The Bush administration has begun discussions with key senators on possible compromises in the proposed Civil Rights Act of 1990 in hopes of avoiding a massive battle over the issue on the Senate floor that could take place as African National Congress leader Nelson Mandela is visiting the country.
According to administration officials, a debate over a formal compromise position is still going on in the White House and Justice Department. But officials said a multiple-page document outlining some proposed changes in the bill has been drafted after weeks of internal debate.
The document, what one official called "language that we think would be good amendments," is being used as the foundation for administration talks with Sen. Edward M. Kennedy (D-Mass.), one of the authors of the bill, and others, officials said. The administration is working on additional language to cover other objections it has to the measure.
The legislation, co-sponsored by Kennedy and Rep. Augustus F. Hawkins (D-Calif.), seeks to overturn the effect of five Supreme Court decisions last year that make it harder for workers to bring successful employment discrimination suits and easier to challenge the legality of affirmative action plans.
Civil rights leaders have called it their top priority and pointedly said that President Bush's position on the bill will be a major test of his willingness to back up pro-civil rights rhetoric with concrete actions.
The White House is attempting to work out what one official yesterday called "middle-ground" language in three areas that will satisfy conservatives and business leaders who have been vocal in their opposition and still be acceptable to the civil rights community. The major issue is whether the new legislation will encourage businesses to resort to hiring by quotas in order to avoid costly, complex lawsuits.
The issue grows out of last year's decision in the so-called Wards Cove court case, which essentially shifted the burden of proof in discrimination cases from the employer to the employee. The administration contends that the Kennedy-Hawkins legislation, which shifts the burden back to employers, would impose such stringent standards that firms will resort to hiring by quota to avoid being sued if their work force does not reflect significant hiring of minorities and women.
In its proposed compromise, the White House would still require that a person show "some causal link" between a person's failure to be hired or promoted and a policy or action by a business. Establishing the existence of a numerical imbalance in the company's hiring of minorities and women would not be sufficient alone to require the firm to prove it had not discriminated.
An administration official said the White House would "make the employee prove his case, but we would make it easier for him to make that case . . . . It is more generous to the employee" than Wards Cove "but not so draconian to business" as Kennedy-Hawkins.
On another major issue, extending to groups other than blacks the right to collect punitive damages, the administration would back off its outright opposition, but allow such damanges for only select complaints, such as proven sexual harassment.
In the area of consent decrees, the White House would allow their reopening by persons not party to an original suit but would tighten the conditions under which such decrees could be challenged. Officials consider this the least contentious of the major issues in dispute.
The new compromise efforts come a month after a highly publicized series of meetings Bush held on the legislation in which the administration's internal conflict was on display. Various officials said at the time that the president had "minimal problems" with Kennedy-Hawkins and others cited major problems. Some officials said Bush would never veto a major civil rights bill while others, White House Chief of Staff John H. Sununu in particular, insisted he would veto such legislation if it were "a quota bill."
In the past month, two officials said, there has been "a series of meetings to try to walk through these very complicated issues one by one" to reach agreement inside the administration before taking the position public. One official said the administration "is getting there but we are not there yet."
At the same time, Sununu invited Kennedy to the White House for a meeting last Friday that one senior official called "an invitation to begin" compromise discussions without a specific line-by-line administration compromise position offerred.
No date has been scheduled for Senate debate on the legislation, but civil rights groups are pushing the Democratic Senate leadership to begin debate late next week, when Mandela will be touring the country.