Melvin Rowlett launched his job discrimination suit against Anheuser-Busch Inc. in 1983 with some heavy ammunition.
A supervisor at the company's New Hampshire brewery had trained all the white foremen in Rowlett's unit but left Rowlett, who is black, to struggle on his own.
For five years, the supervisor denied Rowlett's requests for training while criticizing him on performance evaluations for not understanding his job. As a result, Rowlett received smaller pay raises than the white foremen.
But not all the facts favored Rowlett, who was eventually fired for "disloyalty." Low pay raises were in part due to his frequent failure to show up for work.
That's why Anheuser-Busch was so surprised when the jury came back with its verdict: $3 million in punitive damages, believed to be one of the largest awards ever to a victim of job discrimination.
An appeals court later condemned the judgment as "grossly excessive" and sliced it to $300,000. But it exemplifies the problem many major employers have with the civil rights bill sailing through Congress.
The Civil Rights Act of 1990, expected to be voted on by the Senate and House early this summer, would significantly broaden the range of plaintiffs allowed to seek jury trials and monetary damages for intentional discrimination on the job. It would also make it easier for employees to win cases alleging more subtle types of job bias.
The cross-fire has intensified in recent weeks, with President Bush vowing he will never sign the bill if it provokes employers into implementing job quotas and proponents claiming the bill has such strong congressional support that it is veto-proof. The outcome will help shape the workplace and provide an important benchmark on the state of civil rights at a time when conservative views are dominant in the White House and on the Supreme Court.
The bill, sponsored by Sen. Edward M. Kennedy (D-Mass.) and Rep. Augustus F. Hawkins (D-Calif.) and cosponsored by nearly half the Senate and more than a third of the House, would be partly a broadening of civil rights protections and partly a restoration of the status quo before the Supreme Court last year tightened requirements on bringing and winning job-bias suits.
For the first time, it would give victims of intentional job discrimination on the basis of sex, religion, national origin or disability a chance to recover compensatory and punitive damages.
Currently, no matter how serious the offense, a victim of all but racial discrimination can seek only back pay, attorney's fees and court orders that reverse a discriminatory job action such as a firing or denial of promotion. Racial minorities are the exception: in 1976, a Reconstruction-era statute known as Section 1981 was interpreted to allow monetary damages and jury trials for victims of racial bias on the job.
Thus Mary Ann Vance, a black telephone company employee in Jacksonville, Fla., was able to win $1 million in compensatory and punitive damages after proving to a jury that her co-workers had twice hung a noose over her desk and her supervisors had disciplined her for failing to report a traffic ticket on a job transfer application.
By contrast, Carol Zabkowicz, a white warehouse worker in Racine, Wis., won only $2,700 in back pay after sustaining what a federal judge called "sustained, vicious and brutal" sexual harassment on her job.
Zabkowicz told a congressional committee she did not believe that was adequate compensation for five years of working with male co-workers who pulled on her bra straps, exposed their genitals and posted drawings depicting her having sex with animals. "I think employers might take the law more seriously if they knew that more was at stake," she testified.
The bill's proponents argue monetary damages should be available to all victims of intentional job discrimination, both to compensate them adequately for their suffering and punish those who engage in bigotry.
Opponents predict the financial incentive will unleash a flood of lawsuits, put employers at the mercy of emotional juries and destroy a longstanding emphasis in the law on resolving employment disputes through conciliation.
The racial bias suits provide some indication of what might occur. The only study of verdicts -- conducted by the Washington law firm of Shea & Gardner for the National Women's Law Center -- found that out of 576 suits filed over a 10-year period, juries awarded plaintiffs compensatory or punitive damages in 68 cases. Most of the awards were under $50,000. But business lobbyists claim the study covered less than 2 percent of the relevant cases.
For the business community, the extension of monetary damages is "at the top of the list" of its objections to the bill, according to Nancy Fulco, a lawyer for the U.S. Chamber of Commerce. But White House opposition is not as strong, partly because the Bush administration is caught in the seemingly contradictory position of endorsing damages for some victims of job bias but not others.
The White House has no problem with the use of Section 1981 by racial minorities seeking monetary damages and in fact supports provisions in the civil rights bill restoring the full reach of the statute, which the Supreme Court ruled last year did not cover harassment on the job.
In congressional hearings, administration officials argued that the history of mistreatment of blacks dictates such special remedies. But now White House officials, under pressure from women's rights groups and others, seem uncomfortable with the distinction. Some business groups say their best hope is to limit the amount of monetary damages that can be awarded under the bill.
The bill addresses more subtle types of job discrimination in a manner that the administration officials say raises more serious problems. At issue are "disparate impact" cases in which employees challenge employment practices that have the net effect of shutting out minorities or women, though no intentional bias is evident.
These suits, which attempt to reach institutional or systemic discrimination, have brought about more change in the workplace than the cases alleging deliberate bias, civil rights advocates say. The Supreme Court opened the way for cases against what it called "built-in headwinds" for minorities with its 1971 decision in Griggs v. Duke Power.
Typically, a group of workers will present statistics to the court that show an imbalance in their company's work force compared to the pool of qualified job candidates. They then attempt to show the unfairness of whatever practices produced the numerical disparity.
For example, in a suit against the city of Evanston, Ill., plaintiffs successfully attacked the city's method of scoring the physical agility test given to applicants for firefighting jobs, arguing that it created an all-male force and ruled out qualified women.
In another case, the Federal Deposit Insurance Corp. settled with black bank examiners in Chicago who attacked a written and oral promotion exam which most whites passed but blacks regularly failed. They showed the test had no set questions, no set right or wrong answers, no fixed passing grade, and no instructions to evaluators on how to rate parts of the test.
Under the Supreme Court's decision in Wards Cove Packing Co. v. Atonio last year, such cases will be more difficult to win. The court required workers to pinpoint the alleged source of discrimination more exactly and allotted them a new, greater burden of proof.
In attempting to reverse those changes, the bill has touched off an impassioned debate over how to draw the line between instances when employers unfairly exclude minorities and when they engage in legitimate practices to build the most qualified work force.
One of the most delicate questions is how an employer proves a business practice is legitimate even though it tends to create "bad numbers." In Wards Cove, the court said an employer must show that the practice serves "legitimate business goals."
Civil rights advocates see that as a retreat from Griggs, which stated "the touchstone is business necessity." The legislation would require the employer to show that the practice "bears a substantial and demonstrable relationship to effective job performance."
Another key issue is whether workers should be able to allege that an entire hiring or promotion system leads to a statistical imbalance, or be required to identify specific practices, such as the interviewing process or the written test, as the source of the disparity in numbers.
If the language now in the bill is enacted, the White House paints a picture of workers, armed with nothing but statistics, hauling their employers into court to defend their business practices from top to bottom. Employers would react by adopting quotas rather than choosing the best-qualified workers, administration officials and business groups contend.
"The question is not whether you win or lose, but what is the safest defense?" said Doug Crew, a spokesman for Caterpillar Inc., which manufactures earth-moving machinery. "The safest defense to keep you out of a court of law would be hire by the numbers."
If the bill is not enacted, civil rights advocates predict courts will throw out many valid discrimination claims because workers will find the burden of proof impossible to meet.
"The quota argument is a red herring," said Ralph G. Neas, director of the Leadership Conference on Civil Rights, a coalition of civil rights groups. "The business community was able to live well under Griggs for 18 years with no evidence of quotas."
Remedies for victims of intentional discrimination:
Under Title VII of the current civil rights law, a victim of intentional discrimination, where an employer's motive is shown to be biased, is only entitled to back pay, attorney's fees, and court orders requiring the employer to cease the discrimination. Those court orders may specify reinstatement, promotion or other favorable job action for the worker. Judges, not juries, decide the cases.
Supporters of the bill now in Congress contend that an employee who is the victim of intentional discrimination also deserves compensation for pain and suffering. And if an employer engaged in malicious and "callous" discrimination, they say, the employee is entitled to punitive damages as well. The bill would also allow jury trials for these plaintiffs.
Racial minorities are a special case. For 14 years, they have been able to seek monetary damages under a Reconstruction-era statute. The bill's supporters say it is unfair to deny the same remedies to victims of discrimination on the basis of sex, religion, national origin or disability.
Opponents argue that the prospect of damage awards will lead to a drastic increase in litigation and destroy a long-standing emphasis in the law on conciliation to resolve employment disputes. They also fear excessive damage awards by emotional juries.
Challenging unintentional discrimination:
Current law allows employees to attack practices such as employment tests that appear neutral but in fact lead to systemic or institutional discrimination. Employees bringing such cases rely partly on statistics showing an imbalance in a company's work force.
Before the Supreme Court's decision last year in Wards Cove Packing Co. v. Atonio, plaintiffs could challenge a "group of practices," such as an employer's promotion policy, without identifying individual procedures as discriminatory. The Wards Cove decision requires employees to pinpoint practices, such as the interviewing process, a written test or evaluations by supervisors, and show that "each challenged practice has a significantly disparate impact" on minorities.
The bill's proponents argue that employment decisions often result from a combination of factors that can only be challenged as a whole. They claim unless workers can mount a more general attack, as the bill would allow, many valid discrimination claims will be ruled out.
Opponents contend that without the Wards Cove requirement, employees can argue discrimination cases with little except statistics. Employers are then forced to defend long lists of their practices for no good reason, opponents claim.
Defending against claims of unintentional discrimination:
The debate here centers on when an employment practice, such as a firefighter's test, should be considered lawful, even if it works to exclude racial minorities, women or other groups. The bill states that a practice is legal if it "bears a substantial and demonstrable relationship to effective job performance."
Opponents want to keep the weaker standard set in Wards Cove, which requires only that a practice serve an employer's "legitimate business goals."
There is also disagreement on who should bear the burden of proof. The bill requires an employer to prove that the standard has been met for a particular practice; critics say the Wards Cove decision, which for the first time put the burden on the employee, should stand.