Behind the rhetoric, the maneuvering over vetoes and overrides, and the dickering over adjectives in the civil rights bill is a very real struggle for courtroom advantage.
What will be the weapons available to each side when an employee sues an employer alleging subtle patterns of bias? How specific in documenting those patterns must the employee be to mount a case? What arguments can the employer use to get the case thrown out?
If the courtroom balance tips too far against employers, the White House contends, the bill will lead businesses to adopt quotas. But that is a matter of opinion: the bill states that it should not be interpreted as requiring quotas.
Whether President Bush decides to veto the bill -- and how Congress reponds if he does -- will help determine the outcome of so-called "unintentional discrimination" cases that have wrought significant changes in the workplace over the past 20 years.
At issue are lawsuits that attempt to eliminate intentional or systematic discrimination by attacking practices such as requiring certain physical characteristics for female firefighters. Typically, a group of workers will present statistics in court that show an imbalance in their company's work force compared to the pool of qualified job candidates, and will then attempt to demonstrate the unfairness of whatever practice caused the disparity.
For nearly two decades, employees mounted such suits using rules set forth by the Supreme Court in Griggs v. Duke Power Co. In that 1971 decision, the justices said practices that operate as "built-in headwinds" against women and minorities constitute as much a violation of civil rights as instances of deliberate discrimination.
Then last year, in Wards Cove Packing Co. v. Atonio, the high court threw out some of the Griggs rules and made cases of unintentional discrimination more difficult to win. Wards Cove required workers to pinpoint alleged sources of discrimination more exactly and demanded a new, greater burden of proof.
Under Griggs, once workers reached a certain legal threshold, it was up to employers to prove that their practices were justified by "business necessity." Under Wards Cove, workers bear the burden of proving that the practices are not justified.
Wards Cove also appeared to water down the standard of "business necessity" by requiring only that practices serve "legitimate employment goals."
The civil rights bill approved by both the House and Senate is somewhere in the middle. It would shift the burden of justifying employment practices back to the employer and would basically restore the standard of "business necessity." The bill states that employment practices that discriminate "must bear a significant relationship to successful performance of the job," language similar to that in the Griggs decision.
But the legislation still would require workers to pinpoint the practice that led to a discriminatory result, unless a judge finds that it is impossible to be specific on the basis of an employer's records.
White House aides argue that even after this revision, the bill's language is so favorable to employees that employers would be forced to adopt de facto quotas to protect themselves from being sued -- an argument that some legal experts consider more a rallying cry than a real expectation.
The bill's supporters argue that if the White House is right, Griggs should have triggered widespread adoption of quotas. They cite testimony by Charles Fried, former solicitor general under president Ronald Reagan and now a Harvard law professor, who told the Senate earlier this year that the Griggs decision did not trigger "a general move towards quotas."
The White House counters that the bill actually would go further than Griggs in the burden it would place on employers and would thus force businesses to turn to quotas.
The White House is no longer actively opposed to the bill's expansion of remedies for victims of intentional discrimination -- the one area where the legislation would clearly break new legal ground. The bill would allow victims in such cases to collect punitive damages, but would cap such awards at $150,000 or the amount of compensatory damages plus lost pay, whichever is greater.
Currently, only victims of racial discrimination can seek punitive damages; victims of sex or religious bias are limited to compensatory damages.
But on the central question of how easy it should be to bring unintentional discrimination suits, the two sides are still at odds, despite a flurry of meetings Thursday, administration officials said yesterday.
As now written, one official said, the bill could be interpreted to prohibit a supermarket in a Hispanic neighborhood from hiring only Spanish-speaking cashiers, because "you certainly don't need to speak Spanish to run a checkout machine," the official said.
Ralph Neas, director of the Leadership Conference on Civil Rights, said that the legislation would in all likelihood allow the supermarket to require bilingual cashiers. But "a black who can speak Spanish" and is denied a job "might have a cause of action," he said.