspects
of Sections 3 and 4 of S. 2104, this provision will cause
uncertainty among attorneys who must advise employers about the
meaning of the law, and it will cause confusion in the courts.
No good purpose will be served, and a great deal of pointless
expense will be imposed on those who must live under this new
legislation.
6
C. CONCLUSION
So far as I am aware, there is no reported judicial decision
indicating any need for a legislative modification of the manner
in which the courts handle "group[s] of employment practices"
under disparate impact theory. The rule created in S. 2104,
moreover, is contrary to fundamental principles of civil
litigation, and it is likely to lead in practice to unjust
results.
There is no sound policy reason for the imposition of
artificial restrictions of the kind created by S. 2104 on the
justifications that employers may offer for legitimate employment
practices. Similarly, there is no sound policy reason for
imposing on defendants evidentiary restrictions that exist
nowhere else in the law and that are not even clearly spelled out
in the proposed statute.
The effect of these proposed changes in the law is clear:
these provisions, if they are enacted, would exert strong
pressure on employers to avoid having to defend their employment
practices; the only practicable way for employers to do this
would be to avoid the statistical disparities that would require
them to mount such a defense. In short, many employers will see
no real alternative to adopting quotas.
II. FUNDAMENTAL FAIRNESS AND THE INSULATION OF QUOTAS FROM LEGAL
CHALLENGE
The bill in its current form also promotes quotas through
its treatment of discriminatory consent decrees. It does this by
totally denying certain individuals access to the courts to
challenge illegal agreements -- in which these individuals had no
part -- prescribing quotas that exclude them from employment
opportunities.
Section 6 of S. 2104 would overrule the Supreme Court's
decision 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
situation. 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.
Section 6 would in many circumstances cut off this right and
deny some persons, who were never notified of these decrees and
had no chance to challenge them, their right to sue. For
example, a plaintiff denied a promotion as a result of a
discriminatory consent decree in place ten years before the
7
plaintiff was hired would in some circumstances be precluded by
Section 6 from challenging the decree.
At the outset, it must be stressed that only certain
settlements or consent decrees can be successfully challenged
after Martin V. Wilks: those containing provisions that violate
an innocent third party's rights under Title VII or the
Fourteenth Amendment. The only justification offered for this
provision is the systemic interest in the finality of judicial
resolution of disputes. But while that interest is important, it
should not be pursued at the cost of the requirement of
fundamental fairness that underlies our judicial system, in which
individuals are traditionally guaranteed a meaningful opportunity
to assert their interests in court before they are bound by
judicial action.
Moreover, the concern at which Section 6 is assertedly
directed, viz. the fear of repeated challenges to the same
decree, is largely chimerical. Existing legal doctrines are
already adequate to head off nonmeritorious challenges to
decrees. The doctrines of law of the case, res judicata, and
stare decisis will allow courts to deal with them summarily at
little expense in time or money to the parties. In addition, the
rules of joinder make it relatively easy for parties to ensure
that affected people have their day in court in the original
action. The threat of an award of attorney fees against the
losing party who brings a frivolous suit is a further deterrent
to such challenges.
The bill's treatment of discriminatory seniority systems is
in stark contrast with its treatment of discriminatory consent
decrees. In dealing with seniority systems, Section 7 (b) of the
bill appropriately corrects a defect in current law by allowing a
plaintiff to challenge a discriminatory seniority system or
practice at the time it is applied to the plaintiff. Current law
requires the challenge to be made at the time of the adoption of
the seniority system. Consistent with the view taken by your
Administration, proponents of S. 2104 have rightly argued that
this is unreasonable and should be corrected by legislation.
So far as I am aware, S. 2104's sponsors have given no
explanation for this inconsistency between Sections 6 and 7 (b) of
their bill. The effect of it, however, is quite clear: unlike
seniority systems, consent decrees have frequently contained
provisions establishing hiring and promotion quotas or racial
preferences. Section 6 prevents legal challenges to such
provisions. Thus, far from enhancing civil rights, Section 6
severely abridges them.
Section 9 contains a provision complementing the provisions
in Section 6. For the first time, Title VII would say that
certain civil rights plaintiffs -- those challenging the legality
8
of quotas adopted under a consent decree -- could be required to
pay attorneys fees where their lawsuit was neither frivolous nor
otherwise unreasonable. The clear effect would be to discourage
many challenges to illegal discrimination. The creation of
fundamentally unfair obstacles to the vindication of our
citizens' civil rights has no place in a civil rights bill.
Proponents of S. 2104 argue that Section 13 of the bill,
which states that nothing in the bill "shall be construed to
require or encourage an employer to adopt hiring or promotion
quotas,' is a sufficient answer to the concerns raised here and
in Part I of this memorandum. In fact, however, Section 13 is
entirely unresponsive to them. The problem with Sections 3 and 4
is not that they directly require or encourage quotas, but rather
that employers will in fact choose to adopt quotas in order to
avoid having to defend their hiring practices under the
unreasonable litigation rules established by the bill. And the
problem with Section 6 is not that it requires quotas, but that
it insulates them from challenge. In fact, in its present form,
Section 13 has an exception from the anti-quota language (and
from all other provisions in the bill) for quotas that might be
contained in some court-ordered remedies, affirmative action
plans, or conciliation agreements.
III. EXPANSION OF REMEDIES UNDER TITLE VII AND PROVISIONS
AFFECTING THE INCENTIVES FOR LITIGATION
Section 8 of S. 2104 radically alters the Civil Rights Act
of 1964 by making available unlimited compensatory damages, as
well as punitive damages and jury trials, in most cases under
Title VII.
As you noted in your May 17 speech, federal law should
provide an adequate deterrent against harassment in the
workplace, and additional remedies are needed to accomplish this
goal. Although S. 2104 imposes a partial cap on punitive
damages, thereby setting an important precedent in the area of
federal tort remedies, the expansion of remedies contained in
Section 8 is excessive. Section 8 is not confined to filling the
gap where existing remedies are inadequate, such as in many cases
of sexual harassment. Rather, it imports into our employment
discrimination laws the entire panoply of tort remedies, punitive
damages, and jury trials, which runs counter to the concepts of
mediation and conciliation upon which Title VII is based. This
will create unnecessary and counterproductive litigation, serving
the interests of lawyers far more than the interests of aggrieved
employees.
Other provisions in S. 2104 will also contribute
unnecessarily to fostering litigation instead of conciliation.
An amendment to 42 U.S.C. 2000e-5(k), for example, permits
plaintiffs to recover attorneys fees for continuing to litigate
9
even if the judgment they ultimately obtain is less favorable
than a settlement offer they rejected. Similarly, a new
paragraph (2) in 42 U.S.C. 2000e-5k creates special rules
impeding waiver of attorney's fees as part of settlement, which
will inevitably discourage settlements because defendants will
not be able to estimate accurately the total cost of the
settlement to which they are being asked to agree.
Several other provisions of this bill have little to do with
promoting civil rights. Rather, they seem principally designed
to give plaintiffs special and unwarranted litigation advantages.
Section 7 (a) gives plaintiffs 2 years, rather than 180 days (or,
in certain cases, 300 days), to file discrimination claims.
Section 11 creates a special legislative rule of construction for
civil rights cases that seems intended to encourage courts to
resolve cases in favor of plaintiffs whenever possible. And
Section 15 unfairly applies the changes in the law made by S.
2104 to cases already decided.
IV. CONCLUSION
S. 2104, in the form in which it has been presented to you,
is seriously flawed. While it contains certain desirable
provisions, these sections are greatly outweighed by the portions
of the bill that are objectionable in the particulars specified
above. Taken as a whole, S. 2104 would do far more to disrupt
our legal system and to disappoint the legitimate expectations of
our citizens for equal opportunity than it would to advance the
goal, to which you and I are both committed, of strengthening the
laws against employment discrimination.
10
3
Office of the Attorney General
Washington, B.C. 20530
March 1, 1991
Honorable Thomas S. Foley
Speaker
United States House of Representatives
Washington, D.C. 20515
Dear Mr. Speaker:
I am pleased to transmit a legislative proposal to make
several significant improvements in our Nation's employment
discrimination laws, along with a section-by-section analysis
explaining the proposal. This bill reflects the President's
longstanding commitment, recently reaffirmed in his State of the
Union Address, to strengthening the legal tools designed to
eliminate the intolerable blight of discrimination from our
society. This package will accomplish the four major objectives
the President set out in his address to civil rights leaders on
May 17, 1990.
First, as the President has said, any civil rights bill must
"operate to obliterate consideration of factors such as race,
color, religion, sex, or national origin from employment
decisions." Under this proposal, employers will be encouraged
and required to provide equal opportunity for all workers without
resorting to quotas or other unfair preferences. The bill
codifies a cause of action for "disparate impact," as recognized
in Griggs V. Duke Power Co., 401 U.S. 424 (1971), which outlawed
certain practices that unintentionally but disproportionately
exclude individuals from certain jobs because of their race,
color, religion, sex, or national origin. with respect to these
"disparate impact" cases, the bill places the burden of proof on
the employer to demonstrate "business necessity," thereby
overruling a contrary ruling in Wards Cove Packing Co. V. Atonio,
109 S. Ct. 2115 (1989).
The bill greatly expands the prohibition against racial
discrimination in the performance of contracts under 42 U.S.C.
1981, and overturns the decision in Patterson V. McLean Credit
Union, 109 S. Ct. 2363 (1989). In addition, this proposal amends
Title VII to eliminate a needless and unfair limitation on the
time for filing challenges to discriminatory seniority systems,
overruling Lorance V. AT&T Technologies, Inc., 109 S. Ct. 2261
(1989). Similarly, in the interest of ensuring that legitimate
claims can be pursued, the bill extends the time for filing a
Title VII claim against the Federal government from 30 to 90
days.
The bill also permits the courts to make awards to
prevailing parties for the fees of expert witnesses, and
authorizes the award of interest in actions against the Federal
government on the same terms on which such awards are available
against other parties.
The second requirement established by the President is that
a bill must "reflect fundamental principles of fairness that
apply throughout our legal system." Accordingly, this bill
expressly provides that the Federal Rules of Civil Procedure
shall apply in determining who is bound by an employment
discrimination decree, just as they apply in other civil causes
of action. This provision ensures that the standard rules of
joinder and intervention will operate to give all victims of
illegal discrimination a fair opportunity to protect their
constitutional and civil rights in court.
The third essential element of a civil rights bill is a
provision to ensure that Federal law provides an adequate
deterrent against sexual harassment in the workplace. Under
current law, the only judicial remedy for many cases of such
harassment is a directive to refrain from such conduct in the
future. This cannot provide adequate deterrence. In order to
rectify this shortcoming, the bill makes available new monetary
remedies for the victims of illegal harassment under Title VII.
The President has also insisted, however, that our civil
rights laws not be "turned into some lawyer's bonanza,
encouraging litigation at the expense of conciliation, mediation,
or settlement." Accordingly, this proposal for the creation of a
new monetary remedy under Title VII provides for bench trials,
and it caps the monetary award at $150,000. The bill also
includes special incentives for employers to develop and
implement meaningful internal complaint procedures for harassment
claims, while allowing employees to obtain emergency relief from
the courts when employers fail to respond quickly and effectively
to complaints of illegal behavior. More generally, the bill
encourages the use of alternatives to litigation in resolving
disputes under our civil rights laws.
Fourth, the President has said that the Congress should live
by the same requirements it prescribes for others. Accordingly,
this bill eliminates the congressional exemption from Title VII
of the Civil Rights Act of 1964, and gives congressional
employees the same fundamental protections that employees of the
Executive branch have enjoyed for many years. The bill gives the
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Executive no role in enforcing the law against the Congress,
allowing the Congress to establish its own mechanisms for
enforcement. Congressional employees, like employees of the
Executive branch, will be able to maintain a private right of
action upon exhaustion of their administrative remedies.
Finally, the President has observed that the Congress must
also take action in other areas to enhance equal opportunity.
The elimination of employment discrimination, which is the aim of
this bill, will have little meaning unless jobs are available and
individuals have the skills and education needed to fill them.
Nor can we expect young people to achieve their full potential if
they grow up in neighborhoods and schools permeated by violence,
drugs, and hopelessness. The Administration is proposing several
initiatives to enable individual Americans to claim control over
their own lives and futures. Enactment of those initiatives,
along with this bill, will achieve real advances for the cause of
equal opportunity.
very truly yours
Dick Thornburgh
Attorney General
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