A SMALL coterie of opponents to the Civil Rights Act of 1990 have sought to advance their cause by labeling the act ``a quota bill.'' Nothing could be further from the truth. The act does not mandate quotas. Nor does it even encourage or authorize the institution of quotas as one of the remedies available to victims of discrimination. The American Jewish Committee is an organization long opposed to quotas and is a strong supporter of the bill.
Behind the specifics of this legislation to restore and strengthen civil rights protections are people: people whose lives will be, and already have been, dramatically and negatively affected by the weakening of laws against employment discrimination. When members of our society are adversely affected, society itself stands weakened.
The Civil Rights Act of 1990 would remove substantial barriers to relief from employment discrimination that face women and racial, religious, and ethnic minorities, barriers that have resulted from several recent Supreme Court decisions that overturned established law.
Among its goals, the bill would reestablish a Supreme Court standard first developed in 1971 in Griggs v. Duke Power Co. Before the court reversed itself in the June 1989 Wards Cove decision, the Griggs precedent stood for nearly 20 years, without once resulting in racially based numerical quota systems.
The standard enunciated in the Civil Rights bill, taken nearly verbatim from Griggs, recognizes a fair distribution of legal responsibility in cases of employment discrimination by providing that, if a plaintiff links an employment practice with a discriminatory or disparate impact, the employer then must prove the business necessity of that practice. The initial burden upon the plaintiff is significant. The plaintiff must not only first prove that a statistically significant disparity exists that presents a pattern of discrimination, but also that a link exists between the specific employment practice or group of practices and the discrimination.
Thus, contrary to the bill's opponents, the Civil Rights Act would not permit an aggrieved worker to attack an employer's ``employment process'' merely because a racial imbalance exists. Rather, he or she must prove a causal connection. Only then does it become the burden of the employer to prove, as a defense, that the specific practice or group of practices ``bears a substantial and demonstrable relationship to effective job performance.''
CONTRARY to statements by the bill's opponents, before Wards Cove, employers satisfied the business necessity standard without resorting to quotas. In fact, under Griggs, many employers were able to prove that a challenged employment practice was necessary for the success of the business, and thus the cases were dismissed.
An employer is far better equipped to show the necessity for a given employment standard than is an employee to show that there is no such need. After all, such information is available to employers, rarely to employees.
The bill's opponents cite other alleged problems. Faced with the almost 20 years of evidence to the contrary, opponents claim that ``conservative legal counsel,'' fearful that their clients would be dragged into court, would now advise employers to institute quotas as a safety measure. Such counselors must not have been in practice between March 8, 1971, when the Griggs decision was handed down, and June 5, 1989, when Wards Cove overturned Griggs - or they failed to make such recommendations, or employers chose not to go along with their recommendations. In the years following Griggs, the court required employers to remove subjective tests which had a discriminatory impact, among other barriers, but never once required an employer to utilize quotas for hiring.
Opponents further assert that the Civil Rights Act of 1990 would lead to endless litigation and costs. Again, no data exists to support the claim. In fact, a strong case can be made that the bill would discourage litigation. Moreover, such litigation that may be brought, according to studies of litigation under a related civil rights statute, as a rule has not led to large verdicts. Opponents also charge that the bill and its policy of ``quotas-by-threat'' is another example of affirmative action gone awry, violating basic principles of equal justice. Not only is such a charge false, but it fails to distinguish among the many forms of affirmative action, including goals and timetables, that measure performance and encourage universities and employers to seek out qualified applicants.
The quota scare tactic is much ado about nothing. What is important is what the Civil Rights Act of 1990 would accomplish once it is approved by Congress and signed into law. Our government would then send the important signal that justice must not be denied; that this country will neither tolerate nor support employment discrimination; and that for the ethical, moral, and economic well-being of this nation such discrimination must not be allowed.