THE PRESIDENT'S advisers are urging him to veto the civil rights bill on grounds it would force businesses to adopt tacit quotas to protect themselves from litigation. But the bill wouldn't do that, any more than did the unanimous Supreme Court decision of 19 years ago that it would restore.
Congress is expected to send the president the conference report, perhaps this week. He should sign and be done with it. This is not an unimportant bill, but neither is it the Gettysburg of legal history that, for their opposing purposes, the two litigious sides have made it out to be. The differences that remain are mainly imaginary or propagandistic, and not worth what he is being asked to expend on them.
Most of the bill is aimed at reversing a nest of equal employment decisions by the Supreme Court last year. Collectively these weakened equal employment law as it had been previously understood. Individually, however, none is the stuff of anthems. They have to do with lawyers' issues, the gaining of handholds in lawsuits, things like shifting burdens and standards of proof, who is entitled and for how long to appeal consent decrees and whether a statute barring discrimination in the reaching of employment contracts also encompasses discrimination in carrying them out.
The attorney general originally questioned whether any of the bill was necessary, then agreed that two provisions were, and now the administration apparently agrees they all are, but says one is too strong. In 1971 the court held that employment discrimination need not be intentional; if a company's employment practices had the effect of leaving it with disproportionately few blacks or other protected groups in a class of jobs, the company was required to show that those practices were based on "business necessity." The court last year shifted that burden back toward plaintiffs, saying that they would have to show more to win and businesses could show less. The bill would reverse the reversal and leave the older decision in place.
Critics say this will leave companies no choice but to hire and promote by the numbers. That would be wrong -- the courts and proponents would be requiring precisely what it is they say they want to expunge -- but it didn't occur before and is no more likely to do so now. The bill contains compromise language; a business with sound practices will still be able to defend itself. A constructive compromise has also been reached on what had been for us a troublesome feature of the bill extending the access of plaintiffs in equal employment cases to jury trials and the lottery of punitive damages. Such damages would be capped.
This is basically a defensive bill that has become the captive of its labels. It is not the renaissance that some supporters have occasionally portrayed; neither is it a quota bill. It will help restore a serviceable balance in equal employment litigation, and the president should stand in support of that.