THE SENATE should vote today to put the administration out of its misery on the civil rights bill and override the president's veto; the House should then perform the same act of mercy. The veto was literally ill-advised. The president gave as the principal reason that "the bill ... employs a maze of highly legalistic language to introduce the destructive force of quotas into our nation's employment system." But that is a specious argument. The bill wouldn't do that, and at least a part of the "maze" consists of qualifying language put in the bill to meet the administration's own objections.
The veto message says that employers will be driven to adopt unspoken quotas because without them, "in many cases, a defense against unfounded allegations" of discrimination "will be impossible." Say rather that, in the kind of case at issue, a successful defense will not be guaranteed -- nor should it be. These are defense attorneys' objections; they want in advance, through changes in the rules of the game, a degree of protection and security to which their clients are not entitled.
The cases here do not involve intentional discrimination; that is as easy to condemn as it is hard to prove. Rather, these are cases in which an employer is alleged to have violated the law because its hiring and promotion practices have had the effect of discriminating against a protected group, as shown by how many (or few) blacks or women or members of another group the employer has in a disputed class of jobs. It is not that the civil rights groups are trying in this bill to establish backdoor quotas, but that the opponents are trying to vitiate this effects test with the presumptions it involves. The basic presumption is that employment patterns aren't accidents. Should a lot of weight or only a little be given in a lawsuit to the fact that a firm has remarkably few members of a given group in a given job? That is the issue here. We think the answer is more weight rather than less.
The advocates on both sides have greatly and unfortunately inflated the likely impact of this bill, either its passage or its failure. Mainly it would reverse a series of decisions by the new Reagan majority on the Supreme Court last year that shifted the likelihood of success in equal employment litigation from plaintiffs toward defendants. It would restore an earlier balance that imposed no awful burden, was well within the intent of Congress as well as the right of Congress to impose and moved the society rather gently -- some would say too gently -- in a right direction. The president's advisers have got him caught up in a set of issues he would have been well rid of. The veto should be struck down.