Civil Rights Proposals Focus on the Workplace

By Reynolds, Larry | Management Review, July 1991 | Go to article overview
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Civil Rights Proposals Focus on the Workplace


Reynolds, Larry, Management Review


Civil Rights Proposals Focus on the Workplace

Perhaps the most combative labor issue facing Congress and the White House this year is the debate over civil rights legislation.

A similar debate ended last year when Congress narrowly failed to override the president's legislative veto. This year, four separate civil rights proposals have been offered. The main Democratic bill, HR-1, was the first bill proposed in this year's congressional session, and it has since been approved by the House Judiciary Committee. The Administration's proposal is S-611. Two other Democratic bills also are on the table.

Interest in new civil rights legislation was kindled in 1989 after the Supreme Court issued a number of decisions that critics charged decreased the protections offered under Title VII of the Civil Rights Act. Thus, the new Act was drafted specifically to address what are seen as inequities in current law.

Further changes also have been proposed that, if adopted, would far exceed the civil rights standards as they were understood in Title VII prior to the controversial 1989 Court decisions.

"This legislation is about decency, fairness and equality," says Rep. Jack Brooks (D-Texas), chairman of the House Judiciary Committee and lead sponsor of the Democrats' 1991 proposal.

Rep. Henry Hyde (R-III.), who's managing the Administration's legislative proposal, says the Democrats point to "a too-clever-by-half" paragraph that claims statistical imbalances in an employer's workforce are not "alone sufficient" to determine discriminatory practices. "But the reality is that their bill creates a presumption of guilt based only on crude race or gender statistical imbalances in the workplace compared to the available labor force."

Recent polls show that voters accept the Administration's argument that the Democratic proposal would result in unfair hiring quotas, according to Washington pollster Celinda Lake. However, insiders believe that the Administration's concern over quotas is a red herring: The real issue is that the proposed legislation is perceived as "anti-business" in that it would allow plaintiffs litigating intentional discrimination claims to seek jury trials and recover punitive and compensatory damages, they claim.

Studies have shown that defendants lose two-thirds of jury cases, and that the average finding reaches $500,000. Thus, this legislation could prove extremely expensive to employers that are found guilty of intentional discrimination, as well as those employers that, guilty or innocent, prefer to settle out of court rather than face the costs of a legal trial.

Following are the main points of contention between the Republican and Democratic camps, along with a comparison of how the two major proposals stack up.

HIRING QUOTAS

The issue of quotas revolves around the Ward's Cove case, which concerned a salmon packing plant that employed mostly minorities in unskilled positions and whites in management positions. The Supreme Court held that generalized statistics could not be used to demonstrate adverse impact. As long as there are no barriers or practices deterring qualified non-whites from applying for skilled positions, the Court ruled that the employer is not accountable for a racially imbalanced workforce. The plaintiffs also have to prove that there is no business justification for the employment practice.

Democratic bill: Reverses the Court's ruling, allowing plaintiffs to make their case simply by showing that the "net effect" of a group of employment practices - such as height requirements or interview processes - produces a statistical disparity in a company's overall workforce. This is the change that the Administration claims will lead to a quota system. In addition, discrimination is implied if a job qualification is higher than the minimum needed to perform a task. The plaintiff can make its case by showing that the company could have adopted a less stringent practice that still would have served its business needs.

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