Last spring, President Bush claimed that he wanted to sign a civil rights bill this year but that the Civil Rights Act of 1990 suffered from too many problems. Since then, the sponsors of the legislation have agreed to more than 20 substantive changes in the bill, in order to accommodate the president's concerns. The Civil Rights Act of 1990 is now ready for the president's signature.
One of the bill's principal purposes is to overturn the Supreme Court's Wards Cove decision, thereby restoring legal rules that courts have used to resolve employment discrimination suits since the court's unanimous 1971 decision in Griggs v. Duke Power Company. These rules bar practices that have a "disparate impact" on the employment opportunities of women or minorities, unless such practices are "necessary." The Bush administration has contended that the bill's disparate impact provisions are too stringent and that they would force employers to adopt hiring or promotion quotas in order to avoid lawsuits they cannot win. A host of substantial changes has been made to meet these concerns.
First, a provision was added stating that nothing in the legislation "shall be construed to require an employer to adopt hiring or promotion quotas." Second, in response to concerns that the bill would enable plaintiffs to prove discrimination simply by pointing to an imbalance in an employer's work force, language was added which provides that "the mere existence of a statistical imbalance in an employer's work force" is "not alone sufficient to establish a prima facie case" of discrimination.
Third, changes have been made to the definition of "business necessity." As introduced, the legislation permitted employers to retain discriminatory employment practices shown to be "essential to effective job performance." To address the concern that this definition was so stringent that employers would never be able to meet it, the bill's sponsors twice changed the standard. A bipartisan group of representatives and senators modified the definition to require that discriminatory practices bear a "substantial and demonstrable relationship" to effective job performance.
After the administration expressed concern that the revised definition was still too difficult for employers to meet, the sponsors agreed to yet another concession. The bill now adopts the Griggs standard, providing that in the case of employment practices involving selection (such as hiring and promotion), the practices must "bear a significant relationship to successful performance of the job." An alternative standard has been added for practices that are adopted for legitimate reasons unrelated to job performance.
Fourth, the sponsors added an explicit instruction to the courts that such provisions should be interpreted simply to overrule Wards Cove and codify Griggs, and nothing more. Language was also added to clarify that damages and jury trials are available only in cases of intentional discrimination. These changes put the specter of quotas to rest once and for all.
The sponsors of the legislation also agreed to other concessions. For example, a plaintiff challenging a group of employment practices is required to identify the specific practices responsible for the disparate impact where he or she can reasonably do so, and plaintiffs may only challenge groups of practices that "produce one or more employment decisions."
Equally important is the modification made to the provision that permits women and religious minorities to recover compensatory and punitive damages for intentional discrimination, remedies long available to racial minorities under federal law. In response to the administration's contention that this provision could lead to multi-million-dollar damages awards against smaller employers with limited assets, the bill's sponsors made a major concession: they agreed to limit punitive damages awards against employers with fewer than 100 employees to $150,000 or the sum of compensatory damages and other equitable monetary relief, whichever is greater. Ninety-seven percent of all businesses employ fewer than 100 employees and would thus be covered by the cap.
Most of the other provisions of the legislation have been modified as well in response to the administration's suggestions. The standard of proof plaintiffs must meet to establish liability in mixed-motive cases was changed; instead of proving that discrimination was a motivating factor in the challenged decision, plaintiffs must now prove that it was a contributing factor. This change ensures that employers are punished only for discriminatory conduct that actually infects an employment decision.
Thus, the sponsors of the Civil Rights Act of 1990 have made the bill a reasoned, effective response to the Supreme Court's recent misinterpretations of federal civil rights laws.
The Civil Rights Act of 1990 now deserves the president's signature. All agree that hundreds of meritorious employment discrimination cases have been dismissed in the past year as a consequence of the Supreme Court's decisions and that many more acts of discrimination and bias will go unpunished in the future unless this legislation is signed into law. In his 1990 State of the Union Address, President Bush told Congress that we must condemn racism and bigotry "not next week, not tomorrow, but right now." Mr. President, what are you waiting for?
The writer, a Democratic representative from California, is chairman of the House Education and Labor Committee.