Congress will shortly undertake another attempt to enact the civil rights bill that President Bush vetoed last year.
It shouldn't be that tough a job. Both civil rights advocates and the administration agree that legislation is needed to return civil rights protections to their status before a recent series of Supreme Court decisions. Both say they want fairness in the workplace. And both insist -- accurately -- that the differences between them are largely technical. Compromise lies within easy reach.
But in order to reach it, both sides will need to decide which they want more: resolution of a serious matter of equity or a politically polarizing campaign issue.
The principal issue last time around was whether the act was a "quota bill." Civil rights advocates (and 65 percent of both houses) not only said it wouldn't be, they also adopted some 30 amendments to satisfy Bush that it couldn't be. Bush said it was, and vetoed the bill.
This time the Democrats have chosen to emphasize the bill's benefits to women. (Under the present law, racial minorities -- but not women -- can sue for damages in cases of intentional discrimination.) But they have also abandoned some of last year's compromises. Their hope apparently is either to enact the bill with the support of women or to tempt Bush into a second veto that could be used to paint him as anti-feminist as well as anti-black.
"If partisans in both camps forgo the politics of racial polarization," says Will Marshall, president of the Progressive Policy Institute, "Congress and the president can swiftly reach an agreement that protects women and minorities as well as law-abiding employers." In an impressively sensible analysis of the remaining obstacles to passage (written for the Progressive Policy Institute), he and Bert Brandenburg offer a way out of the impasse.
Some of their recommendations are common-sense compromises; some are technical, dealing with such legalisms as "disparate impact" -- a court-enunciated test for business practices that are "fair in form but discriminatory in operation."
First, they would leave the question of compensatory and punitive damages to judges rather than to juries, and also put a $150,000 cap on punitive damages. Both proposals -- modifications of the bill passed last month by the House -- would make the new measure closer to the law as it existed for a quarter of a century. Under that law, judges, not juries, decided damages, and punitive damages have rarely exceeded $150,000.
Second, they would establish flexible guidelines for "disparate impact" litigation. "A disparate impact suit has two critical stages," they note. "First, the plaintiff must establish the difference between the minority composition of the employer's workforce and that of the qualified available labor pool. Second, the employer must demonstrate the 'business necessity' of the practices alleged to have caused the disparate impact." Marshall and Brandenburg would provide judges with "a range of common sense standards" for determining whether a particular qualification -- high school diplomas for factory workers or a minimum height requirement for police officers -- is reasonable.
They would also allow challenges to groups of personnel practices if plaintiffs can "demonstrate a plausible link between those practices and the paucity of minorities and women in the defendant's workforce." Under prevailing court rulings, plaintiffs must show how each challenged practice, by itself, has a "significantly disparate impact" on minority hiring. Proponents of the civil rights act contend (and the PPI analysts agree) that "employers often base their personnel decisions on many factors, leaving minorities and women guessing as to which are responsible for disparate impact."
Perhaps the most important thing the analysis does is to show how tiny are the philosophical differences between the two sides and how marginal, in practical terms, the impact of the legislation is likely to be.
"If, as we believe, the charge of quotas is unfounded, it is also true that the bill's proponents have exaggerated the issues at stake," Marshall and Brandenburg contend. "Stripped of overwrought claims about 'reverse discrimination' or 'turning back the clock on civil rights,' the dispute turns mainly on semantics and procedural issues relating to the numbingly complex field of disparate impact litigation."
The issues are surprisingly narrow -- which, no doubt, is why you've heard so little discussion of them. The real question is whether the two sides want to help minorities and women, or only to rack up points for the next political campaign.