Another civil-rights bill is now pending in the House. Last year's bill was so flawed that it drew a veto. This year's bill is worse.
Nevertheless, HR 1, sponsored by Democrat Jack Brooks of Texas, is headed for early floor debate. Brooks hopes to get the measure passed and sent to the Senate soon after the Easter recess next month.The bill remains in 1991 just what it was in 1990: It is a bill that will impel prudent employers into the adoption of quotas on hiring, training, apprenticeships and employment. Supporters of the measure deny that their bill would have this effect. They point to language saying that nothing in the bill shall be construed "to require or encourage" an employer to adopt hiring or promotion quotas, but that is not the point.
An employer who is sued for discrimination must prove in court that a whole "group of employment practices" bears a "significant relationship to successful performance on the job."
This is new language. Supporters of HR 1 sometimes assert that Sections 3 and 4 serve only to restore requirements laid down by the Supreme Court in the famous Griggs case of 1971. They are mistaken.
The whole thrust of Brooks' bill is to tilt the level table of the law in favor of complaining employees. Under the rules proposed in this bill, employers are presumed guilty until they prove themselves innocent - and the burden of proof would often be impossible to bear.
A great deal more is wrong with the bill.
Item: One objective of civil-rights legislation in the past has been to encourage the resolution of disputes by conciliation and arbitration. In its concluding paragraph, this bill repeats that stock language, but the perfunctory phrase is hollow as a Ping-Pong ball. This is a lawsuit bill.
Item: This year's version provides no limit whatever on the damages and legal fees that a trial jury could award a plaintiff. A jury need only conclude that an employer acted with "malice, or with reckless or callous indifference to the federally protected rights of others" in order to award unbounded punitive damages. Under that inflammatory language, a jury could award anything it felt like awarding.
Item: Further to benefit the lawyers, Brooks has resurrected language from last year's bill creating a new statute of limitations. Under existing law, an aggrieved employee must act within 180 days after the grievance occurs. Brooks would change that to two years.
Item: The bill turns upon the disparate impact of a given employment practice on the basis of "race, color, religion, sex or national origin." Note the matter of "religion." Writing recently in The Wall Street Journal, New York City's former Mayor Edward Koch had a warning for his co-religionists: "In New York, those who would suffer disproportionately would be white Jewish males."
Taken as a whole, the Brooks bill would overturn six opinions of the Supreme Court. In my own view, for whatever it may be worth, all six cases were decided correctly as a matter of law. Two of them, having to do with seniority and with certain contractual rights, established bad policy. These ought to be overturned by new legislation.
The rest of the measure is exactly as Bush described the bill of 1990: "The bill creates powerful incentives for employers to adopt hiring and promotion quotas. These incentives are created by the bill's new and very technical rules of litigation, which will make it difficult for employers to defend legitimate employment practices. In many cases, a defense against unfounded allegations will be impossible. "
Congress last year failed to override the veto but by only a single vote in the Senate. The same sequence of events may be anticipated this year. Both chambers will pass HR 1. Bush will veto it. The House will vote to override. The Senate has five new members, but not a vote will be changed. Back to square one.
Senate Minority Leader Bob Dole introduced the president's civil-rights bill last week. For obvious political reasons, it hasn't a chance; but maybe, just maybe, it might provide the basis for an act that would do more good than harm.