The Civil Rights Act of 1990, passed by the Senate Wednesday, restores legislation against job discrimination that was badly weakened by six Supreme Court decisions handed down in 1989. The White House, raising the red herring of quotas, is threatening that the president will veto the bill.
When it comes to legislation that might benefit minorities, women and families, the White House is worse than all talk and no action: it vetoes. Thus, the Family and Medical Leave Act, which would have required employers of more than 50 people to give unpaid leave to employees with family or medical crises, was vetoed after being virulently opposed by the U.S. Chamber of Commerce.
Now comes the Civil Rights Act, which would strengthen the laws governing fair employment practices in the nation's work force and make it easier for women, blacks, the handicapped and ethnic groups to prove job discrimination. The Supreme Court decisions made it much more difficult for employees to make their case.
They also made it easier for businesses to discriminate. In 1971, the Supreme Court ruled that if a business engaged in employment practices that had a discriminatory impact on a group of people, the employer had the burden of showing a business necessity for doing so. Classic examples of these cases involved women who wanted to become police officers or firefighters and ran up against arbitrary weight and height requirements that favored men.
"These were nothing but sloppy proxies for notions about strength," says Ellen Vargyas, a lawyer with the National Women's Law Center. "They had nothing to do with your ability to do the job and they've been thrown out." As a result of the Supreme Court's Ward's Cove Packing Co. v. Atonio decision last year, however, all an employer has to do right now is show a business reason for its discriminatory practices, and the employee now has to prove that the reason is not legitimate. The new Civil Rights Act would shift the burden back to the employer. "We are dealing with discrimination and the employer must have a pretty good reason for doing it," says Vargyas, "and if they don't have a pretty good reason, they shouldn't be doing it."
The Leadership Conference on Civil Rights, the huge coalition that is backing the bill, says the bill has nothing to do with quotas. The bill merely restores the law to what it was during the 18 years before the series of 1989 court decisions. "The opposition has not come forward with one example of an employer who instituted quotas" in the past, says Vargyas. "There is even language in the bill that says it does not require quotas." She points out that major Jewish organizations, which have always opposed quotas, are leading the fight to get the bill passed.
What is new about this bill is that it allows victims of discrimination based on sex, religion or national origin to collect compensatory and punitive damages. Until now, only victims of racial discrimination could collect monetary damages in addition to back pay and reinstatement in their jobs. Women who are fired because of sex discrimination have, until now, not been entitled to damages to cover medical or emotional costs nor have employers been subject to costly punitive damages that might make them see the error of their ways.
The Senate, in a misguided effort to avert a White House veto, gave firm commitments Wednesday to putting in the final bill a limit of $150,000 on punitive damages or an amount not to exceed the total of compensatory damages and back pay. "Punitive damages are reserved for the truly outrageous kinds of discrimination," says Vargyas. "You have to go beyond showing it's intentional. You have to show it was done with malice and callous disregard for people's legal rights. The purpose of punitive damages is to punish and deter illegal action. Certainly for big businesses, $150,000 is not a heck of a lot of money."
There are no limits on the Fair Housing Act, which prohibits discrimination on the basis of sex, race and national origin. Certainly employment discrimination is as devastating to a person as not being able to get housing -- and discrimination is just as emotionally and economically devastating to an individual whether he is black, Asian, or whether she is a woman. And it is just as devasting to their families when they are not hired or when they are underpaid or fired.
The House bill does not put a limit on punitive damages, and the hope here is that the House will hold firm. Watering down a civil rights bill to please an administration that wants to gut it is not the answer. There should be no limit on the high cost of discrimination against any person.