Our courageous service men and women won on one front. They should not have to come home now only to find that they have to fight quotas.
They should not come home to find the courthouse door shut in the face of some Americans seeking a day in court to assert their civil rights claims.And they certainly did not make such personal sacrifices only to find the ability of lawyers enhanced to drag out lawsuits and collect bigger fees in civil rights cases.
But this is precisely what the civil rights bill before Congress would achieve. No amount of repackaging this bill changes or repairs its flaws.
The bill should be judged by its content, not by its title. Far from "restoring" prior law, it would rewrite the current legal standard of equal opportunity and overturn at least 20 Supreme Court decisions.
There is unanimous support in Congress for the principle of equal opportunity for all Americans without regard to race, ethnicity, religion or gender.
The promise of the proposed civil rights act, however, is equal outcomes for groups - quotas and reverse discrimination - not equal opportunity for all individuals. Hiring the most qualified person for a job will no longer be a successful response to a charge of discrimination.
Title VII has been interpreted to outlaw neutral employment policies, such as tests, that screen out a higher proportion of members of a minority group or women than other groups if the policies are not manifestly related to the employment in question or do not significantly serve a legitimate employer goal.
This is known as the disparate impact theory of discrimination. Under current law, the plaintiff must identify the specific policy or policies that cause the imbalance in a job. The employer must then explain the justification for his challenged policies, and the plaintiff is ultimately responsible for showing that the employer's explanation doesn't justify the polices.
Under the proposed bill, a plaintiff need not identify the specific employer practice allegedly causing the imbalance and may challenge a group or all of the employer's practices. At this point, the burden shifts to the employer to prove his innocence.
Under these changes, Title VII becomes a statute whose mandate is not equal opportunity for individuals, but equal outcomes - quotas - for groups.
For example, a business with a racially imbalanced job may be located in a neighborhood distant from minority neighborhoods and poorly served by public transit.
Under this bill, such an explanation is no defense. Moreover, only minimal job standards will be lawful if higher standards, no matter how reasonable, result in an imbalance in a job.
With the rules of bringing a disparate impact case stacked against an employer, how will an employer ever be able to avoid massive backpay liability? By avoiding being sued in the first place. As several Supreme Court justices have noted when they have rejected the theories underlying the bill, employers will hire and promote persons on the basis of race, sex and national origin quotas in order to avoid the statistical imbalance and ensuing lawsuits.
The bill also denies some Americans an equal opportunity to a day in court to challenge reverse discrimination in court settlements to which these working-class Americans are not parties. Further, the bill contains a host of provisions that benefit lawyers and will foster discord in the workplace by providing incentives for prolonged litigation.
The farther we retreat from the principle that all Americans should be treated the same, the closer we come to a permanent spoils system that has more to do with one's birth than one's qualifications. Congress can do better.
(Senator Hatch of Utah is ranking Republican on the Labor and Human Resources Committee.)