Court Backs Off On Job-Bias Issue

Congress may try to undo some case decisions. US SUPREME COURT

UNITED States courts have backed away from expanding individual rights through affirmative-action cases, leaving it to Congress to remedy racial bias in the work place. When US legislators reconvene on Jan. 23, they may try to modify recent US Supreme Court civil rights rulings that have made it more difficult to prove racial, or gender, bias in court.

These rulings have also cleared the way for legal challenges to court-approved agreements that have given preference to minorities and women in hiring for government jobs; they have also blocked the use of civil rights statutes in fighting racial harassment in the workplace.

Meanwhile, the high court has just accepted a new case that could broadly affect affirmative action. It will test the constitutionality of federal programs designed to increase the number of radio and television stations owned by minorities. In so doing, the justices may decide what limits may be placed in devising any program that gives minorities a preference in competing for government benefits.

Sen. Edward Kennedy (D) of Massachusetts heads a coalition of political liberals concerned that the new conservative majority on the Supreme Court, and the large number of right-of-center judges that President Reagan appointed to the lower federal courts, could endanger more than two decades of civil rights progress.

Some court-watchers say the court's new reluctance to even take cases where lower federal courts have narrowed minority rights is having a negative effect on affirmative action.

Ralph Neas, executive director of the Leadership Conference on Civil Rights, says his organization and others are trying to ``reinstate the scope of coverage'' of rights laws that have been in place for the past quarter century.

Affirmative action divides liberals and conservatives as do few other issues. During the past year, for example, the new majority on the Supreme Court - conservatives Anthony Kennedy, Sandra Day O'Connor, William Rehnquist, Antonin Scalia, and Byron White - has narrowly outvoted its more moderate and liberal counterparts, Harry Blackmun, William Brennan, Thurgood Marshall, and John Paul Stevens.

Racial bias seldom commands the public spotlight as do more emotional social issues, including abortion and the death penalty. The effect, however, may be just as far-reaching.

Liberals consider affirmative action a natural extension of the civil rights revolution championed by Martin Luther King Jr. Many conservatives, on the other hand, look at these programs as court-prescribed ``social engineering'' that has often put innocent whites at a disadvantage so that more blacks could be brought into the mainstream.

According to some sources, Congress may try to modify, or reverse, Supreme Court rulings on cases that include:

Patterson v. McLean Credit Union, which said a post-Civil War law forbidding discrimination in contracts applies to hiring agreements, not on-the-job bias.

Wards Cove Packing Company Inc. v. Atonio, which held that in cases brought under Title VII of the Civil Rights Act of 1964, the plaintiff has the burden of proving that an employer had no business reasons for a practice with a discriminatory effect.

Martin v. Wilks, where the court decided that nonparties to a court-approved affirmative action plan can challenge the plan as reverse discrimination, even years after it is adopted.

City of Richmond v. J.A. Croson Company, which struck down a plan that set aside 30 percent of construction contracts for minority-owned businesses.

The picture has not been all bleak for advocates of affirmative action.

Just before Christmas, the US Supreme Court let stand a ruling that permits a minority set-aside program to continue what was developed by black government workers and their employers at Warner Robins Air Logistics Center near Macon, Ga.

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