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Bias in the name of civil rights

Between May 1 and June 22 of last year, the Supreme Court decided six civil rights cases. Now Sen. Edward Kennedy, D-Mass., and Rep. Augustus Hawkins, D-Calif., have introduced companion bills to overturn the opinions. The effect of the legislation would be to tilt the playing field of employment decisions in favor of complaining employees and against defendant employers. None of the six cases involved any landmark issues of constitutional law. These were statutory decisions, one of them involving a Civil Rights Act of 1866, five of them involving the Civil Rights Act of 1964. The Kennedy-Hawkins bill, if it passes, would not turn the world upside down, but it would shift burdens of proof and would instruct federal courts to interpret the Civil Rights Act "broadly."

The most significant provision would change certain ground rules laid down by the high court in Wilks Cove Packing Co. vs. Frank Antonio. This was a 5-4 decision involving two salmon-packing canneries in Alaska. Justice Byron White spoke for the majority. The record showed that the companies divided their summer work force into unskilled cannery jobs and more or less skilled non-cannery jobs. The former were held largely by Filipinos and native Alaskans, the latter mostly by white professionals.

The case turned on what is known in civil rights law as the theory of "disparate impact." The theory prohibits employment practices that are "fair in form but discriminating in practice." White found that the statistical evidence established a disparate impact, but there was not sufficient proof that the companies intentionally had discriminated. To show racial imbalance in one segment of a plant does not establish a prima facie case of disparate impact in another segment.

Kennedy and Hawkins would lay a burden on employers to prove that such disparities "are required by business necessity." Their bill would relieve complaining workers of singling out specific practices that lead to racial imbalance. The trouble with this change in the law is that prudent employers, if they wish to avoid costly litigation, would have no effective recourse but to go to racial quotas. This is an unmitigated evil that Congress should reject out of hand.

Another significant amendment would reverse the Supreme Court's opinion in Price Waterhouse vs. Ann B. Hopkins, decided on May 1. The case involved the accounting firm's refusal to award a partnership to an aggressively successful woman.

There was no question in Price Waterhouse that Hopkins had offended her male associates by her brusque and "macho" personality. Sex to one side, the company contended that there were independent, legitimate reasons for denying the partnership to her. Justice William Brennan's majority opinion would require a company, in such circumstances, to prove that legitimate reasons, standing alone, would lead to the same decision.

Under the pending bill, an aggrieved employee would have to show only that sex (or race) was not "the" motivating factor but was simply "a" motivating factor. There would be no balancing of permissible and forbidden considerations.

In recent years attorneys have brought many cases under terms of an act of 1866. In Brenda Patterson vs. McLean Credit Union, the court held 5-4 that the act should be literally construed to apply only to the "making" and "enforcing" of contracts. Brennan in dissent called the interpretation "needlessly cramped."

Under Kennedy-Hawkins, the Brennan view would prevail. Discrimination would be forbidden not merely in making and enforcing, but also in all "benefits, privileges, terms and conditions" of a contract.

Under the Civil Rights Act of 1964, judgments generally are limited to back wages. Kennedy-Hawkins would authorize both compensatory and punitive damages. In effect, their bill would just about nullify the 1866 law; for all practical purposes (and especially for attorneys' fees) there would be little advantage in relying upon the Reconstruction statute.

Other changes in Kennedy-Hawkins are mostly lawyer stuff. What matters is the animating spirit behind the bill. Kennedy and Hawkins begin with a presumption that employers are by nature a bunch of sexists and racists. Employees are their persecuted victims. The attitude makes for great demagoguery but for very poor law. The real world is not so neatly black and white.

Universal Press Syndicate

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