Statement of Administration Policy: S. 1745 - Civil Rights Act of 1991

(Senate)
(Danforth (R) Missouri and 6 others)

If S. 1745 were presented to the President in its current form, his senior advisers would recommend a veto. The bill suffers from essentially the same major problems as H.R. 1, which was passed by the House of Representatives this year, and last year's Kennedy-Hawkins bill, Which the President vetoed.

S. 1745 is a quota bill. The "disparate impact" provisions would overturn two decades of Supreme Court precedent, replacing this settled body of law with novel rules of litigation that will drive employers to adopt quotas and other unfair preferences. Employers who have not intentionally discriminated against anyone, but whose bottom-line numbers are not "demographically correct," will risk being dragged into lawsuits where the deck is stacked in ways that make a successful defense almost impossible.

In addition to flawed provisions dealing with the prima facie case and with "alternative employment practices," S. 1745 also defines the "business necessity" defense much too narrowly. S. 1745, for example, would prevent employers from defending a host of perfectly legitimate hiring and promotion criteria, including educational standards that all of our students should be encouraged to meet.

To suggest that the addition of eight words taken from the Americans with Disabilities Act ("ADA") represents an improvement in the definition of business necessity is incorrect. These words do not define "business necessity" either in the ADA (which uses "business necessity" as an undefined term) or in S. 1745. Nor does the use of these eight words materially alter the definition in S. 1745's predecessor bill (S. 1408). The same words could be inserted into the President's bill without changing its meaning. The Administration would have no objection to including these eight words in the President's bill.

S. 1745 is also a quota bill because it would close the courts to those who have been victimized by quotas in consent decrees. This provision is both manifestly unjust and unconstitutional. It would, moreover, create new incentives for collusive lawsuits in which employers would be encouraged to settle complaints by one portion of their workforce by illegally bargaining away the rights of another group of employees.

S. 1745 would also create a lawyers' bonanza. It provides for jury trials and compensatory damages in all cases under Title VII of the Civil Rights Act of 1964, along with punitive damages in many cases. (As currently written, the bill would even make damages available in disparate impact cases, which goes beyond H.R. 1 and last year's Kennedy-Hawkins bill.) These damages provisions would transform Title VII from its original design, which emphasizes conciliation and make-whole relief, into an entirely different structure modeled on our Nation's tort system — which is now widely recognized to be in a state of crisis.

S. 1745 continues the congressional pattern of exempting itself from the civil rights laws. Although the bill includes provisions that purport to extend coverage to Congress, S. 1745 grants no judicially enforceable rights to congressional employees.

The Administration's Proposal

The Administration's proposal, S. 611, would strengthen our Nation's civil rights laws without creating powerful new incentives for quota hiring. S. 611 also avoids subjecting American businesses, and the victims of discrimination, to endless and excessively costly litigation.

Like S. 1745, the Administration bill would overturn the Lorance and Patterson decisions; overturn Wards Cove by shifting the burden of proof to the employer in defending "business necessity;" authorize expert witness fees in civil rights cases; and extend the statute of limitations and authorize the award of interest against the U.S. Government.

The Administration bill would make available new monetary remedies under Title VII, up to $150,000, for victims of sexual harassment in the workplace. The Administration bill also includes special provisions creating incentives for employers to prevent and correct sexual harassment without waiting for lawsuits to be filed. Finally, the Administration bill extends Title VII to apply to Congress.

In sum, the Administration bill achieves every legitimate goal of S. 1745. These important new protections for American employees should not be held hostage for S. 1745, which will produce quotas and other forms of unfair preferential treatment, disproportionately disadvantage small and medium-sized businesses, and unduly enrich the plaintiffs' bar.