THE CIVIL rights bill is moving in the right direction. The administration's major objection has been a leading provision that -- it claims -- would force employers with low numbers of blacks, women or other protected groups in their work forces to resort protectively to tacit quotas. Quotas are counterproductive and wrong, and the bill would indeed be defective if it required them -- but particularly as it has been amended, it does not. Most of the debate has thus been about an issue this bill does not present. The sponsors have properly resisted letting this become a pretext for weakening the legislation.
The substantive problem with the bill, in our view, has had to do with another, much less discussed provision that would expand access to jury trials and compensatory and punitive damages in cases of deliberate employment discrimination. Defenders rightly say that there are injuries the traditional remedies of reinstatement and/or back pay do not reach. But punitive damages especially strike us, not just in the context of equal employment litigation, as a crap-shoot and unfair. The sponsors are now moving toward a cap on damages; if made broad enough -- this one is still too narrowly drawn -- a cap could help solve the problem.
Most of the bill -- not the damages section -- seeks to reverse a series of narrow, technical decisions in which a majority on the Supreme Court last year greatly weakened equal employment law as previously construed. Our sense is that these were crabbed readings of the law that ought to be reversed. The most important involves the burden of proof in cases where a plaintiff can show that an employer's hiring or promotion practices have had the effect, no matter what their intent, of screening out certain groups. This is where the fear of quotas has been heard. Others involve such lawyers' questions as the time in which a complaint must be filed against a seniority system or the circumstances in which a consent decree can be appealed.
The House on its way to passing the bill defeated on a near party-line vote an administration-backed substitute that Republicans said would accomplish the same thing but Democrats said contained too much softening or elliptical language. The argument was made that without the Republican substitute, House-Senate conferees would have no way of accommodating the president, who also objected to the Senate version of the legislation passed last month. But the issues this bill presents, like the decisions it aims to reverse, are pretty narrow, and we think a way can be found to avoid the veto the president doesn't want to cast. This is a needed repair bill that itself has been improved in the legislative process. The damages problem needs to be more fully dealt with; then the bill should be converted into law.